Recently, due to the lockdown in India, there has been a lot of confusion with respect to the disbursal of salaries by the employers to their employees in light of the fact that no work is being performed or is allowed to be performed in any of the industries or the businesses. Legal opinion has been sought from the Advocates on this matter by various businesses houses and employers’ associations.
Further, various state governments have also issued guidelines and directions indicating that the employers must not terminate their employees and no deduction in wages and salary may be carried out even if no work is being performed by them on account of the lockdown.
The employers are confused as to under what law the Central/State governments can direct them to disburse salaries and ask them not to terminate their employees at all. The other ancillary issue is non-payment of rent by the tenants to their respective landlords. Some state governments have issued guidelines that the landlords cannot ask the tenants for payment of rent for a period of one month. The legal validity of such directions and guidelines is under question.
The moot question that is to be answered is whether such directions/guidelines passed by the states/central government fall within the ambit of the National Disaster Management Act, 2005 (in short, “Act of 2005”) or not. It is the Act of 2005 that has been invoked in the present case to justify the orders passed for issuance of lockdown and other ancillary affairs.
Before adverting further, let us do a brief study of the National Disaster Management Act, 2005. The objective of the Act of 2005 is “to provide for the effective management of disasters and for matters connected therewith or incidental thereto.”
Thus, the basic purpose of the Act of 2005 is management of disasters and other such matters. Disaster has been defined under Section 2 (d) as “a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or manmade causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.”
Hence, in the present case, the disaster is Covid-19 Pandemic/Epidemic due to Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) leading to among other physiological effects, respiratory illness. This virus spreads its infection through human to human transmission or related indirect contacts. Thus, this is the only disaster that has occupied the field currently. This observation is further fortified from the Order dated 15.04.2020 bearing MHA Order No. 40-3/2020-DM-I (A) passed by the Ministry of Home Affairs, Government of India which in its opening paragraph states that the guidelines are “for containment of COVID-19 epidemic in the country.”
The next important provision for the purposes of our discussion is Section 6 of the Act of 2005. Section 6 provides for the powers and function of the National Authority under the Act. The broad powers include laying down and approval of plans and policies for disaster management. An interesting excerpt is reproduced hereinbelow: -
“Section 6 (2) (i) - Without prejudice to generality of the provisions contained in sub-section (1), the National Authority may take such other measures for the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary.”
Before commenting on it, let us also peruse Section 10, Section 18, Section 22 and Section 24 of the Act of 2005. These provisions provide for the powers and functions of the National Executive Committee, State Authority and State Executive Committees respectively. The powers and functions are broadly related to implementation of policies framed by the National Authority and the respective State authorities by the executive committees. Even the MHA Order dated 15.04.2020 was passed under the exercise of power under Section 10 (2) (l) of the Act of the 2005. The pertinent excerpts of the afore-stated provisions are reproduced hereinbelow: -
“Section 10 (2) (l) - Without prejudice to the generality of the provisions contained in sub-section (1), the National Executive Committee may 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.
Section 22 (2) (q) - Without prejudice to the generality of the provisions of sub-section (1), the State Executive Committee may perform such other functions as may be assigned to it by the State Authority or as it may consider necessary.
Section 24 (l) - For the purpose of, assisting and protecting the community affected by disaster or providing relief to such community or, preventing or combating disruption or dealing with the effects of any threatening disaster situation, the State Executive Committee may take such steps as the Central Government or the State Government may direct in this regard or take such other steps as are required or warranted by the form of any threatening disaster situation or disaster.”
Thus, a bare perusal of the above would suggest that wide powers have been conferred upon the authorities and committees to frame and implement guidelines in relation to a disaster i.e. COVID-19 Pandemic/Epidemic, in the present case.
Let us call Section 6 (2) (i), Section 10 (2) (l), Section 22 (2) (q) and Section 24 (l) as the residuary powers granted to the committees and the authorities as apart from the enumerated powers, the state or the central government may frame and implement any guidelines necessary for the management of a disaster under these residuary provisions.
Further, various state governments have also issued guidelines and directions indicating that the employers must not terminate their employees and no deduction in wages and salary may be carried out even if no work is being performed by them on account of the lockdown.
The employers are confused as to under what law the Central/State governments can direct them to disburse salaries and ask them not to terminate their employees at all. The other ancillary issue is non-payment of rent by the tenants to their respective landlords. Some state governments have issued guidelines that the landlords cannot ask the tenants for payment of rent for a period of one month. The legal validity of such directions and guidelines is under question.
The moot question that is to be answered is whether such directions/guidelines passed by the states/central government fall within the ambit of the National Disaster Management Act, 2005 (in short, “Act of 2005”) or not. It is the Act of 2005 that has been invoked in the present case to justify the orders passed for issuance of lockdown and other ancillary affairs.
Before adverting further, let us do a brief study of the National Disaster Management Act, 2005. The objective of the Act of 2005 is “to provide for the effective management of disasters and for matters connected therewith or incidental thereto.”
Thus, the basic purpose of the Act of 2005 is management of disasters and other such matters. Disaster has been defined under Section 2 (d) as “a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or manmade causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.”
