TaxTMI 
TaxTMI 
2020 (6) TMI 840
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....tha Kumar, AOR, Ms. Deepti Arya, Adv., Mr. Akshay Dev, Adv., Mr. Rishabh Rana, Adv., Mr. Jamshed Cama, Sr. Adv., Mr. Abhay Nevagi, Adv., Mr. Krishan Kumar, AOR, Mr. Mohit Gulati, Adv., Mr. Govindram D. Talreja, Adv., Mr. S.C. Ralhan, Adv., Mr. Purvish Jitendra Malkan, AOR, Mr. Gaurav Mehta, Adv., Mr. Man Mohan Sharma, Adv., Ms. Dharita P. Malkan, Adv., Ms. Deepa Gorasia, Adv., Ms. Sakshi Mehley, AOR, Mr. Jeetender Gupta, AOR, Mr. Aditya Giri, petitioner-in-person For the Respondent : Mr. K.M. Nataraj, ASG Mr. Rajat Nair, Adv., Ms. Swati Ghildiyal, Adv., Mr. Sanjay Singhvi, Sr. Adv., Ms. Aparna Bhat, AOR Ms. Karishma Maria, Adv., Mr. Rahul Chitnis, Adv., Mr. Sachin Patil, AOR Mr. Karan Bharihoke, AOR Mr. G. Prakash Jishnu M.L, Adv., Mr. Manish Kumar Saran, AOR and Mr. Shuvodeep Roy, AOR For the Applicant(s) : Ms. Indira Jaising, Sr. Adv. Mr. Anand Grover, Sr. Adv. Ms. Gayatri Singh, Sr. Adv. Mr. Sunil Fernandes, AOR Ms. Nupur Kumar, Adv. Mr. Zeeshan Diwan, Adv. Mr. Prastut Dalvi, Adv. Ms. Ronita Bhattacharya, Adv. Mr. C.U. Singh, Sr. Adv. Mr. Jawahar Raja, Adv. Mr. Pukhrambam Ramesh Kumar, AOR Ms. Anupama Ngangom, Adv. Mr. Karun Sharma, Adv. Mr....
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....es. The petitioner is registered as Medium Industry (manufacturing) under Micro, Small, Medium Enterprises Development Act, 2006. The petitioner company before the lockdown employed 176 permanent workers and 939 contract workers across all its factories, warehouses and offices. The petitioner's case is that after the lockdown period although petitioner being in a supply chain of several essential items such as pharmaceuticals, food products has been permitted to operate but its business has been reduced to the level of near 5-6 percent. The petitioner challenges the order dated 29.03.2020 and the D.O. dated 20.03.2020 as being violative of Article 14, Article 19(1)(g) of the Constitution of India. 4. The petitioner's case is that notifications are arbitrary, illegal, irrational and unreasonable and contrary to the provisions of law including Article 14, Article 19(1)(g). Notifications are unreasonable and arbitrary interference with the rights of petitioner Employers under Article 19(1)(g). Notifications are also contrary to the principles of Equal work Equal Pay and also No work No pay, for it does not differentiate between the workers who are working during the lockdown period i....
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....e noted. The petitioner No.1 is a company incorporated under the Companies Act, 1956. The company has a number of subsidiary/associate companies. In addition to challenging the Government Order dated 29.03.2020, the petitioners have also challenged the consequential order dated 31.03.2020 issued by the Government of Maharashtra, Order dated 28.03.2020 issued by Government of Punjab, Order dated 29.03.2020 issued by State of Haryana and Order dated 05.04.2020 issued by Government of Uttar Pradesh. In one of the prayers, petitioners have prayed that petitioners be permitted to make payment of 50 percent of Basic Pay plus DA to its employees, pending the final disposal of the writ petition. Following are the prayers which have been made in the writ petition: - "PRAYER In the facts and circumstances of the case, as mentioned above, it is, therefore, most respectfully prayed that this Hon'ble Court may graciously and empathically be pleased to:- a. Issue a Writ of Mandamus or any other appropriate writ(s), order(s) or direction(s) to quash clause iii of Government Order dated March 29, 2020 issued by the Ministry of Home Affairs, Government of India for being unconstitutional and i....
