On 04 June 2020, a 3 member bench of the Apex Court passed an interim order that no coercive action be taken against employers for their failure to comply with the 29 March 2020 order of the Ministry of Home Affairs (MHA) for payment of full wages to the workers during the Lockdown. The Court heard the petition and also reserved final orders for June 12 on the said petitions challenging the said MHA notification.
On behalf of the Government, it was argued that the said notification was issued to mitigate human suffering during the nationwide lockdown invoking the powers under Section 10(2)(l) of the Disaster Management Act 2005 and the government is duly empowered in this regard. It was pleaded that payment of wages was necessary to retain the migratory labour to enable the industries to continue production once the lockdown is relaxed. The MHA also informed the Court that the March 29 notification has ceased to have with effect from May 18. Thus, the controversy was only regarding salary/wages of 54 intervening days.
On behalf of the employers, it was argued that the established principle ” No Work- No pay”should be applied by the Court. It was pleaded that the direction to pay 100% salary is unwarranted as the enterprises were under closure due to lockdown and were under financial constraints and it is impossible for them to bear the financial burden of paying 100% salary for the closure period. It was also pleaded on behalf of the petitioners to direct the Government to subsidize wages during the period of lockdown. It was also pleaded that the said direction was unreasonable and arbitrary and also violative of the fundamental right to trade and business of the employers.
The petitioners also argued that the impugned direction was beyond the scope of powers conferred under the Disaster Management Act and is also arbitrary and violative of Articles 14, 19(1)(g) and 300A of the Constitution of India.
During the arguments, the Court expressed concern over the notification directing 100 % payment and prosecution for not complying the directions especially during the period when the enterprises were shut down for a very long period. The Court was looked concerned about deterrent effect of the liquidity of the enterprises. The Court remarked that the Government should play the role of a facilitator and should be a catalyst to mutual negotiations & mediation for an amicable solution.
The present controversy is to be resolved by the Court soon. The matter is ‘sub- judice’ and it would not be proper to jump to conclusions. However, a balance should be made between ‘ subsistence’ of the employee’s vis a vis it’s financial impact on the employers. Would it not be fair to leave the matter to be decided mutually by the employers & employees and not to thrust MHA notification on them to foster harmony amongst the two complimentary arms- the employers and their employees?
Undisputingly, both are the arms and pillars of the growth of our nation and indispensable to each other.
Let us wait till the 12th June till the mist is finally cleared by the Apex Court on this sensitive & contentious issue.