COVID-19: Is MHA Order on Migrant Workers & Paying Wages Binding?

The MHA’s advisory on 29 March was welcome, but raises several key legal questions.

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FAQ
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The MHA has ordered state governments to stop movement of migrants and ordered all employers to pay workers’ wages during the lockdown.
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On 29 March, the Ministry of Home Affairs issued an order by the Home Secretary with several welcome directions – about migrants, payment of salaries to workers and rent – to the Central, State and Union Territory governments, in connection with the coronavirus lockdown that had been imposed some days before.

Under these directions, State/UT governments have to arrange for shelters for the poor and needy (including migrant labourers) and move migrants who had been on the road to reach their home states, into government quarantine facilities.

But it wasn’t only about governments – several directions applied to the private sector as well.

All employers have to pay wages to their workers on the due date without any deductions for the time the establishments are closed during the lockdown. Landlords cannot demand rent from workers (especially migrant workers) for a month, and cannot evict workers, students or migrant labourers.

While such directions are welcome from a humanitarian perspective, there are questions to be asked about whether these directions are binding or just ‘advisories’, particularly in the context of the directions to private firms and landlords.

For instance, if a small manufacturing unit for non-essential goods – which cannot work from home – is told it has to pay salaries even when it is shut down, would this be required even if it pushes them to financial ruin?

Here’s what we know.

Are These Orders by the MHA Binding?

The order in question – like all recent orders relating to the lockdown – was made by the Home Secretary in his capacity as Chairperson of the National Executive Committee (NEC) of the National Disaster Management Authority (NDMA).

This is important, because under Section 10(2)(l) of the Disaster Management Act 2005, the NEC of the NDMA has the power to issue directions to Central/State/UT governments for dealing with a ‘disaster’ – in this case, the notified COVID-19 crisis. The NEC also has the power to coordinate the nation’s response in the event of any threatening disaster situation.

The Centre doesn’t normally have the power to direct States to take specific actions, unless there has been a Proclamation of Emergency. Since no Emergency has been declared here, the Centre technically has limited grounds to direct States to act in a particular way.

To get around this problem, the NEC has been issuing directions, which the Centre then instructs States/UTs to take effective measures to comply with. States have a degree of autonomy to decide how exactly they will implement these directions – for instance, whether to declare a curfew, how the curfew will work, etc.

However, State governments do not have the power to completely disregard a direction from the NEC under the Disaster Management Act.

Failure to comply with such directions by government departments and government officers is a punishable offence under Sections 55 and 56 of the Act. In case a department has failed to implement the directions it needs to, the head of the department can be prosecuted under the law.

Nevertheless, this entire situation is unprecedented, and the Disaster Management Act has never been invoked to deal with a situation like this, so there remains some confusion about how it all works.

The fact that there is some doubt about this can be seen from how the Centre requested the Supreme Court for a direction that all State/UT governments must implement all directives issued by the Centre, whether these are termed as directives, orders or advisories.

The Supreme Court did not issue such a direction, but it did say that:

“We trust and expect that all concerned viz., State Governments, Public Authorities and Citizens of this country will faithfully comply with the directives, advisories and orders issued by the Union of India in letter and spirit in the interest of public safety.”

Can Private Firms be Compelled to Pay Wages to Workers?

As mentioned earlier, the MHA order includes a specific direction from the NEC to ensure that all employers – including private sector employers – pay wages to their workers without deductions.

As this is a direction from the NEC under the Disaster Management Act, refusal to comply with it would be a criminal offence under Section 51 of the Act, punishable with up to one year’s imprisonment, as well as a fine. When a company commits the offence, every person responsible for running its business – CEO, board of directors, MD, whoever – is liable.

So on the face of it, yes, private sector employers are compelled to follow these directions. The Supreme Court order also says that it is ‘expected’ that citizens should comply with the Centre’s directions.

Having said that, the NEC cannot issue a direction which may be blatantly illegal, i.e, which has no basis in law. For instance, they cannot give directions for a ban on social media during the lockdown period as it is violative of various rights guaranteed to citizens in the Constitution of India. Such situations would mean that the directions have no basis in law.

And there does not appear to be any basis in law for any government or government body to compel private sector employers to pay wages to their workers.

States which issued circulars/advisories to the private sector about this issue before the MHA order appear to have recognised this fact. In circulars in Goa and Kerala, for instance, the government uses the terms “requested” and “advised” when asking private sector employers to not cut wages of workers.

