By Sonali

In the Supreme court of India

Name of the case	Gujarat Mazdoor Sabha vs. State of Gujarat
Citation	Writ Petition no.708 of 2020
Date of case	1 October,2020
Appellant	Gujarat Mazdoor Sabha
Respondent	State of Gujarat
Bench/Judge	Dr. Dhananjaya Y.Chandrachud, Indu Malhotra and KM Joseph, JJ
Statutes/ Constitution	Constitution of India, 1950Factories act , 1948
Important Sections/Articles Involved	Constitution of India, 1950 Ar.352 Ar.142 Ar. 23 Ar. 21 Ar.14 Ar.355 Ar.356 Factories act , 1948 Sec.5 Sec.51 Sec.54 Sec.55 Sec.56 Sec.65(2)

Abstract

In this case, the appellant is a trade union which is registered under the Trade Union Act, 1926. This trade union have thousands of workers as a part of this union. The trade union here seeks to quash the notification passed by the labour and employment department of the state of Gujarat. As this notification is alleged to curtail certain rights of the labourers which are given to them in the Factories Act of 1948. The appellant here on behalf of all the workers who were suffering from that issued notification by the state, files the writ petition in the Supreme Court of India so that the notification can be quashed.

Introduction

During the Covid-19 pandemic when the whole world was suffering from economic crisis, India was also a part of that crisis. In India during nationwide lockdown in 2020, the production and economic activities came to a halt or significantly got minimised resulting in message shut down of many factories. As India was suffering, many states on their level started controlling this economic crisis on their own way.

In Gujarat, the labour and employment department of the state issued a notification under section.5 of the Factories Act, 1948 stating improvised and temporary directions regarding the working condition of the labourers. Section.5 of the Factories Act, 1948 provides that during the time of public emergency, the state has the power to exempt any factory from all or any of the provisions of the act. The act is a product of history of a long struggle of workers unions to secure the right to human dignity in work places that ensure their safety and well-being. With the industrial development in India, the ultimate sufferers were the labour class with no act or legislature to protect and provide for them. The Factories act, 1948 ensure the material and physical well-being of workers by putting responsibilities and liabilities on the employers.

In the three bench case of Gujarat Mazdoor Sabha and Another vs. State of Gujarat stated that for the appliance of the section. 5 of the Factories Act, 1948 the one condition to be fulfilled is the condition of ‘Public Emergency.’ If the conditioned is not fulfilled then section.5 of the Factories Act cannot be invoked.

Facts of the case

On 24 March 2020, a nationwide lockdown was declared by the central government to prevent the spread of COVID-19 pandemic. Due to this nationwide lock down the economic activities that were going on came to a standstill. This lock down was further extended many times like the second time the lockdown was imposed on 14 April 2020.

On 17 April 2020, there was a notification issued by the labour and employment department of the state of Gujarat under section.5 of the Factories Act. This notification exempted all the factories registered under the act from various provisions relating to weekly hours, daily hours, intervals for rest etc., for adult workers. This notification was from 20 April 2020 till 19 July 2020.

The notification that was issued on 17 April was for a period of four months, but the state government of Gujarat again issued another notification on 20 July 2020, this notification too had similar content and intended to extend the exemption granted to the factories from 20 July 2020 till 19 October 2020.

