Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2020 Supreme(SC) 402

SUPREME COURT OF INDIA
Ashok Bhushan, Sanjay Kishan Kaul, M.R.Shah, JJ.
FICUS PAX PRIVATE LTD. & ORS. – PETITIONERS
VERSUS
UNION OF INDIA & ORS. – RESPONDENTS
WRIT PETITION (C) DIARY No. 10983 OF 2020 W.P.(C) No. 500/2020 W.P.(C) No.498/2020 W.P.(C) No.480/2020 W.P.(C) No.484/2020 W.P.(C) No.501/2020 W.P.(C)..... Diary No(s).10981/2020 W.P.(C)..... Diary No(s).10993/2020 W.P.(C)..... Diary No(s).11018/2020 W.P.(C)..... Diary No(s).11041/2020 W.P.(C)..... Diary No(s).11048/2020 W.P.(C)..... Diary No(s).11094/2020 W.P.(C)..... Diary No(s).11111/2020 W.P.(C)..... Diary No(s).11180/2020 W.P.(C) No(s).494/2020 W.P.(C)..... Diary No(s).11194/2020 W.P.(C)..... Diary No(s).11223/2020 W.P.(C)..... Diary No(s).11282/2020 W.P.(C)..... Diary No(s).11309/2020 W.P.(C)..... Diary No(s).11310/2020
Decided on : 12-06-2020

Advocates Appeared:
For the Appellant :R. Basant Advocate, Raghenth Basant, Liz Mathew, Gautam Singh, Harminder Syal, Krishna Kumar Singh, T. Sundar Ramanathan, M.P. Devnath, Abir Roy, Prerana De, Ishaan Chakrabarti, Sakshi Mehley, Harshita Kumar, Vipin Singhania, Nikhil Jain, Parthiv K. Goswami, Diksha Rai Advocate, Anish Gupta, Adarh Tripathi, Nikhil Khandpal, Gaurav Srivastava, Vishal Sharma, Meera Mathur, Varun Singh, Nishtha Kumar, Deepti Arya, Akshay Dev, Rishabh Rana, Jamshed Cama, , Abhay Nevagi, Krishan Kumar, Mohit Gulati, Govindram D. Talreja, S.C. Ralhan, Mr. Purvish Jitendra Malkan, Gaurav Mehta, Man Mohan Sharma, Dharita P. Malkan, Deepa Gorasia, Sakshi Mehley, Jeetender Gupta, Aditya Giri, Advocates
For the Respondent:Sanjay Singhvi, Aparna Bhat, Karishma Maria, Rahul Chitnis, Sachin Patil, Karan Bharihoke, G. Prakash Jishnu M.L, Manish Kumar Saran, Shuvodeep Roy, Advocates

IMPORTANT POINT
Lockdown – For smooth running of industries with participation of workforce, it is essential that a via media be found out. State is also under obligation to ensure that there is smooth running of industrial establishment and disputes between employers and employees may be conciliated and sorted out.

