9911796707
TMI Blog2020 (6) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... any reduction, for the period their establishments are under closure during the lockdown is no longer in operation. However, the issue regarding obligation of the employer as per order dated 29.03.2020 when it remained in force is still to be answered especially when the petitioners challenges the order as ultra vires to Disaster Management Act, 2005, as well as violative of Article 14, 19(1)(g) and Article 21. It cannot be disputed that the lockdown measures enforced by the Government of India under the Disaster Management Act, 2005, had equally adverse effect on the employers as well as on employees. Various Industries, establishments were not allowed to function during the said period and those allowed to function also could not function to their capacity. There can be no denial that lockdown measures which were enforced by the Government of India had serious consequences both on employers and employees. The period of Unlock having begun from 01.06.2020 and even prior to that some of the industries were permitted to function by the Government of India by different guidelines, most of the industries and establishments have re-opened or are re-opening, require the full workforce. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Appellant : Mr. R. Basant, Sr. Adv., Mr. Raghenth Basant, Adv., Ms. Liz Mathew, AOR, Mr. Gautam Singh, Adv., Mr. Harminder Syal, Adv., Mr. Krishna Kumar Singh, AOR, Mr T. Sundar Ramanathan, Adv., Mr. M.P. Devnath, AOR, Mr Abir Roy, Adv., Ms Prerana De, Adv., Mr Ishaan Chakrabarti, Adv., Ms. Sakshi Mehley, AOR, Ms. Harshita Kumar, Adv., Mr. Vipin Singhania, Adv., Mr. Nikhil Jain, AOR, Mr. Parthiv K. Goswami, Adv., Ms. Diksha Rai, AOR, Mr. Anish Gupta, Adv., Mr. Adarh Tripathi, Adv., Mr. Nikhil Khandpal, Adv., Mr. Gaurav Srivastava, AOR, Mr. Vishal Sharma, Adv., Ms. Meera Mathur, AOR, Mr. Varun Singh, Adv., Ms. Nishtha Kumar, AOR, Ms. Deepti Arya, Adv., Mr. Akshay Dev, Adv., Mr. Rishabh Rana, Adv., Mr. Jamshed Cama, Sr. Adv., Mr. Abhay Nevagi, Adv., Mr. Krishan Kumar, AOR, Mr. Mohit Gulati, Adv., Mr. Govindram D. Talreja, Adv., Mr. S.C. Ralhan, Adv., Mr. Purvish Jitendra Malkan, AOR, Mr. Gaurav Mehta, Adv., Mr. Man Mohan Sharma, Adv., Ms. Dharita P. Malkan, Adv., Ms. Deepa Gorasia, Adv., Ms. Sakshi Mehley, AOR, Mr. Jeetender Gupta, AOR, Mr. Aditya Giri, petitioner-in-person For the Respondent : Mr. K.M. Nataraj, ASG Mr. Rajat Nair, Adv., Ms. Swati Ghildiyal, Adv., Mr. Sanja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsus 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the wages of workers to the tune of 70-80% for lockdown period by utilizing the funds collected by the Employees' State Insurance Corporation(ESIC) or the PM Cares Fund or through any other Government Fund/Scheme, AND/OR iii) Pass such other order or orders as may be deemed fit and proper and just and necessary in the interest of complete justice. AND FOR WHICH ACT OF KINDNESS OF THIS HON'BLE COURT, THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY." 6. The prayer made in W.P. (civil) No.484 of 2020, B4S solution Private ltd. and others versus Union of India & others, also need to be noted. The petitioner No.1 is a company incorporated under the Companies Act, 1956. The company has a number of subsidiary/associate companies. In addition to challenging the Government Order dated 29.03.2020, the petitioners have also challenged the consequential order dated 31.03.2020 issued by the Government of Maharashtra, Order dated 28.03.2020 issued by Government of Punjab, Order dated 29.03.2020 issued by State of Haryana and Order dated 05.04.2020 issued by Government of Uttar Pradesh. In one of the prayers, petitioners have prayed that petitioners be permitted to make payment of 50 percen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho are financially not in position to maintain the employees. In the writ petition, following are the prayers which have been made: - "PRAYER In the facts and circumstances of the case, as mentioned above, it is, therefore, most humbly prayed that this Hon'ble Court may graciously be pleased to: - a) Issue a Writ in the nature of Mandamus directing the Respondent No.1 to formulate a policy/measures to mitigate the problems of sudden laying off of the employees of private sector during the covid-19 lockdown period. b) Direct the respondents to intervene in a situation where the employer is financially not in a position to maintain the employees the respondents to support those employees who are not able to maintain their families and fulfil the basic needs. Pass any order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case to meet the ends of justice. AND FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL, AS IN THE DUTY BOUND EVER PRAY." 8. Prayers made in one more writ petition needs to be noted i.e. W.P.