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Judgment
Judgement Pronounced by J. Kanakaraj, J.—The Writ Appeal filed by the Management Bank is against the order of learned single Judge in
Writ Petition No.6932 of 1981, dated 17.8.1994. The prayer in the said writ petition by respondents 1 to 39 was for the issue of a writ of
mandamus to forbear the appellants herein from deducting any part of the wages for 2nd of July, 1981 from the salaries of the respondents. The
learned single Judge allowed the Writ Petition and quashed the order of the appellants, directing deduction of the wages for the period during
which the respondents struck work on 2nd July, 1981 and also directed the appellants to refund the wages already deducted. However, the
learned Judge gave liberty to the appellants for initiating proceedings against the respondents, if they proposed to deduct wages for the period of
strike. In other words, the learned Judge came to the conclusion that the principles of natural justice had been violated and therefore, if the
appellants proposed to deduct pro rata wages, they should issue a show-cause notice and take a decision, only after considering the explanation of
the respondents. The appellant Bank has filed the Appeal, contending that the deduction of wages for the period of strike was perfectly legal and in
accordance with the Judgments of the Supreme Court.
A few facts may be noticed before dealing with the legal contentions urged by the respective counsel. The respondents are employed in the
appellant-Bank and their service conditions and payment of salary are governed by bipartite settlements, Sastri Award and Desai Award. They are
therefore called the Award Staff. According to the respondents, they have to resort to a pen down strike, in view of the provocation caused by
one S. Ganesan, a Junior Management Grade Officer. The said S. Ganesan was called upon to file his leave application by the Manager and this
information was conveyed to him by one of the Award staff, Miss. Gowri. The said Ganesan was aggrieved by the staff member, requesting for a
leave application and he is stated to have behaved rudely to the Award staff, Miss. Gowri. Because of the rude behavior, all the respondents had
approached the Manager of the Bank and demanded an apology from the said Ganesan. Since no apology was forthcoming, they resorted to pen
down strike from 11.00 a.m. On some assurance from the Regional Manager, they resumed duty at 1.00 p.m. It is stated that this was the whole
basis of the case of the respondents that they had ''completed the day''s work'', after commencing duty at 1.00 p.m. A notice was put up in the
notice board at 1.30 p.m. stating that the wages of the Award staff will be cut for the whole day (2.7.1981). All the members of the Award staff
submitted a representation on 10.7.1981, requesting the appellants not to effect any wage cut. A further notice was issued to the management to
withdraw the notice displayed in the notice board. Actually, the wages of the respondents were cut only for the period of strike between 10.40
a.m. till 1.05 p.m. The workers were informed of the above position by a Lawyer''s notice, dated 27.7.1981. The case of the respondents in the
writ petition was projected in the following words:
...The management have the right to initiate disciplinary proceedings and inflict punishments for minor misconduct. This is all that the management
can do but they cannot make a wage cut even for the period of the pen down strike...
We have already noticed the views expressed by the learned single Judge and the directions given by the learned Judge. The following
observations of the learned single Judge may be noticed for the purpose of appreciating the correctness of his Judgments:
..In the instant case, the fact that the work was stopped because of the refusal of the respondents-management to consider the grievance of the
petitioners immediately and that the total work of the day has been subsequently done presumably by putting little more efforts would be stated
necessary and important consideration in the matter. Since what is to be effected is the deduction of wages of the employees the principles of
natural justice would be attracted...
Before dealing with the rival submissions, we may notice one of the points raised by the appellants in their counter affidavit. A contention was
raised that the claim for payment of wages essentially partakes the nature of an industrial dispute. The remedy of the respondents, if any was to
raise an industrial dispute and not to approach the High Court under Article 226 of the Constitution of India. We will deal with this aspect of the
case first, before going into the arguments advanced on the main question. The learned single Judge has rejected this preliminary objection by
relying on the decision of the Calcutta High Court in Life Insurance Corporation of India and Others Vs. Amalendu Gupta and Others, . The
learned Judge came to the conclusion based on the above Judgment that the Bank is a statutory Corporation and is therefore amenable to writ
jurisdiction. It is one thing to say that a statutory Corporation is amenable to writ jurisdiction, but totally another to say that the dispute involved can
be canvassed under proceedings under Article 226 of the Constitution of India. The objection raised by the appellants was that the remedy of the
Award Staff, if any, was to raise an industrial dispute and not to seek any relief directly under Article 226 of the Constitution of India. The learned
Judge has not adverted to this aspect of the case and a reference to the various decisions cited at the Bar, to which we will make a reference
immediately, will support the objection raised by the appellants. We will render our finding after adverting to the various decisions.
