COVID 19Hot Off The PressNews

The University Grants Commission framed and issued Guidelines for the universities and colleges for reopening their campuses.

These Guidelines have been vetted by the Ministry of Health & Family Welfare and approved by the Ministry of Home Affairs and the Ministry of Education. The Guidelines may be adopted by the institutions as per the local conditions and directives of the Government authorities.

The Universities and Colleges outside the containment zones may be opened in a graded manner after consultations with concerned State/UT Governments and subject to adherence to the guidelines/SOP for safety and health protocol prepared by UGC, as under:

  1. For Centrally Funded Higher Education Institutions, the Head of the Institution should satisfy herself/himself regarding the feasibility of the opening of physical classes and decide accordingly.
  2. For all other Higher Educational Institutions, e.g., State Universities, Private Universities, Colleges etc., opening of physical classes to be done as per the decision of the respective State/UT Governments.
  3. Universities and colleges may plan opening the campuses in phases, with such activities where they can easily adhere to social distancing, use of face masks and other protective measures This may include administrative offices, research laboratories and libraries etc.
  4. Thereafter, students of all research programmes and post-graduate students in science & technology programmes may join as the number of such students is comparatively less and norms of physical distancing and preventive measures can be easily enforced.
  5. Further, final year students may also be allowed to join for academic and placement purposes, as per the decision of the head of the institution.

However, for (iii), (iv) and (v) above, it should be ensured that not more than 50% of the total students should be present at any point of time and necessary guidelines/protocols to prevent the spread of COVID-19 are in place.

  1. For the programmes, other than those mentioned in paras (iv) and (v) above, online/distance learning shall continue to be the preferred mode of teaching and shall be encouraged.
  2. However, if required, students may visit their respective departments in a small number for consultation with the faculty members, after seeking prior appointments to avoid crowding, while maintaining physical distancing norms and other safety protocols.
  3. Some students may opt not to attend classes and prefer to study online while staying at home. Institutions may provide online study material and access to e-resources to such students for teaching-learning.
  4. Institutions should have a plan ready for such international students who could not join the programme due to international travel restrictions or visa-related issues. Online teaching-learning arrangements should also be made for them.
  5. Hostels may be opened only in such cases where it is necessary while strictly observing the safety and health preventive measures. However, the sharing of rooms may not be allowed in hostels. Symptomatic students should not be permitted to stay in the hostels under any circumstances.
  6. Before the reopening of any campus, the Central or concerned State Government must have declared the area safe for opening of educational institutions. The directions, instructions, guidelines and orders issued by the Central and concerned State Government regarding safety and health in view of COVID-19 must be fully abided by the higher education institutions.

These Guidelines provide in detail the measures to be taken by Higher Educational Institutions before re-opening of campuses. It also describes the safety measures to be taken by HEIs at Entry/Exit Point(s), in the classrooms and other learning sites, inside the campus and in the Hostels. Guidance for counselling and mental health is also provided in this document.

Earlier, the University Grants Commission issued “Guidelines on Examinations and Academic Calendar for the Universities in View of COVID-I9 Pandemic and Subsequent Lockdown” on 29th April, 2020 and then, on 6th July, 2020. These Guidelines covered important dimensions related to examinations, academic calendar, admissions, online teaching-learning, and provided flexibility for adoption by the universities.

Later, “UGC Guidelines on Academic Calendar for the First Year of Under-Graduate and Post-Graduate Students of the Universities for the Session 2020-21 in View of COVID-19 Pandemic” were issued on 24th September, 2020.

Click here for the detailed UGC guidelines for Re-opening the Universities and Colleges Post Lockdown

Click here for the salient features of UGC guidelines for Re-opening the Universities and Colleges Post Lockdown


Ministry of Education

[Press Release dt. 05-11-2020]

[Source: PIB]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara J., considering the peculiar facts of the present case, allows anticipatory bail to a proclaimed offender, imposing several conditions.

 Brief Facts

On the allegations made by a girl, aged 15 years, against the petitioner of having coitus with her at the end of May 2013, by entering her home and also committing rape on her in the forest on 30-06-2013, when she was returning from school, the police registered FIR dated 19-07-2013, under Sections 376, 506 of the Penal Code, 1860, and Section 4 of Protection of Children from Sexual Offences Act, 2012, disclosing cognizable and non-bailable offences.

The police conducted the investigation, took the victim for her medical examination, got her statement recorded under S. 164 CrPC, but failed to nab the accused. Subsequently, the police filed a charge sheet without arresting the accused. After taking cognizance of the offence, the Court issued Non-bailable Warrants (NBW) and upon its non-execution, allowed the application of the prosecution and proceeded against the accused under Section 82 CrPC, declaring the petitioner as a proclaimed offender. It is to be noted that the contents of the bail petition and the status report do not reveal any criminal history.

Counsel for the petitioner

Abhilasha Kaundal, Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family. Further, the conduct of the accused applicant must be taken into account as much as, being declared a proclaimed offender, the petitioner voluntarily approached this Court by filing a petition for anticipatory bail. Accused explains that he and the victim were in love, and to make out an exceptional case, further states that on noticing that the girl had an affair with one Jyoti Prakash, he became melancholic and left for a distant place, far away from her. Accused further contends that due to the Lockdown of the COVID-19 pandemic, he was forced to return home and got information that an FIR was lodged against him, and that he is a proclaimed offender.

Counsel for the respondent

While opposing the bail, Nand Lal Thakur, Additional Advocate General contended that an absconder whom the Court has declared as a proclaimed offender has no legal rights to file an application under Section 438 CrPC.

Opinion of the Amicus

Ashok Tyagi, Amicus Curiae carved out a distinction in the pronouncements of Supreme Court and states that this Court has the jurisdiction to grant anticipatory bail, in peculiar facts, even to a proclaimed offender.

 Observations

The Court, in addition to its decision, cited the following cases;

  • Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, on the position of anticipatory bail against a proclaimed offender; “Para 10. (…)Normally, when the accused is ‘absconding’ and declared as a ‘proclaimed offender’, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail.”
  • State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171, reiterated the rationale of the aforementioned case.
  • Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42, A three-member bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail, if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such persons on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application, and the Courts can release on bail, provided the circumstances then prevailing requires a change in fact or situation. 
  • Dataram Singh v. State of U.P., (2018) 3 SCC 22, “…grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative conditions and stringent conditions.”
  • Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, A Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions on the grant of bail.

