Payment of wages during lockdown - An alternate view

Payment of wages during lockdown - An alternate view The onset of the Covid-19 pandemic has brought about unprecedented challenges globally. Economic activity has come to a grinding halt and many industries are struggling to stay afloat. The Government of India, in the larger interest of safeguarding lives, imposed a nationwide lockdown from the night of March 24, 2020. The first phase was followed by an extension which is likely to last till May 3, 2020.

The objective of imposing a lockdown was to restrict public movement in order to contain the spread of the deadly Covid-19 virus. Due to the lockdown, several persons including migrant workers were stranded across the nation, which posed a greater challenge regarding their means of livelihood. As a result, the Ministry of Home Affairs (MHA), Government of India, issued Notification No. 40-3/2020-D -(A) dated March 29, 2020, whereby the Chairperson, National Executive Committee, while exercising its powers under section 10 (2)(l) of the Disaster Management Act, 2005, directed all the employers to make payment of wages to their ‘workers’ without any deductions. This was also followed by several similar notifications issued by different states.

As the lockdown was imposed in the last week of March 2020 followed by this notification issued in the end of March, most of the employers did not have any issues when it came to payment of wages for the month of March.

However, as we stepped into the month of April, followed by the second phase of lockdown, the bigger question that started bothering employers across the country, was that in the absence of any work coupled with low or zero business income, whether such employers are legally bound to pay wages to their workers in the light of the notification dated March 29, 2020.

Now this brings us to the most crucial question as to the intent and objective of the notification in the light of the prevailing circumstances.

The purpose of this notification was to contain the spread of Covid-19 by restricting the movement of workers and also entitle them to wages so that those who are working in a different city are able to overcome the hardships of being away from home. This is increasingly evident from the second paragraph of the notification which says:

“Whereas, movement of a large number of migrants has taken place in some parts of the country so as to reach their hometowns. This is a violation of the lockdown measures on maintaining social distance.”

The emphasis in the above paragraph of the notification is on stopping the movement of ‘migrant workers’ to reach their hometowns.

Now let us focus on Clause (iii) of the notification, which says:
“(iii) All the employers, be it in the industry or in the shops and commercial establishments, shall make payment of wages to their workers at their workplaces on the due date, without any deduction for the period their establishments are under closure during the lockdown”.

On finer analysis of Clause (iii), we come across the most crucial words used in the notification,‘at their workplaces’, which indicate or refer to the intention of this notification which focuses on the migrant workers who were left stranded at their place of work due to the sudden lockdown.

Thus the notification impliedly classifies two categories of workmen – firstly, the local workers or resident workers, and secondly, the migrant workers.

In the light of the foregoing discussion, I am of the view that the direction given in the notification dated March 29, 2020 to pay wages is with respect to migrant workers only. I have an apprehension that with this line of argument, the courts may take recourse to “The beneficial rule of interpretation”. But it also has to be kept in mind that the government, while issuing this notification, would also have kept in mind the interest of the employers whose survival is crucial to not only to generate employment, but also to ensure that jobs are kept safe. This notification seems more like a balancing act rather than something for the leverage of only the workmen. The above views are personal based on my understanding of the law and the prevailing environment in the country and is subject to approval by Court of Law.

(Devesh Tripathi)
Advocate- Industrial & Labour Laws Consultant
Partner – LABOUR LAW DESK
Mob: +91-9935661176
Email: adv.deveshtripathi@gmail.com
Web: www.labourlawdesk.com

Order restraining APFC for coercive measure, until waiver application is disposed.

M/s. Al Madeena Foundation Vs. UOI

CMWP No. – 18266 of 2024, May 27, 2024

Petitioner challenged the order of Assistant Provident Fund Commissioner passed u/s. 7A by filing appeal u/s. 7-I along with stay & waiver application u/s. 7-O of EPF&MP Act. Submission of the Petitioner is that Appellate Authority, due to additional charge of three Labour Courts, is not getting time to do the hearing in this matter and on the other hand Recovery ...

