The Supreme Court has agreed to examine the issue pertaining to mass termination and withholding and deduction of salaries of IT/ITES/BPO/KPO employee by the employers during the Covid-19 lockdown.
The petition was filed by the petitioner Rajesh Inamdar, a practicing advocate in New Delhi, and the National Information Technology Employees Sena (NITES ) which is working for welfare and benefits of IT/ITES/BPO/KPO and its related sector employees.
A three-judge bench of Justices Ashok Bhushan, SK Kaul and BR Gavai has conducted hearing through video conferencing and has agreed to examine the matter.
The Petition was argued by Senior Advocate Devadatt Kamat and supported by Rajesh Inamdar, Amit Pai, and Aiswarya Rai B Advocates.
The Petition was filed to seek implementation of advisories and directions issued by the Central Government dated 29.03.2020 and similar advisories issued by several other States which mandated payment of wages and salaries to the employees and also directed not to terminate any employees during this period. However, several IT companies during the lockdown have been adopting the process of mass termination over phone calls.
It sought directions from the Court for implementation of the following government Circulars, in the wake the unprecedented lockdown situation due to the COVID-19 or novel Coronavirus crisis :
· The Advisory dated 20.03.2020 issued by the Ministry Labour and Employment and
· The Order dated March 29th , issued by the Government of India
· Maharashtra State Government resolution (GR) by Industries, Energy and Labour Department dated 13 March 2020 relating to the directions to the employers of both the private and public companies to not lay off/terminate employees or cut their salaries.
The petition stated that various private Companies in the country initiated a drive of illegal mass termination of the employees, withholding of the salaries or illegal deduction of salaries in complete breach and violation of the directions and advisories and appeal made by the Government taking advantage of the deadlock situation which has emerged in the Country. The employers who are on dominant position have been taking harsh decisions and unconscionable bargains with the employees. A balance therefore needs to be drawn between the rights of the employers and those of the employees, the latter being the more disadvantaged class.
According to the petitioner, the right to livelihood and employment of several employees working in private establishments who are terminated amidst the lockdown situation needs to be protected in order to protect their fundamental rights under Articles 14, 19 and 21 of the Constitution and ensuring that they are not deprived of their right to live with dignity.
The petition cited the order of the Apex Court in the case of Olga Tellis v. Bombay Municipal Corporation where a Constitution Bench held that the right to livelihood forms a part of the right to life and liberty protected by the Constitution. It is important for the State to protect the Fundamental Rights guaranteed under Part III of the Constitution, and since the current unprecedented situation of the lockdown is not caused due to the employees who are facing termination or pay cuts, they must not be made to suffer on that account.
“the Court should issue directions to the Government to ensure that the lakhs of employees engaged in the private sector are not terminated, and are able to draw at least Subsistence salary, to get over the present Covid 19 pandemic,” stated in the plea.
According to the petitioners, in the case of Vishaka v. State of Rajasthan , the Apex Court had observed that in cases of legislative vacuum, the Supreme Court can issue guidelines, and the Court has previously also made suggestions to Parliament and Government to bring about legislation in respect of an issue, which have also been accepted. Therefore the Court can direct or suggest the Government to issue an Ordinance or Statute to overcome this difficult situation.
The matter will now be heard on May 15th 2020.
Advocate Rajesh Inamdar along with Advocate TC Sheikh before filing the PIL had previously also sent suo motu legal notices to companies which had served their employees with termination notices and announced salary cuts warning them of the consequences of their action.
While talking to India Legal, Inamdar had said that “the concept of a suo motu legal notice as such does not exist. These notices are not binding on the companies and were sent only in the interest of the public as we had received calls from a few employees. It also had a positive impact as one of the companies released the salaries of its employees”.
He added that “During the current situation, invoking of provisions of the Disaster Management Act, 2005, by the government and directions/orders issued under it are legally binding on establishments. The March 29 order was issued under Section 10(2)(1) of the National Disaster Management Act, 2005 which directs all states to issue orders compulsorily requiring all employers in the industrial sector, shops and commercial establishments to pay wages to their workers on the due date without any deduction during their closure due to the lockdown. The relevant provisions of the Act are Sections 10, 51 and 58. If there is deliberate non-compliance with the directions issued by the government, a complaint can be made by the authorities as enumerated in Section 60 (a) or any person as envisaged in Section 60 (b). If an inquiry is made and it’s found that an offence has been committed by any company, the head/incharge there shall be deemed to be guilty and be punishable with imprisonment for a term which may extend to two years. Therefore, if the provisions of the Act have been invoked and are in effect, any decision by an employer to terminate an employee can be punishable by penal provisions under the Act.”