Issue raised before the court

1. Whether the notification issued by the state government under section.5 of the Factories Act, 1948 was valid or not?

Arguments from the Appellant’s side

• The learned counsel from the appellant’s side contends that the notifications issued by the state government under section.5 of the Factories Act or invalid. Sec.5 of the said act can only be invoked if there is a situation of ‘Public Emergency’. Sec.5 itself have the explanation for ‘Public Emergency’ as a ‘Grave Emergency’, which threatens the security of India or any part of the territory by war, external aggression or internal disturbance.
• The counsel further contends that the ‘Pandemic’ or ‘lockdown’ cannot be included in the meaning of ‘Public or Grave Emergency’. Although sec.5 of the Factories Act and ar.352 of the Constitution, both have the expression ‘Internal disturbance’ but are significantly different as in ar.352 of the Constitution, the involvement of the President is required but on the other hand in sec.5 of the Factories act, it can be exercised during the objective conditions mentioned and should in turn make the conditions better.
• The counsel alleges that the notification exempted all the factories under sec.5 of the Factories Act, 1948 but instead sec.65 (2) states the suspension of sections 51, 52, 54 and 56 when there is exceptional pressure of work and this condition was not existing at the time of the lockdown as the state exempted all the factories without knowing what kind of work these factories are doing or what type of manufacturing work is required to be done by the labourers and took all the factors in one blanket only doing injustice to all the labourers.
• The counsel from the appellant side highlighted the point of payment of wages during overtime. The wages to be paid during overtime are the double of the normal wages as the labourers are putting in extra work and doing more from the hours that are fixed, yet the notification proportionate the overtime wages to the existing wages which violates the fundamental rights of the labourers under article 23, 21 and 14 of the Constitution and also fails the minimum wages act, 1948 as it amounts to forced labour.

Arguments from the respondent side

• The counsel from the respondent’s side contends that the notification issued by the state government under sec.5 of the Factories Act is valid and neither have they violated the fundamental rights under articles 23, 21 and 14 of the Constitution. The notification issued by the government under sec.5 of the Factories Act states that the state me exempt any factory or class of factories from all or any provisions of the act in a ‘Public Emergency’.
• Continuing the previous argument, the counsel justifies the term ‘Public Emergency’ in context with the COVID-19 pandemic. The pandemic is a public emergency as it has disrupted the “social order of the country.” Emergency measures were introduced so that the existence and integrity of the state can be protected.
• The counsel further highlights that the notification was issued under sec.5 of the factories act so that the minimum production levels in the factors were observed. There is no exceptional pressure of work in the factory so sec.65 (2) is not the basis for issuance of the notification.
• The counsel from the respondent side further alleges that the labourers were only allowed to work three additional hours and employers were also going to proportionally compensate them for the same. It also observed that the employers are also facing financial problems due to this lockdown so, the conditions are being applied.
• The counsel further gives a reference of the Pfizer Private Limited, Bombay vs. workmen[1] stating that during the time of the emergency, all the important steps should be taken so that the industrial production of the nation can be enhanced.

Related provisions

• Constitution of India, 1950

Ar.352: (Proclamation of Emergency) – (1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, made a declaration to that effect [in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.

[Explanation.- A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof.]

(2) A Proclamation issued under clause (I) may be or revoked by a subsequent proclamation.

(3) The President shall not issue a Proclamation under clause (I) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank under Article 75) that such a Proclamation may be issued has been communicated to him in writing.

(4) Every Proclamation issued under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament.

Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People has been dissolved, or place during the period of one month referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution, unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.

(5) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the proclamation under clause (4);

Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which it would otherwise have ceased of operate under this clause.

Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days, a resolution approving the continuance in force of the proclamation has been also passed by the House of the People.

(6) For the purpose of clause (4) and (5), a resolution may be passed by either House of Parliament only by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.

(7) Notwithstanding anything contained in the foregoing clauses, the President shall revoke a Proclamation issued under clause (l) or a Proclamation varying such Proclamation if the House of the People passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such Proclamation.

(8) Where a notice in writing signed by not less than one-tenth of the total number of members of the House of the People has been given of, their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a Proclamation issued under clause (l) or a Proclamation varying such Proclamation, – (a) to the Speaker, if the House is in session; or

(b) To the President, if the House is not in session, a special sitting of the House shall be held within fourteen days from the date on which such notice is received by the Speaker, or as the case may be, by the President, for the purpose of considering such resolution.

