Karnataka High Court
Sapl Industries Pvt Ltd vs Union Of India on 12 September, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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WP No.8210 of 2023
And connected matters
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
WRIT PETITION NO.8210 OF 2023 (L-RES)
C/W
WRIT PETITION NO.13749 OF 2024 (L-RES)
WRIT PETITION NO.15647 OF 2024 (L-RES)
WRIT PETITION NO.15661 OF 2024 (L-RES)
IN WP No.8210/2023
BETWEEN:
SHAHI EXPORTS PRIVATE LIMITED
A COMPANY REGISTERED UNDER
COMPANIES ACT 201
HAVING IT CORPORATE OFFICE AT
SY NO.13, 14 AND 15, SARJAPUR MAIN ROAD BELLANDUR
GATE, BENGALURU 560102.
Digitally signed AND ALSO HAVING ITS FACTORY AT.
by SUMA B N
UNIT 9, NO.171, 2ND CROS, III PHASE
Location: High
Court of 7TH MAIN, PEENYA INDUSTRIAL AREA
Karnataka BENGALURU 560058.
REP. BY AUTHORIZED SIGNATORY
MR. ANANDA PADMANABHAN P B
AGED ABOUT 60 YEARS.
...PETITIONER
(BY SRI. HIREMATH PRAVEENKUMAR APPAYYA, ADV.,)
AND:
1. UNION OF INIDA
THROUGH THE HOME SECRETARY
MINISTRY OF HOME AFFAIRS
NORTH BLOCK, NEW DELHI 110001.
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WP No.8210 of 2023
And connected matters
2. MINISTRY OF LABOUR AND EMPLOYMENT
THROUGH ITS SECRETARY, SHRAM SHAKTI BHAWAN,
RAFI MARG. NEW DELHI 110001.
3. STATE OF KARNATAKA
DEPARTMENT OF LABOUR
VIKAS SOUDHA, AMBEDKAR BEEDI
BENGALURU 560001
REP BY ITS ADDL. CHIEF SECRETARY.
4. DEPUTY LABOUR COMMISSIONER
OFFICE OF DEPUTY LABOUR
COMMISSIONER, FIRST FLOOR
NEAR GOVT. HIGH SCHOOL
MANJUNATH NAGAR, BAGALKUNTE
BENGALURU 560073.
5. GARMENT LABOUR UNION
REP. BY ITS GENERAL SECRETARY
NO.8, LAGGERE MAIN ROAD
MEI COLONY, PEENYA, BENGALURU 560058.
6. HENNES AND MAURITZ RETAIL PVT LTD
REP. BY ITS DIRECTOR
NO.1102, 1104 AND 1105, 11TH FLOOR
WORLD TRADE CENTRE
BRIGADE GATEWAY, DR. RAJKUMAR ROAD
MALLESHWARAM WEST
BENGALURU 560055
A COMPANY REGISTERED UNDER
COMPANIES ACT, 2013.
7. WALMART INDIA PVT. LTD.
REP. BY ITS DIRECTOR, 4TH FLOOR
ORCHID CENTRAL, GOLF COURSE ROAD
SECTOR 53, GURGAON 122002
A COMPANY REGISTERED UNDER
COMPANIES ACT, 2013.
8. MARKS AND SPENCER INDIA PVT LTD.
REP. BY IT DIRECTOR
RMZ MILLENIA, TOWER C, 4TH FLOOR
LAKE WING, NO.1, AND 2,
MURTPHY ROAD BENGALURU 560008
A COMPANY REGISTERED UNDER
COMPANIES ACT, 2013.
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WP No.8210 of 2023
And connected matters
9. GAP INTERNATIONAL SOURCING
(INDIA) PVT. LTD.
REP. BY ITS DIRECTOR
85/4, V V YOGASOURABHA
2ND FLOOR, BLUEDART EXPRESS BUILDING
SUBEDARPALYA, MATTIKERE
BENGALURU 560022
A COMPANY REGISTERED UNDER
COMPANIES ACT, 2013.
...RESPONDENTS
(BY SRI. KUMAR M.N. CGSPC FOR R1 & R2
SMT. HEMALATHA V, AGA FOR R3 & R4
SRI. A.J. SRINIVASAN, ADV., FOR R5
NOTICE TO R6 TO R9 ARE D/S V/O/D:13.04.2023)
---
THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO DIRECTIONS DECLARING DO
NO.M 11011/08/2020-MEDIA DTD 20.03.2020 ISSUED BY
SECRETARY (LABOUR AND EMPLOYMENT) AT ANNX-A IS ULTRA VIRS
ARTICLE 14 19(1)(G) OF THE CONSTITUTION OF INDIA.
