Covid 19 Pandemic - Legal Rights And Reliefs Available To Migrant Workers

There has been a mass exodus of the migrant workers on account of the nationwide lockdown in India due to the outbreak of coronavirus pandemic. The lockdown has disproportionately hurt the marginalized communities due to loss of livelihood and lack of food, shelter, healthcare and other basic needs.

An Inter State Migrant Workman (herein after ‘Migrant Worker’) is defined under S. 2(e) of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979^[1] to mean “any person who is recruited by or through a contractor in one State under an agreement or other arrangement for employment in an establishment in another State, whether with or without the knowledge of the principal employer in relation to such establishment” and an Establishment is defined under S. 2(d) to mean “(i) any office or department of the Government or a local authority; or (ii) any place where any industry, trade, business, manufacture or occupation is carried on”. 

Following are the various Statutes which recognise the Rights of Migrant Workers in India:

1. The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979^[2] 

a. Migrant Worker is entitled to a displacement allowance during his/her recruitment, equal to 50% of their monthly wages or Rs. 75, whichever is higher, and the said allowance shall be non-refundable. 

b. Migrant Worker is entitled to a journey allowance by their contractor/employer and is also entitled to payment of wages during the period of journey as if he/she were on duty. 

2. The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Central Rules, 1980 

a. Migrant Worker is entitled to a return fare on termination of his employment and/or cessation of work in the establishment which is not due to the fault on part of the Migrant Worker. 

b. The contractor shall ensure provision of adequate medical facilities for outdoor treatment to the Migrant Worker free of cost from any ailment suffered during employment in the establishment or to meet any preventive measure against epidemic or any virus infection. 

3. The Unorganized Workers’ Social Security Act, 2008 

a. A Migrant Worker can be covered under the definition of ‘unorganized worker’ under this Act, which is defined under S. 2(m) to mean “a home-based worker, self-employed worker or a wage worker^[3] in the unorganized sector and includes a worker in the organized sector who is not covered by any of the Acts mentioned in Schedule II^[4] to this Act”. 

b. The Act also provide for the Central Government to formulate welfare schemes relating to life and disability, health and maternity benefits, old age protection, etc. and the State Government to formulate welfare schemes relating to provident fund, employment injury benefit, housing, educational schemes for children, skill upgradation of workers, funeral assistance and old age homes.

4. The Epidemic Diseases Act, 1897 

The State Governments may take any measure to prevent outbreak of an epidemic and compensate. 

5. The National Disaster Management Act, 2005

The affected persons are entitled to minimum requirements to be provided in relief camps in relation to shelter, food, drinking water, medical cover and sanitation; ex gratia assistance on account of loss of life as also assistance for restoration of means of livelihood. 

6. The Constitution of India

The Constitution of India provides for protection of life and personal liberty and accordingly provisions has to be made by the Central and the State Governments to ensure that necessary relief is provided to safeguard the rights of the Migrant Workers. 

Case Laws:

a. Tehseen S. Poonawalla v. Union of India, (2018) 9 SCC 501 

In times of chaos and anarchy, the State has to act positively and responsibly to safeguard and secure the constitutional promises to its citizens. … The State cannot turn a deaf ear to the growing rumblings of its People, since its concern, to quote Woodrow Wilson, “must ring with the voices of the people.”

b. Vikram Singh Deo Tomar v. State of Bihar, AIR 1988 SC 1782 

The State has to provide atleast the minimum conditions ensuring human dignity in discharge of its responsibilities to people. 

c. Francis Coralie v. Administrator, Union Territory of Delhi, AIR 1981 SC 746 Right to life cannot be restricted to mere animal existence. It includes the right to live with human dignity and all that goes along with it, namely, bare necessities such as adequate nutrition, clothing and shelter. 

d. Workers of C.E.S.C. Limited v. Subhash Chandra Bose, (1992) 1 SCC 411

Placing reliance on Articles 22 to 25 of Universal Declaration of Human Rights and Articles 21 and 39(e) of the Constitution of India, the Supreme Court held that health care implies more than just absence of sickness and therefore, medical facilities are a part of social security and thus, right to health is a fundamental right to workmen. 

