Employers and employees are the two wheels of the engine of an organization which help it to

prosper but the outbreak of the pandemic has led to the disequilibrium between them and the
world has been irrevocably altered. This situation has given way to various questions of fact and
of law the most significant one of which is “whether wages should be paid to the employees for
the lockdown period or not?” the answer to this question is given in the following submissions in
four folds namely: [A] The right to wages is a pre-existing right flowing from labour laws and articles
14 and 21 of the Constitution; [B]The ground of incapacity to pay wages is untenable to challenge the
exercise of statutory power; [C] MHA circular was a measure to mitigate the financial hardship of
labourers and employees; [D] The strike was legal and justified; [E] The doctrine of no work-no
pay is not applicable.

A. The right to wages is a pre-existing right flowing from labour laws and articles 14 and
21 of the constitution
Georgeopol is a welfare state and the Constitution makes it imperative for the State to secure to
its citizens’ rights guaranteed by Constitution. Art. 21 of the Constitution of Georgeopol which
guarantees to every citizen protection of his life and personal liberty, is repository of all
important human rights which are essential for a person or a citizen. When there is a natural
calamity the State as guardian of the people (Parens Patria) is obliged to provide help, assistance
and support to the victims of such natural calamities to help them to save their lives.

Black’s Law Dictionary1 defines ‘parens patria’ as: “The State regarded as a sovereign; the state
in its capacity as provider of protection to those unable to care for themselves.” In Heller vs.
DOE2, Kennedy, the Judge observed:“ The State has a legitimate interest under its parens
patriae powers in providing care to its citizens who are unable to care for themselves.”

The DPSP as well as the Fundamental Rights enshrined in our Constitution make it imperative
for the State to secure to all its citizens the rights guaranteed by the Constitution and where the
citizens are not in a position to assert these rights, the State comes into picture and protects the
rights of such Citizens3.

1
Garner, B. A., & Black, H. C. (2009). Black's law dictionary. 9th ed. St. Paul, MN: West.

2
509 U.S. 312 (1993).
3
Charan Lal Sahu Etc. v. Union Of Georgeopol And Ors., AIR 1990 SC 1480.
The Preamble to our Constitution read with Art. 38, Art. 39 and Art. 39A makes it amply clear
that the State must take up these responsibilities. The State must strive to promote social,
economic and political welfare of the people. A harmony needs to be maintained between the
Fundamental Rights and the DPSP by the State so as to effectively discharge its commitments
towards the people. While discharging these commitments, the state may even deprive some
rights and privileges of the individual victims or their heirs to protect their other important rights
in a better manner and secure the ends of social welfare.

The pandemic has created a socio-economic condition fortuitous for regimes ready to crop
hard-earned rights of workers and the vulnerable. This ruthless attack on democratic and
constitutional rights is ominous. What emerges clearly is the regression to the days when
the Bastille was stormed, where worker’s rights are concerned. Art. 21 of the Constitution
gives the right to every citizen to have access to all the minimal requirements of living with
dignity and consequently obligates the State to provide these minimal facilities to them
especially when they are deprived of these on account of the orders of the State (even when such
orders are required for dealing with disasters). Art. 21 guarantees human dignity, which in turn
guarantees further rights.

In Francis Coralie Mullin v Union Territory of Delhi 4 Hon'ble Bhagwati J. (as he then was)
opined for a two Judge Bench of this Hon'ble Court: “The fundamental right to life which is the
most precious human right and which forms the ark of all other rights must therefore be
interpreted in a broad and expansive spirit so as to invest it with significance and vitality which
maybe endure for years to come and enhance the dignity of the individual and the worth of the
human person..” Similar views were given in the landmark judgment of M Nagraj v. union of
Georgeopol5

In any case, the fundamental rights of all persons under Art. 2l obligate the government to
provide food, healthcare and shelter and all the basic necessities for leading a dignified life to
these migrant workers. It is therefore essential for enforcement of the rights of these workers
under Article 2l and, for enforcing the obligations of the government under the National Disaster

4
(1981) 1 SCC 6O8.
5
(2006) 8 SCC 212.
Management Act for the central or State governments to be complied to pay the wages of these
migrant workmen.

Moreover, the employees are entitled to wages because the doctrine of reasonable classification
would come into play in this situation and thus the employees have to be treated as a separate
class from the employers and both cannot be treated as being equally affected by the pandemic.
It is true that the epidemic has affected both the employer and the employee equally i.e. both of
them are not free to move out of their houses. However, in terms of financial impact, the
employees are worst affected as their survival is totally dependent on their wages.