Hence, in the present case, the disaster is Covid-19 Pandemic/Epidemic due to Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) leading to among other physiological effects, respiratory illness. This virus spreads its infection through human to human transmission or related indirect contacts. Thus, this is the only disaster that has occupied the field currently. This observation is further fortified from the Order dated 15.04.2020 bearing MHA Order No. 40-3/2020-DM-I (A) passed by the Ministry of Home Affairs, Government of India which in its opening paragraph states that the guidelines are “for containment of COVID-19 epidemic in the country.”
The next important provision for the purposes of our discussion is Section 6 of the Act of 2005. Section 6 provides for the powers and function of the National Authority under the Act. The broad powers include laying down and approval of plans and policies for disaster management. An interesting excerpt is reproduced hereinbelow: -
“Section 6 (2) (i) - Without prejudice to generality of the provisions contained in sub-section (1), the National Authority may take such other measures for the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary.”
Before commenting on it, let us also peruse Section 10, Section 18, Section 22 and Section 24 of the Act of 2005. These provisions provide for the powers and functions of the National Executive Committee, State Authority and State Executive Committees respectively. The powers and functions are broadly related to implementation of policies framed by the National Authority and the respective State authorities by the executive committees. Even the MHA Order dated 15.04.2020 was passed under the exercise of power under Section 10 (2) (l) of the Act of the 2005. The pertinent excerpts of the afore-stated provisions are reproduced hereinbelow: -
“Section 10 (2) (l) - Without prejudice to the generality of the provisions contained in sub-section (1), the National Executive Committee may 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.
Section 22 (2) (q) - Without prejudice to the generality of the provisions of sub-section (1), the State Executive Committee may perform such other functions as may be assigned to it by the State Authority or as it may consider necessary.
Section 24 (l) - For the purpose of, assisting and protecting the community affected by disaster or providing relief to such community or, preventing or combating disruption or dealing with the effects of any threatening disaster situation, the State Executive Committee may take such steps as the Central Government or the State Government may direct in this regard or take such other steps as are required or warranted by the form of any threatening disaster situation or disaster.”
Thus, a bare perusal of the above would suggest that wide powers have been conferred upon the authorities and committees to frame and implement guidelines in relation to a disaster i.e. COVID-19 Pandemic/Epidemic, in the present case.
Let us call Section 6 (2) (i), Section 10 (2) (l), Section 22 (2) (q) and Section 24 (l) as the residuary powers granted to the committees and the authorities as apart from the enumerated powers, the state or the central government may frame and implement any guidelines necessary for the management of a disaster under these residuary provisions.
Now, in the name of managing a disaster or a threatening disaster situation which is the disease and nothing else, can the state can pass any direction to do anything under those residuary clauses? If not, then what are the limits on the exercise of such powers and functions. In this regard, the Wednesbury Principle may be of some help as it sets out the standard of unreasonableness of public-body decisions that would make them liable to be quashed on judicial review. Generally speaking, it states that a decision by any state authority must not be so unreasonable that no reasonable authority would ever consider imposing it. In the present case, my interpretation is that under these residuary powers, the powers exercised must be directly or incidentally related to the threatening disaster situation i.e. the COVID-19 Pandemic/Epidemic. The COVID-19 Pandemic/Epidemic cannot be said to include all the socio-economic state of affairs of the country. It is primarily a medical/health disaster or an emergency as the same has arisen because of a virus and not because of anything else. If that virus is removed from the equation, the COVID-19 Pandemic/Epidemic shall cease to exist. Thus, the threatening disaster situation is because of the virus. I agree that such a pandemic has also given rise to socio-economic complexities. But such socio-economic complexities are mostly a result of the bad management or other interpersonal or organizational issues.
In my humble opinion, these residuary provisions are to be construed in a harmonious manner and such exercise of power should be to combat the threatening disaster situation i.e. the disease and the virus. Not everything that is happening wrong today could be said to be a result of the COVID-19 Pandemic/Epidemic. The other problems have not ceased to exist because of the COVID-19 Pandemic/Epidemic.
It remains to be seen that whether a direction by a state authority, directing mandatory disbursement of salaries without taking into account the hardships faced by the employers and without giving them a suitable compensation package from the state or some other agency, under the aforestated residuary clauses, is just and proper or not.
By that stretch of reasoning, can it be said that under the same residuary clauses, the states can order all men to mandatorily cook one meal every day for their respective wives because it would be in the best interests of managing a disaster as it would provide the wives a much needed stress reliever and break they so desperately need.
Further, there are umpteen number of effective labour laws in our country and they continue to occupy the field as the disaster in question is not a labour disaster or an industrial disaster rather it is a public health disaster. No doubt, that the Act of 2005 is a special law and would occupy the field in case of a disaster or a threatening disaster situation but by any stretch of imagination, the current disaster cannot be said to a labour disaster or an economic disaster for tenants only and not the landlords. It is a public health disaster for everybody for which the lockdown has been imposed and the states cannot pass on their financial and moral burden on the employers and the landlords alone to take care of the employees and the tenants respectively.
The disaster is onset of an epidemic and not some conscious attack by the virus on the economy or any other aspect of societal life. Thus, I wish to conclude by saying that in my considered view, only those directions that directly relate to the management of the disaster in question should be passed by the respective authorities and if it is a remote cause of the epidemic, then the state authorities ought to provide suitable compensation packages to reduce the hardship of the employers in directing them for mandatory disbursal of salaries or other such issues.
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