June 1, 2020
A writ petition had been recently filed before the High Court of Delhi alleging that the court issues necessary directions to the Ministry of Home Affairs or MHA to implement its order dated 29.03.2020 passed under Section 10(2)(l) of the Disaster Management Act, 2005 inter alia directing the State Government to issue necessary orders to their District Magistrate/ Deputy Commissioner and Senior Superintendent of Police, etc. to take measures to ensure that all the employers make payment of wages to their workers during the lockdown period.
It may be recollected that vide c order dated 29-3-2020 MHA had directed the employers not to remove any employee during the lockdown period. The circular had urged the employers to continue paying salaries to the employee until the lockdown ceased. As the nation wide lockdown were issued under the National Disaster Management Act 2005 it was expected that the stringent provisions under the Act providing for punishment such as imprisonment for violating the directions issued under the Act would act as a strong deterrent against the violators.
The present petition was one such petition that had been filed in the High Court of Delhi where two so called “employees” were protesting against their removal from work and that too without the payment of their wages during the lockdown period.
The notification dated 29-3-2020 had not clarified what was meant by the term “employee” i.e. whether it referred to contractual or permanent employees. The National Disaster Mangement Act 2005 was not typically a legislation falling under the category of labour laws and it would have been fruitless to attach any meaning derived from interpreting the clauses of the 2005 Act.
In the absence of any instructions or guidelines associated with the meaning of the term “employee” under the notification, The High Court would have to indulge in a fact finding mission or conduct a trial to ascertain whether the petitioners claiming to be employees were in fact employees.
The respondent employers had categorically denied that the petitioners were in fact their permanent employees
The petitioners had approached the courts under its writ jurisdiction which are summary proceedings meaning thereby that elaborate evidence or trial proceedings could not be initiated under such proceedings.
Given such a situation the High Court directed the petitioners to approach the appropriate authorities under The Delhi Shops and Establishments Act 1954
” As the petition raises disputed questions of fact which cannot be adjudicated while exercising jurisdiction under Article 226 of the Constitution of India, the same is disposed of granting liberty to the petitioners to approach the concerned Authority under the Delhi Shops and Establishments Act, 1954. “Justice Naveen Chawala , Nirmal Bhagat & Others v/s Ministry of External Affairs & Others, WP(C) 3145/2020, Order dated 29-5-2020
This judgement was of great significance as it clarified that even directions or notifications pertaining to Labour relation issued under emergency provisions such as The Disaster Management Act cannot escape the rigorous scrutiny of the courts against the touch stone of basic labour legislation such as The Industrial Disputes Act 1947, The Factories Act etc…
Please read the order