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"Govt Orders do not differentiate between workers who report to work and workers who refuse to work" Plea in SC challenges notifications

Debayan Roy

A Rajasthan-based company has moved the Supreme Court to strike down the two government notifications compelling employers to pay full wages to workers during lockdown.

The petitioners, Teknomin Construction Limited, represented by Advocate Jeetender Gupta, have challenged an advisory dated March 20 issued by the Ministry of Labour & Employment and a March 29 order of the Ministry of Home Affairs as violative of Articles 14 and 19(1)(g) of the Constitution of India.

The MHA order had stated that all the "employers, be it in the industry or in the shops and commercial establishments shall make payment of wages of their workers at their workplaces, on the due date, without any deduction, for the period their establishments are under closure during the lockdown,” adding that States / UTs should take necessary action against any violation of the said Order.

The petitioners contend that the government should relieve the companies from paying 70% of the salary of each worker during the lockdown. It is added that the Government has to take up paying the 70% percent from the funds collected by the Employees' State Insurance Corporation (ESIC) or the PM Cares Fund or through any other Government Fund/Scheme.

The petitioners are engaged as work contractors for the mine development and production mines for companies such as M/s Hindustan Zinc Limited.

The plea states that the petitioner had engaged 1704 workers for execution of work contracts for four mine locations in the State of Rajasthan. “All these work contracts were stopped due to COVID – 19 lockdown,” the plea informs.

Further, the plea cites the hardship faced by them to continue operations.

In accordance with the exemption categories notified by the Ministry of Home Affairs time to time, Hindustan Zinc Limited applied to the District administration for requisite permission which were accordingly received between March 30 to April 19 for all four mining sites.

However, many of the workers employed by the Petitioner are not reporting to work hoping that they will continue to get wages for lockdown period in terms of impugned notifications irrespective of whether they resume their working or not.

Petition before Supreme Court

The petitioner has also relied on the Bombay High Court order that allowed the employers to deduct wages of absentee employees in areas where restrictions are relaxed.

Substantiating the prayer to strike down the two notifications as ultra vires the Constitution, the plea states that “impugned notifications do not differentiate between the workers who report to work and the workers who refuse to work, when it comes to entitlement for wages for lockdown period as concerned, thereby being contrary to the principle of “Equal Work Equal Pay”.

The plea further points out,

On one hand, the Petitioner is not getting the desired number of employees for work to fulfil their contractual obligations in continuing the mining operations and on the other hand the Petitioner is being compelled under the Impugned Notifications to pay for the wages to workers for entire lockdown period,”

The petitioner has also questioned whether the government can arbitrarily differentiate against the construction workers and workers in other Industry for utilization of welfare funds to compensate the workers for the lockdown period and whether the government can be permitted to cause financial hardship to industrial establishments such as petitioners by compelling them to pay “Wages” without getting any work done from the employees during the lockdown period.

[Read the petition here]

WPC - Teknomin Construction Ltd vs UOI.pdf
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