Advocate Sushila
SUPREME COURT SEEKS GOVERNMENT REPLY ON THE VALIDITY OF ITS ORDER DATED 29.03.2020

SUPREME COURT SEEKS GOVERNMENT REPLY ON THE VALIDITY OF ITS ORDER DATED 29.03.2020

Introduction

The nationwide #lockdown imposed to curb the outbreak of Corona virus is an action regulated by the Disaster Management Act, 2005 (the ‘Act’). The World Health Organization (#WHO) has declared the present situation as pandemic on 12.03.2020.

The provision of the Act, 2005, was invoked on 24.03.2020, after which the Prime Minister, Narendra Modi, announced the nation-wide lockdown, from 25.03 2020 and this has been extended till 17.05.2020.

Measures of the Government

In India, a review of the current situation demands immediate measures by the Government to control the spread of this Pandemic. In respect of which earlier an Order dated 24.03.2020, was passed by the National Disaster Management Authority in exercise of its power under Section 6(2) (i) of the Act, [Order no. 1-29/2020-PP (pt. II)]. Thereby, all the States and Union Territories (UTs) declared invocation of Section 2 of the Epidemic Diseases Act, 1897, which makes advisories issued by the Ministry of Health Welfare/State/UTs legally enforceable.It also issued guidelines to Ministers/Departments of Government of India, State/Union Territory Governments and Authorities for strict implementation to prevent the spread of COVID-19 in the country.

Thereafter, the Government issued Order dated 29.03.2020, under Section 10(2)(l) of the Act, to deal with the situation and for effective implementation of the lockdown measures, and to mitigate the economic hardship of the migrant workers. Wherein, the Government also directed that“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;”

Government Order under Disaster Management Act, 2005

It is significant to understand the object and purpose of the Act, 2005 which is to manage #disasters, including preparation of mitigation strategies, capacity-building and more. Directing employers to not reduce or pay full wages/salaries to their employee’s is not within the powers of the Government under Section 10(2) (l) of the Act. The Act is applicable to provide for the effective management of disasters and for matters connected therewith or incidental thereto. Section 10(2)(l) of the Act, is reproduced here for reference;

10. Powers and functions of National Executive Committee.—(2) Without prejudice to the generality of the provisions contained in sub-section (1), the National Executive Committee may—

(l) lay down guidelines for, or give directions to, the concerned Ministries or Departments of the Government of India, the State Governments and the State Authorities regarding measures to be taken by them in response to any threatening disaster situation or disaster;

It appears that the Government wants to reduce the suffering of workers due to the lockdown. Though the intention maybe appreciable all decisions of the Government to balance the situation rather than target one part of the society. The Government while passing the Order missed the hardship which can be faced by the employers/establishments due to enforcing of such directives. The industry which was already plagued by a global crisis in the last few months is further burden by the current lockdown. The Government should have kept this in mind before passing Order dated 29.03.2020. Every decision has two sides of the coin. Every debit entry has a corresponding credit entry. But the Government did not consider side of the employer while issuing the aforesaid advisories.

Impact of Government Order dated 29.03.2020

The scope of the Act is regulation over disaster management and empowers committees to frame plans to control disasters. A bare reading of the provisions of the Act would show that powers have not been vested with either the State or the Central Government to direct private employers to pay wages during a disaster when the #employees are not working.

As a result,a writ petition was filed before the Hon’ble Supreme Court of India on 21.04.2020 namely Ludhiana Hand Tools Association v Union of India and OthersThe validity of Government Order dated 29.03.2020 under Section 10(2)(l) of the Act, was challenged under Article 32 of the Constitution of India,before the Hon’ble Supreme Court of India by various other private firms, association and establishments, separately. The Petitions are seeking an appropriate writ for setting aside or quashing of Government Order dated 29.3.2020 issued by Ministry of Home Affairs, Government of India, under Section l0(2)(l) of the Act, only to the limited extent wherein the private establishments are directed to pay full #salaries to all workers/employees, contract or casual workers during the period of COVID-19 lockdown.

The following legal issues were raised in the various Petitions before the #SupremeCourt;

  1. Whether Disaster Management Act, 2005 empowers Central Government to issue directions to private establishment for payment of full wages/salary during a disaster under Section 10(2)(l) of the Act.
  2. Whether under the Act, the Government of India can direct private establishments to pay full wages, when Industrial Disputes Act, 1948, provides for payment of 50% wages under similar circumstances.
  3. Whether the Impugned Government Order violates Article 14 and l9 of the Constitution of India.
  4. Whether Government of India issued the Government Order dated 29.03.2020 in undue haste and without considering the financial ability of private establishments to bear the burden of full wages during the period of lockdown.

A three-judge Bench, led by Justice N.V. Ramana, passed an Order dated 27.03.2020 in one of the matter namely FicusPax Private Limited v. Union of India and Others, wherein it allowed Solicitor-General, Mr Tushar Mehta, appearing for the Government, to file his response to a batch of petitions filed by several companies challenging the constitutional validity of the Government Order dated 29.03.2020, which mandates that industry, shops and commercial establishments, without exception, pay their workers without any deduction during COVID-19.

Conclusion

To conclude, it is imperative to say that the language of the Act and in particular Section 10(2) (l) of the Act has nothing to do with payment of salaries/wages, much less mandating private establishments to pay salaries against no work.Whether private establishments can be compelled to pay full salaries when no work is done, is a question to be decided. Further such an Order curtails the employers’ fundamental right to trade or business under Article l9(1)(g).

It should not be overlooked that the nationwide lockdown is for an undefined period. This situation presents several challenges for both the employers and employees. It is irrational to treat all private establishments alike irrespective of the profit and loss incurred by them or their revenues and turnover. A private establishment suffering loss with huge debts to repay cannot be equated with an establishment earning profits. There is no rational for treating them alike.The Order must be examined afresh as it is impossible to comply with.

Lakshmi Vishwakarma

Associate

The Indian Lawyer

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