Employee, more so of the workmen category, as a class has to be treated separately for a definite
object sought to be achieved namely to ensure that they strictly follow the lockdown and social
distancing norms in the present situation. It is well known fact that in the absence of
employment, many labourers had come out on road and had started walking towards their native
places. Such widespread movement of large number of human beings is definitely dangerous and
contrary to the efforts of containment of the disaster.

B. The ground of incapacity to pay wages is untenable to challenge the exercise of statutory
power

Employers should follow the motto that, “Morality forbids what the law doesn’t” and at least on
that principle alone pay their workers. The government’s active interference in the dynamics
between employers and employees has been to prevent inequality in bargaining power and to add
further value to the beneficial nature of the labour legislations.

However, the refusal to pay wages on the ground of financial hardships is not legally tenable.
Payment of wages has been refused by companies having reserves of profits saved in their bank
accounts citing financial hardship and cash crunch. In this crucial time, it is important to
acknowledge the hardship faced by employees for whom their salary will make the difference
between destitution and the ability to fight another day.

The Centre has justified in the Supreme Court its March 29 direction asking private
establishments to pay full wages to workers during the COVID-19 lockdown and said that
employers claiming incapacity in paying salaries must be directed to furnish their audited
balance sheets and accounts in the court.6

At a time when unemployment is on a rise globally, the government is doing all it can to ensure
that employer-employee relations are amicable and flexible enough to gradually reverse the
worrying trend. The government wants to reduce or mitigate the loss which can be suffered by
the workers due to stoppage of work in various factories/ establishments, which is very
appreciable and demands a standing ovation for the thought and intent.

C. MHA circular was a measure to mitigate the financial hardship of labourers and
employees
During the period of the lockdown, workers are in want of increased wages and compensation in
light of the hike in prices of food and essentials. Additionally, the present situation also fastens
increased expenses on workers for extra sanitation necessities and hygiene products such as
soaps, masks, gloves etc. for adequate personal protection. Moreover, despite the closure of most
functions, all expenses of the workers remain fixed and unchanged, which include school fees,
rent, loan repayments, electricity, food, etc. In fact, some of these costs have also increased as
the cost of the basic essentials has also increased.

A careful reading of the advisories and orders of the Central and State Governments will show
that the rationale for the direction to the private establishments to pay wages/salaries and not
terminate the employees is to “not weaken their financial condition’ and ‘mitigate the economic
hardship’ the employees will face during the lock down period which could have a direct impact
on their right to life and livelihood - to live with dignity.

The POW Act 1936 states that a wage period cannot exceed one month7. Deductions can be
made on specified grounds given in § 7 of this Act. § 7(2)(b) permits deduction of wages due to
absence from duty. However, absence during lockdown cannot be treated as absence from duty.
Because production has been stopped due to the lockdown, the absence from duty cannot be

6
PTI, Employers claiming incapacity in paying wages must place balance sheets in court, THE
ECONOMICTIMES, (Aug19, 2020, 3:02 pm)
https://economictimes.Indiatimes.com/news/economy/policy/employers-claiming-incapacity-in-paying-wages-must-
place-balance-sheets-in-court-centre-to-sc/articleshow/76192443.cms?from=mdr.
7
POW Act,§ 5(1) (Georgopol).
attributed to workers only. In fact, production has stopped because of exigencies backed up by
government notifications.

POW Act, 1936, did not foresee a situation like the present one, where there is a lockdown due
to a pandemic. Thus there is no explicit § specifying payment of wages in case of stoppage of
work under extraordinary circumstances. It is assumed that wages are payable only when work is
being done and there is no provision to pay wages when no work is being done. Thus this Act
may not be sufficient to be invoked to ensure payment of wages in today’s circumstances.

It is in the light of this truism that the case of Workmen v. Binny Ltd8, should be viewed, wherein
it was said that:

 “...it is a trite law that in matters of welfare legislation, especially involving labour, the terms of
contracts and the provisions of law should be liberally construed in favor of the weak.” 

Paying wages to workers definitely is a measure against the spread of COVID-19. Without
wages, workers cannot afford soaps, sanitation and other health care and safety requirements.
The termination of employee from the job or reduction in wages in this scenario would further
deepen the crises and will not only weaken the financial condition of the employee but also
hamper their morale to combat their fight with this epidemic.

It is in this view that the various orders and advisories have been passed by the government.

D. The strike was legal and justified

i. Strike declared by workers was completely legal and justified

Workers did not break any law and the strike was outcome of the arbitrary policies of the
management.

8
1973 AIR 353, 1972 SCR (3) 462.
In the present case, strike was justified because it was outcome of the consciously chosen silence
of the management on the matter of working conditions and increments raised by the employees.
During the period of the lockdown, workers are in want of increased wages and compensation in
light of the hike in prices of food and essentials. Additionally, the present situation also fastens
increased expenses on workers for extra sanitation necessities and hygiene products such as
soaps, masks, gloves etc. for adequate personal protection.

