On thursday the Supreme Court held that power of the State under Section 5 of the Factories Act cannot be invoked unless there was internal disturbance in the country. The order was passed by a bench comprising Hon’ble Justice D.Y Chandrachud, Hon’ble Justice Indu Malhotra and Hon’ble Justice K.M Joseph.
Supreme Court has observed that financial losses cannot be offset on the weary shoulders of the laboring worker
Brief Facts of the Case Gujarat Mazdoor Sabha & Anr Versus The State of Gujarat
By invoking the powers under Section 5 of the Factories Act, 1948, the Government of Gujarat had exempted factories from observing certain obligations that the employers had to fulfil towards workers employed by them.
A summary of the notification
- Adult workers are not allowed to work for more than 12 hours a day or 72 hours in a week
- No worker will be allowed to work for more than 6 hours without rest of half an hour
- The female worker cannot work in the factory between 7 PM- 6 AM
- Wages paid will be proportionate to ‘existing’ wage.
Arguments of the Petitioners
There were two petitioners in this case. The first was a trade union based in Gujarat and represents thousands of workers and the second petitioner was a national trade union representing a hundred thousand workers around the country.
They raised the contentions before the Court:-
- Powers under section 5 of the factories act can only be invoked if a public emergency exists.
- Public emergency or internal disturbance mentioned in section 5 refers to an act of war
- Even if a public emergency exists, notifications can only be used to improve the conditions.
- The only reason behind the notification was to extract more work from these workmen.
- As per section 5, directions can be issued to just one factory, not factories across the state or country.
- It was also stated that Section 59 of the Factories Act would be applicable payment of double wages for overtime should be mandatory.
- The counsel further argued that three industrial accidents have occurred in factories where work had begun with a skeletal workforce, and this notification will also lead to a rise in similar incidents.
Arguments of the respondents
- The counsel for the respondent argued that by invoking powers under Section 5 of the Factories Act, the state could exempt factories from all the provision of the Act.
- They further argued that COVID 19 is a ‘public emergency’ as defined under the Act.
- The notification was issued to help factories overcome financial difficulty brought on by the pandemic.
- The notification was issued to maintain minimum production levels, and as no targets were set, there was no undue pressure on the workers.
- It was also submitted that there is no exploitation of labour and factories are also able to sustain themselves.
The issue before the Court
The issue before the Court in the instant petition was whether the notification fell within the scope of section 5 of the Factories Act and if COvid-19 pandemic can be defined as ‘public emergency’ as mentioned in Section 5.
The reasoning of the Court
The Court observed that the term internal disturbance should be used in the context where the security of the nation is at stake. It was further observed that Section 5 of the Factories act could only be used in case of public emergency. The Court opined that The threat to the security of India or a part of the territory must be caused by war, external aggression or an internal disturbance. The expression ‘internal disturbance’ cannot be divorced from its context.
On the question of whether COVID 19 can be termed as internal disturbance, the answer of the Court was No. it was held that even though COVID has caused widespread disturbance throughout the country, it cannot be equated to the external threat of armed rebellion so it cannot be termed as an internal threat.
The Court observed that the Factory Act was envisioned to protect the rights of the workers, and if the rights of the workers are set aside, then it would cause more harm than good.
The Court disagreed with the claim that factories will face economic instability if their obligations under the Factories were not waived off. It held that workers had faced the brunt of the economic burden brought on by the pandemic. So the rights of the workers like decent work hours and entitlement to double pay for overtime should not be placed in jeopardy.
The decision of the Court
The Court held that the financial hardship faced by the factories should not be passed on to the workers. It also held that section 5 of the factories act could not be invoked to exempt factories from their obligations towards the workers employed by them.
It also held that 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. In any event, no factory/ classes of factories could have been exempted from compliance with provisions of the Factories Act, unless an ‘internal disturbance’ causes a grave emergency that threatens the security of the state, to constitute a ‘public emergency’ within the meaning of Section 5 of the Factories Act.
The writ petition was allowed, and notification issued by the government was quashed.
Title: Gujarat Mazdoor Sabha & Anr Versus The State of Gujarat
Case No. : Writ Petition (Civil) No. 708 of 2020
Date of Order: 01.10.2020
Coram: Hon’ble Justice D.Y Chandrachud, Hon’ble Justice Indu Malhotra and Hon’ble Justice K.M Joseph.