(9) The power conferred on the President by this article shall include the power to issue different Proclamations on different grounds, being war or external aggression or [armed rebellion] or imminent danger of war or external aggression or [armed rebellion], whether or not ‘here is a Proclamation already issued by the President under clause (l) and such Proclamation is in operation.[2]

Ar.142: (Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc) – (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.[3]

Ar.355: (Duty of the Union to protect States against external aggression and internal disturbance) –It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.

Ar.356: (Provisions in case of failure of constitutional machinery in State)-  (I) If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may be Proclamation- (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State;

(b) Declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;

(c) make such incidental and consequential provisions as appear to the president to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this constitution relating to anybody or authority in the State.

Provided that nothing in this clause shall authorize the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.

(2) Any such Proclamation may be revoked or varied by a subsequent Proclamation.

(3) Every Proclamation issued under this article except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People is dissolved or the dissolution of the House of the People takes place during the period of two months referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation Shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.

(4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation: Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which under this clause it would otherwise have ceased to operating, but no such Proclamation shall in any case remain in force for more than three years:

Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by the Council of States, but no resolution with respect to the continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People.

(5) Notwithstanding anything contained in clause (4), a resolution with respect to the continuance in force of a Proclamation approved under clause (3) for any period beyond the expiration of one year from the date of issue of such proclamation shall not be passed by either House of Parliament unless- (a) a Proclamation of Emergency is in operation, in the whole of India or, as the case may be, in the whole or any part of the State, at the time of the passing of such resolution, and

(b) The Election Commission certifies that the continuance in force of the Proclamation approved under clause (3) during the period specified in such resolution is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned:

Provided that in the case of the Proclamation issued under clause (1) on the 6th day of October, 1985 with respect to the State of Punjab, the reference in this clause to “any period beyond the expiration of two years”.[4]

Ar.23 🙁 Prohibition of traffic in human beings and forced labour) – (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

(2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.[5]

Ar.21: (Protection of life and personal liberty) –No person shall be deprived of his life or personal liberty except according to procedure established by law.[6]

Ar.14: (Equality before law) – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India, Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth.[7]

• Factories Act, 1948

Sec.5: (Power to exempt during public emergency) –In any case of public emergency the State Government may, by notification in the Official Gazette, exempt any factory or class or description of factories from all or any of the provisions of this Act 20[except section 67] for such period and subject to such conditions as it may think fit: PROVIDED that no such notification shall be made for a period exceeding three months at a time.

 [Explanation: For the purposes of this section “public emergency” means a grave emergency whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance.][8]

Sec.51: (Weekly hours) –No adult worker shall be required or allowed to work in a factory for more than forty-eight hours in any week.[9]

Sec.54: (Daily hours) –Subject to the provisions of section 51, no adult worker shall be required or allowed to work in a factory for more than nine hours in any day:

[PROVIDED that, subject to the previous approval of the Chief Inspector, the daily maximum specified in this section may be exceeded in order to facilitate the change of shifts.][10]

Sec.55 🙁 Intervals for rest) –(1) [The periods of work] of adult workers in a factory each day shall be so fixed that no period shall exceed five hours and that no worker shall work for more than five hours before he has had an interval for rest of at least half an hour.

[(2) The State Government or, subject to the control of the State Government, the Chief Inspector, may, by written order and for the reasons specified therein, exempt any factory from the provisions of sub-section (1) so however that the total number of hours worked by a worker without an interval does not exceed six.][11]

Sec.56: (Spread over) –The periods of work of an adult worker in a factory shall be so arranged that inclusive of his intervals for rest under section 55, they shall not spread over more than ten and a half hours in any day:

PROVIDED that the Chief Inspector may, for reasons to be specified in writing, increase the spread over up to twelve hours].[12]

Sec.65 (2): ( Power to make exempting orders) –(2) The State Government or, subject to the control of the State Government, the Chief Inspector may, by written order exempt, on such conditions as it or he may deem expedient, any or all of the adult workers in any factory or group or a class or description of factories from any or all of the provisions of section 51, 52, 54 and 56 on the ground that the exemption is required to enable the factory or factories to deal with an exceptional press of work.[13]

