Is Payment of Salary Mandatory During Lockdown

India is going through lockdown since 23rd March, 2020 due to the pandemic of Covid 19. Most of the offices, shops, establishments, educational institutes and other industries which do not fall under the category of essential services have been shut down. Since the movement of people has been highly restricted, employees are unable to reach their workplaces. The employers, on the other hand, are also facing severe issues like no production, no payment of credits and wastage of raw materials and often finished goods; all cumulatively resulting in fund crunch. However, in this pandemic situation in a populous country like ours, the best way to save ourselves is by staying home and maintaining social distancing.

Now the question comes, whether the employees staying at home are entitled to salary. This is a relevant question in labour laws in India in this pandemic situation. The lockdown has been called by the Indian Government under the Disaster Management Act, 2005 and the various states governments have also taken the protection of the old Epidemic Disease Act, 1897 in order to stop the spread of coronavirus.

The Government of India by notification no.40-3/2020-DM-I(A) dated 29th March, 2020 under the Disaster Management Act directed payments of wages to the employees during the period of lockdown. The relevant portion of the said notification is reproduced below:

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)(l) of the Disaster Management Act, 2005, the undersigned, in the capacity of chairperson, National Executive Committee hereby directs the State/ Union Territory Governments and State/ Union territory authorities to take necessary action and issue necessary orders to their District Magistrate/ Deputy Commissioner and Senior Superintendant of Police/ Superintendant of Police/ Deputy Commissioner of Police, to take following additional measures:
i……
ii…….
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 lockdown;

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 West Bengal State Government also vide memo no.63-CS/2020 dated 29.03.2020 took the similar stance under the Disaster Management Act in compliance with the notification of Government of India. The relevant portion said State Government notification is also reproduced below:

“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 place on the due date, without any deduction for the period their establishments are under closure during lockdown”

The relevant portion related to payment of wages during this lockdown in both the notifications of Central and State Government are identical and issued in terms of Section 10(2)(l) the Disaster Management Act, 2005. Hence, let us now have a look at the relevant portion of the said Act.

“…The National Committee may,
Lay down guidelines for, or give directions to, the concerned ministries or Departments of 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;”

The Epidemic Disease Act, 1897 deals with measure to prevent outbreak of any epidemic diseases primarily by checking and controlling the arrival and leaving of people.

On careful consideration of both the Acts, there is hardly any scope for the Government, either Central or State, to direct employers in terms of the notification issued by Govt. of India, which is also under challenge before the Apex Court, not to deduct any wages of the employees during the period of lockdown. Hence, payment of wages during this period is not mandatory if the employees have not worked, even from home.

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