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Judgment
S. Nainar Sundaram J.
The prayers in the two writ petitions run on similar lines. In substance a writ of mandamus is being asked for in each of the writ petitions against
the second respondent to see that the first respondent implements Section 7(2)(kkk) of the Payment of Wages Act, 1936, hereinafter referred to
as the Act. Section 7(1) of the Act lays down a general embargo that the wages of an employed person shall be paid to him without deductions of
any kind, except those authorised by or under the Act. Sub-section (2) of Section 7, of the Act states that deductions from wages of an employed
person shall be made only in accordance with the provisions of the Act and may be of the kinds set out in the clauses following as (a) to (q) only -
Clause (kkk) to Section 7(2) of the Act reads as follows:-
Deductions made, with the written authorisation of the employed person, for payment of the fees payable by him or the membership of any trade
union registered under the Trade Unions Act, 1926 (16 of 1926).
From a reading of the above provisions it is not possible to spell out any statutory duty or any obligation on the part of the employer to make the
deductions. Section 7(1) of the Act, as stated above lays down the general embargo with regard to deductions. If at all the employer should make
deductions, they could be only in accordance with the provisions of the Act and what those deductions could be, are set down in clauses in Sub-
section (2) of Section 7 The language of the provisions is unambiguous and is certain. It contemplates only deductions permissible and it does not,
by itself, cast an obligation or a duty to make the contributions on the employer. If such duty or obligation could be spelt out from any other
provision of law, that would be a different matter. Such is not the case here. It is true there is a technical objection taken that the prayer in
substance is only against the first respondent though it is apparently directed against the second respondent and first respondent is only a company
and hence not amenable to writ jurisdiction. This objection need not be adverted to because even on merits there is no substance in the case. From
a reading of the relevant provisions of the Act, it is not possible to spell out a legal duty or obligation cast on the first respondent to make the
contribution so as to compel this Court to countenance the prayers for the issue of writ of mandamus, even as against the second respondent. Shri
A.L.Somayaji, learned counsel appearing for the petitioners, would submit that the first respondent is declining to make the contribution, relying on
certain settlements u/s 18(1) of the Industrial Disputes Act, wherein the liability for the contribution as the one asked for in the present cases is cast
only where the membership of the employed persons with the concerned unions comes up to 1000 and above. Learned counsel would submit that
this would be violative of the provisions of Section 23 of the Act, which inhibits contracting out. Section 23 of the Act reads as follows:
Contracting out of any contract or agreement, whether made before or after the commencement of this Act, whereby an employed person
relinquishes any right conferred by this Act shall be null and void in so far as it purports to deprive him of such right"".
In my view, the reference of Section 23 of the Act is not at all relevant because we are not facing the case of an employed person relinquishing
any right conferred on him by the Act. We are more concerned with the question as to whether the employer is burdened with an obligation or a
duty to make the contribution contemplated u/s 7(2)(kkk) of the Act. It has been already noted that it is not possible to spell out such an obligation
or duty. Sub-section (2) of Section 7 of the Act enumerates the permissible deductions and nothing more. If the employer chooses to make the
deduction that could be only of the kinds specified in Sub-section (2) of Section 7 of the Act. From this, it is not possible to say that the employer
is duty bound to make the deductions. Such a theory does not fit in with the express language of the statutory provisions and it is not possible to
read something extra into them. Learned counsel for the petitioners would also draw my attention to the objects and reasons for the introduction of
Clause (kkk) in Sub-section (2) of Section 7, of the Act. From the objects and reasons, I am not able to say that the introduction of Clause (kkk)
was with an intention to compel the employer to make the contribution. For all the above reasons, these two writ petitions fail and they are
dismissed. No costs.