Judgement

The honourable court stated that, “this court is cognizant that the respondent 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 labouring workers who provide the backbone of the economy. Sec.5 of the Factories Act could not have been invoked to issue a blanket notification that exempted all factories from complying with human 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 post a grave emergency whereby the security of India is threatened. In any event no factory/classes of factory could have been exempted from compliance with provision of the Factories Act unless an internal disturbance causes a grave emergency that threatens the security of the state so as to constitute a public emergency within the meaning of sec.5 of the Factories Act.”

 The court further stated that, “as a consequence of the judgement and in the interest of doing complete justice under article.142 of the Constitution, we direct that over time wages shall be paid in accordance with the provision of section.59 of the Factories act to all eligible workers who have been working since the issuance of the notification.” The court while delivering the judgement referred to a case in relation with the ‘internal disturbance’ ‘public emergency’ and ‘public order’. In case of Naga People’s movement of human right vs. union of India[14]  it was held there in that, “thought an internal disturbance is a cause for concern, it does not threaten the security of the country or a part thereof unlike an armed rebellion which could pose a threat to the security of country or a part thereof.”

In another case of Anuradha Bhasin vs. union of India[15], a three Judge Bench of this court considered the definition of the expression ‘public emergency’ and interpret this as situations pertaining to ‘sovereignty and integrity of India’, ‘friendly relations with foreign states’, ‘public order’ and ‘preventing incitement’ to the commission of an offense, which is not present in the definition of ‘public emergency’ in the sec.5 of the Factories Act, 1948. The court further pointed out a case represented by the respondent’s counsel of the Pfizer private limited Bombay vs. workman.[16]  The court expressed that the dispute was between the employer and workmen, which was concerned with the problem of onerous working condition by the factory owner. The case was a private dispute and don’t coincide with the sec.5 emergency under the Factories Act, 1948.

The notification issued by the labour and employment department of the Gujarat State was quashed as the writ petition was allowed; along with this the employers had to pay the wages for the extra hours put in by the labourers.

Conclusion

It is very clear that the applicant were treated as forced labour without giving the extra wages  for the overtime they have put in. As a result, the decision was in the favour of the appointment, and they were granted those extra wages and the notification was also quashed. According to me, the decision of the learned court should be appreciated, as during the time of the lockdown the most affected strata of the society were labourers. As these labourers leave their hometown and go to urban areas for work. These labourers were adversely affected by this lockdown due to COVID-19 but still they were working for their employers. Those extra hours put in by the labourers were also putting extra strain on the health of the labour, so the award of this hard work was given to them, which is very well deserved by them.

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[1] Pfizer Private Limited, Bombay vs. Workmen, AIR 1963 SC 1103

[2] INDIA CONST. art.352

[3] INDIA CONST. art.142

[4] INDIA CONST. art.356

[5] INDIA CONST. art.23

[6] INDIA CONST. art.21

[7] INDIA CONST. art.14

[8] The Factories Act, S.5, No.63, Labour Govt. of Clement Atlee, 1948 (India)

[9] The Factories Act, S.51, No.63, Labour Govt. of Clement Atlee, 1948 (India)

[10] The Factories Act, S.54, No.63, Labour Govt. of Clement Atlee, 1948 (India)

[11] The Factories Act, S.55, No.63, Labour Govt. of Clement Atlee, 1948 (India)

[12] The Factories Act, S.56, No.63, Labour Govt. of Clement Atlee, 1948 (India)

[13] The Factories Act, S.65(2), No.63, Labour Govt. of Clement Atlee, 1948 (India)

[14] Naga People’s movement of human rights vs. Union of India, AIR 1998 SC 431

[15] Anuradha Bhasin vs. Union Of India, AIR 2020 SC 1308

[16] Pfizer Private Limited, Bombay vs. Workmen, AIR 1966 SC 740