Do employers have to mandatorily pay wages to employees during the COVID-19 lockdown?
On 29 March, the Ministry of Home Affairs issued an order by the Home Secretary stating that employers, be it those involved with industries, commercial establishments, private companies etc., had to make payments to their employees during the period the establishment is closed.
The order was made by the Home Secretary in his capacity as Chairperson of the National Executive Committee (NEC) of the National Disaster Management Authority (NDMA), set up under the Disaster Management Act 2005 (DMA). This is important, because under Section 10(2)(l) of the DMA, 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 COVID-19 crisis.
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.
There remains some confusion about how it all works. 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.
Despite the order, many employers are not paying wages for reasons including financial inability to pay.
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