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Image Courtesy: The Singareni Collieries
 
The abrupt abortion of the coal strike has virtually drawn curtains over the 15-years stand-off between the trade unions and the Government over allowing private sector to mine coal for sale in the open market.
The strike call-off served as the face-saver both for the unions and the Government. Face-saver for the NDA Government because it neither made any sincere effort to avert strike nor declared it illegal. 
NDA’s approach towards the coal strike threat in 2015 is substantially different from the one it adopted in 2002 when it was also in the power. 
An analysis of the strike threats during the two periods would show how NDA Governments reacted in contrasting ways in 2002 and 2015, thereby raising issues about its self-certification for smart governance. 
The withdrawal of agitation under the garb of an agreement dated 7th January 2015 served as a face-saver for the unions. If the strike would have run its full course, it might have proved to be an attempt to derail SC-mandated coal reforms. 
In any case, the public is in no mood to support ideological agitation that results in economic and social hardships. The trade unions knew that they would not be able to withstand the Government crackdown if the strike had led to power outages and load-shedding. 
The call-off of the five-day strike mid-way offers important lessons for all stakeholders –the Executive, the Legislature, the Judiciary and the trade unions. 
It is important to deduce crucial lessons because the 15-year strike threat by public sector coal workers has done incalculable harm to the economy, employment generation and the youth, who have been largely reduced to a non-unionized, outsourced class of workers in all sectors.
If trade unions have any genuine concern for the working class, then they should have given a notice for nation-wide strike to demand justice for outsourced and contracted employees including highly educated professionals. 
The called-off agitation traces its origin to Coal Mines (Nationalisation) Amendment (CMNA) Bill, 2000 that was introduced by the BJP-led NDA Government in Rajya Sabha on 24th April, 2000. 
CMNA Bill provides for permission to all Indian companies including private ones to mine coal and lignite for sale in the open market. This, in effect implies, breaking the public sector monopoly over sale of domestic coal. 
The All India Workers Federation went on a three-day strike in November 2000 against the Bill. Faced with the prospects of growing agitation, the Government panicked and formed a group of ministers (GOM) in December 2000 to study the demand for withdrawal of the Bill. 
The workers maintained the strike threat like the sword of Damocles sword on the Government. The threat saw Government offering assurances and lollipops to workers for consideration of their demands in mid-2002.
According to an official release dated 2nd August 2002, “The Minister of State for Coal and Mines & Law and Justice, Shri Ravi Shankar Prasad thanked all the workmen of Coal Industry and specifically the leaders of the five recognized All India Trade Union Federations who participated in discussions with the Government on 1st August and also in the conciliation proceedings before the Chief Labour Commissioner (Central) on 1st August.”
It stated: “Minister also referred to settlement on 1st August, 2002 between the management and the Trade Unions wherein a clear process of dialogue at two levels, viz. at the level of the Group of Ministers and with the Department of Coal has been agreed to. The process of dialogue would help in removing the fears workers may have on the coal Mines Nationalisation (Amendment) Bill.” 
NDA Government under the leadership of Prime Minister Atal Bihari Vajpayee suffered policy paralysis with GOM failing to resolve the Bill issue during its entire tenure. When the Congress-led UPA came to power in mid-2004, it did not revive the GOM. 
UPA did not touch CNMA Bill during its two tenures, confirming its aversion for tough core-sector reforms.  Even Modi Government did not retrieve CNMA bill. It jumped on the coal reforms wagon only after the Supreme Court cancelled all coal blocks, except four, awarded to various companies for captive coal mining since 1993. 
Thus, the first lesson is that the Governments of all political hues lack courage to undertake serious reforms that can rattle certain vote banks such as the labour unions and the farmers. The political class needs to introspect on this aspect instead of loud-mouthing its intent to undertake reforms and practice good governance. 
Second, the Supreme Court has emerged as the de facto ultimate arbiter of economic reforms, be it telecom, be it coal, be it genetic engineering, be it hydro power, be it mining and be it gas pricing. The subdued Executive unwittingly needs the Apex Court’s periodic nudging to find the directions for reforms. 
This has an important underlying lesson for investors especially the ones that might get swayed by ‘Make in India’ rhetoric. The lesson is never ever trust policies as everything is subject to change. 
They also must factor in the business risks the potential of public interest litigation (PILs) to derail or alter specific reforms.
Businessmen can’t afford to overlook the risk of even Statute-backed policies being declared unconstitutional for alleged violation of human rights, which overshadow all other considerations in the present judicial framework. 
The Modi Government could have avoided the Coal Ordinance route in October 2014 by reviving the CNMA bill, which is pending in Rajya Sabha till today. It could have moved official amendments to the Bill to incorporate legal initiatives required to implement the Supreme Court’s two-part verdict on coal blocks issued during August-September 2014.
