Ref: order dated 12.06.2020 by Supreme Court of India

Various writ petitions were filed before the Supreme Court of India by different employers, employers’ associations questioning the orders issued under Disaster Management Act, 2005 and other linked orders, directing all the employers be it in the industries or in the shops, commercial establishment, shall make payment of wages of their workers, at their work place, on the due date, without any deduction, for the period their establishments are under closure during the lockdown.

Question of law and interpretation:

1. D.O. dated 20.03.2020 issued by the Secretary, Government of India, Ministry of Labour and Employment, and Orders dated 29.03.2020 which was passed in exercise of power under Section 10(2)(l) of the Disaster Management Act, 2005 stood withdrawn by subsequent order dated 17.05.2020 w.e.f. 18.05.2020, which obligated the employers to pay the wages without any cut during the period when said order was in force, hence it is to be decided whether such orders were ultra vires to Disaster Management Act, 2005, as well as violative of Article 14, Article 19(1)(g) and Article 21 of Constitution of India;
    
2. Whether Section 10(2)(l) is interpreting as conferring power to Central Government to direct the private employers to make full payment of wages to the employees during the period of lockdown.
    
3. Whether orders/notifications as issued by government/ministries are contrary to the principles of Equal work Equal Pay and also No work No pay, for it does not differentiate between the workers who are working during the lockdown period in establishment.

Mpunged Order By Ministry Of Home Affairs
Pursuant to section 10(2)(l) of Disaster Management Act, 2005, Ministry of Home Affairs vide its order dated 29th March, 2020, issued some directions as measures to be taken for containment of spread of COVID-19 in the country. One of the following additional measure is as under:

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 work places, on the due date, without any deduction, for the period their establishments are under closure during the lockdown.

All states/UTs were directed that it shall take necessary actions under the Act, in case of violation of any of the above measures.

Petitioners Prayers:

1. If above notification/order turned good in eyes of law, stable and solvent industrial establishment can be forced into Insolvency and loss of control of Business;
    
2. The government/ministries should not compel the employers to pay the wages for the lockdown period but instead should utilise the funds collected by Employees State Insurance Corporation (ESIC) to make periodical payment to the workers;
    
3. The order dated 29.03.2020 was issued only with regard to migrant labour and the scope of order should not be extended to cover the entire workforce of the establishment.
    
4. All industries and private establishments have different financial capacity, circumstances, hence these establishments cannot be grouped in one category for issuing a direction to pay wages to its employees during lockdown period and in possibility cannot be directed by any executive action.

Supreme Court further observed:

1. The obligatory orders having been issued on 29.03.2020 which has been withdrawn w.e.f. 18.05.2020, in between there has been only 50 days during which period, the statutory obligation was imposed;
2. A balance has to be struck between industries which can bear the burdern and those which cannot and also we are aware that the workers and employees although were ready to work but due to closure of industries could not work and suffered.

Interim measures Ordered by Supreme Court:

1. No coercive action, against the employers shall be taken pursuant to notification dated 29.03.2020, until the matter disposed off;
2. Employers and employees to negotiate and settle between themselves issues relating to payment of wages amid the COVID-19 lockdown.
3. Those employers’ establishments, industries, factories which were working during the lockdown
4. Period although not to their capacity can also take steps as indicated in direction No.(a).
5. The private establishments, industries, factories shall permit the workers/employees to work in their establishment who are willing to work which may be without prejudice to rights of the workers/employees regarding unpaid wages of above 50 days. The employers/industries shall notify workers/employees.

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