The Supreme Court on Thursday passed an interim order that no coercive action should be taken against employers for failure to comply with the March 29 order of the Ministry of Home Affairs (MHA) for full payment of wages.
The Court was hearing a batch of petitions challenging the March 29 Order of the Ministry of Home Affairs (MHA) issued directing employers to wages to their workers, without deduction during the period of lockdown.
A bench of Justices Ashok Bhushan, SK Kaul & MR Shah heard all parties at length. In light of this, a number of Senior Advocates and Advocates put forth their submissions.
Attorney General (AG) KK Venugopal appeared for the Union and made consolidated arguments on the batch of petitions.
The crux of Attorney General's submissions centred around the foundational aspect and intent behind the MHA order for payment of full wages during lockdown, which in effect, he argued was to prevent human sufferings during the pandemic.
Apart from that, he focused on the legality of such an order by justifying it in light of the Disaster Management Act, 2005. Further, his arguments earmarked the applicability of the Industrial Disputes Act, forming the core of his submissions, in as much as the employer and workman could approach conciliation and explore the possibility of some kind of settlement.
Attorney General KK Venugopal began his submissions by pointing out that the wage issue during lockdown was an inter-se issue to be settled between the employer and the employee.
To substantiate this, he submitted that both the employers and the workman can approach conciliation under the industrial disputes Act for exploring possibility of some kind of settlement.
At this juncture, the bench pointed out that since the employers were challenging the validity of this action, it was the prerogative of the Union to defend it.
AG stated that the National Executive Committee (NEC) vis-à-vis the Disaster Management Act, 2005 was responsible for policy-making and ensure compliance of the notifications.
AG: "The National Executive Committee under the Disaster Management Act can issue the notification, as the Act gives it wide powers "lay down guidelines of any kind" to deal with disasters"
Replying to a statement put forth by the bench which pointed out the validity and basis of such a notification, AG stated that,
"People were migrating in crores, they wanted the industries to continue. The notification was to keep the workers put, they'd only stay put if they are paid."
While highlighting the need to implement such a notification, Attorney General KK Venugopal argued that the entirety of the notification rested on the intention to prevent human sufferings.
The bench put forth a question to the AG and added
"Firstly, you have not invoked the provisions of the Industrial Disputes Act but of the DMA. What is required to be paid is 50 per cent under the Industrial Disputes Act. 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 ?"
Bench: "There can be negotiation industry-wise as it may not be possible to give 100 per cent. The government can play a role of a facilitator in this. There is a concern that workmen should not be left without pay, but industry may not have the money to pay."
Attorney General replied by stating that the most appropriate thing to consider here would be the humanitarian crisis that led to the issuance of the March 29 order.
Following this, the bench had another query regarding a prayer raised by the petitioner(s) according to which they had sought the Government's intervention to subsidise these wages.
To this, AG replied by submitting that the Government had infused INR 20,000 in the MSME sector.
"This is to your question whether have we put in funds. Govt. of India has done a very good job" the AG stated.
Bench: "We are concerned with 29 March notification. It asks for 100 per cent payment and prosecution. We have reservations over this. Some discussion should be held to work out some solution for this period of time."
In this backdrop, the Attorney General prayed for an adjournment in the case(s) for two months. "My lords can let the interim order for no coercive action continue for the meanwhile" he said.
Towards the end of the submissions, after petitioners had made their submissions, the bench had also put forth two queries to the Attorney General.
Bench: "Submissions have been made regarding ESI fund. Whether can be utilised for helping workers?
AG responds, "It cannot be redirected, but they can borrow from it."
Bench: "Query 2 is that submission that this order was issued only for migrant workers, what do you say to that?l
AG, "I wouldn't restrict it. Main objective was that if they get paid, they need not migrate."