Had the Government followed this strategy, the latest coal strike perhaps would not have happened. Modi Government would have saved itself from the Opposition onslaught as the Bill was recommended by Parliamentary Standing Committee on Energy with an expected dissent note from a few leftist MPs in August 2001.
In the worst case, the Opposition in Rajya Sabha could have turned down the Bill, a situation that could have been easily resolved by convening a joint sitting of both the houses of Parliament for passage of the Bill. NDA, however, is showing signs of political arrogance by marginalizing the legislative functions through the Ordinance route.
The Bill and the PSC report would have helped the Government explain how the 15-year political delay in enactment of the law had left the economy maimed. The country suffered coal shortages and power cuts, leading to muted growth of manufacturing and services sectors during this long haul.
The coal mining imbroglio necessitated massive coal imports and flight of capital to overseas coal mines. The upshot of all this was forego of job prospects for lakhs of youth. 
The organized unions including the ones in public sector banks have thus contributed to paradigm shift in labour markets, where the governments shamelessly compete with the industry in hiring outsourced workers under one-year contracts. If the Unions resort to uncalled for agitations, the day is not far off when the country’s entire workforce would be on contract!
An important lesson from the Coal strike for the Executive is that promulgation of coal ordinance in October 2014 and its re-promulgation as a modified one in December 2014 is bad constitutional governance. 
If the Government repeatedly misuses ordinances as a political weapon against the dominant Opposition in Rajya Sabha, then it would only muddy further legislative waters and political discourse. It faces the risk of PIL in the Supreme Court if ordinances become the governance mantra.  
It is pertinent here to chip in the Apex Court’s observation made in its verdict in a case relating to Ordinance Raj in Bihar in December 1986. 
The Supreme Court observed: “The Executive cannot by taking resort to an emergency power exercisable by it only when the Legislature is not in session, take over the law-making function of the Legislature. That would be clearly subverting the democratic process which lies at the core of our constitutional scheme, for then the people would be governed not by the laws made by the legislature as provided in the Constitution but by laws made by the Executive. The Government cannot by-pass the Legislature and without enacting the provisions of the Ordinance in an Act of the Legislature, repromulgate the ordinance as soon as the Legislature is prorogued.”
The Verdict continued: “A constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the constitutional provision.” 
Reverting back to the called-off strike, NDA Government’s reacted differently this time as compared to its Unions-pampering approach during 2000-2004. It did not make any effort to avert the strike. It did not even issue a single press release on the issue. The indifference can be gauged from the fact that the BSE, Mumbai had to seek information from Coal India Limited (CIL) about the strike.
According to a CIL disclosure to BSE on 22nd December 2014, “We understand from newspaper reports that 4 Trade Unions viz - Indian National Mineworkers Federation (INMFW), Hind Khadam Mazdoor Federation, AITUC-controlled Indian Mine Workers Federation and Bharatiya Mazdoor Sangh met in Ranchi on Wednesday and decided to go on strike at Coal India Limited and its subsidiary companies from 6th January to 10th January'2015. Company is to get official notice from them. As and when the same is received, we shall arrange to go for conciliation process.”
If one goes by CIL’s statements to BSE, one can presume that the strike was illegal under the Industrial Disputes Act (IDA), 1947. Modi Government, however, did not declare the strike illegal and behaved like an ostrich.  
The tripartite agreement for strike call-off signed on 7th January 2015, on the other hand, states that the unions had intimated the authorities about the strike notice on 17th December.  
Assuming the latter version to be correct, no information is available in public domain to show that CIL and/or the Government made efforts to avert the strike through the mandatory channel of Chief Labour Commissioner (Central) under IDA.
The Labour Minister Bandaru Dattatreya reportedly proposed on 6th January (when strike started) the convening of tripartite talks on 13th January 2015. Failure to enforce IDA and comply with its provisions is certainly not smart governance, leave aside the need for notifying production and supply of coal under Essential Services Maintenance Act (ESMA). 
Modi Government’s approach to treat unions with the kid gloves might prove costly for the national growth and jobs in the coming years. The Prime Minister Narendra Modi should have consulted former Tamil Nadu Chief Minister J. Jayalalithaa, who had invoked ESMA effectively to handle the strike by 1.7-lakh State Government employees in July 2003. Amma reportedly got appreciation from the Supreme Court for its firm approach. 
If Modi Government cannot enforce IDA and ESMA, then it should very well repeal them for the sake of economic clarity.
The underlying lesson of coal strike for the Executive and the Legislature is that they have to put their act together to enact laws in time and facilitate good governance. 
As for the judiciary, it should take up cases suo moto on contentious reforms instead of giving verdicts on belated PILs. This would reduce the impact of verdicts-triggered disruptions in the economy. The judiciary also must ensure consistency in its observations on policy matters and scams made over the years.
 
Published by taxindiaonline.com on 13th January 2015
http://www.taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=22523
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