AI Structured Summary
Not yet generated for this judgment
Judgment
K. Govindarajan, J.—On July 20, 1990 there was a bandh initiated by the State Government itself. The petitioner-management did not
declare holiday. Except 24 employees, other employees did not report for duty. So, the management did not pay the salary to the employees, who
did not report for work on the said date. On that basis as many as 66 employees filed an application before the Deputy Commissioner of Labour,
Tirunelveli in application No. 44 of 1990. The other set of employees 101 in number filed another application in application No. 36 of 1990. The
said applications were filed under the provisions of the Payment of Wages Act, 1936, on the ground that the deduction of salary for the said date
was illegal. The Deputy Commissioner of Labour allowed the applications, accepting the case of the employees. Aggrieved, the petitioner-
management filed appeal in appeal Nos. 78 and 79 of 1992. Even the learned District Judge, Nagercoil on extraneous consideration of facts,
dismissed the appeals. Still aggrieved, the petitioner- management has filed the above revisions.
The only reason that has been stated in the application filed by the employees was that the Government declared July 20,1990 as holiday with
wages and so they are entitled for the wages. Unfortunately, the Deputy Commissioner of Labour and the learned District Judge proceeded on the
basis that conducting bandh is a matter of right and that the petitioner-management should nave declared that day as a holiday, when the
Government itself sponsored the said bandh. The learned District Judge unfortunately accepted the argument that everybody should participate in
the bandh, when the Government sponsoring the same, whether one likes it or not. The further reason given by the learned District Judge was that
if such participation is not there, then there will be a law and order problem. I am not able to see any substance in the said finding. When the State
Government is having a duty to maintain law and order problem, merely because somebody is not participating in the bandh it cannot be said that
there will be a law and order problem. From a reading of the order and the pleadings, it is very clear that the employees could not report for duty
not due to some compelling circumstances, and they did not attend the work only because they had participated in the bandh. It is also relevant to
mention here that as many as 24 employees had attended the work.
The learned counsel appearing for the petitioner has rightly submitted that when the employees are able to attend the work, and also in view of
the fact that the management has not declared that day as holiday, it is the duty of the employees to attend the work, or they nave to lose their
salary. Since the employees had not attended the work, as rightly submitted by the learned counsel for the petitioner, the petitioner-management
sustained loss of production, and, at the same time, the employees cannot insist for salary. He has also submitted, according to me which is
sustainable, that if the employees want to participate in the bandh, they must be ready to lose their benefit also. They cannot participate in the
bandh at the cost of the employer. The learned counsel appearing for the respondents have submitted, relying on the decision in Pandian
Roadways Corporation Ltd. v. Principal Dt. Jugde 1996 II LLJ 1226 (Mad) that absence from work is not wilful, but due to the bandh. In the
absence of any pleading to the effect that beyond their control, the employees could not attend the work, the absence should be construed only as
wilful. So, the said decision cannot be relied on to the facts of the present case. It is also not the case of the respondents that the management had
declared holiday on that date.
Section 2(vi) of the Payment of Wages Act, reads as follows:-
''wages'' means all remuneration (whether by way of salary, allowances or otherwise) expressed in terms of money or capable of being so
expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his
employment or of work done in such employment"".
The expression in the said definition ""if the terms of employment, express or implied, were fulfilled"", and ""work done in such employment"" would
clearly establish that only when the employee does his work and fulfils the terms of employment, he is eligible to get the wages.
Section 9 of the said Act reads as follows:-
Deductions for absence from duty:- (1) Deductions may be made under Clause (b) of Sub-section (2) of Section 7 only on account of the
absence of an employed person from the place or places where, by the terms of his employment, he is required to work, such absence being for
the whole or any part of the period during which he is so required to work.
(2) The amount of such deduction shall in no case bear to the wages payable to the employed person in respect of the wage-period for which the
deduction is made a larger proportion than the period for which he was absent bears to the total period, within such wage period, during which by
the terms of his employment, he was required to work;
Provided that, subject to any rules made in this behalf by the (State Government), if ten or more employed persons acting in concert absent
themselves without due notice (that is to say without giving the notice which is required under the terms of their contracts of employment) and
without reasonable cause, such deduction from any such person may include such amount not exceeding his wages for eight days as may by any
such terms be due to the employer in lieu of due notice"".
As per the said Section 9(1) of the Act, the employer is entitled to deduct the salary if the employee is absent from the place of work for the
period during which he is required to work. From tile above said provision, it is very clear that if the employee fails to do the work during which
period he is required to do the work, he is not entitled for salary.
u/s 7 of the said Act the wages of any employee shall be paid without deducting any amount, except those authorised by, or under this Act. In
this case, the non-payment of salary for the employees for not working on July 20, 1990 cannot be said to be deduction of salary. But it has to be
construed as a failure on the part of the employees to earn wages by fulfilling the conditions of employment and performing their work. So, the
action of the management in this case cannot be construed as a deduction, but it has to be construed as the employees failed to earn their wages.