Decision

In the light of the precedent cited and the facts of the case, the Court allowed the bail application remarking, “Pre-trial incarceration needs justification depending upon the offense’s heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. However, while deciding bail applications, the Courts should discuss evidence relevant only for determining bail. The difference in the order of bail and final judgment is similar to a sketch and a painting. However, some sketches are in detail and paintings with a few strokes.” Moreover, the Court enumerated a list of conditions that the applicant must abide by, during the course of bail.[Mahender Kumar v. State of Himachal Pradesh, 2020 SCC OnLine HP 2119, decided on 26-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

COVID 19Hot Off The PressNews

Ministry of Home Affairs (MHA) issued an Order today to extend the Guidelines for Re-opening, issued on 30-09-2020, to remain in force upto 30-11-2020

Re-opening of activities outside the Containment Zones

    • Since the issuance of the first Order on lockdown measures by MHA on 24th March 2020, almost all activities have been gradually opened up in areas outside the Containment Zones. While most of the activities have been permitted, some activities involving large number of people, have been allowed with some restrictions and subject to SOPs being followed regarding health and safety precautions. These activities include – metro rail; shopping malls; hotel, restaurants and hospitality services; religious places; yoga and training institutes; gymnasiums; cinemas; entertainment park etc.
    • In respect of certain activities, having relatively higher degree of risk of COVID infection, State/ UT Governments have been permitted to take decisions for their re-opening, based on the assessment of the situation and subject to SOPs. These activities include – schools and coaching institutes; State and private universities for research scholars; allowing gatherings above the limit of 100 etc.
    • After the last guidelines issued by MHA on 30.09.2020, the following activities are also permitted but with certain restrictions:
  1. International air travel of passengers as permitted by MHA.
  2. Swimming pools being used for training of sportspersons.
  3. Exhibitions halls for Business to Business (B2B) purposes.
  4. Cinemas/ theatres/ multiplexes upto 50% of their seating capacity.
  5. Social/ academic/ sports/ entertainment/ cultural/ religious/ political functions and other congregations, in closed spaces with a maximum of 50% of the hall capacity and subject to a ceiling of 200 persons.

The further decision regarding the above activities will be taken based on the assessment of the situation

COVID-Appropriate behavior

    • The essence behind graded re-opening and progressive resumption of activities is to move ahead. However, it does not mean the end of the pandemic. There is a need to exercise abundant caution by adopting COVID-19 appropriate behavior by every citizen in their daily routine. A ‘Jan Andolan’ was launched by the Prime Minister, Shri Narendra Modi on 8th October 2020 on COVID-19 appropriate behavior to follow three mantras, namely:
  1. wear your mask properly;
  2. wash your hands frequently; and
  3. maintain a safe distance of 6 feet.
    • There is an urgent need to instil a sense of discipline and ownership amongst citizens in order that the resumption of activities is successful and gains made in the management of the pandemic are not diluted.
    • MHA has already advised Chief Secretaries/ Administrators of all States/ UTs that they should endeavour to promote COVID-19 appropriate behavior extensively at the grass root level and take measures to enforce the wearing of masks, hand hygiene and social distancing.

National Directives for COVID-19 management

  • National Directives for COVID-19 management shall continue to be followed throughout the country, so as to enforce COVID-19 appropriate behavior.

Strict enforcement of lockdown in Containment Zones till 30th November 2020

  • Lockdown shall continue to be implemented strictly in the Containment Zones till 30th November, 2020.
  • Containment Zones shall be demarcated by the District authorities at micro-level after taking into consideration the guidelines of MoHFW with the objective of effectively breaking the chain of transmission. Strict containment measures will be enforced in these containment zones and only essential activities will be allowed.
  • Within the containment zones, strict perimeter control shall be maintained and only essential activities allowed.
  • These Containment Zones will be notified on the websites of the respective District Collectors and by the States/ UTs and information will also be shared with MOHFW.

States not to impose any local lockdown outside Containment Zones

  • State/ UT Governments shall not impose any local lockdown (State/ District/ sub-division/City/ village level), outside the containment zones, without prior consultation with the Central Government.

No restriction on Inter-State and intra-State movement

  • There shall be no restriction on inter-State and intra-State movement of persons and goods.No separate permission/ approval/ e-permit will be required for such movements.

Protection for vulnerable persons

  • Vulnerable persons, i.e., persons above 65 years of age, persons with co-morbidities, pregnant women, and children below the age of 10 years, are advised to stay at home, except for meeting essential requirements and for health purposes.

Use of AarogyaSetu

  • The use of AarogyaSetu mobile application will continue to be encouraged.

Ministry of Home Affairs

[Source: PIB]


Also Read:

[UNLOCK-5] MHA issues new Guidelines for Re-opening; Flexibility to States UTs for opening of schools

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., directed the confiscated goods to be released on a provisional basis noting the delay on the part of Authorities in the adjudication of the matter.

Petitioner a dealer registered under the Goods and Services Tax Act who imports toys from China. It also purchases goods from Delhi-based dealers.

Dealer’s Stand

Dealer’s state that the returns till March 2020 have been filed and there are no arrears. Due to the lockdown restrictions amidst the pandemic, the business was shut down since April, 2020.

Following the partial lifting of restrictions, the petitioner reopened the business. Superintendent, CGST conducted a search at the petitioner’s place of business.

After the search operation, mahazar was drawn which was followed by a seizure order.

The said orders of seizure and prohibition issued by respondent 3 have been put to a challenge.

Analysis & Decision

Bench while addressing and analysing the issue, stated that,

Lord Atkin in his celebrated dissent in Liversidge v. Anderson, (1942) AC 206, proclaimed that laws speak the same language in war as in peace and that the words have only one meaning.

Likewise, laws speak the same language during normal as well as in pandemic times.

“…contemporary imperatives demand that courts, whenever possible, ought to adopt that approach which will kick- start the economy.”

Court also referred to Section 67 (1) and (2) of the Central Goods and Services Tax Act, 2017 which talks about the Power of inspection, search and seizure.

Supreme Court in ITO v. Lakhmani Mewal Das, (1976) 3 SCC 757, held that 

“…the existence of the belief can be challenged by the assessee but not the sufficiency of reasons for the belief. The expression “reason to believe” does not mean a purely subjective satisfaction on the part of the officer. It must be held in good faith. It cannot be merely a pretence. It is open to the Court to examine whether the reasons for the formation of the belief have a rational connection with or a relevant bearing on the formation of the belief and are not extraneous or irrelevant for the purpose of the section.”

Evading GST

In the present matter, the impugned proceedings were initiated based on the intelligence developed by CGST (HPU), Madurai that the petitioner is evading GST by mis-declaring the goods while importing.

It has been shown that the stock register was not maintained at the petitioner’s place of business, hence the Court doesn’t want to quash the seizure order, through the order of prohibition has to be necessarily interfered with.

No show-cause notice to date after the lapse of 40 days was issued.