Headnote:
Constitution of India – Articles 14, 19(1)(g) and 21 – Disaster Management Act, 2005 – Section 10(2)(1) – Direction to employers to make payment of wages of their workers, at their work place, on due date, without any deduction, for the period their establishments are under closure during lockdown – In counter affidavit, it has been stated that all orders passed under Section 10(2)(l) of Disaster Management Act, 2005, have been withdrawn w.e.f. 18.05.2020 vide order dated 17.05.2020 – Lockdown measures enforced by Government of India under Disaster Management Act, 2005, had equally adverse effect on employers as well as on employees – Various Industries, establishments were not allowed to function during said period and those allowed to function also could not function to their capacity – Lockdown measures which were enforced by Government of India had serious consequences both on employers and employees – Period of Unlock having begun from 01.06.2020 and even prior to that some of industries were permitted to function by Government of India by different guidelines, most of industries and establishments have re-opened or are re-opening, require full workforce – All industries/establishments are of different nature and of different capacity, including financial capacity – Some of industries and establishments may bear financial burden of payment of wages or substantial wages during lockdown period to its workers and employees – Some of them may not be able to bear entire burden – Balance has to be struck between these two competitive claims – Workers and employees although were ready to work but due to closure of industries could not work and suffered – For smooth running of industries with participation of workforce, it is essential that a via media be found out – State is also under obligation to ensure that there is smooth running of industrial establishment and disputes between employers and employees may be conciliated and sorted out – Both Industry and Labourers need each other – No Industry or establishment can survive without employees/labourers and vice versa – Efforts should be made to sort out differences and disputes between workers and employers regarding payment of wages of above 50 days and if any settlement or negotiation can be entered into between them without regard to order dated 29.03.2020, said steps may restore congenial work atmosphere – Interim measures suggested. (Paras 11, 33, 34, 35, 36, 37 and 38)
Facts of the case:
Present writ petitions except one(i.e. W.P.(civil) Diary No.10981/2020) have been filed by different employers, employers’ associations questioning the orders issued under Disaster Management Act, 2005 and other consequential orders issued by different States where directions have been issued that all employers be it in industries or in 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.
Findings of the Court:
Efforts should be made to sort out the differences and disputes between the workers and employers regarding payment of wages of above 50 days and if any settlement or negotiation can be entered into between them without regard to the order dated 29.03.2020, the said steps may restore congenial work atmosphere.
Result : Directions issued.

ORDER

Ashok Bhushan, J.

All these writ petitions except one (i.e. W.P.(civil) Diary No.10981/2020) have been filed by different employers, employers associations questioning the orders issued under Disaster Management Act, 2005 and other consequential orders issued by different States where directions have been issued that 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.

2. In the writ petitions apart from challenging the D.O. dated 20.03.2020 issued by the Secretary, Government of India, Ministry of Labour and Employment, order dated 29.03.2020 issued by Government of India, Ministry of Home affairs, in exercise of powers under Section 10(2)(l) of Disaster Management Act, 2005, the vires of Section 10(2)(l) of Disaster Management Act, 2005, has also been questioned, in event, 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. In few of the writ petitions, directions have also been sought to subsidise 70 to 80 percent of the wages for the lockdown period by utilising funds collected by Employee State Insurance Corporation or the PM Cares Fund or through any other Government funds/schemes. To understand the nature of relief in different writ petitions, it shall be sufficient to refer reliefs claimed in few of the writ petitions since in other writ petitions reliefs claimed are more or less similar. In W.P.(Civil) D.No.10983/2020, Ficus Pax Limited Private Limited and others versus Union of India and others, the Union of India had filed a common counter affidavit and prayed that the counter affidavit be adopted in other writ petitions referred to in paragraph 4 of the counter affidavit. W.P.(Civil) Diary No.10983/2020 is being treated as leading writ petition. Various interventions applications have also been filed in the leading writ petition. The intervention applications filed in the leading writ petition are allowed.

3. The petitioner in W.P.(C)Diary No. 10983 of 2020 is a company incorporated under the Companies Act and is engaged in the business of packaging with eleven factories spread across seven states. The petitioner is registered as Medium Industry (manufacturing) under Micro, Small, Medium Enterprises Development Act, 2006. The petitioner company before the lockdown employed 176 permanent workers and 939 contract workers across all its factories, warehouses and offices. The petitioner's case is that after the lockdown period although petitioner being in a supply chain of several essential items such as Pharmaceuticals, food products has been permitted to operate but its business has been reduced to the level of near 5-6 percent. The petitioner challenges the order dated 29.03.2020 and the D.O. dated 20.03.2020 as being violative of Article 14, Article 19(1)(g) of the Constitution of India.

4. The petitioner's case is that notifications are arbitrary, illegal, irrational and unreasonable and contrary to the provisions of law including Article 14, Article 19(1)(g). Notifications are unreasonable and arbitrary interference with the rights of petitioner Employers under Article 19(1)(g). Notifications are also 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 such as the petitioner who have been permitted to operate during the lockdown period and the workers who had not worked at all.

5. The Home Secretary, Ministry of Home Affairs, Government of India, cannot invoke Section 10(2)(1) or any other provisions of Disaster Management Act, 2005, to impose financial obligations on the private sector such as payment of wages. The Central Government has th

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