IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL
WWW.LIVELAW.IN1REPORTABLEIN THE SUPREME COURT OF INDIACIVIL ORIGINAL JURISDICTIONWRIT PETITION (C) DIARY No. 10983 OF 2020FICUS PAX PRIVATE LTD. & ORS. PETITIONERSVERSUSUNION OF INDIA & ORS. RESPONDENTSWITHW.P.(C) No. 500/2020W.P.(C) No.498/2020W.P.(C) No.480/2020W.P.(C) No.484/2020W.P.(C) No.501/2020W.P.(C). Diary No(s).10981/2020W.P.(C). Diary No(s).10993/2020W.P.(C). Diary No(s).11018/2020W.P.(C). Diary No(s).11041/2020W.P.(C). Diary No(s).11048/2020W.P.(C). Diary No(s).11094/2020W.P.(C). Diary No(s).11111/2020W.P.(C). Diary No(s).11180/2020W.P.(C) No(s).494/2020W.P.(C). Diary No(s).11194/2020W.P.(C). Diary No(s).11223/2020Signature Not VerifiedDigitally signed byARJUN BISHTDate: 2020.06.1216:18:31 ISTReason:W.P.(C). Diary No(s).11282/2020W.P.(C). Diary No(s).11309/2020
WWW.LIVELAW.IN2W.P.(C). Diary No(s).11310/2020O R D E RASHOK BHUSHAN, J.1. All these writ petitions except one(i.e. W.P.(civil)Diary No.10981/2020) have been filed by differentemployers, employers’ associations questioning theorders issued under Disaster Management Act, 2005and other consequential orders issued by differentStates where directions have been issued that allthe employers be it in the industries or in theshops, commercial establishment, shall make paymentof wages of their workers, at their work place, onthe due date, without any deduction, for the periodtheir establishments are under closure during thelockdown.2. In the writ petitions apart from challenging the D.O.dated 20.03.2020 issued by the Secretary, Governmentof India, Ministry of Labour and Employment, stry of Home affairs, in exercise of powers underSection 10(2)(l) of Disaster Management Act, 2005,
WWW.LIVELAW.IN3the vires of Section 10(2)(l) of Disaster ection 10(2)(l) is interpreting as conferring s to make full payment of wages to theemployees during the period of lockdown. In few ofthe writ petitions, directions have also been soughtto subsidise 70 to 80 percent of the wages for ee State Insurance Corporation or the PM CaresFund or through any other Government funds/schemes.To understand the nature of relief in different writpetitions, it shall be sufficient to refer reliefsclaimed in few of the writ petitions since in otherwrit petitions reliefs claimed are more or lesssimilar.In W.P.(Civil) D.No.10983/2020, Ficus PaxLimited Private Limited and others versus Union ofIndia and others, the Union of India had filed acommon counter affidavit and prayed that the red to in paragraph 4 of the counter affidavit.W.P.(Civil) Diary No.10983/2020 is being treated as
tionsapplications have also been filed in the leading writpetition. The intervention applications filed in theleading writ petition are allowed.3. The petitioner in W.P.(C)Diary No.10983 of 2020 isa company incorporated under the Companies Act andis engaged in the business of packaging with elevenfactories spread across seven states. The petitioneris registered as Medium Industry (manufacturing)under Micro, Small, Medium Enterprises rkersitsandthe939factories,warehouses and offices. The petitioner’s case isthat after the lockdown period although petitionerbeing in a supply chain of several essential enofnear5-6percent.Thepetitioner challenges the order dated 29.03.2020 andthe D.O. dated 20.03.2020 as being violative of
WWW.LIVELAW.IN5Article 14, Article 19(1)(g) of the Constitution ofIndia.4. The petitioner’s case is that notifications arearbitrary, illegal, irrational and unreasonable andcontrary to the provisions of law including Article14, Article 19(1)(g). Notifications are ions are also contrary to the principles ofEqual work Equal Pay and also No work No pay, for itdoes not differentiate between the workers who areworking during the lockdown period in establishmentsuch as the petitioner who have been permitted tooperate during the lockdown period and the workerswho had not worked at all.5. TheHomeSecretary,MinistryofHomeAffairs,Government of India, cannot invoke Section 10(2)(l)or any other provisions of Disaster Management Act,2005, to impose financial obligations on the owages.TheallocateCentralfundsfor
tion,mitigation of disasters under Disaster ManagementAct. The ultimate onus for any compensation towardsworkers shall ultimately be of Government and thesaid liability cannot be shifted upon the fications have the effect of completely sputes Act, 1947. The respondent should not compelthe employers to pay the wages for lockdown periodbut instead should utilise the funds collected byEmployees State Insurance Corporation (ESIC) to makeperiodicalpaymenttoworkers.Inthepetition, following prayer has been made: “PRAYERIt is therefore, most respectfullyprayed that this Hon’ble Court maygraciously be pleased to: i) Issue a writ, order or directionin the nature of a declaration tions declaring D.O. No.M11011/08/2020Mediadated20.03.2020 issued by Secretary(Labour & Employment) and meSecretary,MinistryofHomewrit
