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The pandemic has proven to be challenging times for every community in the country. The worst hit by this crisis is the lower income group of the nation which is not only vulnerable because the low wage system but also due to the lack of infrastructure of the country in terms of health, housing, transportation, food and life security. With all the business being shut it has evidently taken a toll upon the economy of the country. The pandemic has been successful in affecting each and every sector of our economic built up. If analysed from a wider perspective the crisis has created a multi dimensional domino effect. With a pandemic at hand, it has also given rise to a migrant crisis added with the burden of providing people with suitable security needed amid the economic slowdown. Within all this, a crucial question of payment of wages and salaries to the employees came into the picture before the government which went to a number of twist and turns throughout the period of last 3 months. Now, from any natural justice giving mechanism it is clearly expected that, the system would be able to empathise with all the parties involved and shall be able to reach, in the words of the Supreme Court- a reasonable solution through negotiation. The attempt would be to analyse the opinions and conditions attached to both judiciary and the legislative decisions in the matter. Adding to which determination regarding the numerous other interests and strategies involved is also be made which shall guide us towards understanding this convoluted affair which comprises of the some major stakeholders of our welfare oriented state.

The issue begins with an order passed on March 20 by the Ministry of Labour and Employment where it was notified that all the employers were duly bound to pay the wages or salaries to all their employees, further adding that they also could not deduct any percentage of money from the payment. Interestingly not much clarity was given on the specifications as to what kind of work does it apply to nor did it specify as to what nature of employer- employee relationship comes into its ambit thus giving it a larger scope of interpretation which aided to the deteriorating chaotic conditions. In a addition to this on March 29 the Government of India, to effectively implement the lockdown order and to mitigate the economic hardship of the migrant workers issued an order under Section 10(2)(1) of the NDMA. It directed the State governments and the Union Territories to issue orders, compulsorily requiring all the employers in the industrial sector, shops and commercial establishments to pay wages to their workers at their workplaces on the due date without any deduction during their closure due to lockdown. With this, the government gave it a legal angle by making it an obligation and non adherence of which was a straight legal offence. This was practiced by The Home Secretary, Ministry of home affairs in exercise of the powers conferred by Section 10(2) (l)of the Disaster Management Act, 2005. The Central Government issued the MHA Order to restrict the movement of migrant workers within the country in order to contain the spread of COVID-19 in the country.The MHA Order directed the governments and authorities of the states or union territories to take necessary action and issue orders to their respective District Magistrate or Deputy Commissioner and Senior Superintendent of Police or Superintendent of Police or Deputy Commissioner of Police, to implement the additional measures contained therein. Furthermore the Ministry of Skill Development and Entrepreneurship ordered all the establishments to pay full stipend to the designated and trade apprentices engaged by them during the lockdown period. All these tumultuous orders coming back to back from different ministries were bound to create panic amongst the industrial employers of the country also keeping in mind that the vagueness of all these order further makes the condition even more vulnerable due to its open interpretation.

It was after this, that numerous petitions were filed in the Supreme Court challenging the order. A batch of petitions came before the Apex Court challenging the constitutional validity of the MHA Order. Among the petitioners, the Karnataka-based Ficus Pax Private Limited filed a writ petitionchallenging the constitutional validity of the MHA Order as well as an advisory dated March 20, 2020issued by the Ministry of Labour and Employment, on the grounds that they violated Articles 14 and 19(1)(g) of the Constitution of India and, were in contravention of the principles of 'equal work, equalpay' and 'no work, no pay'by not differentiating between the workers so covered and those who had been working during the lockdown. The petitioners submitted that in light of the pandemic and the subsequent lockdown, many industries were unsustainable and already at the brink of insolvency, wherein payment of full wages to its workers would drive them out of business. They even argued that they should be allowed to pay the worker 70% less and the rest of the amount should be taken care of throughthe funds collected by the Employees State Insurance Corporation or the PM Cares Fund or through any other government fund. The basis of this demand seemed compelling and credible pertaining to the fact that they have not been able to conduct business because of the nationwide lockdown and that being forced to pay workers in full in these compelling circumstances has put extreme financial and mental stress on them. Amid all this, the reasoning given by the government was that it was a temporary order which shall be mandatorily applicable for 54 days as the migrant crisis was at its peak, thus the payments of wages would help in bringing the crisis into some stability. The bases of the orders were termed to be completely altruistic and humanitarian which had the goal to avert human suffering. What needs to be analysed here is that the way in which the orders have turned out by different ministries without much interpretation or conditional clauses clearly shows the short sightedness of the government. It seems as if the government failed to recognise that the ongoing pandemic is not limited to the vulnerable sections of the society but even the middle class employers and high end firms are under its atrocities as well. During this global pandemic and economic slowdown, solutions in the form of such orders are by no means an efficient solution. Further adding to the facts if we may try to connect the dots the orders are so ambiguous by each ministry that not only do they create an unrest is the industrial set up but are also unable to address the more technical aspects of the issue including the question of managerial level employees, paid leave adjustments, accurate timing of the payment etc. All these factors leave a room for a lot of exploitation while social welfare of the country takes a back seat.

Acknowledging the gravity of the situation, on May 15, 2020, the Apex Court had asked the Central Government not to take any coercive action for a week against companies and employers who were unable to pay full wages to their workers or employees during the nationwide lockdown. After reserving the order on June 4 2020, the judgement was pronounced by three judge bench comprising Justice Ashok Bhushan, SK Kaul and MR Shah in batch of petitions filed by more than 15 MSMEson 12 June 2020. The court highly emphasised upon the fact that the notification compelled the payment of 100% of the salaries. It could have been around 50 to 75% by the firms. So the question stood, do they have the power to get them to pay 100%, and on their failure to do so, prosecute them. The court was also of the point of view that such standards should only be set after the negotiations with the industries and the government should rather act as a facilitator of solutions rather than behaving in an authoritarian manner such as in the present case. So on June 12 2020 the court gave its verdict upon the issue addressing the various aspects and expectations from the parties involved. The court expressed that, the employers willing to enter into negotiation and settlement with the workers or employees regarding payment of wages for the 50 Days period, may initiate a process of negotiation with their employees' organization and enter into a settlement with them. If they are unable to settle by themselves, a request may be submitted to the concerned labour authorities. This advisory was also made to those firms which were functioning during the lockdown period but not to their full capacity. The court also conveyed that the employers who proceed to take the steps recommended shall publicize and communicate about their steps to the workers and employees for their response or participation. Such a settlement would be without prejudice to the rights of employers and would promote the willingness of the parties towards a solution. Further adding, that if a mutual agreement is reached by the parties till the end of July then further legal formalities would be initiated. The present directions given are the most practical and viable solutions which the judiciary could have provided given the uncertainty of the situation, considering that due and timely payment of wages also comes within the ambit of legal rights of the labourers but at the same time it is equally important to address and acknowledge the special case of the ongoing of pandemic. Keeping the same in mind, the harmonious approach which the court has recommended to follow sets a precedent for any future decision which the government might take to cater to the present crisis. A key highlight which shall be noticed here is that the court was silent upon the non compliance of any regulation which would be initiated after the negotiation. This sends us into an assumption that it was done so with an intention to maintain harmonious relationships within the industry and also to prevent any further disturbances. The essence of the judgement is the far sightedness adapted by the court as all the steps suggested would not only almost solve the current issue at hand but would also ensure and aid the process of the post crisis economy revival.

See the original post:
Scrutinising the anarchical situation of wage regulation in the country amid the covid pandemic - Lexology