The above objection regarding the maintainability of the writ petition is inter-mixed with the legality of the deduction of wages for the period of
strike. Bank of India Vs. T.S. Kelawala and Others, is a land mark Judgment on the issue. Since every decision will depend upon the facts of the
case, we propose to advert to the facts of the said Supreme Court decision. The employees of the Bank of India had made certain demands for
wage revision. A strike-call had been given by the All India Bank Employees Association. The Bank of India had given instructions to its branches
to deduct wages of all the employees, who participated in the strike. The unions representing the employees of the said Bank gave a call for a four-
hour strike on 29.12.1977. A circular was issued that whoever participated in the strike would not be permitted to work for the rest of the hours
of the day and the entire wages for the day would be cut. Actually, on 29th December, 1977, the employees went on strike for four hours and
resumed duty thereafter. The period of strike was infact, the period of banking hours. A circular by the management to deduct the full day''s salary
was challenged in the High Court and the same was allowed. The Writ Appeal by the management was also dismissed. It was that decision which
was canvassed before the Apex Court. We would like to refer to a number of passages in the said Judgment. One misconception which was
removed by the Apex Court could be seen from the following passage:
...The deliberate refusal to work may be the result of various actions on their part such as a sit-in or stay in strike at the work place or a strike
whether legal or illegal, or go slow tactics. The deliberate refusal to work further may be legal or illegal as and when the employees go on a legal or
illegal strike. The legality of strike does not always exempt the employees from the deduction of their salaries for the period of strike. It only saves
them from a disciplinary action since a legal strike is recognised as a legitimate weapon in the hands of the workers to redress their grievances. It
appears to us that this confusion between the strike as a legitimate weapon in the hands of the workmen and the liability of deduction of wages
incurred on account of it, whether the strike is legal or illegal, has been responsible for the approach the High Court has taken in the matter..
A second misconception which may have some bearing to the present case, in the light of the Judgment of the learned single Judge, which was
removed by the Apex Court could be noticed from the following passage:
."".It is necessary to clear yet another misconception. There is no doubt that whenever a worker indulges in a misconduct such as a deliberate
refusal to work, the employer can take a disciplinary action against him and impose on him the penalty prescribed for it which may include some
deduction from his wages. However, when misconduct is not disputed but is, on the other hand, admitted and is resorted to on a mass scale such
as when the employees go on strike legal or illegal, there is no need to hold an inquiry. To insist on an inquiry even in such cases is to pervert the
very object of the inquiry. In a mass action such as a strike it is not possible to hold an inquiry against every employee nor is it necessary to do so
unless, of course, an employee contends that although he did not want to go on strike and wanted to resume his duty, he was prevented from doing
so by the other employees or that the employer did not give him proper assistance to resume his duty though he had asked for it...
As in the case before the Supreme Court, in our case also it is not the stand of the Award staff that any of them was prepared to do work and was
prevented by the other workers.
On the question of pro rata deduction of wages and the claim of the workers that they have resumed duty and completed the day''s work,
observes the Supreme Court:
...However, the question has assumed a different dimension in the present case because on the facts, it is contended that although the employees
went on strike only for four hours and thereafter resumed their duties, the Bank has deducted wages for the whole day. It is contended that in any
case this was impermissible and the Bank could at the most deduct only pro rata wages. Normally, this contention on the part of the workers
would be valid. But in a case such as the present one, where the employees go on strike during the crucial working hours which generate work for
the rest of the day, to accept this argument is in effect to negate the purpose and efficacy of the remedy, and to permit its circumvention effectively.
It is true that in the present case when the employees came back to work after their four hours strike, they were not prevented from entering the
Bank premises. But admittedly, their attendance after the four hours strike was useless because there was no work to do during the rest of the
hours...
The last mentioned passage is an effective answer to the argument of the respondents that they had completed the day''s work, after resuming duty
at 1.00 p.m. In fact to a pertinent question from the Court that if the Doctors in a Government Hospital abstain from working for a very few hours
and later on resume duty, could it be ever said that they had completed the day''s work. If during the period of strike an emergent case had been
produced before the Doctors and on account of their strike, the patient had died, the doctors could not have had any explanation. Though the facts
of the present case are different, the principle that we should apply in such cases, is the same. Further, as rightly observed by the Apex Court, if
during the bank hours the staff go on strike, there will be practically no work for them to do during the non-banking hours.