(Civil) D.No.11180 of 2020, Chamber of Small Industry Associations and others versus Union of India and others. Apart fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-existing right which flows inter alia from the contract of employment as well as broader constitutional and statutory scheme flowing from Article 14 and 21 of the Constitution and encompassing Payment of wages Act, Minimum Wages Act, The Contract labour (Regulation and abolition) Act and the Industrial Disputes Act, 1947. Nationwide lockdown and resultant closure of the workplace directly affected the sustenance and livelihood of members of the Employees Union. All measures taken by the Government of India are within its legislative competence. The prayer of the petitioner to utilise the ESIC fund has been refuted. 14. We have heard learned counsel for the petitioners. Learned Attorney General, Shri K.K. Venugopal, has appeared for the Union of India. We have also heard learned counsel appearing for the different intervenors. 15. Learned counsel for the petitioners contends that impugned notifications are arbitrary, unreasonable, and contrary to the provisions of law including Article 14, & Article 19(1)(g) of the Constitution of India. It is submitted that by way of impugned notifications an otherwise stable and solvent industrial establishment can be forced into Insolvency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges during the period of lockdown and some of the workers have re-joined their work. 20. Shri K.K. Venugopal, learned Attorney General, submits that the power to issue order dated 29.03.2020 can certainly be traced to inter alia Section 10(1) and nothing under Section 10(2) restrict the ambit or scope of Section 10(1). The order dated 29.03.2020 was fully in conformity with the provisions, schemes of Disaster Management Act, 2005. 21. The direction dated 29.03.2020 was issued in public interest by the Competent Authority. The directions are neither arbitrary nor capricious. The ground of financial hardship, incapacity which has been pleaded by the petitioner is legally untenable ground to challenge the direction issued by competent authority in exercise of statutory power. The Union of India issued the above direction as a temporary measure to mitigate the financial hardship of the employees and workers especially contractual and casual workers during the lockdown period. The measure was proactively taken by the respondent to prevent perpetration of financial crisis within the lower strata of the society, labourers and employees. Directions issued by the Government of India where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 29.03.2020 when it remained in force is still to be answered especially when the petitioners challenges the order as ultra vires to Disaster Management Act, 2005, as well as violative of Article 14, 19(1)(g) and Article 21. The petitioners have also prayed that Section 10(2)(l) of Disaster Management Act, 2005, be declared ultra vires to Article 14 and Article 19(1)(g), in event, it is interpreted in conferring authority to the Central Government to direct the employers of the Private establishments to pay wages of their workers during the lockdown period. 28. In the common affidavit filed by Union of India, although authority to issue impugned order dated 29.03.2020 has been sought to be traced under Section 10(1) and Section 10(2)(l) of Disaster Management Act, 2005, but in counter affidavit, there are no reply to the other grounds raised in the writ petitions to attack the order dated 29.03.2020. 29. We are of the view that all issues raised by the petitioners and the respondents have to be decided together and the piecemeal consideration is not warranted. We thus are of the view that Union of India may file a detail counter affidavit for which the leave they have alr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustries could not work and suffered. For smooth running of industries with the participation of the workforce, it is essential that a via media be found out. The obligatory orders having been issued on 29.03.2020 which has been withdrawn w.e.f. 18.05.2020, in between there has been only 50 days during which period, the statutory obligation was imposed. Thus, the wages of workers and employees which were required to be paid as per the order dated 29.03.2020 and other consequential notification was during these 50 days. 35. In most of the industries, factories and establishments, the workers are represented by Trade Unions or other Employees associations. The State is also under obligation to ensure that there is smooth running of industrial establishment and the disputes between the employers and employees may be conciliated and sorted out. 36. It cannot be disputed that both Industry and Labourers need each other. No Industry or establishment can survive without employees/labourers and vice versa. We are thus of the opinion that efforts should be made to sort out the differences and disputes between the workers and the employers regarding payment of wages of above 50 days and i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