The learned counsel appearing for the respondents have relied on the decision in Madras Labour Union Vs. Binny Ltd. (Buckingham and
Carnatic Mills) and others, and the order in Civil Appeal Nos. 208 to 211 of 1991, dated October 1,1996. In the said decision the facts are as
follows:- On November 24, 1989 the election to the Tamil Nadu State Assembly was held. According to the letter dated November 6, 1989 of
the Commissioner of Labour, a paid holiday to all the employees was suggested to be given on November 24, 1989. But the management did not
declare that day as a holiday. But the employees remained absent as a matter of right. A notice was issued for deduction of 8 days'' wages in terms
of Clause 20 of the Standing Order of the said management. That was challenged by the employees. The writ petition was dismissed as not
maintainable. On appeal, the Bench took a view that deduction of three days'' wages should be sufficient. Aggrieved against the same the above
said Civil Appeals were filed. The Supreme Court without interfering with the merits of the case and also the finding of the Division Bench, directed
the management to deduct the wages for only half-a-day instead of larger period. So, from the abovesaid decision, it is clear that the employees
are not entitled for wages, if they remained absent from their work.
In this case also, the act of the employees will amounts to deliberate refusal to work. Participating in the bandh is not a matter of right. The Full
Bench of Kerala High Court in the decision in Bharat Kumar K. Palicha and Another Vs. State of Kerala and Others, which has been approved
by the Apex Court in the decision in Communist Party of India (M) v. Bharat Kumar AIR 1996 S. C. 184 has held as follows :-
If this be the position and if the call for the bandh and the holding of it entails restriction on the fundamental freedoms of the citizen, it has to be
held that no political party has the right to call for a bandh on the plea that it is part of its fundamental right of freedom of speech and expression.
Moreover, nothing stands in the way of the political parties calling for a general strike or hartal unaccompanied by express or implied threat of
violence to enforce it. It is not possible to accept that the calling of a bandh alone could demonstrate the protest of a political party to a given
decision or in a given situation.
The contention that no relief can be granted against the political parties in these proceedings under Article 226 of the Constitution cannot be
accepted in its entirety. As indicated already, this Court has ample jurisdiction to grant a declaratory relief to the petitioners in the presence of the
political party respondents. This is all the more so since the case of the petitioners is based on their fundamental rights guaranteed by the
Constitution. The State has not taken any steps to control or regulate the bandhs. The stand adopted by the Advocate-General is that the Court
cannot compel the State or the Legislature to issue orders or make law in that regard. As we find that organised bodies or Associations or
registered political parties, by their act of calling and holding bandhs, trample upon the rights of the citizens of the country protected by the
Constitution, we are of the view that this Court has sufficient jurisdiction to declare that the calling of a ''bandh'' and the holding of it, is
unconstitutional especially since, it is undoubted, that the holding of ''bandhs'' are not in the interests of the Nation, but tends to retard the progress
of the Nation by leading to national loss of production. We cannot also ignore the destruction of public and private property when a bandh is
enforced by the political parties of other organisations. We are inclined to the view that the political parties and the organisations which call for such
bandhs and enforce them are really liable to compensate the Government, the public and the private citizen for the loss suffered by them for such
destruction. The State cannot shirk its responsibility of taking steps to recoup and of recouping the loss from the sponsors and organisers of such
bandhs. We think, that these aspects justify our intervention under Article 226 of the Constitution"".
While approving the said decision, the Apex Court has held that there cannot be any doubt that the fundamental rights of the people as a whole
cannot be subservient to the claim of fundamental right of an individual or only a section of the people and that there cannot be any right to call or
enforce ''bandh'' which interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing national loss in many ways.
No political party or organisation can claim that it is entitled to paralyse the industry and commerce in the entire State or Nation and is entitled to
prevent the citizen not in sympathy with its view point from exercising their fundamental rights or from performing their duties for their own benefit
or for the benefit of the State or the Nation, which claim would be unreasonable and could not be accepted as a legitimate exercise of the
fundamental right by a political party or those comprising it.
From the above, it is very clear that if an employee wants to show his protest in issue either at the instance of any external force or by himself
and thereby he is not attending the work, during which period he has to work according to the terms of the employment, he must be ready to forgo
the wages for the said period. When holding Bandh itself is against the interest of the nation, can the Government or its authorities direct the
employers to declare that day as holiday with wages. Even if it is so, as has been done in this case, such direction would be nothing but illegal. In
this case the Government had also declared holiday in support of the bandh which is nothing but supporting illegality and unconstitutional activities.
In this case, it is factually found, which is not in dispute, that only with a view to participate in the bandh, the respondents absented themselves
from attending the work. So, they are not entitled for any salary as they did not earn their wages. So any employer cannot be compelled to pay
wages to such employees for such period. Giving such direction would be adding premium to the illegality and against the interest of the society.
In view of the above findings, the orders of the Deputy Commissioner of Labour, and the learned District Judge, Nagercoil cannot be sustained
and they are set aside. Consequently, these Revisions are allowed accordingly with costs of Rs. 1,000/- each.