DECLARATION OR CERTIORARI OR ANY OTHER APPROPRIATE WRIT
ORDER OR DIRECTIONS DECLARING ORDER NO.40-3/2020-DM-I(A)
DTD 29.03.2020 PASSED BY HOME SECRETARY MINISTRY OF HOME
AFFAIRS AT ANNX-B IS ULTRA VIRES ARTICLE 14, 19 (1) (G) OF THE
CONSTITUTION OF INDIA & ETC.
IN WP NO.13749/2024
BETWEEN:
SAPL INDUSTRIES PVT. LTD
A COMPANY REGISTERED UNDER
COMPANIES ACT, 2013
HAVING ITS CORPORATE OFFICE AT
PLOT NO.28C, 80 FEET ROAD, 2ND PHASE
PEENYA, BANGALOER - 560058
REPRESENTED BY ITS DIRECTOR
MR. BIKASH KUMAR KEJARIWAL.
...PETITIONER
(BY SRI. HIREMATH PRAVEENKUMAR APPAYYA, ADV.,)
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WP No.8210 of 2023
And connected matters
AND:
1. UNION OF INDIA
THROUG THE HOME SECRETARY
MINISTRY OF HOME AFFAIRS
NORTH BLOCK, NEW DELHI - 110001.
2. MINISTRY OF LABOUR AND EMPLOYMENT
THROUGH ITS SECRETARY
SHRAM SHAKTI BHAWAN
RAFI MARG, NEW DELHI - 110001.
3. STATE OF KARNATAKA
DEPARTMENT OF LABOUR
VIKAS SOUDHA
AMBEDKAR BEEDI
BENGALURU - 560001
REP BY ITS ADDL. CHIEF SECRETARY.
4. DEPUTY LABOUR COMMISSIONER
OFFICE OF DEPUTY LABOUR
COMMISSIONER, FIRST FLOOR
NEAR GOVT HIGH SCHOOL
MANJUNATH NAGAR,
BAGALKUNTE
BENGALURU - 560073.
5. GARMENT LABOUR UNION
REPRESENTED BY ITS GENERAL
SECRETARY, NO.8, LAGGERE MAIN
ROAD, MEI COLONY PEENYA
BENGALURU - 560058
REGISTERED UNDER A TRADE UNION.
6. M/S C AND A SOURCING INTERNATIONAL LTD
INCORPORATED COMPANY ACT
REP. BY ITS MANAGING DIRECTOR
BLOCK N1 BALSA
EMBASSAY MANYATA BUSINESS PARK
HEBBAL OUTER RING ROAD
BANGALORE - 560045.
7. M/S THE CHILDREN'S PLACE INDIA PRIVATE LIMITED
REPRESENTED BY ITS MANAGING DIRECTOR
INCORPORATED COMPANY ACT
10TH FLOOR, TOWER-B
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WP No.8210 of 2023
And connected matters
UNITECHCYBER PARK SECTOR -39
GURUGRAM, HARYANA -122003.
8. M/S PRIMARK
THROUGH SNQS INTERNATIONAL
PRIVATE LTD.
INCORPORATED COMPANY ACT
REP. BY ITS MANAGING DIRECTOR
19, INDIRANAGARA, 2ND STREET
MURUNGAPALYA (SOUTH)
TIRUPPUR, TAMIL NADU - 641603.
9. M/S ONLY AND SON'S
INCORPORATED COMPANY
THORUGH BESTSELLER FASHION INDIA PVT LTD.,
REP. BY ITS MANAGING DIRECTOR
LALIT RESIDENCY, PARK OF 3RD FLOOR
SAHAR AIRPORT ROAD
ANDHERI, MUMBAI-400099.
...RESPONDENTS
(BY SRI. NISHANTH A.V. CGC FOR R1 & R2
SMT. HEMALATHA V, AGA FOR R3 & R4
SRI. A.J. SRINIVASAN, ADV., FOR R5
NOTICE TO R6 TO R9 ARE D/W V/O/D:23.05.2024)
---
THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO DIRECTIONS
DECLARING DO NO.M-11011/08/2020-MEDIA DTD 20.03.2020
ISSUED BY SECRETARY (LABOUR AND EMPLOYMENT) AT ANNX-A
IS ULTRA VIRS ARTICLE 14 19(1)(G) OF THE CONSTITUTION OF
INDIA. DIRECTIONS DECLARING ORDER NO.40-3/2020-
DISSOLUTION OF MARRIAGE-I(A) DTD:29.03.20 PASSED BY
HOME SECRETARY, MINISTRY OF HOME AFFAIRS AT ANNEXURE-
B IS ULTRA VIRES ARTICLES 14, 19(1)(g) OF THE
CONSTITUTION OF INDIA & ETC.
