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SC quashes Gujarat notification extending work hours without overtime pay

The Court said that the pandemic cannot be said to be a public emergency under the Factories Act

Sabrangindia 01 Oct 2020

labour

The Supreme Court has quashed a notification issued by the Gujarat government related to daily working hours, overtime and so on, stating that a pandemic cannot be a reason for doing away with statutory provisions.

The bench comprising Justices DY Chandrachud, KM Joseph and Indu Malhotra quashed the notification dated April 17, 2020 of the Gujarat Labour and Employment Department under the Factories Act, 1948 which granted exemptions to factories on provisions relating to daily working hours, weekly working hours, intervals for rest and spread overs and overtime wages.

The bench held that the government cannot do away with statutory provisions that uphold the dignity and rights of workers, citing pandemic as a reason and neither is it a “public emergency” under section 5 of the Factories Act. Section 5 of the Act states as follows:

In any case of public emergency the State Government may, by notification in the Official Gazette, exempt any factory or class or description of factories from all or any of the provisions of this Act [except section 67] for such period and subject to such conditions as it may think fit: Provided that no such notification shall be made for a period exceeding three months at a time.

The section also defines public emergency as “a grave emergency whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance.”

Further this section allows the government to exempt “any factory or class or description of factories” however, the Gujarat government gave a blanket exemption, and the petitioners said that this amounted to misuse of the said section.

The notification was issued for a period of 3 months, as mandated by the law and was valid until July 19, 2020 but the same was extended by another 3 months vide a notification dated July 20, 2020. The exemption made under the notification had meant that workers were being made to work 12 hours a day, 72 hours a week with 30 minutes break after every 6 hrs of work.

The petitioners Gujarat Mazdoor Sabha and Trade Union Centre of India in the plea moved through Advocate Aparna Bhat stated that prior to the notification, it was a 9 hour work day with one weekly off and 48 hrs weekly hours with 30 minute breaks after every 5 hours of work.

LiveLaw reported that the petitioners contended, "the shocking extension of working hours is being directed at a time when the most basic medical and scientific advice to contracting the deadly COVID19 is to take rest and stay as healthy as possible. This new regime ensures the complete opposite.. as per the notification, these workers will now be overworked without being compensated for the same as per law which will only ensure that both their physical and mental health deteriorate". 

The notification also violated section 59 of the Act that mandates payment of double rate for hours exceeding 9 hours of the day as it was paying the usual hourly rate even for overtime hours.

There are several other states that passed similar notifications affecting rights of labourers. A petition filed by a law student Nandini Praveen, through Advocate Nishe Rajen Shonker had challenged the constitutional validity of the notifications issued by Gujarat, Rajasthan, Haryana and Himachal Pradesh, Uttarakhand, Uttar Pradesh, Madhya Pradesh, Assam, Punjab, and Goa. In the wake of this order, the fate of this petition can also be decided whenever it finds its way to the bench.

Related:

Labour Codes Issues: Spelling out the ABCs

Labour laws and rights in peril in India?

Battle against dilution of labour laws to culminate in Supreme Court?

SC quashes Gujarat notification extending work hours without overtime pay

The Court said that the pandemic cannot be said to be a public emergency under the Factories Act

labour

The Supreme Court has quashed a notification issued by the Gujarat government related to daily working hours, overtime and so on, stating that a pandemic cannot be a reason for doing away with statutory provisions.

The bench comprising Justices DY Chandrachud, KM Joseph and Indu Malhotra quashed the notification dated April 17, 2020 of the Gujarat Labour and Employment Department under the Factories Act, 1948 which granted exemptions to factories on provisions relating to daily working hours, weekly working hours, intervals for rest and spread overs and overtime wages.

The bench held that the government cannot do away with statutory provisions that uphold the dignity and rights of workers, citing pandemic as a reason and neither is it a “public emergency” under section 5 of the Factories Act. Section 5 of the Act states as follows:

In any case of public emergency the State Government may, by notification in the Official Gazette, exempt any factory or class or description of factories from all or any of the provisions of this Act [except section 67] for such period and subject to such conditions as it may think fit: Provided that no such notification shall be made for a period exceeding three months at a time.

The section also defines public emergency as “a grave emergency whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance.”

Further this section allows the government to exempt “any factory or class or description of factories” however, the Gujarat government gave a blanket exemption, and the petitioners said that this amounted to misuse of the said section.

The notification was issued for a period of 3 months, as mandated by the law and was valid until July 19, 2020 but the same was extended by another 3 months vide a notification dated July 20, 2020. The exemption made under the notification had meant that workers were being made to work 12 hours a day, 72 hours a week with 30 minutes break after every 6 hrs of work.

The petitioners Gujarat Mazdoor Sabha and Trade Union Centre of India in the plea moved through Advocate Aparna Bhat stated that prior to the notification, it was a 9 hour work day with one weekly off and 48 hrs weekly hours with 30 minute breaks after every 5 hours of work.

LiveLaw reported that the petitioners contended, "the shocking extension of working hours is being directed at a time when the most basic medical and scientific advice to contracting the deadly COVID19 is to take rest and stay as healthy as possible. This new regime ensures the complete opposite.. as per the notification, these workers will now be overworked without being compensated for the same as per law which will only ensure that both their physical and mental health deteriorate". 

The notification also violated section 59 of the Act that mandates payment of double rate for hours exceeding 9 hours of the day as it was paying the usual hourly rate even for overtime hours.

There are several other states that passed similar notifications affecting rights of labourers. A petition filed by a law student Nandini Praveen, through Advocate Nishe Rajen Shonker had challenged the constitutional validity of the notifications issued by Gujarat, Rajasthan, Haryana and Himachal Pradesh, Uttarakhand, Uttar Pradesh, Madhya Pradesh, Assam, Punjab, and Goa. In the wake of this order, the fate of this petition can also be decided whenever it finds its way to the bench.

Related:

Labour Codes Issues: Spelling out the ABCs

Labour laws and rights in peril in India?

Battle against dilution of labour laws to culminate in Supreme Court?

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