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Judgment
S.M. Abdul Wahab, J.—These writ petitions are for quashing the order dated August 26,1986 passed by the first respondent in C.M.A.
Nos. 1 of 1986,2 of 1-986 and 4 of 1986. Pandian Roadways Corporation Limited is the petitioner in all the three writ petitions.
The case of the petitioner is as per the standing order of the Corporation which has been certified by the appropriate authority under the
Industrial Establishment (Standing Orders) Act, 1946, wherein the regularisation for grant of casual leave is provided. Standing order No .7
provides that ordinarily previous permission of the Head of the Department in the Establishment shall be obtained before such a leave is taken. The
second respondents in the writ petitions were employed in the corporation. They presented applications to the traffic supervisor for casual leave.
As per the standing orders, the employees are required to ascertain whether the leave has been granted or not before proceeding on leave. The
Traffic Supervisor informed that the leave could not be granted to second respondents. Inspite of this, the second respondent absented from duty.
Hence, the salary was paid to second respondent in W.P.No.2873 of 1987 for the month of April 1985, with deduction of Rs.23.90. When he
was to report to duty on March 15,1984,hedidnotreportfor duty on that date. Hence, the Traffic Supervisor made an alternative arrangement to
ply the bus with another. Normal practice is driver should put his signature in the duty register on the previous day. The second respondent put his
signature in the duty register on March 14, 1984. He stated that he would report for duty on March 15, 1984. Hence, a sum of Rs.27.35 was
deducted from the wage of the second respondent in W.P.No.2874 of 1987. As against the deduction, the concerned drivers moved application
u/s 15(2) of the Payment of Wages Act, 1936.
The Corporation filed counter stating that the drivers absented wilfully and hence the deduction was made. It was also contended that the
authority under the Payment of Wages Act, did not have the jurisdiction to enquire into the claim of this nature. The authority held that the dispute
could not be decided u/s 15(2) of the Act. Then appeals were preferred before the first respondent u/s 17-1 of the Act. Without properly going
into the facts of these cases, the appeals have been allowed on June 28,1986 holding that the deduction of wages for absence of duty would
amount to punishment and hence inasmuch as no opportunity was given to the second respondent before making the deduction, the order was in
violation of the principles of natural justice. The Appellate Authority held further the deduction was made even before conclusion further the
deduction was made even before conclusion of the domestic enquiry. Hence, the writ petitions have been filed before this court by the
management.
The main contention urged by the learned counsel for the petitioner/management is that when the worker absented on a day, he has to loose the
wages, for the day, since he has not earned it. Secondly the contended that there is no necessity for giving any opportunity before deduction, since
there is no question of any dispute involved in the case.
On the other hand, learned counsel for the second respondent contended that the deduction of some amount from the pay is a monetary loss, i
civil consequence has resulted in out of the de-luction. Hence, without giving an opportunity to deduct a portion of the salary tantamounts to
imposing civil liability on the part of the worker, tience, there is violation of principles of natural ustice. Learned counsel further contended that as
per provisions of the wages act, the payment of wages is for a fixed period. Therefore, it is sayable on completion of the period. Hence, when the
period is completed, the amount fixed becomes payable. Since the monthly wages lave been fixed, the fixed amount becomes payable, on the
completion of the period. As per Sections 3 and 4 of the"" Act, employer is responsible for the payment of wages. As per Section 7 of the Act,
wages should be paid without deduction. Therefore, when the month is completed, the amount fixed should be paid, if any deduction is to be
made, it must be only after giving an opportunity to the second respondent, because the second respondent has become entitled to the wages on
the completion of the period i.e., the month.
Let us consider this contention first.
Section 7 of the Act states that wages of any employee shall be paid to him without deduction of any land except those authorised by or under
this Act. Section 7(2) states that deductions from the wages of an employed person shall be made when there is absence from duty of the
employed person.
Section 10(1A) of the Act provides forgiving an opportunity before the deduction for loss. Section 8 of the Act provides for notice, when
deduction is made for fine. When notice is directed to be issued in case of certain deductions and there is no such notice contemplated before
deduction for absence the implication is that no notice is contemplated in such cases.
Learned counsel for the petitioner cited the following decisions 1) Dharam singh v. Bank of India 1979 LIC 1079; 2) State of Orissa Vs. Dr.
(Miss) Binapani Dei and Others, ; 3) Dtvisional Accounts Officer, Eastern Railway v. Dal Singar and Ors. 41 FJR 131; 4) Union of India (UOI)
Vs. Col. J.N. Sinha and Another, ; 5) State of Punjab v. K. Erry 973 I LLJ 33 (SC); (6) D. Bal Hah v. Secretary Indian Detonators Ltd 1976
LLJ 247 (A.P.) and 7) Orient Paper Mills Sramic Congress v. O.P. Mills 74 Indian Factories Journal Reports 434 and contended that notice is
necessary even when deduction is made for absence.
In State of Orissa v. Binapani Dei'' (supra) no enquiry report was furnished to the delinquent officer. The Supreme Court took the view mat
even though the order is administrative in character, even if the administrative order involves civil consequence notice must be given; else principles
of natural justice would be violated. It is not helpful to the case of the petitioner. In the present case, what has been done is a statu-torily authorised
act and not an unpredictable administrative act.
