ANALYSING THE ORDERS ISSUED UNDER THE DISASTER MANAGEMENT ACT, 2005
a. On 20.03.2020, the Ministry of Labor and Employment, Government of India issued an Advisory whereby it advised all employers of Public/Private establishments to cooperate by not terminating their employees or reducing their wages. It further stated that if an employee takes leave, he should be deemed to be on duty without any consequential deduction in wages during this period. If the place of employment is to be non-operational due to COVID-19, the employees of such unit will be deemed to be on duty.
b. On 22.03.2020 the Government of NCT of Delhi issued an Order under the Delhi Epidemic Diseases COVID-19 Regulations 2020 framed under the Epidemic Diseases Act 1897. The Order stipulated restriction for a period from 23.03.2020 to 31.03.2020. It stated that all commercial establishments factories, offices shall close their operations. All employees of private establishments (including temporary/ contractual/ outsourced etc.) are required to stay at home, they shall be treated as on duty and be paid in full. It was ordered that any person found violating this Order shall be prosecuted as per the relevant provisions of law.
c. On 24.03.2020 the National Disaster Management Authority, Government of India, directed the Ministries / Departments of Government of India, State Governments and Authorities to take suitable measures for ensuring social distancing to prevent the spread of COVID-19. Such measures were to be effective for next 21 days.[3] It further inter-alia stated that all commercial and private establishment [with certain exceptions] shall be closed down. Any person violating the measures will be liable to be proceeded against as per the provisions of S. 51 to 60 of the Disaster Management Act besides legal action under S. 188 of the Indian Penal Code.
Subsequently as an addendum to the above, an Order dated 25.03.2020 was passed by Ministry of Home Affairs on the operational measures to be taken by various governmental departments/ ministries.
d. On 29.03.2020, the Ministry of Home Affairs, Government of India issued an order under S. 10 (2)(l) of the Disaster Management Act, 2005 whereby it directed State/Union Territory Governments/ Authorities to take necessary actions and issue necessary orders to their officers to take additional measures inter-alia that all employers have to make payments to their employees without any deduction for the period of lockdown.
f. On the same date i.e. on 29.03.2020 the Government of NCT of Delhi issued an Order under S. 22 of the Disaster Management Act, 2005 for strict observance of lockdown and isolation measures. Under point 9 it was ordered that all the employers be it in industry or in the shops and commercial establishment, shall make payment of wages of their workers on their due date, without any deduction, for the period their establishments are under closure during the lockdown. Such lockdown measures were to remain effective till 14.04.2020.
g. The Ministry of Corporate Affairs, Government of India issued a circular (No. 15/2020) on 10.04.2020 wherein it stated that payment of wages/salary during lockdown is a moral obligation upon the employers.
h. In view of the extension of lockdown from 14.04.2020 till 03.05.2020, the Government of NCT of Delhi issued Order dated 14.04.2020 extending the measures undertaken in its earlier order dated 29.03.2020 till 03.05.2020.
In light of the aforesaid facts, we will examine the following question regarding legality and applicability of the orders passed by the Central and State Government under the Disaster Management Act, 2005:
A. What is the extent of applicability of Order dated 29.03.2020 passed by the National Executive Committee under the Disaster Management Act, 2005?
(i) The Order dated 29.03.2020 was issued by the Home Secretary, Government of India, in the capacity of the Chairman of the National Executive Committee under Section 10(2)(l) of the Disaster Management Act, 2005.
Section 10(2)(l) of the Disaster Management Act, 2005 provides as under:
“10. Powers and functions of National Executive Committee-
(1) …..
(2) Without prejudice to the generality of the provisions contained in sub-section (1), the National Executive Committee may-
…
(l) lay down guidelines for, or give directions to, the concerned Ministries or Departments of the Government of India, the State Governments and the State Authorities regarding measures to be taken by them in response to any threatening disaster situation or disaster;”
(ii) Section 10(2)(l) empowers the National Executive Committee to give directions to the concerned Ministries or Departments of the Government of India, the State Governments and the State Authorities regarding measures to be taken by them. Section 10(2)(l) does not empower the National Executive Committee to issue any binding directions directly to private employers/ citizens. The Order dated 29.03.2020 cannot be interpreted beyond the boundaries of Section 10(2)(l). Thus, it cannot be said that private employers are mandatorily bound by it until and unless the State Government/ Authority issues a suitable order under an enabling provision under law.
(iii) It can, therefore, be inferred that in States where the State Governments have not passed any subsequent Order in pursuance of the Order dated 29.03.2020 passed by National Executive Committee, the same by itself shall not be binding upon the employers.
B. Is the Order dated 29.03.2020 passed by the National Executive Committee under the Disaster Management Act, 2005 only meant to protect migrant workers?
(i) The relevant portion of the Order dated 29.03.2020 is reproduced below:
“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 migrant workers, in exercise of the powers, conferred under Section 10(2)(l) 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:
….
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 due date, without any deduction, for the period their establishments are under closure during the lockdown;
….”
A conjoint reading of the above recitals makes it clear that the intent and purpose of the Order was “to mitigate the economic hardship of migrant workers”. If the Order is interpreted in this background, its applicability can be limited only to migrant workers and not all the employees in any organization.
(ii) It is interesting to note that some state governments have ordered pay cuts for their employees. This lends support to the interpretation that the Order dated 29.03.2020 issued by the Central Government and the Orders of the State Governments to the same effect, are only meant to protect the migrant workers.