In view of the above, Court stated that the respondent may not be in a hurry, they can afford to wait. Officials who get their salaries in the first week of every month may not be conscious of the cost of delays in such cases.

Further, the Court added that Adjudication proceedings may go on for months. That is why the statute provides for the provisional release of the detained goods.

Therefore, the Court directed the respondents to release the goods on a provisional basis and on taking a personal bond with a payment of Rs 2 lakhs.

While parting with its decision, Bench stated in regard to the Chinese products that,

“…general market is flooded with Chinese goods. The public must make a conscious choice to encourage swadeshi products.”

“The Indian entrepreneur must rise to the occasion. He must ask himself as to why the chinese products are preferred and he must come out with alternatives. There must be no compromise in quality. At the same time, the price factor should also be borne in mind.”

Petition was partly allowed in the above terms. [Tvl.Rising International Co. v. Commr. of Central GST and Central Excise,  2020 SCC OnLine Mad 2951, decided on 06-10-2020]

COVID 19Hot Off The PressNews

The National Human Rights Commission (NHRC), viewing the unprecedented situation across the country and being deeply concerned about the rights of the vulnerable and marginalised sections of the society affected by the COVID-19 pandemic and the resultant lockdowns, constituted a ‘Committee of Experts on Impact of Covid-19 Pandemic on Human Rights and Future Response’.

The Committee, included representatives from the civil society organizations, independent domain experts, and the representatives from the concerned ministries/ departments, and was tasked to assess the impact of the pandemic on realization of the rights of the people, especially the marginalised / vulnerable sections of the population which have been disproportionately impacted.

After due consideration of the impact assessment and recommendations made by the Committee of Experts, the Commission has now issued the ‘Advisory on Rights of Women in the context of COVID-19’, available on https://nhrc.nic.in/activities/reports-and-recommandations

The Commission has also requested to concerned Union Ministries and all States/UTs for implementation of the recommendations contained in the advisory and compliance the action taken report to the Commission.


National Human Rights Commission

Press Release dt. 08-10-2020

Case BriefsHigh Courts

Rajasthan High Court: Arun Bhansali, J., rejected a stay application that was filed aggrieved by the order of the Director, Mines demanding penalty, revoking sanction and passing debarring order against the petitioner.

It was submitted that the petitioner pursuant to the e-auction notification for collection of excess royalty and DMFT amount on masonry stone participated, being a petitioner was granted the contract and was required to fulfill the requirements as indicated successful bidder, However, on account of lockdown imposed due to COVID-19 pandemic, needful could not be done by the petitioner and he requested the respondents to grant time for fulfilling the requirements of the office wherein, he was required to do the needful within 15 days. Thus, the petitioner had sent a communication seeking extension of date for signing the agreement ‘without penalty’ which was responded to by the mining engineer who had asked to do the needful in 3 days along with the penalty. The petitioner again had asked for the waiver of penalty consequently the matter was forwarded to the Director, Mines for taking action under the provisions of Rule 45 of the Rajasthan Minor Mineral Concession Rules, 2017 (‘the Rules, 2017’). In the order passed by the Director the bid security amount was forfeited, the sanction was revoked and the petitioner was debarred from participating in the forthcoming auction.

The Court while rejecting the stay application explained that in the over all circumstances of the case where the formalities had to be completed in 15 days taking into consideration the effect of lockdown, and the prayer made by the petitioner seeking exemption from payment of amount of penalty was declined he was required to do the needful including payment of amount of penalty, the submission that as the communication was a recommendation only, the petitioner had no cause at that stage cannot be accepted inasmuch as insofar as the prayer made regarding exemption from payment of the amount of penalty is concerned stood rejected, which had provided cause to the petitioner. The Court added that the petitioner was not vigilant enough to seek his remedy in relation to the grievance as raised in the writ petition.[Bhaniyana Construction v. State of Rajasthan, 2020 SCC OnLine Raj 1386, decided on 30-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashik Bhushan, R. Subhash Reddy, JJ has directed full refund of air tickets booked during lockdown period i.e. from 25th March, 2020 to 24th May, 2020 for travel during lockdown period. The order of the Court came after accepted Directorate General of Civil Aviation’s (DGCA) proposal of

To contain the pandemic situation of COVID¬19, lockdown was imposed by the Government of India, from 25th March 2020 to 14th April 2020 which was later extended upto 03rd May 2020.  A ban was also imposed on operation of all domestic and international flights. There was an issue of refund of air fare during the lockdown period, when domestic and international flights’ operation was suspended. The Ministry of Civil Aviation (MoCA), while acknowledging the unusual situation that has arisen due to the lockdown imposed, to contain further spread of COVID¬19 and its consequential effect on the air passengers and airlines, by examining the grievances received from various quarters, issued an advisory to all stake holders in civil aviation sector in the shape of Office Memorandum dated 16th April 2020.

The present writ petition was filed to declare the action on the part of the respondent-airlines, operating domestic as well as international flights in India, in not refunding the full amount collected for the tickets, due to the cancellation of flights in the wake of restrictions imposed by the Government of India to contain COVID-19 as arbitrary and in violation of Civil Aviation Requirements, issued by the Directorate General of Civil Aviation. A consequential relief was sought to direct the respondents to refund the full amount upon such cancellations.

The Court noticed that in ordinary course modalities and timelines for refund on cancellation of tickets are governed by, the Civil Aviation Requirements, i.e. CAR dated 22nd May 2008; 06th August 2010 as revised on 27th February 2019, and the said Requirements are issued by the competent authority in exercise of powers under the provisions of Aircrafts Act, 1934 and the Rules made thereunder.

It, however, said that

“… we cannot lose sight of the present situation prevailing in the country and across the globe, i.e. the effect of pandemic COVID-19.  It cannot be disputed that the civil aviation sector, which is one of the important sectors, is seriously affected in view of the ban imposed for operating flights. Added to the same, air passenger traffic has come down heavily and which is gradually being restored.  At this moment any strict enforcement action of the CARs would further restrict/reduce their operations and such enforcement action may further jeopardise the possibilities of generation of cash by airlines which can further adversely affect/delay the refund cycle. “

Strict enforcement of Civil Aviation Requirements at this moment may not yield any meaningful result for any stake holder.  Hence, in view of the suggestions and formulations arrived at in the meetings held by Union of India and DGCA, which are acceptable to the majority of stake holders, the Court directed that the same have to be implemented in letter and spirit since such formulations are workable solutions in these peculiar circumstances which are prevailing in the country.

