FICUS PAX PRIVATE LTD. & ORS. versus UNION OF INDIA & ORS.
[2020] 6 S.C.R. 564, Supreme Court of India, 2020
Outcome: Directions issued
Segment: Ratio
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FICUS PAX PRIVATE LTD. & ORS.
v.
UNION OF INDIA & ORS.
(Writ Petition (C) Diary No. 10983 of 2020)
JUNE 12, 2020
[ASHOK BHUSHAN, SANJAY KISHAN KAUL
AND M. R. SHAH, JJ.]
Disaster Management Act, 2005 – s.10(2)(1) – Orders dated.
20.03.2020, 29.03.2020 issued u/s.10(2)(1) by Central govt. –
Consequential orders issued by States directing the employers to
pay wages during lockdown period – Challenge to – Held:
Obligatory order having been issued on 29.03.2020 was withdrawn
by subsequent order dated.17.05.2020 w.e.f. 18.05.2020, therefore
in between there were 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 – Interim measures issued that can be availed by all the
private establishment, industries, factories and workers trade
unions, employees associations etc. which may be facilitated by the
State Authorities – Further, order passed in some of the writ petitions
for not taking any coercive action against the employer, to continue
in all the matters – Constitution of India – Arts.14, 19(1)(g), 21 –
Industrial Disputes Act, 1947 – Payment of Wages Act, 1936 –
Minimum Wages Act, 1948 – Contract Labour (Regulation and
Abolition) Act, 1970.
Issuing interim measures, the Court
HELD:  1.1 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29.03.2020 which has been withdrawn w.e.f. 18.05.2020, in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. [Para 34][576-G-H; 577-A]
1.2 Following interim measures are issued which can be
availed by all the private establishment, industries, factories and
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workers Trade Unions/ Employees Associations etc. which may
be facilitated by the State Authorities:-
i) The private establishment, industries, employers who are
willing to enter into negotiation and settlement with the workers/
employees regarding payment of wages for 50 days or for any
other period as applicable in any particular State during which
their industrial establishment was closed down due to lockdown,
may initiate a process of negotiation with their employees
organization and enter into a settlement with them and if they are
unable to settle by themselves submit a request to concerned
labour authorities who are entrusted with the obligation under
the different statute to conciliate the dispute between the parties
who on receiving such request, may call the concerned Employees
Trade Union/workers Association/ workers to appear on a date
for negotiation, conciliation and settlement. In event a settlement
is arrived at, that may be acted upon by the employers and
workers irrespective of the order dated 29.03.2020 issued by
the Government of India, Ministry of Home Affairs.
ii) Those employers’ establishments, industries, factories
which were working during the lockdown period although not to
their capacity can also take steps as indicated in direction No.(i).
iii) The private establishments, industries, factories shall
permit the workers/employees to work in their establishment
who are willing to work which may be without prejudice to rights
of
the workers/employees regarding unpaid wages of above 50
days. The private establishments, factories who proceed to take
steps as per directions (i) and (ii) shall publicise and communicate
about their such steps to workers and employees for their
response/participation. The settlement, if any, as indicated above
shall be without prejudice to the rights of employers and
employees which is pending adjudication in these writ petitions.
[Para 37][577-D-H; 578-A-C]
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) Diary
No. 10983 of 2020.
[Under Article 32 of the Consitution of India]
With
FICUS PAX PRIVATE LTD. v. UNION OF INDIA
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W.P. (C) No. 500/2020, 498/2020, 480/2020, 484/2020, 501/2020,
494/2020, W.P.(C) Diary No. 10981/2020, 10993/2020, 11018/2020,
10041/2020, 10048/2020, 10094/2020, 11111/2020, 11180/2020, 11194/
2020, 11223/2020, 11282/2020, 11309/2020 and 11310/2020.
K.K. Venugopal, AG, K.M. Nataraj, ASG, Nalin Kohli, AAG,  K.V.
