The Aurangabad Bench (Bombay High Court) had passed an order on 30th April; 2020 that employers are allowed to deduct wages of workers/employees who remain absent from work in areas where lockdown has been called off.
In Align Components Pvt. Ltd. & Anr.v. Union of India & Ors.[1], the petitioners challenged the order of the Ministry of Home Affairs, Government of India dated 29th March; 2020 through which the powers vested under Section 10(2)(1) of the Disaster Management Act, 2005 has been implemented so the migrant workers can get their wages from their employers in these peculiar times of COVID-19 Lockdown. It was pleaded on behalf of the petitioners that as a result of the COVID-19 lockdown, the establishments have been directed to shut down their manufacturing activities and hence, plea for exemption of paying wages for the period when restrictions were imposed on manufacturing activities. It was also submitted by the learned counsel on behalf of the petitioner that the petitioners are willing to pay either 50% of gross wages or the minimum wages advised under Minimum Wages Act.
The Bombay High Court took consideration of the fact that in Ficus Pax Pvt. Ltd. v. Union of India & Ors., in which a similar plea is filed before the Apex Court, has still not been decided and that Kerala HC stayed the order issued by the Finance Dept., Government of Kerala which provides that payment of 50% salary is permitted but the remainder 50% stands deferred.
The Court refused to interfere with the impugned order on the ground that a similar petition is pending before the Apex Court and directed petitioners to pay gross monthly wages to workers, except the travel allowance and food allowance in case of workers who are not required to report to their workplaces.
The petitioners also put forward their plea that an intervention application must be filed by workers’ representative or respective trade unions, which has been accepted by the Court.
It was further observed that the workers should be returning to their duties in areas where lockdown has been called off, according to their shift schedules with adequate measures in practice to be adopted by the employer to prevent further spread of COVID-19. If in such circumstances, workers voluntarily remain absent then the employers are allowed to make deductions to their wages which must be subject to the procedure laid down by law in matters of initiating such action.
The Aurangabad Bench of Bombay High Court though right in taking consideration of the fact that a similar matter is pending before the Supreme Court, is wrong in allowing petitioners to not pay wages to workers in cases of absence from work as the workers in the times of COVID-19 lockdown are among the worst affected groups of Indian economy. Workers, especially migrants, are right now suffering from the predicaments such as loss of livelihood, food insecurity, improper access to healthcare facilities, non-availability of means to achieve adequate standards of living, etc.
Also, the judgment did not specify the criteria for when abstention from work is voluntary. There are situations when the worker is willing to work but had already moved back to his hometown or village, or when the migrant worker is in shelter camps and hence, not allowed to leave. Also, it is possible that the lockdown is called off in the locality of the workplace, but not the place where the worker resides. The Court failed to consider such circumstances when the worker is willing to go to work but unable to do so due to other factors.
[1] W.P. Stamp No. 10569 of 2020
-Muskan Sharma
Jamia Millia Islamia
