Only employees on duty before lockdown entitled to full salaries: HC

While reiterating that "no work no wages" principle cannot be used by employers to deny salaries for the lockdown period to their workers, the Bombay High Court on Monday clarified that only those employees who were "on duty" on the day when the lockdown was declared, would be entitled to their full wages.

A bench of Justices Ujjal Bhuyan and Riyaz Chagla said that only employees who attended work, at least till the day before the lockdown was declared, can get full salaries for the lockdown period.

The judges clarified that employees who were not working prior to the lockdown, cannot seek relief from the orders issued by the Union and Maharashtra governments, directing employees of private sector, to pay full wages to all the workers, even if they do not attend work during the lockdown period.

Notably, the governments had instructed all private employers to consider their employees on duty, even if they were unable to attend work or confined to home during the lockdown.

The judges were dealing with a plea filed by the workers union of M/s. Premier Limited Company, seeking full wages for the lockdown period. The union claimed to have not received salaries since March 2020, the month when the government declared a nation-wide lockdown.

Opposing the plea, the company apprised the bench of the fact that it was indulged in a legal dispute before an industrial court way back from May 2019. It further told the judges that the workers have not attended work from May last year and are accordingly not paid since then.

Having considered the contentions, the judges noted that because of the lockdown, the industrial and commercial establishments were closed, which certainly caused great deal of economic hardship and distress to the workers and employees.

Referring to the orders of the union and state government, the bench said "Sum and substance of this measure is that the employers shall pay full salary to their employees during the period when their establishments were closed because of the lockdown. Such payment shall be without any deduction and for this period, the workers shall be deemed to be on duty."

The bench further questioned if these orders be invoked in a situation where the management and workmen are engaged in an industrial dispute relating to non-payment of salaries prior to the closure of the establishments due to lockdown.

"In our view, taking these aspects into consideration, the claim of the workmen to wages will not be covered by the union and state government's order. These measures would cover a situation where an employee was in employment as on the day the lockdown was declared and had received salary for the month before the lockdown," the judges ruled.

"To be deemed to be on duty one should be on duty on the date when the lockdown was declared. To be entitled to or for continuity of salary during the lockdown, an employee should receive the same till the month which is previous to closure on account of the lockdown," the bench explained.

The judges, however, maintained that in the interest of industrial peace "a balance has to be struck between the competing claims."

"Survival of the industry is equally important not only for the management but also for the workmen. Therefore, in the interest of justice it would be just and proper to direct the management to pay 50 per cent of the full monthly wages to the workmen with effect from March 2020 till the dispute before industrial court is disposed," the bench ordered.