Madras High Court
The Management Of Nagammal Mills Ltd. ... vs Kumari Mavatta Noorppalai Thozilalar ... on 10 December, 1998
Equivalent citations: (1999)1MLJ610
ORDER K. Govindarajan, J.
1. On 20.7.1990 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.
2. The only reason that has been stated in the application field by the employees was that the Government declared 20.7.1990 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 have 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 they 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.
3. 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 did not declare that day as holiday, it is the duty of the employees to attend the work, or they have 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 costs of the employer. The learned Counsel appearing for the respondents have submitted, relying on the decision in Pandian Roadways Corporation Ltd. v. Principal District Judge (1996)2 L.L.J. 205, 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.
4. 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.
5. 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 Section 9(1) of the Payment of Wages 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 the abovesaid 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.
6. Under Section 7 of the 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 20.7.1990 cannot be said to be deduction of salary, but it has to be construed 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 failing to earn their wages.
7. The learned Counsel appearing for the respondents have relied on the decision in Madras Labour Union v. Binny Ltd. (1991)1 L.L.N. 161 and the order in Civil Appeal Nos. 208 to 211 of 1991, dated 1.10.1996. In the said decision the facts are as follows: On 24.11.1989 the election to the Tamil Nadu State Assembly was held. According to the letter dated 6.11.1989 of the Commissioner of Labour, a paid holiday to all the employees was suggested to be given on 24.11.1989. 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 would be sufficient. Aggrieved against the same the abovesaid 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 in stead 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.
8. In this case also, the act of the employees 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 v. State . which has been approved by the Apex Court in the decision in Communist Party of India (M) v. Bharat Kumar A.I.R. 1998 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 ho political party has the right to calf 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 tend 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.
9. 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 a '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 citizens 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.
10. 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.
11. 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.
12. 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.