DIRECTIONS ISSUED

  1. If a passenger has booked a ticket during the lockdown period (from 25th March, 2020 to 24th May, 2020) for travel during lockdown period and the airline has received payment for booking of air ticket for travel during the same period, for both domestic and international air travel and the refund is sought by the passenger against that booking being cancelled, the airline shall refund the full amount collected without any cancellation charges. The refund shall be made within a period of three weeks from the date of cancellation.
  2. If the tickets have been booked during the lockdown period through a travel agent for a travel within the lockdown period, in all such cases full refund shall be given by the airlines immediately. On such refund, the amount shall be passed on immediately by the agent to the passengers.
  3. Passengers who booked tickets at any period of time but for travel after 24th May, 2020 – refund of fares to the passengers covered under this category shall be governed by the provisions of Civil Aviation Requirements (CAR).
  4. Even for international travel, when the tickets have been booked on an Indian carrier and the booking is ex¬India, if the tickets have been booked during the lockdown period for travel within the lockdown period, immediate refund shall be made.
  5. If the tickets are booked for international travel on a foreign carrier and the booking is ex¬India during the lockdown period for travel within the lockdown period, full refund shall be given by the airlines and said amount shall be passed on immediately by the agent to the passengers, wherever such tickets are booked through agents. In all other cases airline shall refund the collected amount to the passenger within a period of three weeks.
  6.  In all other cases, the airlines shall make all endeavours to refund the collected amount to the passenger within 15 days from today. If on account of financial distress, any airline / airlines are not able to do so, they shall provide credit shell, equal to the amount   of   fare   collected,   in   the   name   of passenger when the booking is done either directly by the passenger or through travel agent so as to consume the same on or before 31st March, 2021.  It is open to the passenger either to utilize such credit etc. shell upto 31st  March, 2021 on any route of his choice or the passenger can transfer the credit shell to any person including the travel agent through whom he/she has booked the ticket and the airlines shall honour such a transfer.

The credit shell issued in the name of the passenger shall be transferable which can be utilize upto 31st  March, 2021 and the concerned airline shall honour such a transfer by devising a mechanism to facilitate such a transfer. It is also made clear that such credit shell can be utilized by the concerned agent through whom the ticket is booked, for third party use. It is also made clear that even in cases where credit shell is transferred to third party, same is to be utilized only through the agent who has booked the ticket at the first instance.

  1. In cases where passengers have purchased the ticket through an agent, and credit shell is issued in the name of passenger, such credit shell is to be utilized only through the agent who has booked the ticket. In cases where tickets are booked through agent, credit shell as issued in the name of the passenger which is not utilized by 31st March, 2021, refund of the fare collected shall be made to the same account from which account amount was received by the airline.
  2. In all cases where credit shell is issued there shall be an incentive to compensate the passenger from the date of cancellation upto 30th June, 2020 in which event the credit shell shall be enhanced by 0.5% of the face value (the amount of fare collected) for every month or part thereof between the date of cancellation and 30th June, 2020. Thereafter the value of the credit shell shall be enhanced by 0.75% of the face value per month upto 31st March, 2021.

[Pravasi Legal Cell v. Union of India, 2020 SCC OnLine SC 799, decided on 01.10.2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission India has taken suo motu cognizance of a media report that a 5-year-old girl has allegedly died due to starvation and ill health as the family was not able to get food and medicinal care for her in Agra district of Uttar Pradesh.

The Commission has issued a notice to the Chief Secretary of Government of Uttar Pradesh calling for a detailed report within 4 weeks including the relief and rehabilitation provided to the family by the administration and the action taken against the delinquent officials. The Chief Secretary is also expected to issue instructions to all the district authorities to ensure that such incidents of cruelty and negligence should not recur in future.

The Commission has observed that a five-year-old innocent girl has apparently died due to starvation and illness while a number of social welfare schemes run by the Central and the State Government do exist. During the period of lockdown, the government agencies have specifically introduced number of schemes for the poor, migrant labourers and other vulnerable sections of the society. The State Government has made several statements that they are committed to ensure Right to Food, Shelter and Livelihood for the poor people and have been working on issues relating to labourers and labour laws but this heart-wrenching incident shows a different picture.

The Commission has further observed that it is not understandable what is the benefit of announcement of number of schemes when they do not reach the beneficiaries. A poor girl has lost her life, the breadwinner of the family is suffering from tuberculosis and is bedridden. The family is not only financially poor but also belongs to the Scheduled Caste for which special schemes have been announced by the Central and the State governments.

This is a serious issue of violation of human rights due to gross negligence by the local administration. It is for the local public servants to honestly implement the schemes, so that the poor and needy can avail the benefits which , apparently was not done in this case. Had the authorities been sincere and vigilant, loss of a precious human life could have been averted. The State cannot escape its liability and there is a need to fix the responsibility of the public servants who have not acted in accordance with the law to help the aggrieved family.

Reportedly, the girl was living with her parents and sister at Nagla Vidhichand village in Agra’s Baroli Ahir block. The family was without any work for about a month and in recent weeks the family went without food. Many families in the localities like them do not have a ration card. The five-year-old girl Sonia had become weak and had fever for three days. She could not bear the pain and succumbed to illness and hunger on Friday night.

The local authorities reportedly did nothing to help the family-like securing food in the lockdown-induced crisis. The District Administration has said it will find out where things went wrong and they have taken cognizance of the matter and an investigation has been ordered into the child’s death. Further, the District Administration said that the family has buried the body, which they should not have done as a postmortem would have ascertained the cause of death.

Reportedly, the District Magistrate has agreed that the families are suffering and he will ensure that all possible help is provided to the family.


National Human Rights Commission

Press Release dt. 23-08-2020

COVID 19Legislation UpdatesNotifications

The Ministry of Home Affairs (MHA) has issued new guidelines today for opening up of more activities in areas outside the Containment Zones. In Unlock 4, which will come into effect from September 1, 2020, the process of phased re-opening of activities has been extended further. The new guidelines, issued today, are based on feedback received from States and UTs, and extensive consultations held with related Central Ministries and Departments.

Salient features of the new guidelines

  • Metro rail will be allowed to operate with effect from 7th September 2020 in a graded manner, by the Ministry of Housing and Urban Affairs (MOHUA)/ Ministry of Railways (MOR), in consultation with MHA. In this regard, Standard Operating Procedure (SOP) will be issued by MOHUA.
  • Social/ academic/ sports/ entertainment/ cultural/ religious/ political functions and other congregations will be permitted with a ceiling of 100 persons, with effect from 21st September 2020. However, such limited gatherings can be held with mandatory wearing of face masks, social distancing, provision for thermal scanning and hand wash or sanitizer.
  • Open air theatres will be permitted to open with effect from 21st September 2020.
  • After extensive consultation with States and UTs, it has been decided that Schools, colleges, educational and coaching institutions will continue to remain closed for students and regular class activity up to 30th September 2020. Online/distance learning shall continue to be permitted and shall be encouraged. However, following will be permitted, in areas outside the Containment Zones only, with effect from 21st September 2020 for which, SOP will be issued by the Ministry of Health & Family Welfare (MoHFW):
    1. States/ UTs may permit upto 50% of teaching and non-teaching staff to be called to the schools at a time for online teaching/ tele- counselling and related work.
    2. Students of classes 9 to 12 may be permitted to visit their schools, in areas outside the Containment Zones only, on voluntary basis, for taking guidance from their teachers. This will be subject to written consent of their parents/ guardians.
    3. Skill or Entrepreneurship training will be permitted in National Skill Training Institutes, Industrial Training Institutes (ITIs), Short term training centres registered with National Skill Development Corporation or State Skill Development Missions or other Ministries of Government of India or State Governments.

