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The Court has also taken critical note that no direction has been given to factories to ensure that all safety norms amid COVID-19, such as the use of masks, provision of sanitisers, social distancing etc. should be made
The Karnataka High Court on Friday issued notice to the State Government in a plea filed against a Government notification relaxing provisions of the Factories Act, 1948 in Karnataka until August 21, 2020.
(WP (PIL)- Maruthi v. State of Karnataka-merged)
(Karnataka High Court - GR Factories)
Pertinently, the May 22 notification had increased the number of working hours for factory workers from 9 hours to 10 hours per day, and from 48 hours to 60 hours per week.
While issung notice, a Division Bench comprising of Chief Justice Abhay Shreeniwas Oka and Justice Sachin Shankar Magadum has also asked the State Government to explain how the Factory Act provisions could have been relaxed in a blanket manner for all factories.
Therefore, it has directed as follows
Karnataka High Court
Further, the Bench has directed the State to justify whether a public emergency as contemplated by Section 5 of the said Act of 1948 exists.
The Court has also taken critical note that no direction has been given to factories to ensure that all norms regarding COVID-19 such as use of masks, maintaining social distancing, making provision for adequate sanitizers, gloves etc. should be made.
The petition before the Court by one, Maruthi H, points out that though the Ministry of Home Affairs issued a notification on March 29 directing employers to pay full wages to the workers, the Supreme Court subsequently had passed an interim order directing the Union Government not to take any "coercive action."
The petitioner adds that due to this development, many of the factories owners failed to pay full wages for their workers, putting the workers in a precarious position.
Thus, the lockdown declared by the Central Government has had a huge impact on the workers, in the formal as well as in the informal sector, leading to lay-offs and non-payment of wages. Further, many migrant workers were stranded in Karnataka without any ration, food as well as wages, the petition states.
However, paying no heed to the plight of the workers, the State Government passed a notification to increase the number of working hours from 9 to 10 hours per day.
The petitioner argues that this notification is in violation of Section 5 of the Factories Act as the said provision only permits relaxation in case of "Public Emergencies" where either the security of India is threatened or on account of war or external aggression or an internal disturbance.
On the other hand, the petitioner points out that "The COVID-19 pandemic is a public health emergency and does not come within the ambit of any ‘war/external aggression/internal disturbance’. Both the Central and State Governments have ample power to address such a public health pandemic under the Epidemic Diseases Act, 1897 and Disaster Management Act, 2005 provide for health emergencies."
While this is the case, the plea contends that in the event of any ambiguity, an interpretation which is beneficial to the workers has to be adopted.
It is added that even if the COVID-19 pandemic is assumed to be a "public emergency", the notification is stated to have been issued to mitigate the economic losses suffered by the Factories and not to handle the "public emergency."
The petitioner argues that the move may, in fact, increase the COVID-19 pandemic spread as workers are made to work for a longer period, it was stated.
Grievance has also been raised that the notification is vague and arbitrary "in so far as it stipulates that overtime wages under Section 59 would continue to apply without clarifying the method of determining the overtime wages."
In this regard, it is noted that Section 59 of the Factories Act provides for payment of overtime wages when a worker works for more than 9 hours (which has now been increased to 10 hours by the notification). This being the case, it is stated that "there is no clarity as to whether the extra workings hours stipulated under the Notification entitles the worker for overtime wages."
The petitioner argues that the daily hours of factory workers have been increased without any reasonable justification. Therefore, the same amounts to "forced labour" and violates Fundamental rights enshrined under Articles 21 and 23 of the Constitution as well as various Directive Principles of State Policy.
On these grounds, the petition seeks to set aside the impugned notification as it is "illegal, arbitrary and in violation of the Constitutional and statutory safeguards provided to workers."
The petition has been filed through Advocates Basawa Kunale and Hemanth Rao.
The matter will be next heard on June 5.