It was held in the case of Swadesh Industries Ltd v Their Workmen 9, the first and foremost
requirement of a justified strike is that it should be launched only for economic demands of
workmen like basic pay, dearness allowance, bonus, provident fund, gratuity, leave and holidays
etc., which are the primary objects of a trade union. The political considerations cannot supply
and good answer to legal obligations. The economic demands should be prima facie reasonable.

It is significant to mention that, Hon`ble Apex Court has stated that in determining the
justifiability of the strike, service conditions of the workmen, causes which led to strike and
nature of demands has to be seen.10

ii. Strike declared by workers was completely valid in the eyes of the law

PPL owns fabric manufacturing plants, meaning thereby, it is a non-public utility service because
garment and fabric manufacturing industries have not been declared public utility service by
either the central government or state government. Thus, the strike was legal because in case of
non-public utility services, strike can be declared without giving notice.11

It is pertinent to notice that, in Crompton Greaves Ltd. v. Workmen12, it was held that in order to
entitle the workmen to wages for the period of strike, the strike should be legal and justified. A
strike is legal if it does not violate any provision of the statute. It cannot be said to be unjustified
unless the reasons for it are entirely perverse or unreasonable. Whether particular strike is
justified or not is a question of fact, which has to be judged in the light of the fact and
circumstances of each case.

9
AIR 1960 SC 1258, 1960 (1) FLR 576, (1960) IILLJ 78 SC.
10
Syndicate Bank & Anr. v. K. Umesh Nayak, AIR 1995 SC 319.
11
As per §s 22 & 23, Industrial Disputes Act, 1947 (Georgopol).
12
AIR 1978 SC 1489, 1978 (36) FLR 329, 1978 LablC 1379, (1978) IILLJ 80 SC, (1978) 3 SCC 155, 1978 (10) UJ
366 SC.
 The employees of PPL had expressed their dissatisfaction with the working conditions and their
dire and urgent need for increments in order to sustain their living amidst lockdown. However
the callous and indecisive attitude of the management pushed the employees to call for a strike.13

The constitutional bench in Syndicate Bank v. K. Umesh Nayak14 decided the matter, the
Supreme Court held that a strike may be justified or unjustified depending upon several factors
such as the service conditions of the workmen, the nature of demands of the workmen, the cause
led to strike, the urgency of the cause or demands of the workmen, the reasons for not resorting
to the dispute resolving machinery provided by the Act or the contract of employment or the
service rules provided for a machinery to resolve the dispute.

E. The doctrine of no work-no pay is not applicable

The no work-no pay policy means that if the employee does not come to work without giving
any justification, then the employee is not entitled to salary compensation. However it is
pertinent to note that on 12th May 2020, the Aurangabad Bench of the Bombay High Court
observed that during this present time of COVID-19, the principle of no work-no pay cannot be
made applicable by the employers as these are extraordinary circumstances and the courts cannot
be insensitive to the plight of such workers face unfortunately on account of the Covid-19
pandemic15.

The Hon’ble Court can take judicial notice of the fact that one of the worst pandemics in the
history of humankind (the COVID-19 pandemic) is presently afoot. In such a situation the
Government has deemed it necessary to have a lockdown. Most workers cannot survive such a
lockdown without wages. As such it is clearly in the nature of a measure to make the lockdown
effective.

The workers’ wages are paid under a contract. The contract is that the worker will get his wages
as long as he is employed and is ready to work. It cannot be read into the contract that he will not
be entitled to wages if the employer is unable to provide him with work. The establishments

13
Express Newspapers Ltd., v Michael Mark, 1963 AIR 1141, 1963 SCR Supl. (3) 405.
14
AIR 1995 SC 319.

15
Rashtriya Shramik Aghadi. Versus The State of Maharashtra and Others, 2020 SCC OnLine Bom 634.
which are shut are so shut because they are prohibited from working during the lockdown. In
those establishments where they are permitted to work, the workers are attending work as per the
permissions given. The workers, even though not given work are expected to abide with all other
terms of the contract such as not taking employment elsewhere, not disclosing trade secrets to
rivals, etc. In such a situation it is clear that the contract of service is valid and subsisting during
the lockdown and workers are entitled to wages under such a contract. The workers are neither
absent nor abandoned, they are obeying statutory direction issued by the government. The
statutory/social relation b/w employer and employee stands continued during this period. Hence,
Payment of salary/ wages in normal circumstances is a contractual/statutory obligation of the
company. When employer was making profits, they weren’t sharing it with workers now the
employer cannot pass on the loss to the workers alone.

Hence the doctrine of no work-no pay has no application in this case.