WWW.LIVELAW.IN7Affairs are ultra vires Article14, 19(1)(g) of the Constitutionof India; AND/ORii) Issue a writ, order or directionin the nature of mandamus or anyother appropriate writ, order ordirections, thereby directing theRespondentstosubsidizethewages of workers to the tune of70-80% for lockdown period byutilizing the funds collected bythe Employees’ State InsuranceCorporation(ESIC) or the PM CaresFundorthroughanyotherGovernment Fund/Scheme, AND/ORiii) Pass such other order or ordersas may be deemed fit and properand just and necessary in theinterest of complete justice.AND FOR WHICH ACT OF KINDNESS OF THISHON’BLE COURT, THE PETITIONER AS INDUTY BOUND SHALL EVER PRAY.”6. The prayer made in W.P. (civil) No.484 of 2020, B4Ssolution Private ltd. and others versus Union ofIndia & others, also need to be noted. The petitionerNo.1 is a company incorporated under the scompanies.aInnumberofadditiontochallenging the Government Order dated equential order dated 31.03.2020 issued by theGovernment of Maharashtra, Order dated 28.03.2020
ed29.03.2020 issued by State of Haryana and Order dated05.04.2020 issued by Government of Uttar Pradesh. Inone of the prayers, petitioners have prayed thatpetitionersbepermittedtomakepaymentof50percent of Basic Pay plus DA to its employees,pending the final disposal of the writ petition.Following are the prayers which have been made inthe writ petition: “PRAYERIn the facts and circumstances of thecase, as mentioned above, it is,therefore, most respectfully prayedthat this Hon’ble Court may graciouslyand empathically be pleased to:a. Issue a Writ of Mandamus or anyother appropriate writ(s), order(s)or direction(s) to quash clause iiiof Government Order dated March 29,2020 issued by the Ministry of HomeAffairs, Government of India forbeingunconstitutionalandinviolation of Article 14 and 19 ofthe Constitution of India.b. Issue a Writ of Mandamus or anyother appropriate writ(s), order(s)or direction(s) to quash GovernmentOrder dated 31.03.2020 issued by ydated28.03.2020 issued by the Governmentof Punjab, Government Order dated29.03.2020 issued by the State of
WWW.LIVELAW.IN9Haryana, Government order dated05.04.2020 issued by the Governmentof Uttar Pradesh only to the limitedextent of compelling the Petitionerand its subsidiaries to pay fullsalary to all its staff, workers,contract workers, casual workersduring the period of lockdown forbeingunconstitutionalandinviolation of Articles 14 and 19 ofthe Constitution of India.c. Permit the Petitioners to makepayment of 50% of basic pay plus DAto its workers/employees (withoutpayment of PF and ESIC contributionas the same is not wages), pendingthe final disposal of the presentpetition;d. Waive the Provident Fund and the ESIas there has been no work renderedby the workers during this period oflockdownandthecontributiondeposited by the Petitioners for themonth of March and April, 2020 mayrefunded;e. Pass any order or direction as thisHon’ble Court may deem fit ition.”7.W.P.(civil) D.No.10981 of 2020, Aditya Giri versusUnion of India & others, is a petition filed by anindividualasaPublicInterestLitigationtoespouse the cause of employees and employers who have
WWW.LIVELAW.IN10been laid off and who are on the verge of Bankruptcydue to lockdown. In the prayers which have been madein the writ petition, directions have been sought totherespondenttoframepolicytomitigatetheproblems of employees of the Private Sector as wellas of the employers who are financially not inposition to maintain the employees. In the writpetition, following are the prayers which have beenmade: “PRAYERIn the facts and circumstances of thecase, as mentioned above, it is,therefore, most humbly prayed thatthis Hon’ble Court may graciously bepleased to: a) Issue a Writ in the nature ofMandamus directing the RespondentNo.1 to formulate a policy/measuresto mitigate the problems of suddenlaying off of the employees ofprivate sector during the covid-19lockdown period.b) Directtherespondentstointervene in a situation where theemployer is financially not in aposition to maintain the employeesthe respondents to support thoseemployees who are not able tomaintain their families and fulfilthe basic needs.
