Joint Consultative Machinery - Procedure regarding functioning of and recording of Agreement/Disagreements

No.4/2/79-JCA
Government of India
Ministry of Home Affairs
( Department of Personnel and A.R.)

New Delhi, the 20th July, 1980

OFFICE MEMORANDUM

Subject:-
Scheme for JCM-Departmental Councils – Procedure regarding functioning of and recording of Agreement/Disagreements.

The undersigned is directed to say that the Staff side of the National Council submitted the following for discussion during the 23rd Ordinary Meeting of the National Council which was held on the 2nd / 3rd February, 1979:-

The Official Side after having discussed the issues threadbare hesitate to record disagreement because under some instructions which are confidential from the Staff Side they had to consult the Department of Personnel before recording disagreement; and

The Official Side refer the matter to the Ministry of Finance and convey to the Staff Side that the Finance Ministry does not agree. This type of reference makes mockery of the whole scheme under which discussions will have to take place across the table.

These points were discussed by the Official side prior to the meeting of the Council. Cabinet Secretary and Chairman of the Council desired that the procedures for functioning of the Departmental councils ( the points mentioned above having emanated from the working of the Department Council ) particularly for recording of agreement / disagreements, either in such Council or in their sub-committee, should be given a fresh look.

2. As regards (i) above, instructions* had been issued in 1967 where it was laid down that the Official Side should conclude matters at the meetings of the Councils and not reserve them for later decision by Government. For a proper discharge of this responsibility, the Official Side representatives are expected to consider the items on the Agenda well in advance of the meeting and obtain clearance / concurrence from the concerned authorities at the appropriate level before they attend the meetings of the Council so that they can speak and commit themselves on behalf of the Government. On items submitted by the Staff Side of the Council which may have horizontal coverage the Official Side should consult the concerned Ministries / Departments well before the meetings. If the various items on the Agenda are adequately examined before the meeting of the National / Departmental Council for which already a notice of 8 weeks is given by the Staff Side and Ministries / Departments also get in practice a notice of more than 4 weeks for taking Government decisions on the items and preparing official briefs on the subject – there should not be any difficulty for the Official Side to take a stand in the matter on behalf of Government and, if considered necessary, record disagreement. The prompt decision would remove the complaint of the Staff Side that the Official Side do not come equipped with the Government’s decisions in the matter, or consult Department of Personnel. As it is, the notice period available with the Departments should be considered adequate for obtaining the decision of the Government. If for some reason it is not possible to project the final view of the Government in the Council meetings, the concerned Department must commit a time-frame, usually not exceeding a month from the date of the meeting within which the Government could arrive at some finality on the subject. In the following meeting, there should arise no occasion for the Official Side to seek further postponement of recording of the disagreement, if the Staff Side so presses. All consultation with the concerned Departments / approval of the Cabinet, where necessary, etc. should be completed within this period.

On items which are clearly arbitrable under Clause 16 of the JCM Scheme instructions** were issued in 1968, enjoining on the Ministries / Departments to make a report to the Cabinet as soon as reference for arbitration on items relating to "Pay and Allowance" was received. However, in order to ensure that the Cabinet got adequate opportunity to consider the matter, it was decided in 1970 that on an item relating to "Pay and Allowance" before the Departmental / National Council on which there was no likelihood of agreement between the Official Side and the Staff Side either during discussion in the Council or in the Committee of the Council, the Administrative Ministry concerned should submit the matter*** for consideration of the Cabinet before a disagreement was recorded.

Before submitting the Note for the Cabinet, the Department of Personnel are required to be consulted. In regard to disagreements on items which are not arbitrable under Clause 13 of the JCM Scheme Government is required to take action according to its own judgement. However, a convention has been established in the National Council**** by which the Staff Side of the National / Departmental Council if they so desire, can place their points of view before a Committee of Ministers consisting of Home Minister, Labour Minister and the Minister administratively concerned with the subject. The sub-Committee set up by the National / Departmental Council being subordinate to it, should submit their reports to the Council. Only after a final disagreement is recorded at the meeting of the Council, the procedure detailed above will apply depending on whether the items are arbitrable or non-arbitrable. Thus for recording disagreements on non-arbitrable issues, there are no instructions enjoining prior consultation with the Department of Personnel.

