The Supreme Court today issues notice on a plea challenging the Gujarat Govt’s notification extending work hours under Factories Act without overtime pay.
A bench of Justices DY Chandrachud and KM Joseph issued notice to the State of Gujarat and sought its reply.
The petitioners ‘Gujarat Mazdoor Sabha’ a registered trade union moved to the Supreme Court challenging the notification issued by the Gujarat Labour and Employment Department on April 17, which grants exemption to all factories in Gujarat from provisions of the factories Act, 1948 relating to daily working hours, weekly working hours, intervals for rest and spread-overs of adult workers, and even from the duty to pay overtime wages at double rates as fixed under section 59 of the Act.
The plea contended that the impugned notification has been purported to be issued under the powers conferred by section 5 of the Act and grants exemption from the aforementioned provisions of the Act for the period from April 20 to July 19, 2020.
“The impugned notifications exempts factories from sections 51, 54, 55, and 56 of the Act on various conditions which are, that for the period from April 20 to July 19, 2020, workers in Gujarat can be made to work 12 hours in a day, 72 hours in a week with 30 minutes break after 6 hours. The Factories Act, 1948, otherwise provides that workers can only be made to work 9 hours in a day- but 48 hours in a week, with 1 weekly off- thus coming to 8 hours in a day (sections 51, 52, and 54), with 30 minutes break after 5 hours (section 55),” further said the petition.
The impugned notification further provides that no women workers will be allowed to work between 7pm & 6am. Moreover, the impugned notification prescribes that no overtime at double rate will be paid for the extra four hours worked per day, but rather that overtime work will merely be compensated at the usual hourly rate, the plea said.
The petitioners contended that “this is blatantly against section 59 of the Act which mandates that wages must be paid at double the ordinary rate for hours worked in excess of 9 hours in a day (including 1-hour break) & 48 hours in a week.”
It further goes on to state that vide the impugned notification under section 5 of the Factories Act, 1948 the Gujarat Government has acted ultra vires its powers under the said section, Section 5 empowers State Governments’ “in a case of public emergency” to grant exemption to any factory or class or description of factories from all or any of the provisions of the Act (except section 67) for such period and subject to such conditions as it may think fit, for a period not exceeding three months at a time. However, the same section provides that “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.
Further, Section 5 only permits exemption to be granted to “any factory or class or description of factories“, whereas the impugned notification grants a blanket exemption to all factories in the State. Therefore, it is amply clear that the Gujarat Government has misused section 5 to suspend key provisions of the Factories Act, 1948, which offer basic and fundamental protections to workers, especially in a time where workers are most vulnerable, economically and socially, stated in the plea.
-India Legal Bureau