'There Has To Be Some Proportionality; It's A Disaster For Us Too' : Employers On MHA Order For Full Payment Of Wages

Interesting arguments ensued in the Top Court on Thursday as the bench reserved orders for June 12 in the hearing of petitions challenging Ministry of Home Affairs (MHA) March 29 order stipulating full payment of wages to workers by employers during lockdown.

A three-judge bench led by Justice Ashok Bhushan also passed an interim order that no coercive action should be taken against employers for failure to comply with the March 29 order.

Senior Advocate KV Vishwanathan appeared for one of the petitioners, i.e. the Employer(s) "B4S Solutions Private Ltd.".

Arguments advanced by Vishwanathan urged for the need of "proportionality" as being a paramount consideration in times of the pandemic-crisis. He stated that the MHA order was unfair on the employers, as the Government, while issuing the said order, had focused entirely on managing the disaster, without paying much heed to the plight of employers. 

Vishwanathan highlighted,

"There has to be some proportionality. They're concerned with managing disaster, it is a disaster for us too. This is like a disaster for us and a bonanza for another."

In this backdrop, Mr. Vishwanathan submitted vehemently, that non-compliance with the order would attract prosecution, which in effect was detrimental to industries. He emphasised on the detrimental ramifications of effectuating such an order, which he argued, would eventually lead to loss of jobs. This would be antithetical to the intent of providing respite to workers during lockdown in the long-run as industries who have no resources to pay would be forced to shut down, he argued.

Vishwanathan: "If they're forced to pay, they'll pay and then shut down their industries. This will lead to a complete shutdown of industries and the workers will lose out in the long run".

Advocate Jeetendra Gupta also appeared for the Employer "Ficus Pax Ltd."

First, he pointed out that Advisory issued by the Labour Ministry's lacked jurisdiction.

"We need to see this in light of the MHA order. This advisory has been passed by an authority which is not competent to pass it."

Next, Gupta stated that there was innate need to extend the interim order of non-coercive action as labour officers were harassing Employers.

At this juncture the bench put forth a question to Gupta. 

Justice Bhushan: "You tell us, can you run an industry without labour ? Therefore you have to strike a balance. It Should not be tilted Either on side of the employer or the employee."

To this, Gupta replied that the workload at his client's company had reduced manifold. Thus, it was difficult to pay all workers full wages. He further added that he was willing to pay the workers to the extent of making sure they have access to basics during this time.

Gupta: "How can I pay when theres no work? I'm willing to sit and negotiate so as to provide them with necessary means."

The thrust of Gupta's arguments revolved around facets of inability to sustain payments to 800 contract workers, which he argued had been employed during expanding mode of business.

Gupta: "I am only challenging the payment to contractors - these were hired for expansion purposes, how can I pay when my workload is not in expanding mode? Not challenging this notification viz. in-house workers. All the in house workers have been paid salaries but why should I pay the 800 contract workers when no work is happening?"

Finally, Advocate Jeetendra Gupta stated that the Government must utilise the ESI funds to pay minimum wages to the workforce of the country. He argued,

"There is a separate ESI fund which has 80,000 to 90,000 crores as surplus fund. The govt could have utilised 30,000 crores and pay the entire minimum wages to all workforce in the country, but they speak of 20 lakh crore."

Gupta also referred to Sec. 35(c) of the DMA, "We are not against workers, i'm only saying that in terms of sec 35(c), the govt should have created a fund for mitigating the problems of workers."

Advocate Varun Singh, who represented another petitioner submitted that it was the Responsibility of Government to mitigate the workers' issues.

He drew corollaries between how USA and UK had handled the crisis. "Why am I being made to suffer as an industry?" he said.

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