The Supreme Court on Tuesday issued notice in a plea challenging the notification issued by the Gujarat Labour and Employment Department granting exemptions to all factories in Gujarat from provisions of the Factories Act, 1948 relating to daily working hours, weekly working hours, intervals for rest and spread overs of adult workers as well as from payment of overtime wages at double rates viz. Section 59.
A bench of Justices DY Chandrachud & KM Joseph took up the plea which challenges the Notification issued by the Gujarat Government on April 17, 2020, which has been purported to be issued under Section 5 of the Act for the period from April 20 to July 19, 2020.
"The impugned notification exempts factories from sections 51, 54, 55 and 56 of the Act of various conditions which are, that for the period from April 20 to July 19, 2020, workers in Gujarat can be made to work 12 hours in a day, 72 hours in a week with a 30 minutes break after 6 hours."
The Petitioners are Trade Union Associations named Gujarat Mazdoor Sabha (Ahmedabad) & Trade Union Centre of India (Mumbai) and have averred that the Factories Act, 1948, otherwise provides that workers can only be made to work 9 hours in a day - but 48 hours in a week with 1 weekly off, thus coming to 8 hours a day with 30 minute breaks after 5 hours of work. Further to this, it provides that no women workers will be allowed to work between 7 PM & 6 AM.
Contending that the notification is "blatantly against section 59 of the Act" which mandates the payment of wages at doubled rate for hours worked in excess of 9 hours in a day, the petitioners state that the notification prescribes an overtime work payment at the rate of the usual hourly rate.
"the shocking extension of working hours is being directed at a time when the most basic medical and scientific advise to contracting the deadly COVID10 is to take rest and stay as healthy as possible. This new regime ensures the complete opposite.. as per the notification, these workers will now be overworked without being compensated for the same as per law which will only ensure that both their physical and mental health deteriorate"
Thus, the plea states that the Gujarat Government has acted ultra vires to the powers vested upon it, under section 5 of the Factories Act, 1948 which only allows exemptions in light os a "public emergency". This public emergency, the plea states, means a "grave emergency whereby the security or of any part of the territory thereof is threatened, whether by way or external aggression or internal disturbance" and that it "clear that such an emergency only covers emergencies in the nature of physical and tangible war or conflict"
"Section 5 empowers State Government in case of a public emergency to grant exemption to any factory or class or description of factories from all or any of the provisions of the Act for such period and subject to such conditions as it may think fit, for a period not exceeding three months at a time"
Further to this, the petitioners state that the section only permits such an exemption to be granted to "any factory or class or description of factories" whereas the impugned notification has given a blanket exemption to all factories in the state.
"Therefore it is amply clear that the Gujarat Govt. has misused section 5 to suspend key provisions of the Factories Act" - Petitioners state.
In this backdrop, the petitioners seek issuance of appropriate directions for quashing of the notification.
The plea has been moved through Advocate Aparna Bhat.
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