National Institute for Entrepreneurship and Small Business Development (NIESBUD), Indian Institute of Entrepreneurship (IIE) and their training providers will also be permitted.

  • Higher Education Institutions only for research scholars (Ph.D.) and post-graduate students of technical and professional programmes requiring laboratory/ experimental works. These will be permitted by the Department of Higher Education (DHE) in consultation with MHA, based on the assessment of the situation, and keeping in view incidence of COVID-19 in the States/ UTs.
  • All activities, except the following, shall be permitted outside containment zones:
  1. Cinema halls, swimming pools, entertainment parks, theatres (excluding open air theatre) and similar places.
  2. International air travel of passengers, except as permitted by MHA.
  • Lockdown shall continue to be implemented strictly in the Containment Zones till 30th September, 2020.
  • Containment Zones shall be demarcated by the District authorities at micro level after taking into consideration the guidelines of MoHFW with the objective of effectively breaking the chain of transmission. Strict containment measures will be enforced in these containment zones and only essential activities will be allowed.
  • Within the containment zones, strict perimeter control shall be maintained and only essential activities allowed.
  • These Containment Zones will be notified on the websites of the respective District Collectors and by the States/ UTs and information will also be shared with MOHFW.

States not to impose any local lockdown outside Containment Zones

State/ UT Governments shall not impose any local lockdown (State/ District/ sub-division/City/ village level), outside the containment zones, without prior consultation with the Central Government.

No restriction on Inter-State and intra-State movement

  • There shall be no restriction on inter-State and intra-State movement of persons and goods. No separate permission/ approval/ e-permit will be required for such movements.

National Directives for COVID-19 management

  • National Directives for COVID-19 management shall continue to be followed throughout the country, with a view to ensure social distancing.  Shops will need to maintain adequate physical distancing among customers. MHA will monitor the effective implementation of National Directives.

Protection for vulnerable persons

  • Vulnerable persons, i.e., persons above 65 years of age, persons with co-morbidities, pregnant women, and children below the age of 10 years, are advised to stay at home, except for meeting essential requirements and for health purposes.

Use of Aarogya Setu

  • The use of Aarogya Setu mobile application will continue to be encouraged.

Click here to see MHA Guidelines

Click here to see D.O Letter

Read the guidelines here: UNLOCK-4 GUIDELINES


Ministry of Home Affairs

[Press Release dt. 29-08-2020]

COVID 19Hot Off The PressNews

The Centre has asked the States that there should be no restrictions imposed on the inter-State and intra-State movement of persons and goods and services during the present prevailing Unlock-3 guidelines.

In a communication to Chief Secretaries of all States, the Union Ministry of Home Affairs (MHA) has stated that it has been reported that local level restrictions on movement are being imposed by various districts/States.  Such restrictions are creating problems in the inter-State movement of goods and services and are impacting the supply chain, resulting in disruption of economic activities and employment, besides affecting the supply of goods and services.

The MHA has said such restrictions at the local level imposed by District Administrations or by States, amount to a violation of the guidelines issued by the MHA under the provisions of the Disaster Management Act, 2005.

Drawing attention to the MHA’s Order dated July 29, 2020, specifying Guidelines for Unlock-3, the communication reiterates that there shall be no restriction on inter-State and Intra-State movement of persons and goods. No separate permission/ approval/ e-permit will be required for such movements.

This includes the movement of persons and goods for cross land border trade under Treaties with neighbouring countries.


Ministry of Home Affairs

[Press Release dt. 22-08-2020]

[Source: PIB]

COVID 19Hot Off The PressNews

In view of the prevailing situation of the spread of coronavirus (2019-nCOV) pandemic in the NCT of Delhi, the Administrative and General Supervision Committee of the Delhi High Court extends the suspension of the functioning of the Court (except for the Court of Registrars/Joint Registrars) till 31-08-2020.

All the Benches of the Delhi High Court would continue to take up and hear all the urgent matters through videoconferencing.

The Courts of Registrars and Joint Registrars of this Court shall take up the matters through videoconferencing, where the files are already scanned. The evidence be recorded in ex-parte and uncontested matters where the same is required to be tendered by way of affidavit.

It has also been ordered that the Courts of Registrars and Joint Registrars of this Court shall not pass any adverse order in non-urgent/routine matters where the concerned advocate/litigant is unable to join the proceedings through video conferencing, till the time the physical functioning of the courts is resumed.

It has further been directed that subject to complete availability of public transport and subject to the situation in Delhi remaining stable, a plan be evolved for the gradual opening of physical courts from 1st September, 2020 onwards.

Read the detailed order here: High Court Lockdown upto 31.8.2020

PublicNotice_HU6IY8U125P


Delhi High Court

[Office Order dt. 15-08-2020]

Case BriefsCOVID 19District Court

District Court, Saket, Delhi: Raj Kumar Chauhan, J., directed “Miniso” to pay the rent arrears for the lockdown and post lockdown period stating that the company has no dearth of money as the company has been operating almost 10 similar premises on rent in Delhi successfully.

Lease

Allegations placed by the petitioners are that they had leased their property to respondent i.e. Miniso Life Style Private Limited.

Monthly Rent

Monthly rent of the leased out property was Rs 9,75,000/- plus GST per month and the same was to be paid in equal proportions to lessor 1, 2 and 3 as per the agreement signed between the parties.

Head of Business Development of Miniso i.e. respondent asked the petitioner to consider the waiver of rent for the time period of lockdown — April, 2020 to May, 2020.

Further, the petitioner informed the respondent that as per clause 12 of the agreement i.e. Force Majeure Clause was not applicable to the existing circumstances and respondent cannot take unjust and wrongful benefit of said clause.

Though the petitioners agreed to waive the penal interest on the delayed payment @18% p.a. but the respondent continued to threaten for creating third party interest in the demised premises.

