Image Courtesy:thestatesman.com
The Supreme Court, on June 4, passed an order protecting private employers from coercive action if they fail to comply with the March 29 order of the Ministry of Home Affairs that directed paying full wages during the lockdown. The relevant part of the MHA order reads as follows:
“All the employers, be it in the industry or in the shops and commercial establishments, shall make payment of wages of their workers, at their workplaces, on the due date, without any deduction, for the period their establishments are under closure during lockdown period.”
It further spoke of coercive action if the above-mentioned direction is not followed:
“It is further directed that in case of violation of any the above measure, the respective State/UT shall take necessary action under the act”.
The Supreme Court heard a batch of petitions challenging this order and after hearing all submissions reserved orders on the petitions for June 12 and until then protected private employers from coercive action.
Attorney General’s submissions
The Attorney General (AG), KK Venugopal responded to these petitions saying that the purpose of the notification was for preventing human suffering. The intention behind the notification was to ensure that the migrant workers stay put in their migrated locations to prevent their movement to their native states or cities.
The bench, comprising Justices Ashok Bhushan, SK Kaul and MR Shah, expressed their reservations over the mandate to pay 100% wages, “The question is do you have power to get them to pay 100 per cent and on their failure to do so, prosecute them… There is a concern that workmen should not be left without pay, but industry may not have the money to pay,” said Justice Kaul.
The MHA’s counter affidavit said that financial incapacity of private employers is a legally untenable ground to challenge a direction issued by a competent authority and stated that the notification was for mitigating the financial hardship of workers specially contractual and casual workers.
Justice Bhushan observed that such a situation warranted some negotiations between employers and workers to figure out what can be done for their financial security, with the government being the facilitator.
Petitioners’ submissions
Since the court has combined several petitions challenging the MHA order, the petitioners were represented by different counsels. Counsel for B4S Solutions Pvt Ltd, Senior Advocate KV Vishwanathan stressed upon the need of “proportionality” as being a paramount consideration in times of such crisis, while stating that the order was unfair on employers. He further argued that taking coercive action against employers for non-compliance would be antithetical to the intent of the notification in the long run as the industries who have no resources to pay would be forced to eventually shut down.
Advocate Jeetendra Gupta for another petitioner challenged the jurisdiction of MHA to pass the notification and asked the government to use the surplus fund with ESI for payment of minimum wages.
Advocate Varun Singh for another petitioner said it was the government’s responsibility to mitigate workers’ issue, “Why am I being made to suffer as an industry,” he questioned.
Arguments on behalf of workers
Senior Advocate Indira Jaising appeared on behalf of the workers and said, “the authority that imposed the lockdown is responsible for protection of those who are affected”. She argued that if the lockdown order wasnot being challenged then the MHA order also could not be quashed.
She contended that the workers were willing to work and this lockdown was not their fault and, in this situation, the “no work no pay” principle stood as an antithesis to Articles 14 [right to equality] and 21 [right to life] of the Indian Constitution.
While pronouncing guidelines and orders for Lockdown 4.0 which is till May 31, it has ceased the operation of its previous orders which includes the March 29 order as well. In its order dated May 17, the MHA stated, “Whereas, save as otherwise provided in the guidelines annexed to this Order, all orders issued by NEC under Section 2(10)(I) of the Disaster Management Act, 2005 shall cease to have effect from May 18, 2020.” This was brought to the notice of the bench.
This means that MHA has given up the power to decide on this issue to the states and the states may come up with their own rules to that regard, if they wish to. Thus, private employers are no longer bound to pay their employees as per the MHA order but only the labour laws will apply. So, if the employee is not even working from home, he is not entitled to receive payment as per law.
The complete order can be read here.
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