"The authority that imposed lockdown, is responsible for protection of those who are affected", argued Senior Advocate Indira Jaising while appearing on behalf of workers in batch petitions challenging the March 29 MHA Order which directed employers to pay wages to workers without deduction during lockdown.
A three-judge bench of Justices Ashok Bhushan, SK Kaul & MR Shah granted an interim protection from coercive action to employers while reserving order for June 12 on the petitions.
Jaising argued the authority which announced lockdown was duty bound to make appropriate and suitable amends. She stated that if the lockdown order was not being challenged, the MHA Order could not be quashed.
Jaising: "Under this act, a lockdown, a new word, contributed to legal language was made by the GOI. The authority that declares lockdown is simultaneously responsible to protect those who will be affected."
Next, Senior Advocate Indira Jaising highlighted that it was in fact, not the fault of workers who were willing to work during this time and that "no work no pay" stood as an antithesis to Articles 14 and 21 of the Constitution of India.
Further, she argued that, taking precautions and wearing protective gear, refraining from stepping out and observing social distancing norms were paramount. This, Jaising stated, did not mean that workers were incapable of performing their duties and non-payment of wages was not an option.
While doing so, she stated that the notification by the MHA directing full payment of wages to workers during lockdown must not be quashed.
Jaising: "Principal of no work no pay is not applicable in the present circumstances, especially when there is lockdown. This argument holds no water. It is DMA which is governing the whole country. I urge you not to quash the notification. Only MSMEs have come and have gotten relief."
Jaising argued against the Industrial Disputes Act (in terms of conciliation between employer and employee) and stated that the Disaster Management Act (DMA), 2005 would apply stringently. This, she substantiated by referring to Section 22 of the DMA, 2005.
To add to the above, Jaising made submissions regarding protection of the the poorest sections of the society and stated that the employers were duty-bound to pay them.
Jaising: "We are talking about the poorest of the poor here. We are talking about those people who don't have roofs over their heads, dont have food. They say they don't want to pay contractors, ask them how much they pay their contractual workers?"
Following this, Senior Advocate Anand Grover submitted that the "If govt. can order lockdown, then it has the power to issue other orders too, it allows centre to issue all necessary orders."
Senior Advocate CU Singh submitted that the Supreme Court must not interfere under Article 32 of the Constitution in as much as the challenge to the MHA order was concerned. "As of now, no prosecution has been initiated" he added.
Lastly, Senior Advocate JP Cama submitted on behalf of the petitioner-employee(s) that the notification must be taken into account in full and not on a "piecemeal basis".
Cama: "The GOI's consistent stand has always been to seek cooperation from the management. Many state governments have refused to pay full wages."
Advocate Amit Pai added that the instant pleas must be taken into account and the "Great Depression" of the USA must be a model while consideration thereto.
Senior Advocates Sanjay Singhvi and R. Basant also made submissions on behalf of the petitioner-employee(s).