Delhi Chief Minister Arvind Kejriwal had taken a more aggressive stance on 22 March, when he said all private firms would have to continue paying wages/salaries to workers during the original lockdown in Delhi (which was to last till 31 March), and that all workers would be considered to be ‘on duty’. However, there was no order/advisory on paper which directed this or explained the basis for it.

The Centre’s Ministry of Labour had also “requested” private firms to consider all workers, including contractual staff, to be on duty if they were unable to come to work because of measures to control the spread of the coronavirus.

Are Private Sector Employers Obligated by Law to Pay Wages?

Yes, employers in the private sector have to pay wages to their workers even if the government cannot pass orders compelling them to do so. This is because refusal to comply may have consequences for the employer in the long-run.

Under the Payment of Wages Act 1936 (and the Code on Wages 2019, which is yet to come into force), employers – even from the private sector – are not allowed make deductions from the wages (which includes salaries) of any permanent or fixed term employees except under a limited set of conditions.

None of those conditions are applicable in the current circumstances, except, possibly, being ‘absent from duty’. However, this condition isn’t fulfilled if the employee has no choice in the matter and the employer has to consider all his/her workers “on duty” during the lockdown period. Previous case law referred to by the Chief Labour Commissioner’s commentary on this issue indicates that you can’t consider an employee to be absent from duty unless they chose to not work on the day in question.

In this case, the inability to come to work is beyond the control of the employees, as it is a result of lockdown orders issued by the Centre and even before, by most States.

At the same time, it must be noted that, because the circumstances are so extraordinary, many employers are facing serious financial consequences. Some of them may have no choice but to make salary cuts, or be forced to shut down. Workers could then be faced with a choice of pay cuts or losing their jobs.

To try to avoid this, employers can try to enter into voluntary written agreements with employees to take pay cuts for the duration of the crisis.

Can Migrant Workers Really be Prevented From Returning to Their Homes?

Yes. While this may seem like a violation of the fundamental right to freedom of movement under Article 19(1)(d) of the Constitution, freedom of movement is subject to reasonable restrictions specified in Article 19(5).

One of these is “the interests of the general public”. As the purpose behind preventing the return of the migrant workers back to their home towns is to prevent the spread of COVID-19 by way of community transmission, the restriction of the migrants’ movement is valid in law, even if it seems unfair.

Of course, this could not be done without making arrangements for them, given their plight. Which was why there had to be directions to provide them with shelter and food during the crisis, free of cost.

While the Centre has asserted that movement of migrants has ended and they are being provided for in the shelters, reports have continued to come in of desperate migrants stranded without access to food or shelter, as some States have failed to make the required arrangements in time.

The Supreme Court has even taken cognisance of a letter by TMC MP Mahua Moitra highlighting the plight of workers from her area in West Bengal, who are reportedly facing these problems in various States across the country.

What Happens if the Migrants Aren’t Given Essential Supplies at Govt Shelters?

The MHA order specifically says that States/UTs would have to take action if there was any violation of the directions, and in their status report to the Supreme Court, the Centre assured the court that the Centre and State/UT governments had passed directions to ensure supplies were provided at the shelters.

The directions are supposed to be implemented on the ground by local District Magistrates/Deputy Commissioners and the seniormost police office from the area (SSP/SP/DCP) – so if there aren’t sufficient supplies of food, medicine, etc at the camp, then complaints can be made to them directly.

If they fail to fulfil their responsibilities, then complaints can be filed against them with the State/UT government concerned.

In the event of a larger failure to ensure these shelters are set up and provisions made for the poor and needy, writ petitions can also be filed in the relevant high courts or the Supreme Court of India.

The problem is that these options would take time, which doesn’t necessarily help when people are starving. The migrants could try to leave the camp, of course, but that puts them at risk of having criminal cases against them under Section 51 of the Disaster Management Act, or Sections 188 and 269 of the Indian Penal Code.

While such cases would obviously not stand if the migrants were starving, it is nonetheless a cause for concern, and means civil society has to be vigilant to ensure that we assist them with raising concerns about conditions in the shelters.

(These FAQs have been drafted in collaboration with Nyaaya, an initiative to provide comprehensive information on various legal topics, covering most aspects of the law that people interact with in their daily lives.)

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