WWW.LIVELAW.IN11Pass any order or direction as thisHon’ble Court may deem fit andproperinthefactsandcircumstances of the case to meetthe ends of justice.AND FOR THIS ACT OF KINDNESS, THEPETITIONER SHALL, AS IN THE DUTYBOUND EVER PRAY.”8. Prayers made in one more writ petition needs to benoted i.e. W.P.(Civil) D.No.11180 of 2020, Chamberof Small Industry Associations and others versusUnion of India and others. Apart from ecretary, Ministry of Home Affairs, and order dated31.03.2020 issued by Government of Maharashtra, oneof the prayers made in the writ petition as prayer(v) is to the following effect: “Issue a writ of Mandamus to passappropriate direction to the respondentto strike a balance between theinterest of MSMEs and the interest ofworkers and employees in a manner thatneither is unduly prejudiced ”9. As noted above, a common counter affidavit has beenfiled in writ petition (civil) D.No.10983 of 2020with prayer to adopt the counter affidavit in otherwrit petitions. At the outset, in counter affidavit,
WWW.LIVELAW.IN12it has been pleaded that impugned notifications havebeen withdrawn by the Union of India; hence, theUnion of India is not filing a para-wise reply tothe writ petition but filing a limited affidavit tobring on record i) legal authority, competence under which thesaid impugned direction was passed;ii)thefactsandcircumstancesbehindwithdrawal of said orders, directions.10.The Union of India has craved for leave to file adetailed para-wise reply at subsequent stage, ifrequired.11.In the counter affidavit, it has been stated thatall orders passed under Section 10(2)(l) of theDisaster Management Act, 2005, have been withdrawnw.e.f. 18.05.2020 vide an order dated 17.05.2020.Counter affidavit states that D.O. dated loyment, to the Chief Secretaries of all theStates was an advisory and an order was issued on29.03.2020byNationalExecutiveCommitteein
WWW.LIVELAW.IN13exercise of powers under Section 10(2)(l) of DisasterManagement Act, 2005, directing all the employers tomake payment of wages of their workers at theirworkplace without any deduction for the period n.12.Applications for interventions have been filed byemployees, different employees' unions, namely AllIndia Central Council of Trade Union, Trade ition.andTheaffidavitshave supported the order dated 29.03.2020. It hasbeen stated that under Disaster Management Act, 2005,the Central Government has full authority to issuesuch directions.13.It is further stated that right to wages is a onandencompassing Payment of wages Act, Minimum Wages Act,
WWW.LIVELAW.IN14The Contract labour (Regulation and abolition) Actand the Industrial Disputes Act, 1947. edirectly affected the sustenance and livelihood ofmembers of the Employees Union. All measures takenby the Government of India are within its legislativecompetence. The prayer of the petitioner to utilisethe ESIC fund has been refuted.14.We have heard learned counsel for the petitioners.Learned Attorney General, Shri K.K. Venugopal, hasappeared for the Union of India. We have also nors.15.Learned counsel for the petitioners contends thatimpugned notifications are arbitrary, unreasonable,and contrary to the provisions of law includingArticle 14, & Article 19(1)(g) of the Constitutionof India. It is submitted that by way of hmentstablecanbeandsolventforcedInsolvency and loss of control of Business.into
WWW.LIVELAW.IN1516.The Home Secretary, Ministry of Home Affairs,cannot invoke Section 10(2)(l) or any other Sectionof Disaster Management Act, 2005, to impose overnment under Disaster Management Act, 2005, hasthe power to constitute National Disaster ResponseFund. Similarly, the State Disaster Response Fundshave been constituted, which can be utilised forpayment of any compensation towards workers whichliability cannot be shifted upon the employers inPrivate establishments. The respondent should notcompeltheemployerstopaythewagesforthelockdown period but instead should utilise the fundscollected by Employees State Insurance Corporation(ESIC) to make periodical payment to the rderalsodatedraised29.03.2020thewasissued only with regard to migrant labour and thescope of order should not be extended to cover theentire workforce of the establishment. Further, theorder dated 29.03.2020 was not a direction to theemployerbutitisanordertotheState/UT