To our mind, the phrase ''completion of day''s work on resumption after strike period is an objective phenomenon. It varies from case to case,
depending upon the facts. In a case, where the functional activities involve purely personal and self-contained activity, independent of other
person''s help, assistance, involvement or guidance, one can complete the left out work by devoting more time after resumption with personal
involvement only. But, where the functional activities involve continuous public dealing within a fixed time schedule, during which members of public
come and do or cause to be done, something which requires spontaneous involvement of the employees, such work can never be done and
completed in the absence of the involvement of members of public. In such cases, if the employees proceed on strike during crucial period
reserved for dealing with the public, the members of public would go away without doing or causing to be done any work by the employees. Thus,
the work which could have been done otherwise would never be done after resumption even if the employees work beyond office hours and put
additional labour even after resumption. We may quote here a popular adage:
Lost wealth may be replaced by industry, lost knowledge by study, lost health by temperance or medicine, but time lost is lost for ever.
We are unable to agree with Mr. Prasad that activities of Bank employees which could be done during crucial period involving public dealings i.e.
cash deposits, withdrawal, issuance of negotiable instruments, acceptance for realisation through clearing houses etc., and could not be done due
to strike, could be done and completed after resumption.
While upholding the right of the management to deduct wages pro rata for the hours of strike or for the entire day or day''s on which the
workers struck work, the Supreme Court observed:
We are unable to see any difficulty, inequity or impracticability in construing the contract as divisible into different periods such as days and hours
for proportionate, reimbursement or deduction of wages, which is normally done in practice..
While holding that a disciplinary action may not be necessary, the Supreme Court observed as follows:
The pro rata deduction of wages is not an unreasonable exercise of power on such occasions. Whether on such occasions the wages are
deductible at all and to what extent will, however, depend on the facts of each case. Although the employees may strike only for some hours but
there is no work for the rest of the day as in the present case, the employer may be justified in deducting salary for the whole day. On the other
hand, the employees may put in work after the strike hours and the employer may accept it or acquiesce in it. In that case, the employer may not
be entitled to deduct wages at all or be entitled to deduct them only for the hours of strike...
While on this Judgment, it is worthwhile to notice that the last passage quoted by us is strongly relied upon by Mr. N.G.R. Prasad, learned
counsel for the respondents to justify the order of the learned single Judge that there is some scope for enquiry. We, however, reject this argument
because in the case before us, no such plea was ever taken and therefore, there was no scope for any enquiry in that regard. If there had been any
disputed facts, then the writ petition itself could not have been maintained by the respondents. Ultimately, the Supreme Court allowed the Appeal
of the management and consequently upheld the Circular, directing deduction of fall day''s salary.
It is not necessary to refer to the other decisions, because of a subsequent Judgment of the Supreme Court, consisting of five honourable
Judges in Syndicate Bank & another v. K. Umesh Nayak etc., 1994 (II) LLJ 836. In that case, the employees federation had issued a notice of
strike, demanding implementation of an agreement and the strike was proposed to be held on 18.9.1989. No formal strike notice in terms of
Section 22 of the Industrial Disputes Act, 1947 had been issued. Further, the Deputy Chief Labour Commissioner had duly informed the parties
that he would be holding conciliation proceedings u/s 12 of the Industrial Disputes Act, 1947. There were further events and ultimately, the
federation gave again a notice that they would go on strike on 16th October, 1989. On 12.10.1989, the bank issued a Circular that if the
employees went on strike, the Bank would deduct the salary for the period of strike. But the employees did go on strike on 16th October, 1989
and a writ petition was filed to quash the Circular of the Bank Management. The said writ petition was dismissed, relying on Bank of India Vs.
T.S. Kelawala and Others, . On Appeal, however, it was held that there was no industrial dispute and the conciliation proceedings were not legal.
It was therefore held that the strike was not illegal and was justified. Accordingly, relying on the earlier Judgments of the Supreme Court in
Management of Churakulam Tea Estate (P) Ltd. Vs. Workmen and Another, and Crompton Greaves Ltd. Vs. Its Workmen, , the Supreme Court
held that no deduction was permissible for the strike period. It is this Judgment of the Division Bench, which was considered by the Constitution
Bench of the Supreme Court. Suffice it to say that the Constitution Bench confirmed the view taken in Bank of India Vs. T.S. Kelawala and
Others, in the following terms:
We therefore, hold endorsing the view taken in T.S. Kelawala that the workers are not entitled to wages for the strike period even if the strike is
legal. To be entitled to the wages for the strike period, the strike has to be both legal and justified. Whether the strike is legal or justified are
questions of fact to be decided on the evidence on record. Under the Act, the question has to be decided by the industrial adjudicator, it being an
industrial dispute within the meaning of the Act...
