The Supreme Court of India today has reserved its order for June 12, on the bunch of Writ Petitions filed challenging the notification of Ministry of Home Affairs, Government of India directing the Employers to pay full wages to the Employees during the Lockdown period.
Also, the Supreme court has said that till then “No coercive action will be taken against any employers pursuant to March 29 MHA order” and all parties were given liberty to file written submissions within 3 days.
The Attorney General of India Mr. K.K Venugopal Rao was permitted by the Supreme Court to submit a short note regarding validity of the March 29 MHA notification.
During the course of hearing today, the AG has said to the three Judges bench of the Supreme Court comprised of Justice Ashok Bhushan along with Justice Sanjay Kishan Kaul and Justice M.R. Shah that “It is a matter for settlement”.
Whereas, Justice Ashok Bhushan has replied that the employees are challenging the validity of the Disaster Management Act.
Also, Justice M.R. Shah has said to the AG that “you have to defend your notification, as the same was being challenged”.
AG’s submissions before the Court; -1. Employers should be pay salaries up to the period of 15 days, employees have migrated and gone away. 2. The national executive committee, is responsible for the policy and ensure the compliance with the notification. Plan and coordinate and lay down guidelines for any kind of threatening disasters. 3. AG referred the disaster management act and its section 10 and other provisions. 4. People were migrating in crores, the notification was to keep the workers stay, they’d only stay if they are paid. 5. The notification was to ensure compliance of directives of central govt for effectuating business. 6. AG justify the notification by going through the DMA Act. Entirety of the notification for preventing human suffering, keeping aside the validity, this is a matter between employers and employees. 7. In any event Employers have to pay 50 per cent. 8. Under the industrial dispute act conciliation and settlement is there, most appropriate thing would be to consider the humanitarian situation due to which MHA order was issued.
Bench to AG; -.1. Justice Bhushan says “when it is a governmental authority, then you can issue directions”.
2. Justice Kaul – Firstly you have not invoked the provisions of the DMA, what is required to be paid is 50 per cent. You have put forth payment of 100 per cent. Question is do you have power to get them to pay 100 per cent and on their failure to do so, prosecute them? Govt has not invoked the provisions of industrial dispute act, what is required to be pay is 50 per cent but u have directed to pay 100 percent. There can be negotiation industry wise, may not be possible to give 100 per cent, govt can play a role of a facilitator in this.
3. Justice Bhushan points out to a prayer made by petitioners that asks govt to subsidize the wages.
Later, in Item 314, listed before the same bench as above which is Ficux Pax Pvt Ltd Vs Union of India, the advocate for the petitioner said that “Not only the MHA order but another order which is an advisory, we need to see this in light of the MHA order. This advisory has been passed by an authority which is not competent to pass it” on which Justice Bhushan said that “advisory is not a problem“.
Adv K V Vishwanathan in Item 307.1 says that “There has to be some proportionality. They’re concerned with managing disaster, it’s also a disaster for us. This like a disaster for us and a bonanza for another”. Thereafter the petitioner’s advocate added further by saying that “we are already coming out with settlement with the workforce, labour officers are harassing us if its mandatory then workers will not negotiate, if its advisory then we can work on one to one solution with the workers”.
On which Justice Shah replied, “can u run the industry without labour everybody has to strike a balance between an employee and employer”.
Senior Lawyer Ms. Indira Jaising appearing in Item 314, for workers reads out definition of disaster in sec 2(d), and she contended before the Court that; -1. Under this act, a lockdown, a new word, contributed to legal language was made by the GOI. The authority that declares lockdown is simultaneously responsible to protect those who will be affected during lockdown. 2. The authority is duty bound to make amends to me. The lockdown was done to prevent spread of pandemic. 3. we are wearing masks not because we are sick but we are following the norms, we all flowed lockdown conditions. The purpose of MHA order is to help every individual to fight a pandemic. The order must be interpreted basis this rationale – that there is a lockdown, If there’s no lockdown in the country, then order doesn’t make sense. 4. Tell me are you challenging the lockdown order? The issue before the court has to be decided within the four corners of DMA. Who Is the affected community, those who were prevented from eating, did not have a roof on their head? Ask them how much do they pay to their contract workers. What is their financial liability? These orders have to be decided basis the disaster management act. 5. We are talking about the poorest of the poor. We are talking about those people who don’t have roofs over their heads, don’t have food. They say they don’t want to pay contractors, ask them my lord how much they pay their contractual workers? 6. Those who took the decision to lockdown should face the consequences of the lockdown, why should those sluggers who were willing to work. Employers were obliged to provide transport did not do so. 7. Today I can’t enter SC because I cannot enter the court. Principal of no work no pay is not applicable in the present circumstances, especially when there is lockdown. This argument holds no matter. It is the DMA that is governing the whole country.
Ms. Jaising urges Court to not to quash MHA notification.
Writ petitions were filed before the supreme court for Permission to lay-off Contractual and Casual Labour in case of no work during lockdown and MSME members raising the issue of payment of wages for Lockdown period to be made by ESIC (Employees State Insurance, Ministry of labour and Employment, GOI) to the tune of 70%.
-India Legal Bureau