IN WP NO.15647/2024
BETWEEN:
GOKALDAS EXPORTS LIMITED
A COMPANY REGISTERED UNDER
COMPANIES ACT 2013
HAVING ITS CORPORATE OFFICE
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WP No.8210 of 2023
And connected matters
AT NO.25, SECOND CROSS
THIRD MAIN, INDUSTRIAL SUBURB
YESHWANTPUR, BANGALORE
KARNATAKA-560022.
ADDRESS AS PER TRIAL COURT RECORDS:
NO.16/2, RESIDENCY ROAD
BENGALURU-560025
REP. BY AUTHORIZED SIGNATORY
MR. PRABHAT KUMAR SINGH
AGED ABOUT 72 YEARS.
...PETITIONER
(BY SRI. HIREMATH PRAVEENKUMAR APPAYYA, ADV.,)
AND:
1. UNION OF INDIA
THROUGH THE HOME SECRETARY
MINISTRY OF HOME AFFAIRS
NORTH BLOCK, NEW DELHI-110001.
2. MINISTRY OF LABOUR AND EMPLOYMENT
THROUGH ITS SECRETRARY
SHRAM SHAKTI BHAWAN
RAFI MARG, NEW DELHI-110001.
3. STATE OF KARNATAKA
DEPARTMENT OF LABOUR
VIKAS SOUDHA, AMBEDKAR BEEDI
BENGALURU-560001
REP. BY ITS ADDL. CHIEF SECRETARY.
4. DEPUTY LABOUR COMMISSIONER
OFFICE OF DEPUTY LABOUR
COMMISSIONER, FIRST FLOOR
NEAR GOVT HIGH SCHOOL
MANJUNATH NAGAR, BAGALKUNTE
BENGALURU-560073.
5. GARMENT LABOUR UNION
REP. BY ITS GENERAL SECRETARY
NO.8, LAGGERE MAIN ROAD
MEI COLONY, PEENYA
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WP No.8210 of 2023
And connected matters
BENGALURU-560058
REGISTERED UNDER A TRADE UNION ACT 1926.
6. GAP INTERNATIONAL SOURCING
(INDIA) PVT. LTD.,
REP. BY ITS DIRECTOR
85/A, V.V. YOGASOURABHA
2ND FLOOR, BLUEDART EXPRESS BUILDING
SUBEDARPALYA, MATTIKERE
BENGALURU-560022
A REGISTERED UNDER COMPANIES ACT, 2013
...RESPONDENTS
(BY SRI. M.N. KUMAR, CGSPC FOR R1 & R2
SMT. HEMALATHA V, AGA FOR R3 & R4
SRI. A.J. SRINIVAS, ADV., FOR R5
NOTICE TO R6 D/W V/O/D:19.06.2024)
---
THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO DECLARATION OR
CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR
DIRECTIONS DECLARING DO NO.M-11011/08/2020-MEDIA DTD
20.03.2020 ISSUED BY SECRETARY (LABOUR AND EMPLOYMENT) AT
ANNX-A IS ULTRA VIRES ARTICLE 14 19(1)(G) OF THE
CONSTITUTION OF INDIA. DECLARATION OR CERTIORARI OR ANY
OTHER APPROPRIATE WRIT, ORDER OR DIRECTIONS DECLARING
ORDER NO.40-3/2020-DISSOLUTION OF MARRIAGE-I(A) DATED
29.03.2020 PASSED BY HOME SECRETARY, MINISTRY OF HOME
AFFAIRS AT ANNEXURE-B, IS ULTRA VIRES ARTICLE 14, 19(1)(g) OF
THE CONSTITUTION OF INDIA & ETC.
IN W.P.NO.15661 OF 2024
BETWEEN:
1. COTTON WORLD
REGISTERED PARTNERSHIP FIRM
HAVING ITS UNIT AT
PLOT NO.192, 11TH MAIN ROAD
3RD STAGE, PEENYA INDUSTRIAL AREA
BENGALURU - 560058
REP. BY ITS PARTNER MR. MONNAPPA
AGED ABOUT 62 YEARS.
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WP No.8210 of 2023
And connected matters
2. MR. B.N. MONNAPPA
S/O MR. B.K. NACHAPPA
AGED ABOUT 62 YEARS
R/A NO.128, 3RD MAIN, 1ST BLOCK
RMV 2ND STAGE, DOLLARS COLONY
BENGALURU - 560094.
...PETITIONERS
(BY SRI. HIREMATH PRAVEENKUMAR APPAYYA, ADV.,)
AND:
1. UNION OF INDIA
THROUGH THE HOME SECRETARY
MINISTRY OF HOME AFFAIRS
NORTH BLOCK, NEW DELHI - 110001.