Order against charitable hospital, for payment of gratuity stayed by H.C.

Shree Ram Luxmi Narain Marwari Hindu Hospital Vs. State of U.P.

CMWP No. 18687 of 2024, May 29, 2024

Petitioner challenged the order of Controlling Authority & Appellate Authority on the ground that charitable hospital is not covered u/s. 1 of the Payment of Gratuity Act as charitable hospital is neither a factory or Shops & Commercial Establishment nor Central Government has issued any notification for coverage under the Payment of Gratuity Act. ...

Award for reinstatement, stayed as requirement of S.6-N was complied.

Shree Arya Mahila Hitkarini Parishad Vs. State of U.P.

 CMWP No. 7120 of 2024 March 3, 2024

Hon’ble High Court stayed the award of Labour Court giving relief of reinstatement with back wages on the ground that once Petitioner retrenched after complying the procedure prescribed u/s. 6-N of the UPID Act. Labour Court cannot pass order for reinstatement for non-compliance of provisions of re-employment as the issue of re-employment ...

H.C. stays order of BOCW authority for not recording satisfaction for service of notice

PCP International Ltd. Vs. State of U.P.

CMWP No. 2675 of 2024, Feb. 21, 2024

PCP International challenged the exparte order passed by BOCW Authority under BOCW Cess Act, 1996 on the ground that no notice was served on the Petitioner. Hon’ble High Court observing that authority did not record any satisfaction regarding service of notice on the Petitioner before proceeding exparte. Hon’ble High Court on this ground stayed the ...

For modifying punishment Labour Court has to record a finding that punishment is wholly & shockingly disproportionate.

Hindalco Industries Ltd. Vs. State of U.P.

CMWP No. 32446 of 2019, Jan. 18, 2024

Labour Court after despite recording a finding that enquiry is fair & proper, modified the punishment of dismissal to stoppage of two annual increment and with 20% back wages to the workman. The Hon’ble High Court relying on the judgment of Apex Court held that for modifying the punishment after holding enquiry as fair & proper, Labour Court has to record a subjective ...

Reference order stayed as individual worker has no right to raise dispute for any matter not covered u/s. 2-A of UPID Act, 1947

The Indian Express Pvt. Ltd. Vs. Union of India,

 CMWP No. 21577 of 2023, July 17, 2023

Petitioner challenged the reference order on the ground that as per section 3 of Working Journalist Act, Industrial Disputes Act shall apply to Working Journalist. As per section 2A of Industrial Disputes Act individual worker has no right to raise any dispute other than discharge, dismissal & termination. In this case the Working Journalist raised the dispute ...

Labour Court has no jurisdiction when territorial jurisdiction notified by agreement

TV Today Network Ltd. Vs. State of U.P. ,

CMWP No. 35913 of 2023, Oct. 17, 2023

Hon’ble High Court relying on the judgment of SC in case of EST Carriers Vs. Frankfinn Aviation Services Pvt. Ltd. [(2020) 12 SCC 667] stayed the proceeding before Labour Court on the ground that when agreement specifically mentioned that agreement is subject to exclusive jurisdiction of court at Delhi, the Labour Court, Noida has no jurisdiction to entertain the ...

Reference order relating to Medical Representatives under UPID Act, stayed

Sanofi India Ltd. Vs. State of U.P.

Writ-C No. 40371 of 2023 November 11, 2023

Hon’ble High Court, Allahabad in a writ petition challenging the reference order issued by Deputy Labour Commissioner under UPID Act stayed the proceeding before Labour Court, on the ground (i) Medical Representatives are not covered within the purview of“deemed workmen” under UPID Act, as per provisions of Sales Promotion Employees (Condition of Service) Act, 1976,(ii) In this ...

DLC has no jurisdiction to adjudicate dispute u/s. 17(1) of Working Journalist Act.