The Telangana Government has announced upto 75% pay cut for its officials. The Maharashtra Government has announced pay cuts upto 50% for its employees.On 23.04.2020 the Central Government announced that it has frozen the hike in dearness allowance of the central government employees which was due this year. Dearness allowance is given to government employees and pensioners to compensate for rising inflation. It is revised twice each year in the month of January and July respectively. The purpose of this allowance is to mitigate the impact of inflation and it is unique to government employees.
(iii) The Disaster Management Act, 2005 stipulates penal consequences for disobedience of orders issued thereunder. However, the Central Government through the Ministry of Corporate Affairs vide its communication dated 10.04.2020 has in the context of CSR, indicated that payment of salary/wages for the period of COVID lockdown is a moral obligation on the employers. This has led to widespread confusion about the applicability as well as binding nature of the aforesaid orders issued under the Disaster Management Act, 2005.
C. Whether Employers have been restrained from terminating/laying off their workers/ employees during the period of COVID lockdown?
(i) The advisory/ communication dated 20.03.2020 issued by the Ministry of Labour & Employment, Government of India advised employers against terminating their employees. However, it was in the nature of an advisory and is not as such binding upon the employers. Further the advisory was not under the provisions of the Disaster Management Act 2005.
(ii) The orders dated 29.03.2020 issued by the Central Government and the State Government under the Disaster Management Act, 2005 do not restrain the employers from termination or laying off their workers. In absence of such a restraint, legally speaking, the employers can terminate their employees as per the procedure provided under law.
D. Whether ordering employers to pay full wages to the workers during the COVID lockdown qualifies as ‘Disaster Management’ under the Disaster Management Act 2005?
(i) Section 2(e) of the Disaster Management Act, 2005 defines ‘Disaster Management’. It provides as follows:
“(e) “disaster management” means a continuous and integrated process of planning, organising, coordinating and implementing measures which are necessary or expedient for—
(i) prevention of danger or threat of any disaster;
(ii) mitigation or reduction of risk of any disaster or its severity or consequences;
(iii) capacity-building;
(iv) preparedness to deal with any disaster;
(v) prompt response to any threatening disaster situation or disaster;
(vi) assessing the severity or magnitude of effects of any disaster;
(vii) evacuation, rescue and relief;
(viii) rehabilitation and reconstruction;”
(ii) Mitigation, prevention or reducing the risk or severity of disaster in this situation would imply taking steps for mitigating COVID 19 i.e. closure of public places and public transport, restraint on holding gatherings, social distancing etc. The definition includes mitigation of consequences as well. However, consequences of COVD 19 would necessarily mean medical consequences including deterioration of health availability/ non-availability of suitable medical facilities etc. It cannot be interpreted to include all long and short-term effects that the pandemic would have on the society and the economy. COVID 19 definitely has an economic impact and would result in a financial crunch but that cannot be remedied under the garb of disaster management.
The object and purpose of the Disaster Management Act, 2005 is to take steps to mitigate/remedy disasters. Labour laws and contractual relationship between employer – employee are beyond the purview of the Disaster Management Act.
(iii) In fact the Disaster Management Act, 2005 does recognize that there will be an economic fallout of disasters and provides limited remedial measures that can be taken under the Act. Section 13 provides that the National Authority may grant fresh loans or give reliefs in repayment of loans to affected persons. It does not provide for any other remedial measure to redress the economic impact.
The Orders mandating payment of full wages to all workers by the employers during COVID lockdown neither falls under the definition of ‘disaster management’ under Section 2(e) nor under ‘Relief in loan payment’ provided under Section 13 of the Disaster Management Act, 2005.
(iv) Section 10 and 22 of the Disaster Management Act, 2005 set out the powers and functions of the National Executive Committee and the State Executive Committee respectively. Both the Committees are required to act as disaster management monitoring committee and issue directives for compliance with measures for disaster management.
Since the order requiring employers to pay full wages during COVID lockdown does not qualify as a measure undertaken for ‘disaster management’, the issuance of the same by the Committees is beyond the powers vested in them under the Disaster Management Act, 2005.
(v) The orders dated 29.03.2020 passed by the National and State Committee are delegated legislation under the Disaster Management Act, 2005 and must be within the confines of the provisions of the said Act.
To the extent the aforesaid orders require employers to make full payment of wages for the period of lockdown, they travel beyond the purpose and contours of the parent act. Further the parent act has not vested the National and State Executive Committees to issue such directions that are not for mitigation of the disaster but amount to regulation of the relationship between employer – employee.
As such it is yet to be seen whether the Orders dated 29.03.2020 issued by the National Executive Committee and the Delhi State Executive Committee under the Disaster Management Act, 2005 would withstand the test of legality before the courts of law.
In light of the above discussions, it yet to be seen whether the Orders dated 29.03.2020 passed under the Disaster Management Act, 2005 will be made applicable to all employees or only the migrant workers. The aforesaid Orders of the Central Government are under challenge before the Hon’ble Supreme Court of India. On 27.04.2020 the Hon’ble Apex Court granted 2 weeks to the Central Government to explain its policy in this regard.The confusion about whether the aforesaid orders are legal and binding would be put to rest by the Apex Court in the coming weeks. However, it must be noted that the Central Government Order dated 29.03.2020 issued under the Disaster Management Act, 2005 has not been stayed by the Hon’ble Supreme Court and is operational at present.
Disclaimer:
The above analysis is meant to be merely informative and should not be treated as a substitute for legal advice.
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