2. MINISTRY OF LABOUR AND EMPLOYMENT
THROUGH ITS SECRETARY
SHRAM SHAKTI BHAWAN
RAFI MARG, NEW DELHI - 110001.
3. STATE OF KARNATAKA
DEPARTMENT OF LABOUR
VIKASA SOUDHA, AMBEDKAR BEEDI
BENGALURU - 560001
REP. BY ITS DEPUTY SPECIAL OFFICER.
4. DEPUTY LABOUR COMMISSIONER
OFFICE OF DEPUTY LABOUR
COMMISSIONER, FIRST FLOOR
NEAR GOVT HIGH SCHOOL
MANJUNATH NAGAR, BAGALKUNTE
BENGALURU - 560073.
5. GARMENT LABOUR UNION
REPRESENTED BY ITS GENERAL
SECRETARY, NO. 8, LAGGERE MAIN ROAD
MEI COLONY, PEENYA
BENGALURU - 560058
REGISTERED UNDER TRADE UNION
ACT 1926.
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WP No.8210 of 2023
And connected matters
6. HENNES AND MAURITZ PRIVATE LIMITED
COMPANY INCORPORATED UNDER
THE COMPANIES ACT,
REPRESENTED BY ITS DIRECTOR
NO.1104, AND 1105, 11TH FLOOR
WORLD TRADE CENTRE
BRIGADE GATEWAY
RAJAKUMAR ROAD
MALLESWARAM WEST
BENGALURU - 560055.
....RESPONDENTS
(BY SRI. GIREESH KODGI, DSGI FOR R1 & R2
SMT. HEMALATHA V, AGA FOR R3 & R4
SRI. A.J. SRINIVASAN, ADV., FOR R5
NOTICE TO R6 IS D/W V/O/D 18.06.2024)
---
THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO DECLARATION OR
CERTIOTARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR
DIRECTIONS DECLARING D.O. NO. M-11011/08/2020-MEDIA DATED
20/03/2020 ISSUED BY SECRETARY (LABOUR AND EMPLOYMENT) AT
ANNEXURE-A IS ULTRA VIRES ARTICLE 14, 19(1)(g) OF THE
CONSTITUTION OF INDIA. DECLARATION OR CERTIORARI OR ANY
OTHER APPROPRIATE WRIT, ORDER OR DIRECTIONS DECLARING
ORDER NO. 40-3/2020-DM-I(A) DATED 29/03/2020 PASSED BY
HOME SECRETARY, MINISTRY OF HOME AFFAIRS AT ANNEXURE-B,
IS ULTRA VIRES ARTICLE 14, 19(1)(g) OF THE CONSTITUTION OF
INDIA & ETC.
THESE PETITIONS, COMING ON FOR HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL
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WP No.8210 of 2023
And connected matters
ORAL ORDER
These petitions are filed by group of industries raising common questions with regard to the validity or otherwise of the communication dated 20.3.2020 issued by the Ministry of Labour and Employment, Shram Shakti Bhavan, New Delhi to all the Chief Secretaries across the country. The said communication reads as under:
"The World is facing a catastrophic situation due to outbreak of COVID-19 and in order to combat this challenge, coordinated joint efforts of all Sections of the Society is required. In view of the above, there may be incidence that employee's/worker's services are dispensed with on this pretext or the employee/worker are forced to go on leave without wage/salaries.
In the backdrop of such challenging situation, all the Employers of Public/Private Establishments may be advised to extend their coordination by not terminating their employees, particularly casual or contractual workers from job or reduce their wages. If any worker takes leave, he should be deemed to be on duty without any consequential deduction in wages for this period. Further, if the place of employment is to be made non-operational due to COVID-19, the employees of such unit will be deemed to be on duty.
The termination of employee from the job or reduction in wages in this scenario would further deepen the crises and will not only weaken the financial condition of the employee but also hamper their morale to combat their fight with this epidemic. In view of this, you are requested to issue necessary Advisory to the Employers/Owners of all the establishments in the State."
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NC: 2024:KHC:37452 WP No.8210 of 2023 And connected matters
2. In furtherance to the said communication, an order dated 29.03.2020 was passed by the Government of India, Ministry of Home Affairs which reads as under:
"Whereas, in exercise of the powers, conferred under Section 10(2)(I) of the Disaster Management Act, the undersigned, in his capacity as Chairperson, National Executive Committee, has issued an Order of even number dated 24.03.2020, followed by Addendum Orders of even number dated 25.03.2020 and 27.03.2020 to the Ministries/Departments of Government of India, State/Union Territory Governments and State/Union Territory Authorities with the directions to implement lockdown measures annexed to the said Orders for the containment of spread of COVID-19 in the country.