Indian Express Pvt.Ltd Vs. UOI  Writ-C No. 659 Of 2023,  February 21, 2023  

The issue in this petition is, "whether Prescribed Authority under Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 can adjudicatea claim filed by workmen under Sec. 17(1) of Act, 1955?"

In the present case, controversy arose before Prescribed Authority that, whether or not employer has power to deduct the ...

Award u/s. 4-K, was stayed as establishment is covered under Working Journalist Act.

Living Media India Ltd. Vs. State of U.P.,

CMWP No. 16981 of 2022, June 14, 2022

Hon’ble High Court after noticing that award by Labour Court was delivered after 17 years of disengagement by giving relief of reinstatement with full back wages,on a reference u/s. 4-K of U.P. Industrial Disputes Act, 1947. Petitioner objected thatas establishment is governed by Working Journalist (Conditions of Service) & Misc. Provisions Act, 1955, the award cannot be passed. ...

Direction to decide waiver application u/s.7-O of EPF&MP Act, 1952 by independent application of mind.

Pepsico India Holding Pvt.Ltd Vs. EPF Appellate Tribunal

WRIT - C No. - 8935 of 2021.October 01, 2021

The petitioner challenged order dtd. 11/1/2021 passed by the appellate authority/EPF & MP Act passed u/s. 7-I of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, admitting the appeal of the petitioner subject to deposit of 50% of the dues.Shri Sunil Tripathi, learned counsel for the petitioner assailing the order dated 11/1/2021 ...

Exparte award without recording satisfaction regarding service of notice, stayed

Roche Diagnostic India Pvt. Ltd. Vs. State of U.P.:

CMWP No. 10176 of 2021, July 6, 2021

Hon’ble High Court having noticed that exparte award was passed by Labour Court without recording a finding regarding sufficiency of service of notice, therefore, stayed the award.

Award remitted for loss of confidence due to concealment of involvement in murder case.

Varun Beverages Ltd. Vs. State of U.P.

CMWP No. 26047 of 2021 Oct. 8, 2021

Petitioner challenged the award on the ground that employer lost the confidence as workman managed to get the employment by concealing the fact of involvement in murder case. When Petitioner came to know through newspaper that he was punished by life imprisonment, management loss the confidence for concealment of such vital information from management.However, the Labour Court ...

Punishing workman for charges without opportunity of defence is bad in law.

K P Singh Vs. State Of U P.

Writ - C 1907 of 1988 April 12, 2019

Once Tribunal found that certain incidents which were not subject matter of enquiry have been taken into consideration to impose punishment upon workman and punishment order amounts to colourable exercise, I find no justification on the part of Labour Court to uphold such an order. It is now well settled that an act and omission in respect whereto no charge-sheet has been issued and enquiry ...

Award based on non-rebuttal of documents by employer, is not justified.

Madhyanchal Vidyut Vitaran Nigam Ltd.Vs. State of U.P.

LAWS(ALL) 2023 5 74 May 19,2023 Writ-C No. 32520 Of 2016

I have heard learned counsel for the parties and perused the record. I find that award of the Labour Court is based upon the fact that the workman had produced certain documents establishing his work in the Organization and, in the opinion of the Labour Court the Department could not rebut the same. Certain certificates as well as attendance ...

Complaint u/s. 3(1)(X) of SC/ST Act by employee against Enquiry Officer, for incident not in public view, quashed by High Court.

K. P.Thakur Vs. State of U. P.and another.

February 18, 2020 Application U/S 482 No. - 40418 of 2012

The applicants, by application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with prayer to quash the entire proceeding of Complaint Case No. 1577 of 2012, under Sections 323 , 504 , 506 I.P.C. and Section 3(1)(X) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act , 1989, pending in the Court ...

Family is not in penury, no mandamus for compassionate appointment after a long time

 RAJ BALI Vs. Vice Chancellor, Benaras Hindu University

Writ - A 23036 of 2000 RAJ2018

This is an old matter of more than 20 years hence at this fag end any direction for compassionate appointment cannot be issued in favour of petitioner. Moreso, in 2000 when this writ petition was filed petitioner was 34 years of age and now must be above 52 years. Any relief of compassionate appointment at this stage and after such a long time with breach the very ...

