Adv. Elgin Matt John (Managing Partner, Elgin Matt John & Associates)
1. The Hon’ble Prime Minister who also heads the National Disaster Committee, in exercise of his powers under the National Disaster Management Act 2005 has ordered a lockdown of all commercial establishments except those that have been exempted under a circular issued by the Chief Secretary vide Oder No. 40-3/2020 dt 24-3-2020 Titled “ Guidelines on the measures to be taken by Ministries/Government of India, State/Union Territory Governments and State/Union Territory Authorities for containment of COVID-19, Epidemic in the Country.”
2. The Disaster Management Act 2005 is a special emergency provision where the Central Government comes in control of the State Governments/state Administration machinery to a limited extent. Further the Act has an overriding effect over any law in force in the respective provinces/states.
3. Chief Secretary vide e Order No. 40-3/2020 dt 24-3-2020 Title “ Guidelines on the measures to be taken by Ministries/Government of India, State/Union Territory Governments and State/Union Territory Authorities for containment of COVID-19, Epidemic in the Country.”.
4. Before one proceed to form any opinion on the subject it will be essential here to state the exact nature of the orders/directions etc issued under the Act.
5. The Disaster Management Act 2005 under Sec 72 of the Act gives the orders/ decision/ directions etc issued under the Act to have an overriding effect over any law inconsistent with it in any way whatsoever. The effect of this being that any direction/order etc issued by any government whether state or at the centre will be rendered nugatory wherever it comes in conflict with the directions/order/ guidelines issued under The Disaster Management Act 2005. Under Sec 11 (a) The central Government acting through the National Disaster Committee headed by the Prime Minister is also empowered to put in place a National Plan to deal with any disaster irrespective of its magnitude. Further under Sec 35 The central Government acting through the National Disaster Committee has been empowered to take whatever steps as may be necessary to deals with the Disaster while it has been made obligatory/mandatory upon the state government to follow the instructions issued by the centre. Under Sec 18 The State Disaster Committee headed by the Chief Minister is empowered to put in place a disaster management plan which were to be implemented in the respective state however, under Sec 19 it has been mandated that the said plan is in consonance of the National Disaster Plan made by the National Disaster Committee; similarly under Sec 22 even the State Executive Committee at the district level is also obligated to implement the National Disaster Plan made by the National Disaster Committee. To put it briefly the state machinery at the provisional level will put in place the orders/directions/guidelines issued by the Central Government through the National Disaster Committee.
6. Now for the purpose of the implementation of the Act Sec 24 empowers the State Executive Committee to control and restrict movement of both vehicular traffic as well as people from the affected Areas of the disasters. This section justifies and legalizes restriction of movement of people to or from the “Affected” areas. Any person or company working to violate such order will therefore be seen as acting against the provision of Sec 24 of the Act.
7. The recent circular Order No. 40-3/2020 dt 24-3-2020 Titled “ Guidelines on the measures to be taken by Ministries/Government of India, State/Union Territory Governments and State/Union Territory Authorities for containment of COVID-19, Epidemic in the Country.”Under clause 4 very categorically states that all commercial establishments will remain physically closed except those providing “essential services”. The clause clarifies that companies can ask its employees to “work from home”. . The circular under clause 17 makes it clear that any violation of this circular by anyone will liable to be punished under Sec 51-60 of The National Disaster Management Act 2005. It is pertinent to note that Sec 58 of the Act deals with offence by companies making the Officers/Directors who were in the knowledge and still allowed or participated in the violation of the order liable. The penal provisions have been expressed under Sec 51(b) of the Act as per which whoever refuses to comply with the directions/orders given on behalf of the Central & State Government, National Executive Committee, State Executive Committee and the District Authority will be liable to imprisonment for one year and fine and if this violation results in death or imminent danger then the liability is 2 years of imprisonment with no provision for fine. Now as stated earlier under Sec 72 the Central Government acting through the National Disaster Committee is empowered to issue these orders etc that have an overriding effect on any law that may be in force in the state making these directions/guidelines as the law in force. Therefore, any company either opening its offices or asking its employees to attend office physically will be acting in violation of the order rendering its officers/directors liable under Sec 51(b) of The National Disaster Act 2005.
8. The circular doesnot state as to what will be status of employees not attending work owing to the implementation of the order and whether an employer would be free to treat this absentia as voluntary on the part of the employee rendering them to disciplinary action/dismissal etc. This non-mention in the circular should not be misunderstood since the circular clearly states under Clause 4 that all Commercial Establishments will be closed and only work from home can be initiated. In that scenario it will be illegal to either open establishment for work or ask employees to physically attend.
9. It will be pertinent here to note that The actions and the circular Order No. 40-3/2020 dt 24-3-2020 Titled “ Guidelines on the measures to be taken by ministries/Government of India, State/Union Territory Governments and State/Union Territory Authorities for containment of COVID-19, Epidemic in the Country.” Has been issued by the government after recognizing the present COVID-19 pandemic as a natural disaster that requires to be dealt with at a war footing. A copy of the Order No. 40-3/2020 dt 24-3-2020 is attached with the email.
10. The removal from service of employees on the ground for absentia during the period of the lock-down which came into effect from 25-3-2020 will be a violation of Order No. 40-3/2020 dt 24-3-2020 Titled “ Guidelines on the measures to be taken by ministries/Government of India, State/Union Territory Governments and State/Union Territory Authorities for containment of COVID-19, Epidemic in the Country” and thus constituting the violation of the orders/directions issued by the National Disaster Committee headed by the prime Minister rendering the officers/directors of the company liable to punishment under Sec 51(b) of The National Disaster Management Act 2005.
11. To add to this the Central Government also passed an order dated 29-3-2020 wherein it had directed the employers to pay their employees full time wages until the lockdown ceased or was lifted .
4TH LOCKDOWN ORDER DATED 17-5-2020
The new order dated 17-5-2020 issued by the MHA clarifies that the previous order requiring the payment of wages during lock down dated 29-3-2020 will now stand withdrawn.
The narration under unnumbered para 4 in the order clearly mentions the withdrawal of all such directions issued under the Disaster Management Act. Since the new directions under order dated 17-5-2020, donot mention anything about the continuation of the payment of wages the effect of this would mean that the earlier directions of paying wages under the Disaster Management Act now stands withdrawn.
The order also doesnot mention whether actions taken under the previous orders were to remain operative after the order dated 29-3-2020 ceased to exists nor is there a mention of a saving clause that allows or protects the actions taken retrospectively. The analogy or the interpretation of the order that can be drawn being that all actions taken under the previous order of 29-3-2020 have as a consequence rendered nugatory. Since both the orders of 29-3-2020 and 17-5-2020 have been rendered by the same appropriate authority under the Disaster Management Act 2015, ordinarily, this would imply a clear expression of the intent that the order and the actions under order dated 29-3-2020 would stand to be superseded by the new order dated 17-5-2020 in letter and spirit. Leaving little ambiguity to the fact that indeed the MHA has withdrawn the requirement of payment of wages during the lockdown that it had laid under the order dated 29-3-2020.
However it is yet too early to understand the situation and discuss how the same would pan out in practice as the existing order dated 29-3-2020 is under challenge before the Supreme court in a clutch of matters and the court is yet to adjudicate on them. It will not be out of place to mention that this order of 17-5-2020 rendering the order dated 29-3-2020 nugatory will also make the adjudication of an in-effective order presently challenged before the Supreme court worthless piece of litigation.
Please see the order below
Copyright (c) Adv. Elgin Matt John of M/s Elgin Matt John & Associates