Whereas, movement of a large number of migrants have taken place in some parts of the country so as to reach their home towns. This is a violation of the lockdown measures on maintaining social distance:
Whereas, to deal with the situation and for effective implementation of the lockdown measures, and to mitigate the economic hardship of the migrant workers, in exercise of the powers, conferred under Section 10(2)(I) of the Disaster Management Act 2005, the undersigned, in the capacity as Chairperson, National Executive Committee hereby directs the State/Union Territory Governments and State/Union Territory Authorities to take necessary action and to issue necessary orders to their District Magistrate/Deputy Commissioner and Senior Superintendent of Police/Superintendent of Police/Deputy Commissioner of Police, to take following additional measures:
i. State/Union Territory Governments shall ensure adequate arrangements of temporary shelters, and provision of food etc. for the poor and needy people, including migrant labourers, stranded due to lockdown measures in their respective areas;
ii. The migrant people, who have moved out to reach their home states/home towns, must be kept in the nearest shelter by the respective State/Union Territory Government quarantine facilities after
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NC: 2024:KHC:37452 WP No.8210 of 2023 And connected matters proper screening for a minimum period of 14 days as per standard health protocol;
iii. All the employers, be it in the Industry or in the shops and commercial establishments, shall make payment of wages of their workers, at their work places, on the due date, without any deduction, for the period their establishments are under closure during the lockdown;
iv. Where ever the workers, including the migrants, are living in rented accommodation, the landlords of those properties shall not demand payment of rent for a period of one month. v. If any landlord is forcing labourers and students to vacate their premises, they will be liable for action under the Act.
It is further directed that in case of violation of any of the above measures, the respective State/UT Government, shall take necessary action under the Act. The District Magistrate/Deputy Commissioner and Senior Superintendent of Police/Superintendent of Police/Deputy Commissioner of Police will be personally liable for implementation of the above direction and lockdown measures issued under the above mentioned Orders."
3. The case of the petitioners is that the aforesaid communication and order are in violation of the fundamental rights guaranteed under Article 14 and 19(1)(g) of the Constitution of India as such, had sought for quashing of the said communication and order. The further relief sought by the petitioners is in view of a dispute raised by the respondent - Employees Union on the allegation of petitioners not paying the wages throughout the lockdown period which is covered under the aforesaid communication.
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NC: 2024:KHC:37452 WP No.8210 of 2023 And connected matters
4. Considering the grievance, the Conciliation Officer had submitted a report to the appropriate Government. The appropriate Government, by orders dated 23.12.2022, 09.01.2024, 09.01.2024 and 16.01.2024, respectively has passed the following points for consideration:
In W.P.No.8210/2023:
"1. DqÀ½vÀªÀUÀðzÀªÀgÁzÀ ªÉÄ|| ±Á» JPïì ¥ÉÆÃmïìð ¥Éæ Ê.°., CAZÉ ¥ÉnÖUÉ ¸ÀASÉå:3449, ¸ÀªÉð £ÀA.13, 14 & 15 ¸ÀeÁð¥ÀÄgÀ ªÀÄÄRågÀ¸ÉÛ, ¨É¼ÀîAzÀÆgÀÄ UÉÃmï gÀ¸ÉÛ, JJ¯ïn PÁ¯ÉÃdÄ JzÀÄgÀÄ, ¨É¼ÀîAzÀÆgÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ-34, EªÀgÀÄ UÁªÉÄðAmïì ¯Éçgï AiÀÄƤAiÀÄ£ï £ÀA.8, ®UÉÎgÉ ªÀÄÄRågÀ¸ÉÛ JA.E.L. PÁ¯ÉÆä, ¦Ãtå, ¨ÉAUÀ¼ÀÆgÀÄ-560058 F PÁ«ÄðPÀ ¸ÀAWÀ¢AzÀ ¥Àæw¤¢ü¸À®àqÀĪÀ C£ÀħAzsÀzÀ°è w½¸À¯ÁzÀ PÁ«ÄðPÀjUÉ ¢£ÁAPÀ 23.03.2020 jAzÀ 09.05.2020 gÀªÀgÉV£À ¯ÁPïqË£ï CªÀ¢üAiÀÄ ªÉÃvÀ£ÀªÀ£ÀÄß ¥ÁªÀw¸À¢gÀĪÀÅzÀÄ £ÁåAiÀĸÀªÀÄävÀªÉÃ? ºÁV®è¢zÀÝ°è, UÁªÉÄðAmï ¯Éçgï AiÀÄƤAiÀÄ£ï £ÀA.8, ®UÉÎgÉ ªÀÄÄRågÀ¸ÉÛ, JA.E.L. PÁ¯ÉÆä, ¦Ãtå, ¨ÉAUÀ¼ÀÆgÀÄ-560058 F PÁ«ÄðPÀ ¸ÀAWÀ¢AzÀ ¥Àæw¤¢ü¸À®àqÀĪÀ PÁ«ÄðPÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀPÉÌ CºÀðgÀÄ?"