Viswanathan, J.P. Cama, R. Basant, Sanjay Singhvi, C.U. Singh,
Ms. Indira Jaising, Anand Grover, Ms. Gayatri Singh, Sr. Advs.,
Ms. Nanita Sharma, Vivek Sharma, Abhya Nevagi, Krishan Kumar, Mohit
Gulati, S.C. Ralhan, Gobind Talreja, Raghenth Basant, Ms. Liz Mahtew,
Anish Gupta, Adarsh Tripathi, Gaurav Srivastava, Vishal Sharma,
Ms. Sakshi Mehley, Ms. Harshita Kumar, Jeetender Gupta, Varun Singh,
Ms. Nishtha Kumar, Ms. Deepti Arya, Akshay Dev, Rishabh Rana,
Purvish Jitendera Malkan, Man Mohan Sharma, Gaurav Mehta,
Ms. Dharita P. Malkan, T. Sundar Ramanathan, M.P. Devanath, Abir
Roy, Ishaan Chakrabarti, Parthiv K. Goswami, Ms. Diksha Rai, Vipin
Singhania, Nikhil Jain, Sunil Fernandes, Rajiv M. Roy, Gautam Singh,
Rajat Nair, Ankur Talwar, Kanu Agrawal, B.V. Balaram Das, Ms. Aparna
Bhat, Ms. Karishma Maria, Manish Kumar Saran, G. Prakash, Shuvodeep
Roy, Rahul Chitnis, Sachin Patil, Chirag M. Shroff, Pukhrambam Ramesh
Kumar, Jawahar Raja, Archit Krishna, Ms. Anupama NG, Karun Sharma,
Sunil Fernandes, Ms. Nupur Kumar, Zeeshan Diwan, Prastut Dalvi,
Rakesh Shukla, Ms. Sumita Hazarika, Amit Pai, Advs. for the appearing
parties.
Petitioner-in-person.
The Order of the Court was passed by
ASHOK BHUSHAN, J.
1. 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.
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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
FICUS PAX PRIVATE LTD. v. UNION OF INDIA
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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)(l) 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 the
power to allocate funds for emergency response, relief, rehabilitation,
mitigation of disasters under Disaster Management Act. The ultimate
onus for any compensation towards workers shall ultimately be of
Government and the said liability cannot be shifted upon the employers
in the Private establishment. The impugned notifications have the effect
of completely negating the statutory provisions under the Industrial
Disputes Act, 1947. The respondent should not compel the employers to
pay the wages for lockdown period but instead should utilise the funds
collected by Employees State Insurance Corporation (ESIC) to make
periodical payment to workers.  In the writ petition,
following prayer has
been made: -
“PRAYER
It is therefore, most respectfully prayed that this Hon’ble
Court may graciously be pleased to: -
i) Issue a writ, order or direction in the nature of a
declaration or certiorari or any other appropriate writ,
order or directions declaring D.O. No.M-11011/08/2020-
Media dated 20.03.2020 issued by Secretary (Labour
& Employment) and Order No.40-3/2020-DM-I(A)
dated 29.03.2020 passed by Home Secretary, Ministry
of Home Affairs are ultra vires Article 14, 19(1)(g) of
the Constitution of India; AND/OR
ii) Issue a writ, order or direction in the nature of mandamus
or any other appropriate writ, order or directions, thereby
directing the Respondents to subsidize the wages of
workers to the tune of 70-80% for lockdown period by
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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 percent of
Basic Pay plus DA to its employees, pending the final disposal of the
writ petition. Following are the prayers which have been made in the
writ petition: -
“PRAYER
In the facts and circumstances of the case, as mentioned above,
it is, therefore, most respectfully prayed that this Hon’ble Court
may graciously and empathically be pleased to:-
a.
Issue a Writ of Mandamus or any other appropriate writ(s),
order(s) or direction(s) to quash clause iii of Government Order
dated March 29, 2020 issued by the Ministry of Home Affairs,
Government of India for being unconstitutional and in violation
of Article 14 and 19 of the Constitution of India.
b. Issue a Writ of Mandamus or any other appropriate writ(s),
order(s) or direction(s) to quash Government Order dated
31.03.2020 issued by the Government of Maharashtra,
Government Order/advisory dated 28.03.2020 issued by the
FICUS PAX PRIVATE LTD. v. UNION OF INDIA
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Government of Punjab, Government Order dated 29.03.2020
issued by the State of Haryana, Government order dated
05.04.2020 issued by the Government of Uttar Pradesh only
to the limited extent of compelling the Petitioner and its
subsidiaries to pay full salary to all its staff, workers, contract
workers, casual workers during the period of lockdown for
being unconstitutional and in violation of Articles 14 and 19 of
the Constitution of India.
c. Permit the Petitioners to make payment of 50% of basic pay
plus DA to its workers/employees (without payment of PF and
ESIC contribution as the same is not wages), pending the final
disposal of the present petition;
d. Waive the Provident Fund and the ESI as there has been no
work rendered by the workers during this period of lockdown
and the contribution deposited by the Petitioners for the month
of March and April, 2020 may refunded;
e. Pass any order or direction as this Hon’ble Court may deem
fit and proper in the facts and circumstances of the present
petition.”
7. W.P.(civil) D.No.10981 of 2020, Aditya Giri versus Union of
India& others, is a petition filed by an individual as a Public Interest
Litigation to espouse the cause of employees and employers who have
been laid off and who are on the verge of Bankruptcy due to lockdown.
In the prayers which have been made in the writ petition, directions
have been sought to the respondent to frame policy to mitigate the
problems
of employees of the Private Sector as well as of the employers
who 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.