Daily wagers have no vested right for regularisation.

Shiv Chandra Bahadur Vs. STATE OF U. P.

WRIT - A No. - 14539 of 2017November 27, 2018

Having considered the arguments raised by the learned counsel for the petitioners and the respondents, I have carefully perused the order impugned and also the judgment cited by the counsel for the parties. It is evident that the petitioners could not produce any documentary evidence of their engagement as daily wagers since before29.6.1991 before the Committee ...

State Government has power to delegate the power of reference u/s. 17(2) of Working Journalist Act, 1955.

Pradhan Prabandhank /Unit Head M/S Amar Ujala Vs. State Of U P

LAWS(ALL) 2018 5 606May,31,2018.

In nutshell, the submission on behalf of the petitioner is that the Deputy Labour Commissioner, under sub-section (1) of section 17 of the Act is an authority specified by the State Government only for the limited purpose of satisfying itself whether an amount under the Act is due to a newspaper employee from any employer and if it is satisfied that such ...

Candidate after appearing in the selection process, cannot challenge the result

Banaras Hindu University Vs. Krishna Rai

Special Appeal 24 of 2012).July 29, 2016

Sri V.K. Singh Senior Advocate, assisted by Sri Sunil Kumar Tripathi, Advocate representing Banaras Hindu University as well as Sri Ashok Khare, Senior Advocate, assisted by Sri Sidharth Khare, Advocate contended with vehemence that in the present case selection and appointment had been made strictly as per notification /publication and once petitioners/opposite party had ...

Section 5 of the Working Journalists Act being a special law will prevail over Section 4(6) of the Payment of Gratuity Act

Section 5 of the Working Journalists Act being a special law will prevail over Section 4(6) of the Payment of Gratuity Act which is a general law

Gandiv Hindi Daily Vs. State of U. P. CMWP No. 4388 of 2014, February 10, 2014

The main dispute between the parties is as to whether the respondent No. 4 being a working journalist shall be governed by the provision of Act of 1955 or the Act of 1972 for the purposes of computation and payment of ...

New reference order in supersession of previous reference order, is illegal.

A.B.C. Export Vs. State of U.P.

LAWS(ALL) 2008 7 256 HC Allahabad 01.07.2008

Deputy Labour Commissioner superseded the previous reference and amendment made in the reference order dated 8. 4. 2008 by the Labour Commissioner in the garb of amending aforesaid reference order. It appears that previous reference order has been amended by the Dy. Labour Commissioner by deleting the ...

Principles of Wage Fixation

WHAT ARE THE PRINCIPLES OF WAGE FIXATION

Hon’ble Supreme Court of India has laid down the following principles for wage fixation:

1. There is a minimum wage, which in any event must be paid, irrespective of the extent of profits, the financial condition of the establishment or even the availability of workmen to work at lower wages.
2. The wages must be fair i.e. sufficiently high to provide a family with basic standards of food, shelter, clothing, medical ...
   Read More >>

Spread Over under the Code on Wages Rules, 2020

Code on Wages Rules, 2020

Inconsistency between Rule 6(1) & Rule 6(2) regarding working hours: “Is Spread Over a thing of the Past”

Central government has framed rule 6, 7, 8 & 9 in connection with Section 13 of the Wage Code. Rule 6(1)  says that the normal working day of an employee shall comprise of Eight hours work and one or more ...

Salient features of the IR Code, 2020

1. The Industrial Relation Code, 2020(in short IR Code) received the assent of president on 28thSeptember, 2020.
2. The date from which this code would be enforced,has not been notified so far.The code will become law of the land from the date it is notified for its enforcement.
3. In this code, 3 enactments have been subsumed namely: (i) Trade Union Act; (ii)Industrial Employment Standing Order Act, & (iii)Industrial DisputesAct, 1947.
4. Sec. ...
   Read More >>