Hard Labour: Supreme Court quashes Gujarat fiat on extra work hours

The Supreme Court on Thursday quashed the Gujarat government’s April notification that allowed factories to extend work shifts to up to 12 hours from the 8 hours earlier, citing “extreme financial exigencies arising due to the spread of Covid-19 pandemic” and the need to “safeguard the businesses”.

The move could have ramifications for the new labour Codes that have recently received President’s assent, as these seek to buttress the powers of states to resort to steps like suspension of labour laws, citing exigencies.

Besides Gujarat, Haryana, Madhya Pradesh, Punjab, Himachal Pradesh and Rajasthan had also ordered longer shifts for workers post-coronavirus lockdown.

A Bench led by Justice DY Chandrachud said the state (Gujarat) could not have issued a blanket notification that exempted all factories from complying with “humane working conditions and adequate compensation for overtime, as a response to a pandemic that did not result in an ‘internal disturbance’ of a nature that posed a ‘grave emergency’ whereby the security of India is threatened”, so as to constitute a ‘public emergency’ under Section 5 of the Factories Act, 1948.

Unless the threshold of an economic hardship is so extreme that it leads to disruption of public order and threatens the security of India or of a part of its territory, recourse cannot be taken to such emergency powers, which are to be used sparingly under the law, the top court said.

In the interest of doing complete justice, the apex court directed the state to pay overtime wages in accordance with the Act to all eligible workers who had been working since the issuance of the notifications. Earlier the overtime wages were slashed to half.

There are provisions in the new Industrial Relations Code and the Occupational Safety, Health and Working Conditions (OSH) Codes that labour laws can be kept in abeyance by the states through notifications to meet exigencies. Asked whether such leeway couldn’t be misused by states, labour and employment minister Santosh Kumar Gangwar said in a recent interview: “Labour laws are a part of the concurrent list of the Constitution and both the Centre and the States are equally competent to modify the existing labour laws within their respective domains based on their respective requirements… Also, these provisions are required to deal with any unprecedented or pandemic like situation and such exemption provisions are also available in the existing legislations such as the present Industrial Disputes Act”.

Justice Chandrachud said: “This court is cognizant that the state aimed to ameliorate the financial exigencies that were caused due to the pandemic and the subsequent lockdown. However, financial losses cannot be offset on the weary shoulders of the laboring worker, who provides the backbone of the economy.”
“To a worker who has faced the brunt of the pandemic and is currently laboring in a workplace without the luxury of physical distancing, economic dignity based on the rights available under the statute is the least that this Court can ensure them,” the SC said.

After several lockdown-hit businesses expressed their inability to pay wages in full or in part, the Gujarat government had issued a notification under Section 5 of the Factories Act exempting factories from certain provisions governing payment of overtime wages, working hours fixed for the workers and resting intervals, among others from April 20 to July 19, 2020.

Gujarat Mazdoor Sabha and Trade Union Centre of India had challenged the Gujarat Labour and Employment Department’s decision alleging that workers in Gujarat were made to work 12 hours in a day, 72 hours in a week with a 30 minutes break after 6 hours.

The workers’ union alleged that the state government’s decision was ultra vires the Act, considering the fact that Section 5 only allowed for exemption in cases of public emergency. The Covid-19 pandemic, while being a critical issue affecting the country, has still not been declared as an emergency, therefore, the state government could not have exercised this power, the , the petition stated.

The provision under Section 5 allows for an exemption to be granted to a factory or a class of factories. However, the notification had given a blanket exemption, and is therefore liable to be quashed, the petitioners contended. It alleged that the Gujarat government had misused Section 5 to suspend key provisions of the Factories Act which offer basic and fundamental protections to workers, especially in a time where workers are most vulnerable, economically and socially.