VISHAKHA

Intern at ubAdvocate

Email- vishakha.mahicha19@nludelhi.ac.in

Contact No- 935890484

The outbreak of COVID-19 is a global pandemic and on March 14, 2020, the
government of India declared COVID-19 as a notified disaster. Travel
restrictions, event cancellations, and sick and self-isolating workforces due to
the impact of COVID-19 are causing difficulties for businesses across the globe.
But what if an employee who is working as a let's say production technician in a
private factory. Due to National Lockdown, the factory remained closed
completely for n number of months.

There have been notifications from the National Disaster Authority that no
employee will be treated on leave and factory owners should pay full salary to
their employees during the lockdown. But, the factory owner showed its
inability to make the payment.

t defines a 'disaster' as a catastrophe, mishap, calamity, or grave occurrence in

any area - arising from natural or man-made causes, or by accident or
negligence - which results in substantial loss of life, human suffering, or
damage to and destruction of property or the environment; and its nature or
magnitude is beyond the coping capacity of the community in the affected area.

Disaster management is defined as a continuous and integrated process of

planning, organizing, coordinating, and implementing measures necessary to
prevent the danger or threat of a disaster; mitigating or reducing the risk of a
disaster or its consequences; capacity-building; preparedness to deal with a
disaster; prompt responses to a disaster; assessing the severity or magnitude of a
disaster; evacuation, rescue or relief; and rehabilitation and reconstruction.

The Epidemic Diseases Act, 1897 is colonial-era legislation that is still used as
the primary law to control a mass epidemic. The act, most recently, has been
invoked by a number of Indian states to fight the COVID-19 pandemic.

Given that labour law statutes such as the Industrial Disputes Act, 1947,
Payment of Wages Act, 1937, Contract Labour Act, 1970, Inter-State Migrant
Workmen Act, 1979 to name a few govern payment of wages to
workers/employees and particularly the provisions of the Industrial Disputes
Act, 1947 which explicitly recognizes the right of an employer to lay off an
employee and reduce wages to 50% upto a period of 45 days in certain
eventualities including a natural calamity (Section 25C and Section 25M), and
after 45 days if the layoff continues, no wages is payable, it appears that the
Ministry of Labour and Employment has consciously chosen to issue an
advisory instead of resorting to a formal order/direction mandating payment of
wages during lockdown.

Considering the situation prevailing in the country due to the outbreak of

COVID-19, the Central Government through the Ministry of Home Affairs,
invoking its power under Section 10 (2) (l) of the Disaster Management Act,
2005 ("DM Act") declared a nationwide lockdown on 24th March, 2020 with
effect from 25th March, 2020 till 14th April 2020 in order to contain the spread
of COVID-19 from being further transmitted.

The lockdown ordered under the NDMA and the mandatory directions for
payment of wages are inseparable, for the lockdown divorced from the mandate
of wage payment will be nothing but the suspension of the right to life
guaranteed under Article 21. One may, therefore, say that the constitutionality
of the lockdown order hangs on the thread of the mandate of making payment of
wages during the period of lockdown.    

Amid this unprecedented calamity, the payment of wages cannot be viewed

from the narrow compass of employment law. Payment of wages during the
lockdown is nothing but a translation of the constitutional mandate into action.
Payment of wages is nothing but protecting life. It is also a disaster management
measure primarily aimed at containing migration and resultant aggravation of
pandemic.

So, all arguments or actions aimed against payment of wages tantamount to

questioning or rather defying the decision of lockdown. Moreover, Section 2
of Epidemic Diseases Act, 1897 (EDA) empowers the authorities to determine
in what manner and by whom expenses incurred necessary to prevent the
outbreak of such disease or the spread thereof shall be defrayed.

This pandemic is a great leveller and hence an unprecedented opportunity to

foster industrial relations. It throws an opportunity both for capital and labour to
act in mutual interest by exploring ingenious methods to sustain.

Given the symbiotic relationship of the capital and the labour, it is time to
traverse beyond predictable conflict and evolve a synergic model for the future.

This opinion is based on the YouTube video https://youtu.be/jK13ZDgQV0I of

Jeevan Prakash, AOR, Supreme Court.