Petitioners were represented by Counsels Gaganmeet Singh Sachdeva, Sumit Thakur and Counsel for the respondent was Akash Tyagi.

Legal Notice

Petitioners had to in view of the above circumstances send a legal notice for recovery of rent and arrears on 23-05-2020.

Later the respondent sent a proposal of paying 70% of the arrears of rent for the month of April and 90% of the rent for June and July, 2020.

Petitioners in good­faith and trust sent the invoices of the rent for the above stated months and requested the respondent to pay the payment after deducting 15% rebate for arrears of rent for April, May, alongwith rent of June and July.

Despite sharing the invoice the respondent did not clear the arrears of rent and stopped taking calls from the petitioners.

In view of the above circumstances, the present petition was filed.

Respondents contention was with regard to the maintainability of the petitions stating that Clause 12 of the Lease Deed provides eventualities wherein in case the demised Premises is, whether fully or partially, destroyed or damaged by any Act of God, such as by flood, earthquake, storm etc. save and except fire, becomes unfit for occupation or use, the rent payable by the respondent shall be suspended till such time as the Demised Premises is once again rendered fit for use and occupation by the respondent.

Counsel for the Petitioners relied upon the decision in, Sona Corporation India (P) Ltd. v. Ingram Micro India (P) Ltd., O.M.P (COMM.) 249/2018 and Ramanand v. Dr Girish Soni, R. C. Rev. No. 447 of 2017.

The above two cases were cited with respect to the contentions that Court under Section 9 of the Arbitration Act can direct the payment of rent due as well as future rent in the same manner as the Court can grant in a civil suit under Order 39 Rule 10 CPC.

Adding to the above, the latter case was relied upon to rebut the respondent’s claim for waiver of rent.

Decision

Bench on perusal of the referred provisions and sections of Arbitration Act and CPC held that the respondents are directed to pay admitted rent to the petitioner for the period which has not been paid for the leased premises alongwith future payment also be paid as per the lease deed.

Further, adding to its analysis of the facts, Court stated that on perusal of the force majeure clause in the agreement, it can be stated that the lessee is entitled to suspension of the rent only if the property has been damaged or destroyed by any force Majeure event.

Admittedly, the property in question has not been damaged/destroyed in force majeure event.

Hence, in view of the law laid down by Delhi High Court in the decision of Sona Corporation India (P) Ltd. v. Ingram Micro India (P) Ltd., O.M.P(COMM.) 249/2018 and Ramanand v. Dr Girish Soni, R. C. Rev. No. 447 of 2017, Court concluded its decision stating that,

“mere temporary non-use of the tenanted premises by the respondent and yet being in power and possession of the premises in view of the temporary lockdown due to the COVID-19 Pandemic, the said event cannot be covered under the force Majeure clause of the lease agreement.”

Therefore, the respondent cannot claim waiver of rent.

Hence the Court is empowered under Section 9 of the Arbitration Act to order payment of arrears of rent for the lockdown period and also post lockdown period.

In view of the above terms, petitions were disposed off. [Uma Sharma v. Miniso Life Style (P) Ltd., 2020 SCC OnLine Del 979, decided on 06-08-2020]

Case BriefsSupreme Court

Supreme Court: After Solicitor General Tushar Mehta submitted before the bench of AM Khanwilkar and Dinesh Maheshwari that as of today only ten petitioners in the Tablighi Jamaat case have decided to contest the criminal cases pending against them and are not willing to exercise the option of plea bargaining, the Bench directed that the criminal cases concerning these ten petitioners pending in different Trial Courts in the NCT of Delhi be brought before the same Court i.e. to the Chief Metropolitan Magistrate, South-East Delhi, Saket Court Complex, Saket, so that all the cases can be disposed of expeditiously. It further directed the said Court to dispose of all the cases expeditiously preferably within eight weeks from today.

SG also submitted before the Court that  if the concerned petitioners tender apology, as envisaged by the Madras High Court in the concerned criminal case, the said petitioners can be permitted to leave India despite the pendency of the criminal case but subject to such orders that may be passed by the concerned Trial Court.

He also told that Court that the look out notices issued against the petitioner(s) before this Court stand withdrawn and that the concerned petitioner(s) will be free to leave India subject to any other pending proceedings including order passed by the Court requiring his/her presence in the stated proceedings.

The Court has listed the matter after 8 weeks.

Petitioners who are foreign nationals were arrested by respondent police on the ground that they had engaged in religious activities in breach of visa conditions. They defied COVID-19 lockdown norms as were imposed by the Government. In the norms, religious places were ordered for closure, yet the petitioners allegedly stayed inside the mosques in groups by defying the norms laid down by the Government.

Thus, in view of the above stated reasons, FIRs were lodged against the petitioners for committing offences under Section 13 and 14 of the Foreigners Act, 2014, Sections 188, 269, 270, 271 and 278 of IPC, Section 3 of Epidemic Diseases Act 1897, Section 58(4), 134, 135 of the Tamil Nadu Public Health Act, 1939 and Section 51(b) of the Disaster Management Act, 2005.

Madras High Court had, in it’s June 12 order said that the petitioners had come to India to serve the cause of their religion. Circumstances suddenly turned adverse and landed them in prison. They have spent more than 70 days in what are truly difficult conditions.

“Merely because the petitioners have contravened the visa conditions, they cannot be seen as criminals.”

[Maulana Ala Hadrami v. Union of India, 2020 SCC OnLine SC 629, order dated 06.08.2020]


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Madras HC | Tablighi Jamaat | Foreigners who attended congregation not criminals: HC grants bail and allows return of foreigners to native country


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Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and Sarang V. Kotwal, J., has advised the Maharashtra Government to take an informed decision regarding the concerns voiced by advocates and their staff. The Court was hearing PILs which sought inclusion of advocates and legal practitioners in the list of essential service providers.

In the present petition, a legal practitioner sought exemption of lawyers and their staff from the restrictions of the lockdown for the purpose of Court work as well as for an order on the respondents to consider the advocates and legal service providers as belonging to the category of “essential services”.

Coordinate Bench Decision

Coordinate Bench on hearing petitioner’s concern, stated that inclusion of a particular category of persons within “essential services” is within the exclusive domain of the State Legislature and that no mandatory direction, much less any direction, can be issued to the State Legislature to categorize advocates and their staff as providing “essential services” and hence had rejected the same. However, liberty was granted to file representation before the State Government. Pursuant to the order, representation was filed before the State but no decision has been taken.

Concerns

Advocates and their staff are not presently being allowed to avail train services. Diasbled thereby, a major section of the advocates have been precluded from participating in whatever physical hearings that are being conducted and in assisting the Courts.

Hence, the bench asked the State to apply its mind and take an informed decision with regard to the concerns voiced by the advocates as well as their staff.