Divisional Accounts Officer v. Dal Singar (supra) is not a case where question of notice before deduction was involved. It is a case of the
worker claiming wages which have been withheld. In the said case, it was held that the employer who claims right to deduct wages on account of
absence from duty, it would be duty of the employer to place materials before the authority to show that the employee concerned remained wilfully
absent from duty or that an order had been passed by a competent authority for the deduction of the wages, If this burden is not discharged by the
employer, the employee would be entitled to his wages. In the present case also the employees would have contended that the wilful absence was
not proved by the management, but the appellate authority has, without going into the merits of the case allowed it only on the point of violation of
principles of natural justice. Hence, this case is not helpful to the respondents.
In Union of India v. J.N. Sinha (supra) it has been held that ""if a statutory provision either specifically or by necessary implication excludes the
application of any rules of natural justice, then the court cannot ignore the mandate of the legislature or the statutory authority and read into the
concerned provisions the principles of natural justice, This case far from being helpful to the petitioner, supports the respondent.
State of Punjab v. K. R. Erry (supra). In this case the Supreme Court has taken the view that ""where a body or authority is judicial or where it
has to determine a matter involving rights judicially because of express or implied provision, the principle of natural justice audi alteram partem
applies."" It also held that ""where a body or authority is characteristically administrative the principle of natural justice is also liable to be invoked if
the decision of that body or authority affects individual rights or interests."" No decision taking is involved in the present case. This caseis also not
applicable for the reasons given relating to State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, .
D. Balliah v. Secretary, I.D. Limited (supra). In this case it has been held that ""Deduction in wages is penal in nature"". Hence the principle of
natural justice requires the notice. In this case, the deduction was for absence, for the period of strike which the employer termed as ''illegal''. The
learned Judges took the view that the deduction was penal in nature, therefore, the necessity of notice was stressed in the said case.
Orient Paper Mills Sramik Congress v. O.P Mills (supra). The said decision is not helpful to the petitioner and it is not at all in favour of the
respondent. Learned Judges of the Orissa High Court make a distinction between the normal deduction of wages for the period of absence and
penal deduction of wages for a period upto 8 days. They have held that principles of natural justice is not applicable to normal deduction of wages
for the period of absence.
The purpose of notice or enquiry before an order is passed or decision is taken affecting any civil right of the citizen is to give him an
opportunity to defend if there was a possibility to defend. The affected persons should not be affected in a surprising or unexpected manner. But
when the petitioner is aware of the consequences of his own action or he is expected to know about such consequences when he does not act, it
cannot be said that even in such circumstances, a decision has been taken or order has been passed affecting his rights to the surprise of the person
affected.
Here in these two cases, admittedly, the employees absented from duty. The leave was not granted to them. Therefore, they must know what
will be the consequences of such absence without leave i.e., they are aware of the likely decision of the employer to deduct the salary. When that is
so, what purpose will be served if notice is given. The notice contemplated by natural justice is for two purposes, one is, that the person should not
be taken by surprise, the other one is the possibility of his avoiding the consequence, when these two elements are absent, natural justice does not
require that notice should be given even in such cases.
The provisions of Payment of Wages Act, 1936 has been cleverly and clearly worded. The definition of wages itself is as follows:
Section 2(vi) ''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"".
One is bound to appreciate the words, ''if the terms of employment were fulfilled and the words, ''work done''. Therefore, the employee is bound
to do the work and fulfil the terms of employment. Then only ,he is eligible to get wages.
Section 9(1) has been specifically introduced in the Payment of Wages Act. As per the said section, if the employee is absent from the place of
work for aperiod during which he is required to work, deduction can be made. In substance, the employee must know he must fulfil the terms of
employment by performing his work, otherwise he is not eligible for wages. In substance it is not deduction, but it is failure on I the part of the
employee to earn the wages by fulfilling the conditions of employment and performing his work. As the learned Judges of the Orissa High Court
put it, the deduction for absence is normal deduction and not penal deduction. But I may even go to the extent of saying that as stated above, it is
not a deduction at all, but failure on the part of the employee to earn wages. Therefore, after haying failed to earn the wages by absenting, there is
no question of the petitioners being taken by surprise or showing any defence. A person must know the consequences of what he does, if he does
not know and expects to be told by others of the same, such persons cannot be helped.
Learned counsel for the petitioner relied upon Sections 4 and 5 of the Act, and contended that when wages are fixed for a period, the wages
should be paid after the expiry of the period. The wages will automatically accrue to the employees and there cannot be any deduction. Here again,
the legislature has used the words ""responsible"". What is fixed is the period and not the wages. This argument will have some force, if the wages
have to be fixed. If during the fixed period there is any absence and thereby there is no earning of wages, there is no question of deduction at all. I
have indicated above, the wages earned by the petitioner during the period, will be wages earned only and it will not include the wages he failed to
earn.
On a consideration of all the facts and circumstances of the case, I am of the view that the deduction by the employer for the absence of the
employees without notice or leave is justified and the writ petitions deserve to be allowed. Accordingly, these writ petitions are allowed. However,
there will be no order as to costs.