In W.P.No.13749/2024:
"1. UÁªÉÄðAmïì ¯Éçgï AiÀÄƤAiÀÄ£ï £ÀA.8, ®UÉÎgÉ ªÀÄÄRågÀ¸ÉÛ JA.E.L. PÁ¯ÉÆä, ¦Ãtå, ¨ÉAUÀ¼ÀÆgÀÄ-560058 F PÁ«ÄðPÀ ¸ÀAWÀªÀ£ÀÄß ¥Àæw¤¢ü¸ÀĪÀ PÁ«ÄðPÀjUÉ DqÀ½vÀ ªÀUÀðzÀªÀgÁzÀ ªÉÄ:
J¸ïJ¦J¯ï EAqÀ¹ÖçÃ¸ï ¥Éæ Ê.°., ¥Áèmï £ÀA.28¹, 80 Cr gÀ¸ÉÛ, 2£Éà ºÀAvÀ, ¦Ãtå, ¨ÉAUÀ¼ÀÆgÀÄ-560058 EªÀgÀÄ ¢£ÁAPÀ 23.03.2020 jAzÀ 09.05.2020 gÀªÀgÉV£À ¯ÁPïqË£ï CªÀ¢üUÉ ¸ÀA¥ÀÆtð ªÉÃvÀ£ÀªÀ£ÀÄß ¥ÁªÀw¸À¨ÉÃPÉAzÀÄ PÉÆÃjgÀĪÀÅzÀÄ £ÁåAiÀĸÀªÀÄävÀªÉÃ?
2. ºÁVzÀÝ°è, UÁªÉÄðAmï ¯Éçgï AiÀÄƤAiÀÄ£ï £ÀA.8, ®UÉÎgÉ ªÀÄÄRågÀ¸ÉÛ, JA.E.L. PÁ¯ÉÆä, ¦Ãtå, ¨ÉAUÀ¼ÀÆgÀÄ-560058 F PÁ«ÄðPÀ ¸ÀAWÀ¢AzÀ ¥Àæw¤¢ü¸À®àqÀĪÀ PÁ«ÄðPÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀPÉÌ CºÀðgÀÄ?"
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NC: 2024:KHC:37452 WP No.8210 of 2023 And connected matters In W.P.No.15647/2024:
"1. CfðzÁgÀgÁzÀ UÁªÉÄðAmïì ¯Éçgï AiÀÄƤAiÀÄ£ï £ÀA.8, ®UÉÎgÉ ªÀÄÄRågÀ¸ÉÛ JA.E.L. PÁ¯ÉÆä, ¦Ãtå, ¨ÉAUÀ¼ÀÆgÀÄ-560058 F PÁ«ÄðPÀ ¸ÀAWÀ¢AzÀ ¥Àæw¤¢ü¸À®àqÀĪÀ C£ÀħAzsÀzÀ°è w½¹¯ÁzÀ PÁ«ÄðPÀjUÉ DqÀ½vÀ ªÀUÀðzÀªÀgÁzÀ ªÉÄ: UÉÆÃPÀ¯ïzÁ¸ï JPïì¥Àmïìð °., £ÀA.16/2, gɹqɤì gÀ¸ÉÛ, ¨ÉAUÀ¼ÀÆgÀÄ-560025 EªÀgÀÄ ¢£ÁAPÀ 23.03.2020 jAzÀ 09.05.2020 gÀªÀgÉV£À ¯ÁPïqË£ï CªÀ¢üUÉ ¸ÀA¥ÀÆtð ªÉÃvÀ£ÀªÀ£ÀÄß ¥ÁªÀw¸À¨ÉÃPÉAzÀÄ PÉÆÃjgÀĪÀÅzÀÄ £ÁåAiÀĸÀªÀÄävÀªÉÃ?
2. ºÁVzÀÝ°è, UÁªÉÄðAmï ¯Éçgï AiÀÄƤAiÀÄ£ï £ÀA.8, ®UÉÎgÉ ªÀÄÄRågÀ¸ÉÛ, JA.E.L. PÁ¯ÉÆä, ¦Ãtå, ¨ÉAUÀ¼ÀÆgÀÄ-560058 F PÁ«ÄðPÀ ¸ÀAWÀ¢AzÀ ¥Àæw¤¢ü¸À®àqÀĪÀ PÁ«ÄðPÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀPÉÌ CºÀðgÀÄ?"