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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 IndustryAssociations
and others versus Union of India and others. Apart from challenging the
order dated 29.03.2020 issued by the Home Secretary, Ministry of Home
Affairs, and order dated 31.03.2020 issued by Government of
Maharashtra, one of the prayers made in the writ petition as prayer (v)
is to the following effect: -
“Issue a writ of Mandamus to pass appropriate direction to the
respondent to strike a balance between the interest of MSMEs
and the interest of workers and employees in a manner that neither
is unduly prejudiced “
9. As noted above, a common counter affidavit has been filed in
writ petition (civil) D.No.10983 of 2020 with prayer to adopt the counter
affidavit in other writ petitions. At the outset, in counter affidavit, it has
been pleaded that impugned notifications have been withdrawn by the
Union of India; hence, the Union of India is not filing a
para-wise reply
to the writ petition but filing a limited affidavit to bring on record -
i) legal authority, competence under which the said impugned
direction was passed;
ii) the facts and circumstances behind withdrawal of said orders,
directions.
10. The Union of India has craved for leave to file a detailed
para-wise reply at subsequent stage, if required.
11. In the counter affidavit, it has been stated that all orders passed
under Section 10(2)(l) of the Disaster Management Act, 2005, have
been withdrawn w.e.f. 18.05.2020 vide an order dated 17.05.2020.
FICUS PAX PRIVATE LTD. v. UNION OF INDIA
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Counter affidavit states that D.O.dated 20.03.2020 issued by Secretary,
Ministry of Labour and Employment, to the Chief Secretaries of all the
States was an advisory and an order was issued on 29.03.2020 by National
Executive Committee in exercise of powers under Section 10(2)(l) of
Disaster Management Act, 2005, directing all the employers to make
payment of wages of their workers at their workplace without any
deduction for the period their establishments are under closure during
the lockdown.
12. Applications for interventions have been filed by employees,
different employees’ unions, namely All India Central Council of Trade
Union, Trade Union Centre of India and few other employees’
organisations in leading writ petition. The intervenors in their applications
and affidavits have supported the order dated 29.03.2020. It has been
stated that under Disaster Management Act, 2005, the Central
Government has full authority to issue such directions.
13. It is further stated that right to wages is a 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
and loss of control of Business.
16. The Home Secretary, Ministry of Home Affairs, cannot invoke
Section 10(2)(l) or any other Section of Disaster Management Act, 2005,
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to impose financial obligations on the Private Sector. The Central
Government under Disaster Management Act, 2005, has the power to
constitute National Disaster Response Fund. Similarly, the State Disaster
Response Funds have been constituted, which can be utilised for payment
of any compensation towards workers which liability cannot be shifted
upon the employers in Private establishments. The respondent should
not compel the employers to pay the wages for the lockdown period but
instead should utilise the funds collected by Employees State Insurance
Corporation (ESIC) to make periodical payment to the workers.
17. Some of the counsel have also raised the submissions that the
order dated 29.03.2020 was issued only with regard to migrant labour
and the scope of order should not be extended to cover the entire
workforce of the establishment. Further, the order dated 29.03.2020 was
not a direction to the employer but it is an order to the State/UT
Government and other statutory bodies to take necessary action. The
violation of Article 14 and Article 19(1)(g) and Article 300A has also
been alleged by the impugned orders.
18. Learned counsel submits that if the impugned order is read in
the manner contended by the respondent, it would mean that the employer
should be compelled to not only continue to retain their migrant workers
but also their regular workers and also pay full wages at a time when the
business is effectively closed, and there is no income.
Failure to comply
for any reason, including the complete absence of funds, would render
them liable to prosecution. Such order is ex facie arbitrary and
unreasonable.
19. Learned counsel have further submitted that all industries and
private establishments have different financial capacity, circumstances
and all establishments cannot be grouped in one category for issuing a
direction to pay wages to its employees during lockdown period and in
possibility cannot be directed by any executive action. Some of the
petitioners have come forward with the prayer that they are ready to
pay 50 percent wages during the said period. Some of the learned counsel
have also submitted that they are also negotiating with their workers
regarding payment of wages 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
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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 an
economic and welfare measure as a benevolence in the object sought to
be achieved.
22. Shri Venugopal further submits that by order dated 17.05.2020,
the National Executive Committee has revoked its earlier impugned
directions w.e.f. 18.05.2020, hence, the order remain in operation only
for 54 days. The impugned notifications have been outlift their lives, the
adjudication of the same would only entail an academic exercise.
23. Learned counsel appearing for the intervenors have supported
orders issued by the Government of India
dated 29.03.2020 and other
orders and consequential directions. It is submitted that orders dated
20.03.2020 and 29.03.2020 were issued in larger public interest to prevent
the possible spread of the disease.