otakenecessary action. The violation of Article 14 andArticle 19(1)(g) and Article 300A has also beenalleged by the impugned orders.18.Learned counsel submits that if the impugned orderis read in the manner contended by the respondent,it would mean that the employer should be compelledto not only continue to retain their migrant workersbut also their regular workers and also pay fullwages at a time when the business is effectivelyclosed, and there is no income. Failure to complyfor any reason, including the complete absence offunds, would render them liable to prosecution. Suchorder is ex facie arbitrary and unreasonable.19.Learned counsel have further submitted that allindustries and private establishments have blishments cannot be grouped in one category forissuing a direction to pay wages to its employeesduring lockdown period and in possibility cannot bedirectedbyanyexecutiveaction.Someofthe
WWW.LIVELAW.IN17petitioners have come forward with the prayer thatthey are ready to pay 50 percent wages during thesaid period. Some of the learned counsel have alsosubmitted that they are also negotiating with theirworkers regarding payment of wages during the periodof lockdown and some of the workers have re-joinedtheir work.20.Shri K.K. Venugopal, learned Attorney 2020 can certainly be traced to inter t the ambit or scope of Section 10(1). Theorder dated 29.03.2020 was fully in conformity withthe provisions, schemes of Disaster Management s are neither arbitrary nor capricious. Theground of financial hardship, incapacity which hasbeen pleaded by the petitioner is legally untenableground to challenge the direction issued by competent
WWW.LIVELAW.IN18authority in exercise of statutory power. The Unionof India issued the above direction as a temporarymeasure to mitigate the financial hardship of ythecontractuallockdownperiod.andThemeasure was proactively taken by the respondent toprevent perpetration of financial crisis within thelower strata of the society, labourers and employees.Directions issued by the Government of India wherean economic and welfare measure as a benevolence inthe object sought to be achieved.22.Shri Venugopal further submits that by order iveimpugnedCommitteedirectionshasw.e.f.18.05.2020, hence, the order remain in operation onlyfor 54 days. The impugned notifications have beenoutlift their lives, the adjudication of the samewould only entail an academic exercise.23.Learned counsel appearing for the intervenors havesupported orders issued by the Government of Indiadated 29.03.2020 and other orders and consequential
ic interest to prevent the possible spread ofthe lared a lockdown, it is also liable to providefor the consequences of the lockdown. In event, theorder dated 29.03.2020 struck down, the very lockdownorder will be arbitrary and it is also liable to bestruck down. The Government of India has offeredEconomic Stimulus package to all Small and MediumIndustries to enable them to cope with the currentfinancial situation so as to ensure that they cancope with the burden of payment of wages and continueto be viable.25.The Disaster Management Act, 2005, is a self-contained code and no reliance can be placed on anyotherlaw.FurtherbyvirtueofSection72ofDisaster Management Act, 2005, all other enactmentsare overridden. It is further submitted that orderimpugned seeks to reinforce the pre-existing right
nyreduction. The Payment of Wages Act of 1936 has alsobeen referred to in support of their submission.26.We have considered the submissions of the learnedcounsel for the parties and perused the record.27.It is true that the orders dated 29.03.2020 ) of the Disaster Management Act, 2005, f. 18.05.2020. The consequence of the subsequentorder dated 17.05.2020 is that the obligation caston the employer to make payment of wages of theirworkers at their workplace, without any reduction,for the period their establishments are under closureduringthelockdownHowever,
the writ petition: - “PRAYER In the facts and circumstances of the case, as mentioned above, it is, therefore, most r
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