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....ployer is financially not in a position to maintain the employees the respondents to support those employees who are not able to maintain their families and fulfil the basic needs. Pass any order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case to meet the ends of justice. AND FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL, AS IN THE DUTY BOUND EVER PRAY." 8. Prayers made in one more writ petition needs to be noted i.e. W.P.(Civil) D.No.11180 of 2020, Chamber of Small Industry Associations and others versus Union of India and others. Apart from challenging the order dated 29.03.2020 issued by the Home Secretary, Ministry of Home Affairs, and order dated 31.03.2020 issued by Government of Maharashtra, one of the prayers made in the writ petition as prayer (v) is to the following effect: - "Issue a writ of Mandamus to pass appropriate direction to the respondent to strike a balance between the interest of MSMEs and the interest of workers and employees in a manner that neither is unduly prejudiced " 9. As noted above, a common counter affidavit has been filed in writ petition (civil) D.No.10983 of 2020 with prayer to adopt ....
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....e the ESIC fund has been refuted. 14. We have heard learned counsel for the petitioners. Learned Attorney General, Shri K.K. Venugopal, has appeared for the Union of India. We have also heard learned counsel appearing for the different intervenors. 15. Learned counsel for the petitioners contends that impugned notifications are arbitrary, unreasonable, and contrary to the provisions of law including Article 14, & Article 19(1)(g) of the Constitution of India. It is submitted that by way of impugned notifications an otherwise stable and solvent industrial establishment can be forced into Insolvency and loss of control of Business. 16. The Home Secretary, Ministry of Home Affairs, cannot invoke Section 10(2)(l) or any other Section of Disaster Management Act, 2005, to impose financial obligations on the Private Sector. The Central Government under Disaster Management Act, 2005, has the power to constitute National Disaster Response Fund. Similarly, the State Disaster Response Funds have been constituted, which can be utilised for payment of any compensation towards workers which liability cannot be shifted upon the employers in Private establishments. The respondent should not com....
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.... of financial hardship, incapacity which has been pleaded by the petitioner is legally untenable ground to challenge the direction issued by competent authority in exercise of statutory power. The Union of India issued the above direction as a temporary measure to mitigate the financial hardship of the employees and workers especially contractual and casual workers during the lockdown period. The measure was proactively taken by the respondent to prevent perpetration of financial crisis within the lower strata of the society, labourers and employees. Directions issued by the Government of India where an economic and welfare measure as a benevolence in the object sought to be achieved. 22. Shri Venugopal further submits that by order dated 17.05.2020, the National Executive Committee has revoked its earlier impugned directions w.e.f. 18.05.2020, hence, the order remain in operation only for 54 days. The impugned notifications have been outlift their lives, the adjudication of the same would only entail an academic exercise. 23. Learned counsel appearing for the intervenors have supported orders issued by the Government of India dated 29.03.2020 and other orders and consequential d....
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....fidavit filed by Union of India, although authority to issue impugned order dated 29.03.2020 has been sought to be traced under Section 10(1) and Section 10(2)(l) of Disaster Management Act, 2005, but in counter affidavit, there are no reply to the other grounds raised in the writ petitions to attack the order dated 29.03.2020. 29. We are of the view that all issues raised by the petitioners and the respondents have to be decided together and the piecemeal consideration is not warranted. We thus are of the view that Union of India may file a detail counter affidavit for which the leave they have already prayed for in the common counter affidavit, within a period of four weeks. Rejoinder to which to be filed within a period of one week and all the matter to be listed again in last week of July,2020. 30. In some of the writ petitions, this Court had already passed an order for not taking any coercive action against the employer. In our order dated 04.06.2020, we have directed: - "In the meantime, no coercive action, against the employers shall be taken pursuant to notification dated 29.03.2020." The above order shall continue in all the matters. 31. We have already noticed that....
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....orkers are represented by Trade Unions or other Employees associations. The State is also under obligation to ensure that there is smooth running of industrial establishment and the disputes between the employers and employees may be conciliated and sorted out. 36. It cannot be disputed that both Industry and Labourers need each other. No Industry or establishment can survive without employees/labourers and vice versa. We are thus of the opinion that efforts should be made to sort out the differences and disputes between the workers and the employers regarding payment of wages of above 50 days and if any settlement or negotiation can be entered into between them without regard to the order dated 29.03.2020, the said steps may restore congenial work atmosphere. 37. We thus direct following interim measures which can be availed by all the private establishment, industries, factories and workers Trade Unions/ Employees Associations etc. which may be facilitated by the State Authorities: - i) The private establishment, industries, employers who are willing to enter into negotiation and settlement with the workers/employees regarding payment of wages for 50 days or for any other per....