7. As per the International Covenant on Economic, Social and Cultural Rights, the State is liable to take all measures to prevent, treat and control epidemic, endemic, occupational and other diseases and provide sufficient health care. 

The following reliefs have been announced by the Central Government to ease the economic impact of the Lockdown amid the Covid-19 outbreak on the poor Migrant Workers:

• The Ministry of Home Affairs^[5] directed all State Governments to ensure temporary shelters, food, and other basic amenities like clean drinking water, sanitation, etc. are made available to all the stranded labourers and poor families, including the Migrant Workers. 
• State Governments to ensure that the stranded workers are quarantined for 14 days in the nearest available facilities and adequate health care and medical facilities are provided. 
• Employers to make payment of wages of their workers on the due date without any deduction for the lock down period. 
• Landlords shall not demand payment of rent for a period of 1 month from the workers, including migrants. Landlords forcing workers to vacate the premises shall be liable under the National Disaster Management Act. 
• Centre issued a notification changing the rules under the State Disaster Relief Fund making availability of funds for food, temporary accommodation, clothing and medical care of the Migrant Workers during the lock down period. 
• Pradhan Mantri Garib Kalyan Yojna: Food related benefits free of cost to poor families for the next three months including additional 5 kgs of either rice or wheat per month and 1 kg pulses per household. Also, Rs. 1,70,000 Crore allocated for poor, Migrant Workers, women and disadvantaged. 
• Members under the Ujjwala Scheme will be given Gas cylinder per household.
• Monetary benefits

a) Government of India to pay full 24 % contribution, which covers both employer’s and employee’s share of Provident Fund and Pension contribution (12% each), for the next three months in case of organisations having upto 100 employees out of which 90% are earning less than Rs. 15,000/- per month. 

b) Provident fund scheme regulations will be amended to allow non-refundable advance of 75% of the amount in the account to the credit of the member or wages for three months, whichever is less.

c) MNREGA wages is increased from Rs. 182 to Rs. 202 per worker from 01.04.2020.

d) First Instalment of Pradhan Mantri Kisan Samman Nidhi i.e. Rs. 2,000 will be released immediately.

e) Ex-gratia amount of Rs. 1,000 to be paid to the poor widows, pensioners and disabled persons in two instalments over the next three months.

f) Woman Jan-Dhan account holders will be given an amount of Rs. 500 per month for the next three months. 

g) State Governments are requested to use District Mineral Fund for medical testing activities, screening activities and other necessary activities in order to fight the virus.

h) Advisory under S. 60 of the Buildings and other Construction Workers Act issued to all State Governments thereby directing them to transfer funds in the accounts of such workers (however, funds are transferred to only workers registered with the BOCW Welfare Board) through DBT (Direct Benefit Transfer) mode from the Cess fund collected by Labour Welfare Boards under the BOCW Cess Act. 

Endnotes:

[1] The Act is applicable to all establishments wherein 5 or more inter-State Migrant Workers are employed. 

[2] Notification dated 23.09.2019 of the Ministry of Labour & Employment; https://clc.gov.in/clc/node/614.

[3] Wage Worker is defined under S. 2(n) to mean “a person for employed for remuneration in the unorganized sector, directly by an employer or through any contractor, irrespective of place of work, whether exclusively for one employer or for one or more employers, whether in cash or in kind, whether a home-based worker, or as a temporary or casual worker, or as a migrant worker, or workers employed by households including domestic workers, with monthly wage of an amount as may be notified by the Central Government and State Government, as the case may be”.

[4] Schedule II covers the Workmen’s Compensation Act, 1923; the Industrial Disputes Act, 1947; the Employees’ State Insurance Act, 1948; the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952; the Maternity Benefit Act, 1961 and the Payment of Gratuity Act, 1972. 

[5]mha.gov.in/sites/default/files/MHA%20Order%20restricting%20movement%20of%20migrants%20and %20strict%20enforement%20of%20lockdown%20measures%20-%2029.03.2020.pdf

(Rohan Ahuja is a principal associate & Rudrakshi Deo is an associate at Athena Legal.)

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