State must not be ignorant that access to justice is now recognised as a Fundamental Right and advocates and their staff constitute an integral part of the entire system, which is dedicated to “delivery of justice”.

Court asked the matter to be placed on 7-08-2020. [Chirag Chanani v. UOI, 2020 SCC OnLine Bom 832 , decided on 31-07-2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has asked all States/UTs have to file affidavits on compliance of certain directions passed vide order dated 09.06.2020.

On 09.06.2020, the Court had directed all the States/Union Territories to take all necessary steps regarding identification of stranded migrant workers in their State which are willing to return to their native places and take steps for their return journey by train/bus. It has also issued other directions that included a direction to all States/UTs to make rules under the following 3 statutes:

  1. Inter­State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979;
  2. Construction Workers (Regulation of Employment and Conditions of Service) Act , 1996 and;
  3. Unorganized workers’ Social Security Act, 2008.

The Court had directed that short term and long term measures be taken under the newly framed Rules and a report be submitted to it. The Court, however, noticed

“Although several States have made rules under the above enactments but all necessary details regarding the steps taken by concerned States have not been brought on record.”

It, hence, directed that affidavit be filed by all the States/UTs indicating the steps taken by them with respect to above mentioned enactments within a period of three months.

In order dated 09.06.2020, the Court had also asked the concerned States and Union Territories to maintain record of all such migrant workers, who have arrived at different places. None of the States/Union Territories have, however, filed any affidavit giving details of the compliance of the aforesaid direction. Asking the States and UTs to file affidavits regarding the same within a period of three weeks, the bench said,

“The States are required to bring on record the mode and manner in which records of migrant labourers who have reached their native places are being maintained with their skill, nature of employment and other details.”

The Court made clear that the affidavits to be filed by States/Union Territories, details with regard to compliance of other directions as issued by this Court on 09.06.2020 be also detailed.

On Senior Advocate Dr. Abhishek Manu Singhvi’s  submissions on the issue of food security, health insurance for migrant labourers, presumption of work by migrant labourers and relaxation on insistence on registration, The Court said that it would consider the same after the necessary affidavits as indicated above are filed  by the States/Union Territories.

[IN RE: PROBLEMS AND MISERIES OF MIGRANT LABOURERS, 2020 SCC OnLine SC 613 , order dated 31.07.2020]


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Order dated 09.06.2020 on directions for transportation of migrant workers


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Case BriefsHigh Courts

Karnataka High Court: P.S. Dinesh Kumar, J. ordered against the petitioner who filed the Writ of Mandamus against Canara Bank in deferment of payment of Letters of Credit issued by the Bank at petitioner’s request in the light of Pandemic situation prevailing due to the COVID-19.

Petitioner was in the business of import and export of gold and ornaments, and had been regularly obtaining Letters of Credit from Canara Bank for the last 20 years. His business had come to a ‘stand-still’ due to the lockdown imposed by the Government of India, and hence, petitioner approached the beneficiary of Letters of Credit (‘L/Cs’) and requested for deferment by 90 days which was granted. Canara Bank continued to make payment of the L/Cs despite informing them of getting the approval of beneficiary to not make payment.

The petitioner was represented by G.S. Kannur, Senior Advocate and the respondents were represented by K. Arun Kumar, Senior Advocate, R.V.S. Naik, Senior Advocate.

The petitioner’s case was, due to COVID pandemic, he was not in a position to export and earn foreign exchange. Canara Bank, in order to make payment would purchase foreign exchange at prevalent market price and this would cause loss to the petitioner.  The counsel for Reserve Bank of India, contended that due to their extended guidelines, Reserve Bank of India could not accede to petitioner’s request. Canara Bank’s counsel contended, due to the issuance of L/Cs in favour of petitioner’s own subsidiary Company called Valcambi SA.,(‘Valcambi’) and Valcambi has discounted the L/Cs from Canara Bank’s branches in London and Hongkong, therefore, petitioner was duty bound to honour its commitment and make payment.

The High Court dismissed the writ petition on two major grounds. Firstly, the Court found that Canara Bank had to continue with the payments of L/Cs on behalf of the petitioner as the bank was duty-bound to do so and since Canara Bank is fully bound by the RBI guidelines which permit only 90 days in respect of usance L/Cs issued for import of Gold. Secondly, the Court found that the petitioner had not made out a case that it had a legal right over the performance of a legal duty by the Canara Bank which is a necessary requirement for issuing a writ in the nature of Mandamus.

Therefore, the Court held that the petitioner was not entitled for a Writ of Mandamus and dismissed the petition.[Rajesh Export Ltd. v. Canara Bank, 2020 SCC OnLine Kar 923 , decided on 22-07-2020]

Hot Off The PressNews

The Delhi Government has issued a new circular dated 16.07.20 wherein they have shared  details regarding SMCs being reconstituted by a draw of lots. This circular has added information regarding tenure of such constituted SMCs, which was missing from the previous circular dated 01.07.20. The new circular states that these SMCs are being re-constituted only until elections can be held after the situation returns to normalcy. This signals a clear significant shift in the stance of Delhi Government in the aftermath of writ petition[1] filed in the Delhi High Court where in the Delhi Government had submitted that the SMCs being constituted by a draw of lots was only a stopgap arrangement

In the abovementioned petition, the petitioners had challenged the circular dated 1.07.2020[2] and prayed that the circular be quashed. The petitioners argued that the circular violated the spirit of the act as it didn’t allow parents to participate in the process of choosing who will represent them in SMCs. They contended  that extending tenure of the previous SMCs was a better option than reconstituting SMCs through a draw of lots. They gave examples of other states where tenure of SMCs were extended. The counsel for the petitioner, Garima Sharma, argued that it was a better option since members of existing SMCs already had experience of working in a SMC.

Despite the fact that the Delhi Government has been holding elections since RTE was implemented, the respondents submitted that there was no mandate to hold elections and that the Government had issued the impugned circular only as a stopgap arrangement.

The order released by the Delhi High Court on 14.07.20 has recorded the Delhi Government submitting in court  that the impugned circular has been issued “only as a stopgap arrangement and the SMCs so constituted by following the procedure as laid down in the impugned Circular shall continue till elections can be held after normalcy returns.” A fact that didn’t find any mention in the impugned circular dated 01.07.20.

The circular calls upon the head of schools to complete the reconstitution process of the SMCs through a draw of lots by the 21st of July, 2020.