In W.P.No.15661/2024:
"1. CfðzÁgÀgÁzÀ UÁªÉÄðAmïì ¯Éçgï AiÀÄƤAiÀÄ£ï £ÀA.8, ®UÉÎgÉ ªÀÄÄRågÀ¸ÉÛ JA.E.L. PÁ¯ÉÆä, ¦Ãtå, ¨ÉAUÀ¼ÀÆgÀÄ-560058 F PÁ«ÄðPÀ ¸ÀAWÀ¢AzÀ ¥Àæw¤¢ü¸À®àqÀĪÀ C£ÀħAzsÀzÀ°è w½¹¯ÁzÀ PÁ«ÄðPÀjUÉ DqÀ½vÀ ªÀUÀðzÀªÀgÁzÀ ªÉÄ: PÁl£ï ªÀqÀèð (AiÀÄƤmï-
04), ªÀiÁå£ÀÄ¥sÁåPÀѸïð & JPïì¥ÉÆÃlð¸ïð D¥sï UÁªÉÄðAmïì, ¥Áèmï £ÀA.192, 11£Éà ªÀÄÄRågÀ¸ÉÛ, 3£Éà ºÀAvÀ ¦Ãtå PÉÊUÁjPÁ ¥ÀæzÉñÀ, ¨ÉAUÀ¼ÀÆgÀÄ-560058 EªÀgÀÄ ¢£ÁAPÀ 23.03.2020 jAzÀ 09.05.2020 gÀªÀgÉV£À ¯ÁPïqË£ï CªÀ¢üUÉ ¸ÀA¥ÀÆtð ªÉÃvÀ£ÀªÀ£ÀÄß ¥ÁªÀw¸À¨ÉÃPÉAzÀÄ PÉÆÃjgÀĪÀÅzÀÄ £ÁåAiÀĸÀªÀÄävÀªÉÃ?
2. ºÁVzÀÝ°è, UÁªÉÄðAmï ¯Éçgï AiÀÄƤAiÀÄ£ï £ÀA.8, ®UÉÎgÉ ªÀÄÄRågÀ¸ÉÛ, JA.E.L. PÁ¯ÉÆä, ¦Ãtå, ¨ÉAUÀ¼ÀÆgÀÄ-560058 F PÁ«ÄðPÀ ¸ÀAWÀ¢AzÀ ¥Àæw¤¢ü¸À®àqÀĪÀ PÁ«ÄðPÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀPÉÌ CºÀðgÀÄ?"
5. Learned counsel for the petitioners submits that since the aforesaid communication at Annexure-A and order at Annexure-B have an effect of violation of the fundamental right to carry on the trade and business of the petitioners and being contrary, constitutional and statutory provisions are required to be quashed. He submits that the Labour Court is not competent
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NC: 2024:KHC:37452 WP No.8210 of 2023 And connected matters to adjudicate upon the validity or otherwise of the aforesaid communication and order in view of provisions contained in sub Section (4) of Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). He submits that the proceedings initiated pursuant to the reference made by the appropriate Government cannot be proceeded further.
6. In response, learned counsel Sri.Kumar appearing for the Union of India submits that the question of considering the validity or otherwise of the aforesaid communication and order would not arise as the said communication and order have been withdrawn with effect from 18.05.2020. He refers to the order passed by the Apex Court in W.P.(C) No.10983/2020 produced by the petitioner himself as per Annexure-H in which the issue raised in the present petition has been raised before the Apex Court. He refers to paragraph 20 of the said order wherein the then learned Attorney General had submitted before the Apex Court that the orders impugned were issued in exercise of the powers conferred under Section 10(1) of the Disaster Management Act, 2005. He further submits that since the power to pass such orders were traceable to the law, the challenge to the same on the constitutional validity would not
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NC: 2024:KHC:37452 WP No.8210 of 2023 And connected matters be justified. He further submits that in any event the said impugned communication and order have been withdrawn with effect from 18.05.2020, in that view of the matter, the challenge to the same would only remain an academic issue.
He also points out that taking note of this development of withdrawal of the impugned communication and order, the Apex Court had issued certain directions to all the industries as found in paragraph 37 of the said order. He submits that in any event the reference made by the appropriate Authority is with regard to the factual aspects of the matter pertaining to the claim for payment of wages made by the respondent which could be determined by the Tribunal on its merits. Hence, seeks for dismissal of the petition.
7. Sri.A.J.Srinivasan, learned counsel appearing for the Union of employees submits that most of the workers had returned to work and were indeed taken by the petitioners and are still continuing to work. Their only grievance is that some of them have not been paid salaries / wages for the period between 23.03.2020 to 09.05.2020, while some of the workers have been paid the wages. He submits that it is only this factual aspect of the matter which requires to be considered
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NC: 2024:KHC:37452 WP No.8210 of 2023 And connected matters pursuant to the reference made by the appropriate Government. Hence, seeks dismissal of the petition.