In our view, the above Judgment of the Supreme Court, confirming the view taken in Bank of India Vs. T.S. Kelawala and Others, is sufficient
to allow the writ petition. The position now is very clear that if the workers seek payment of full wages for the strike period, it is for them to show
that the strike was both legal and justified. If such factual disputes are raised the remedy of the workers is only to approach the industrial
adjudicator by raising an industrial dispute. Thus, the question of maintainability of the writ petition is also answered in the above Judgment of the
Supreme Court.
Faced with the above formidable authorities of the Supreme Court, Mr. N.G.R. Prasad, learned senior counsel for the respondents seeks to
begin from the beginning. He cites Gujarat Steel Tubes Ltd. and Others Vs. Gujarat Steel Tubes Mazdoor Sabha and Others, and relies OB
paragraph 130 of the Judgment, whereunder the Apex Court had explained the meaning of illegal strike and a perfectly justified strike. Those
considerations arose out of the termination of services of all the workmen by the management arising out of an illegal and unjustified consideration
and the matter being referred to an arbitrator u/s 10A of the Industrial Disputes Act, 1947. In view of the above Judgment of the Supreme Court
dated 13th September, 1994 Syndicate Bank & Another v. K. Umesh Nayak Etc., 1994 (II) LLJ 836 already quoted by us, it is futile to refer to
the earlier Judgment, arising out of different set of facts. Similarly, the Judgment of the Supreme Court in B.R. Singh and others Vs. Union of India
and others, on the right to form associations and the right to resort to demonstrations as being to important weapon in the hands of the workers are
but general observations, with which no one has a quarrel. The unreported Judgment of the Supreme Court in Civil Appeal Nos. 208 and 209 of
1991, dated 1st October, 1996 does not in any way advance the case of the respondents. The Apex Court reduced the deduction of wages to
only one half of a day, having regard to the long lapse of time and with a view to put an end to the controversy.
We have copiously quoted from the Judgment of Bank of India Vs. T.S. Kelawala and Others, which is almost identical to the facts of the
present case. The repeated reference made by learned senior counsel for the respondents that they had completed the day''s work cannot be
accepted for the reasons already given by us. Learned senior counsel for the respondents is not therefore justified in saying that the facts of the
present case calls for an enquiry and that therefore, the learned single Judge was right in quashing the order for deduction of wages, and permitting
the management to conduct an enquiry, if they so desired. On the other hand, on the facts and circumstances of the case, we find that there is
absolutely no dispute that the workers went on strike during bank hours and therefore, there is no question of their completing the day''s work,
after resuming duty at 1.00 p.m. Assuming without admitting that there were disputed facts to be adjudicated upon, even then, the only course for
the workers is to have raised an industrial dispute and not to come to this Court by way of a writ petition under Article 226 of the Constitution of
India.
Judicial sermons are never welcome and they are rarely followed or practiced. We, however, limit ourselves by quoting a passage in the
Judgment of the Supreme Court, dated September, 13, 1994 Syndicate Bank & Another v. K. Umesh Nayak, 1994 (II) LLJ 836 and it is as
follows:
...In this task, both the capitalist and the labour are to act as the trustees of the said resources on behalf of the society and use them as such. They
are not to be wasted or frittered away by strikes and lockouts. Every dispute between the employer and the employee has, therefore, to take into
consideration the third dimension, viz., the interests of the society as a whole, particularly the interests of those who are deprived of their legitimate
basic economic rights and are more unfortunate than those in employment and management. The justness or otherwise of the action of the
employer or the employee, has therefore, to be examined also on the anvil of the interests of the society which such action tends to affect. This is
true of the action in both public and private sector. But more imperatively so in the public sector. The management in the public sector is not a
capitalist and the labour an exploited lot. Both are paid employees and owe their existence to the direct investment of public funds. Both are
expected to represent public interests directly and have to promote them.
For all the above reasons, the Writ Appeal is allowed. Consequently, Writ Petition No.6932 of 1981 shall stand dismissed. However, there
will be no order as to costs.