As regards the second point, the complaint of the Staff Side is that the Official Side often refer matters to the Ministry of Finance and then convey to the Staff Side that the Finance Ministry does not agree. In all such cases where approval of Ministry of Finance is required, the concerned Department is required to hold consultations with the Ministry of Finance before attending the meeting of the Council and decide the Official side approach to the item of the Agenda, so that in the meeting itself whatever views have been decided upon may be transmitted to the Staff Side. When the Official Side takes a view or stand, it is done on behalf of the Government and any reference by the Official Side to the Ministry of Finance or the Department of Personnel or any other wing of the Government as the authority rejecting the proposals causes needless embarrassment and must be avoided.

Since the Department of Personnel is the nodal agency for JCM as a whole any doubt in regard to the arbitrability or otherwise of an item is required to be referred to this Department and its opinion sought before the Joint Council meetings take place and, as stated, before submitting the Note for Cabinet, seeking approval to record disagreements on an arbitrable issue, whether it pertains to National or Departmental Council. But there is no need for further consultation with the Department of Personnel after recording disagreement, except that references to the Board of Arbitration will have to be routed through this Department.

4. In order to expedite the disposal of cases, especially in regard to arbitrable matter, attention is invited to the instructions***** issued in 1968, which lay down the following:-

"From the National Council, the request for arbitration will be made directly to the Secretary, Ministry of Labour by the Home Ministry on behalf of the National Council. This will be in the form indicated in the Annexure."

"From the Departmental Council the communication to the Ministry of Labour, as in the Annexure, may be routed through the Ministry of Home Affairs. The Ministry of Home Affairs will forward the reference to the Ministry of Labour and Employment within a period of 15 days. This time limit will be strictly observed."

5. While reiterating the above instructions, this Department would emphasis that the following steps may be kept in view for processing the agenda items in the meetings of the Departmental Council of the JCM:-

The agenda items for the next meeting should be obtained from the Staff Side at least six weeks in advance and should be scrutinised to see that the items are admissible and do not have repercussions on other Departments: if they do the correct forum to discuss such items would be National Council, and a reference may be made to the Department of Personnel & A.R. at that stage itself so that the issue gets sorted out in time.

The Agenda items which are not proposed to be admitted should be discussed with the representatives of the Staff Side so that the items can either be modified or dropped after such discussions.

The items should thereafter be processed with a view to deciding the stand to be taken by the Government on these items and where necessary the concurrence of Internal Finance / Ministry of Finance / Department of Personnel & A.R. should be obtained well in time so that a decision can be taken in the meeting itself. In case of doubt whether a demand is arbitrable under clause 16 of the JCM Scheme or not, the Department of Personnel & A.R. may be consulted in advance.

The items on which it is proposed to record a disagreement and which can be referred to the Board of Arbitration should be placed before the Cabinet for their consideration and / or orders before a disagreement is recorded. Earlier instructions stipulated seeking prior Cabinet approval on only some selective items out of array of arbitrable items. Those instructions were issued under certain circumstances which have changed with the time. In the light of experience it has now been considered that on all arbitrable items, prior Cabinet approval may be taken if it is felt that disagreement is likely to be recorded.

The items which have some impact on other Departments or pertain to their field should be considered in consultation with such Ministries / Departments. If considered necessary a formal brief from those Ministries / Departments should also be obtained so as to ensure that it receives proper consideration in so far as it relates to their sphere of responsibility.

Before a demand is accepted in the meeting of the Departmental council, prior consultations should take place with the authorities concerned e.g. the Ministry of Finance, Department of Personnel etc. so as to avoid embarrassing situations subsequently. It may once again be emphasised that the Official Side in a Departmental Council represents the Government and whatever final view is taken, either in consultation with others or without, represents the view of the Government. Therefore, it would be inappropriate to take the position later that an item cannot be accepted because a particular Ministry or Department did not agree to the same.

As soon as a disagreement is recorded, it should be referred to the Board of Arbitration through the Department of Personnel without any delay and in any case within two weeks of finalising the terms of disagreement.

6. The Ministry of Finance etc. are requested to bring the above procedure to the notice of all concerned and to advice the Official Side members to prepare themselves well in advance before the meeting of the Departmental / National Council and take Government’s orders at the appropriate level on the items with which they are concerned so that they could take decision on the items in the Departmental / National Council.

Sd/-
BATA K. DEY
Deputy Secretary to the Govt. of India