8. Heard and perused the records.
9. As regards question of constitutional validity of the impugned communication dated 23.03.2020 and order dated 29.03.2020 is concerned, in view of the fact that the aforesaid communication and order have already been withdrawn with effect from 18.05.2020, requirement of consideration of its constitutional validity would not arise. The relief sought is therefore rejected.
10. However, learned counsel for the petitioners submits that the effect of its impugned communication and the order would remain for a period of about 50 to 54 days and since the demand being made by the workers / members is based on the said communication and order same cannot be adjudicated by the Labour Court in view of the provisions contained under sub-Section (4) of Section 10 of the Act. At this juncture, it is relevant to refer to sub-Section (4) of Section 10 of the Act which reads as under:
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NC: 2024:KHC:37452 WP No.8210 of 2023 And connected matters "10(4) Where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto."
11. The provisions of sub-Section (4) of Section 10 of the Act read in the light of the points of reference which are extracted hereinabove would make it clear that the reference made has no basis to the validity or otherwise of the communication and order. It is only with respect to the demand made by the workers for non-payment of wages for the period of lockdown. This, in the considered opinion of the Court would not require adjudication upon the validity or otherwise of the impugned communication and order by the Labour Court. The Labour Court may have to deal with the reference based on the material made available by the workers. It is apposite to refer to the observations made by the Apex Court in the aforesaid W.P.(C) No.10983/2020 at paragraphs Nos.33 to 37, which will be a guiding factors for resolution of the dispute involved in these matters as well:
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NC: 2024:KHC:37452 WP No.8210 of 2023 And connected matters "33. It cannot be disputed that the lockdown measures enforced by the Government of India under the Disaster Management Act, 2005, had equally adverse effect on the employers as well as on employees. Various industries, establishments were not allowed to function during the said period and those allowed to function also could not function to their capacity. There can be no denial that lockdown measures which were enforced by the Government of India had serious consequences both on employers and employees. The period of Unlock having begun from 1-6-2020 and even prior to that some of the industries were permitted to function by the Government of India by different guidelines, most of the industries and establishments have reopened or are reopening, require the full workforce.
34. As noted above, all industries/establishments are of different nature and of different capacity, including financial capacity. Some of the industries and establishments may bear the financial burden of payment of wages or substantial wages during the lockdown period to its workers and employees. Some of them may not be able to bear the entire burden. A balance has to be struck between these two competitive claims. The workers and employees although were ready to work but due to closure of industries could not work and suffered. For smooth running of industries with the participation of the workforce, it is essential that a via media be found out.
The obligatory orders having been issued on 29-3-2020 which has been withdrawn w.e.f. 18-5-2020, in between there has been only 50 days during which period, the statutory obligation was imposed. Thus, the wages of workers and employees which were required to be paid as per the Order dated 29-3-2020 and other consequential notification was during these 50 days.
35. In most of the industries, factories and establishments, the workers 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
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NC: 2024:KHC:37452 WP No.8210 of 2023 And connected matters 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 29-3-2020, the said steps may restore congenial work atmosphere.
37. We thus direct the following interim measures which can be availed by all the private establishments, 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 period as applicable in any particular State during which their industrial establishment was closed down due to lockdown, may initiate a process of negotiation with their employees' organisation and enter into a settlement with them and if they are unable to settle by themselves submit a request to concerned Labour Authorities who are entrusted with the obligation under the different statute to conciliate the dispute between the parties who on receiving such request, may call the concerned employees trade union/workers association/workers to appear on a date for negotiation, conciliation and settlement. In event a settlement is arrived at, that may be acted upon by the employers and workers irrespective of the Order dated 29-3-2020 issued by the Government of India, Ministry of Home Affairs.
ii) Those employers' establishments, industries, factories which were working during the lockdown period although not to their capacity can also take steps as indicated in direction No.(i)
iii) The private establishments, industries, factories shall permit the workers/employees to work in their establishment who are willing to work which may be without prejudice to rights of the workers/employees regarding unpaid wages of above 50 days. The private establishments, factories who proceed to take steps as per directions (i) and (ii) shall publicise and communicate about their such steps to workers and employees for their response/participation. The settlement, if any, as indicated above shall be without prejudice to the rights of employers and employees which is pending adjudication in these writ petitions.
iv) The Central Government, all the States/UTs through their Ministry of Labour shall circulate and publicise this
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NC: 2024:KHC:37452 WP No.8210 of 2023 And connected matters order for the benefit of all private establishments, employers, factories and workers/employees."
12. In that view of its matter, keeping open all the contentions to be urged by the workers as well as the petitioners before the Tribunal, these petitions are disposed of.
13. Pending interlocutory applications, if any, are disposed of.
SD/-
(M.G.S. KAMAL) JUDGE RV List No.: 1 Sl No.: 13