[1] Indra v. Government of NCT of Delhi, Writ Petition (C) No. 4076 of 2020, dated 13-07-2020

[2]  http://www.edudel.nic.in/upload/upload_2017_18/117_129_dt_01072020.PDF

COVID 19Hot Off The PressNews

Chief Justice, High Court, Calcutta has extended the period of suspension of judicial and administrative works of High Court, Calcutta till 19th July, 2020 on account of new phase of lockdown in Kolkata and constant increase in the containment zones and rapid increase of COVID-19 patients in the city of Kolkata and its suburbs.

NOTIFICATION


Calcutta High Court

[Notification dt. 13-07-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: Naveen Chawla, J. in an order dated 13th July, 2020 has refused to interdict a Delhi government circular which directed reconstitution of School Management Committees through a draw of lots instead of holding elections.The petitioners had challenged the circular dated 1.07.2020 and prayed that the circular be squashed. The petitioners argued that extending tenure of the previous SMCs was a better option than reconstituting SMCs through a draw of lots. They gave examples of other states where tenure of SMCs were extended. The counsel for the petitioner argued that it was a better option since members of existing SMCs already had experience of working.

Despite the fact that the Delhi Government has been holding elections since RTE was implemented, the respondents submitted that there was no mandate to hold elections and that the Government had issued the impugned circular only as a stopgap arrangement. The Circular shall continue till elections can be held after normalcy returns. The Counsel for the respondent government also mentioned that the petitioners had concealed that they have applied under the circular. The petitioners submitted that it was a bonafide mistake.

After listening to arguments from both sides, the Court stated that since elections cannot be held because of COVID 19, such extraordinary situations would require certain extraordinary measures to be taken by the respondents. The Court noted that respondents seem to have chosen one of the various alternatives that were available. With online classes for the Government schools having started there is an urgent need for the constitution of the SMCs.  The Court did not deem it fit to interdict the process started by the respondents at the present stage.and listed the matter for October 21st.

The order has recorded the government submitting in court that the impugned circular has been issued “only as a stopgap arrangement and the SMCs so constituted by following the procedure as laid down in the impugned Circular shall continue till elections can be held after normalcy returns.” A fact that didn’t find any mention in the impugned circular dated 01.07.20.

[Indra v. Government of NCT of Delhi, Writ Petition (C) No. 4076 of 2020, order dated 13-07-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Ujjal Bhuyan and Riyaz I. Chagla, JJ., rejected the relief of payment of full wages to the petitioner employees union holding that there case is not covered by the March 29th Order of the Central Government directing all establishments to pay full wages to employees during the period of lockdown due to COVID-19.

Premier Union Employees had approached the Court seeking direction to the State of Maharashtra and Commissioner of labour to ensure that workers of Premier Limited are pid wages for the duration of the lockdown in terms of Ministry of Home Affairs order dated 29th March, 2020, order of Department of Industries, Energy and Labour, Government of Maharashtra dated 31.03.2020; and order dated 20.03.2020 passed by the Industrial Court, Maharashtra at Pune.

Appropriate proceedings to be initiated against Premier Limited under Disaster Management Act for failure to comply with government orders.

On the other hand, Premier Limited assails the legality and correctness of the Order passed by the Industrial Court.

Union has raised grievance of unfair labour practice against the company. Complaint pertaining to the said grievance was registered at the Industrial Court.

Company obtained No Objection Certificate (NOC) from the office of Commissioner of Labour for shifting its plant, NOC was conditional in as much as the company had to give an undertaking that it would make full payment of wages and dues to the workmen and ensure continuity of their employment.

However, the company defaulted and has not paid wages and dues to the workmen since May, 2019.

Thus, Union in view of the above filed a petition before the Court seeking a direction to the State and Commissioner of Labour for cancellation of the NOC, both the matters are pending with no orders passed thereon.

On 3rd March, 2020, company had issued a notice addressed to all the workmen and staff stating that the management had decided to suspend operations with immediate effect. In response to this notice, Union raised the grievance of unfair labour practice and filed a complaint.

Industrial Court directed the company to pay wages to the workmen w.e.f. 01.03.2020 on or before the tenth day of each month.

Despite the above order, no payment has been made to the workmen.

Ministry of Home Affairs order dated 29-03-2020:

“all the employers, be it in industry or in shops and commercial establishments, shall make payment of wages to their workers at their workplaces and on the due date without any deduction for the period their establishments are under closure during the lockdown.”

Government of Maharashtra in the Industries, Energy and Labour Department issued a government resolution dated 31.03.2020 declaring that all the workers / employees including contractual, temporary and daily wagers working in private establishments, shops (except essential services), factories etc., who had to remain indoors due to outbreak of COVID-19 and the lockdown, shall be deemed to be on duty and shall be paid full salary / wages and allowances.

On 2nd June, 2020, this Court had directed the company to comply with the Order of the Industrial Court, to which company filed a petition with regard to the legality and validity of the Industrial Court’s Order.

Company alleged that the union had adopted an obstructionist approach leading to the company losing many precious orders thereby causing substantial loss. This prevented payment of salary / wages to the employees and workers on regular basis post May, 2019.

Due to the stated circumstances, company had to suspend all its operations.

Analysis & Decision

A conjoint reading of the central government order and the Maharashtra government resolution would go to show that those have been issued to meet the situation arising out of the COVID-19 lockdown.

Question to be addressed is:

Could the central government order and the Maharashtra government resolution be invoked in a situation where the management and workmen are engaged in an industrial adjudication relating to non-payment of salary / wages and suspension of work much prior to closure of the establishments due to the lockdown?

Or where the related cause of action arose prior to the lockdown?

In Court’s opinion, the claim of the workmen to wages will not be covered by the central government order and the Maharashtra government resolution.

Adding the reasoning to its’ conclusion, bench stated that measures introduced by the above two would cover a situation where an employee / worker was in employment as on the day the lockdown was declared and had received salary / wages for the previous month i.e., the month immediately preceding the lockdown.

The said  measure was introduced to ensure maintenance of status quo with regard to payment of salary / wages and employment.

Industrial Court’s Order

Industrial Court noted that a prima facie case for interim relief was made out by the union. It was further observed that if the management was not directed to pay wages, members of the union would suffer hardship and inconvenience.

Since according to the Industrial Court, complainant had made out a strong prima facie case, interim direction was issued to the management to pay wages to the workmen from 01.03.2020 onwards till final disposal of the complaint.

In Courts opinion, the above view of Industrial Court was found to be contradictory and therefore, High Court held that, in the interest of justice it would be just and proper if a direction is issued to the management to pay 50% of the full monthly wages to the workmen with effect from 01-03-2020 till disposal of Complaint (ULP) No.32 of 2020.

Industrial Court is directed to complete the adjudication process within a period of six months.

In the above view, petitions were been disposed off. [Premier Employees Union v. State of Maharashtra, 2020 SCC OnLine Bom 794 , decided on 13-07-2020]