24. It is submitted that when the authority had declared a lockdown,
it is also liable to provide for the consequences of the lockdown. In
event, the order dated 29.03.2020 struck down, the very lockdown order
will be arbitrary and it is also liable to be struck down. The Government
of India has offered Economic Stimulus package to all Small and Medium
Industries to enable them to cope with the current financial situation so
as to ensure that they can cope with the burden of payment of wages
and continue to be viable.
25. The Disaster Management Act, 2005, is a self-contained code
and no reliance can be placed on any other law. Further by virtue of
Section 72 of Disaster Management Act, 2005, all other enactments are
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overridden. It is further submitted that order impugned seeks to reinforce
the pre-existing right of the worker to get their wages without any
reduction. The Payment of Wages Act of 1936 has also been referred to
in support of their submission.
26. We have considered the submissions of the learned counsel
for the parties and perused the record.
27. It is true that the orders dated 29.03.2020 which was passed
in exercise of power under Section 10(2)(l) of the Disaster Management
Act, 2005, stood withdrawn by subsequent order dated 17.05.2020 w.e.f.
18.05.2020. The consequence of the subsequent order dated 17.05.2020
is that the obligation cast on the employer to make payment of wages of
their workers at their workplace, without 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. 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 affidavitfor which the leave they have
already prayed for in the common counter affidavit, within a period of
four weeks. Rejoinder to which to be filed within a period of one week
and all the matter to be listed again in last week of July, 2020.
30. In some of the writ petitions, this Court had already passed an
order for not taking any coercive action against the employer. In our
order dated 04.06.2020, we have directed: -
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“In the meantime, no coercive action, against the employers
shall be taken pursuant to notification dated 29.03.2020.”
The above order shall continue in all the matters.
31. We have already noticed that in one of the writ petitions, b4S
Solutions Private Ltd., the petitioners have prayed for permitting the
petitioner to make payment of 50 percent of Basic Pay plus DA to its
workers/employees without payment of PF and ESICC pending final
disposal of the writ petition.
32. One of the writ petitions i.e. Writ petition filed by the Chamber
of Small Industry Associations, one of the prayers sought is “direction to
the respondent to strike a balance between the interest of MSMEs and
the interest of the employees.”
33. 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.
34. As noted above, all industries/establishments are of different
nature and of different capacity, including financial capacity. Some of
the industries and establishments may bear the financial burden of payment
of wages or substantial wages during the lockdown period to its workers
and employees. Some of them may not be able to bear the entire burden.
A balance has to be struck between these two competitive claims. The
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 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
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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 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.
37. We thus direct following interim measures which can be availed
by all the private establishment, industries, factories and workers Trade
Unions/Employees Associations etc. which may be facilitated by the
State Authorities: -
i)
The private establishment, industries, employers who are
willing to enter into negotiation and settlement with the
workers/employees regarding payment of wages for 50 days
or for any other period as applicable in any particular State
during which their industrial establishment was closed down
due to lockdown, may
initiate a process of negotiation with
their employees organization and enter into a settlement with
them and if they are unable to settle by themselves submit a
request to concerned labour authorities who are entrusted
with the obligation under the different statute to conciliate
the dispute between the parties who on receiving such
request,may call the concerned Employees Trade Union/
workers Association/ workers to appear on a date for
negotiation, conciliation and settlement. In event a settlement
is arrived at, that may be acted upon by the employers and
workers irrespective of the order dated 29.03.2020 issued by
the Government of India, Ministry of Home Affairs.
FICUS PAX PRIVATE LTD. v. UNION OF INDIA
[ASHOK BHUSHAN, J.]
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SUPREME COURT REPORTS
[2020] 6 S.C.R.
ii)
Those employers’ establishments, industries, factories which
were working during the lockdown period although not to their
capacity can also take steps as indicated in direction No.(i).
iii)
 The private establishments, industries, factories shall permit
the workers/employees to work in their establishment who
are willing to work which may be without prejudice to rights
of the workers/employees regarding unpaid wages of above
50 days. The private establishments, factories who proceed
to take steps as per directions (i) and (ii) shall publicise and
communicate about their such steps to workers and employees
for their response/participation. The settlement, if any, as
indicated above shall be without prejudice to the rights of
employers and employees which is pending adjudication in
these writ petitions.
iv) The Central Government, all the States/UTs through their
Ministry of Labour shall circulate and publicise this order for
the benefit of all private establishment, employers, factories
and workers/employees.
38. In event, any settlement is entered between the employers
and employees in the establishments which are before us, an affidavit
giving details shall be filed by next date of hearing.
39. List in last week of July.
Divya Pandey
Directions issued.