Calcutta High Court
National Federation Of Telecom ... vs Bharat Sanchar Nigam Limited And Ors. on 19 December, 2006
Equivalent citations: 2007(3)CHN216, (2007)2LLJ877CAL
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
JUDGMENT Tapan Kumar Dutt, J.
1. Heard the learned Advocate for the writ petitioners as well as the learned Advocate for the respondent-authorities. The facts of the case, very briefly, are as follows:
The writ petitioners represent the employees of the Telecom Factory of West Bengal. The petitioners' case is that all the employees and workers attached to the different units of telecom factories of West Bengal have been paid their monthly wages in cash in terms of Payment of Wages Act, 1936. The writ petitioners have challenged a memo dated 11.05.2005 issued by the Joint DDJ (CA), Bharat Sanchar Nigam Ltd. to the Chief General Manager, All BSNL Circles wherein it has been stated that as per the Finance Bill for 2005-06, proposed in the Parliament, there will be a levy of cash withdrawal tax of 0.1% for cash withdrawals of Rs. 1 lakh and above on a single day, made by the corporate and business houses. It was further stated in the said memo that cash withdrawal tax can be avoided by resorting to all the payments by cheque/E-payments and ensuring that the cash drawals is less than Rs. 1 lakh on any single day. In the said memo it was stated that it may be ensured that all the payments are made by cheques/E-payments to avoid cash withdrawal tax and cash withdrawal of Rs. 1 lakh and above on a single day is totally avoided. In a letter dated 31.05.2005 the respondent No. 1 wrote to the Heads of All BSNL Circles (except Jammu & Kashmir). It was stated inter alia that on or after 1st June, 2005 all staff may be advised to get the bank account opened so that all staff claims can be settled through bank account to avoid the banking cash transaction tax and the salary of the employees will be disbursed through bank account from June, 2005 onwards in supersession of all earlier orders. It was further stated in the said letter that if any payment has to be made in cash, on written request of any employee, which result into withdrawals of an amount more than Rs. 1 lakh in a single day from single bank account, the bank cash transaction tax may be recovered from the beneficiary. In the notice dated 3rd June, 2005 the respondent No. 1 stated inter alia that with effect from 01.06.2005 individual cash will be paid restricted to Rs. 5,000/- and that responsibility lies with the individual for taking form for opening salary account with SBI, Chowringhee Branch and, as this is a must, all were requested to contact P.O. TF Alipore for such purpose. It appears that by a notice dated 21.06.2005 the respondent No. 1 issued the following notice with copies to various authorities:
NOTICE Re: Option for payment of salary/wages by cheque or cash.
In supersession of earlier payment notices it is notified for information to all concerned that the payment of salary/wages for the month of June' 05 will be disbursed either by cheque or cash with 0.1% transaction tax as per order No. 1001-05/2005/CA-III/BSNL dt. 31.5.05 of BSNL corporate office. Further in consultation with Service Union TF Kolkata it has been decided that payment of BSNLMRS (1st quarter 2005-06) will be disbursed along with salary/wages for the month of June 05. Staff concerned is to offer written 'option' for cheque/cash payment within 24.06.2005 (Friday) positively. Employees are requested to collect the option Form from CSS (RE) for regular staff or Sr. SS(IE) for industrial staff and may be submitted to CSS(RE)/Sr. SS(IE) respectively. This is issued with the approval of the competent authority.
No. CAO/TF/AP/Payment/05-06 Dated, June 21, 2005 (N.C. Naskar) Chief Accounts Officer Telecom Factory, Kolkata-27
2. It appears that by a letter dated 09.06.2005 the respondent No. 1 wrote to the General Manager, Telecom Factory, Alipore, Kolkata inter alia that it is the statutory obligation of the employers to make payment to the workmen under Section 6 of the Payment of Wages Act.
3. The learned Advocate for the writ petitioners submitted that the respondent authorities, prior to the dispute which arose between the parties, have been withdrawing cash from the bank and making payment of wages to its employees but by virtue of the impugned notifications they have, in effect, sought to compel their employees to open a bank account and receive wages by cheque. According to the said learned Advocate, if any employee chooses to receive his wages in cash then it shall become subject to deduction of proportionate tax namely, the banking cash transaction tax. The effect would be that an employee who chooses to receive his wages in cash, such employee will not get his full wages because the aforesaid tax would be deducted proportionately from his wages. According to the said learned Advocate the respondent authorities cannot compel their employees to receive wages by cheque and they also cannot deduct the aforesaid tax proportionately from the wages in case of payments in cash. The said learned Advocate referred to Article 265 of the Constitution, Sections 6 and 7 of the Payment of Wages Act, 1936 and submitted that there is no law in force which authorises the respondent authorities to collect such tax proportionately from its employees.
4. The said learned Advocate referred to a decision reported at AIR 1992 Supreme Court 2038 (Ahmedabad Urban Development Authority v. Sharadkumar Jayantikumar Pasawalla and Ors.) and drew the attention of this Court to paragraphs 6 and 7 of the said report. In paragraph 6 the Hon'ble Supreme Court was pleased to observe as follows:
6. After giving our anxious consideration to the contentions raised by Mr. Goswami, it appears to us that in a fiscal matter it will not be proper to hold that even in the absence of express provision, a delegated authority can impose tax or fee. In our view, such power of imposition of tax and/or fee by delegated authority must be very specific and there is no scope of implied authority for imposition of such tax or fee. It appears to us that the delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power....
5. In paragraph 7 the Hon'ble Supreme Court was pleased to observe:
It has been consistently held by this Court that whenever there is compulsory exaction of any money, there should be specific provision for the same and there should be specific provision for the same and there is no room for intendment. Nothing is to be read and nothing is to be implied and one should look fairly to the language used.
6. The learned Advocate for the respondents submitted that the Industrial Tribunal is the appropriate forum and the Writ Court should not interfere and referred to Section 7A of the Industrial Disputes Act. The said learned Advocate also submitted that the writ petitioners do not come under the Payment of Wages Act since the writ petitioners are earning more than Rs. 1,600/- per month. The said learned Advocate also submitted that the employees have not been forced in any way but an option has been given to them and it is for the employees to exercise such option. The said learned Advocate further submitted that if the tax required to be paid by the respondent authorities, is not recovered from their employees proportionately, then in that event it will not be possible for the respondents to recover it in any other way.
7. The petitioners' learned Advocate submitted that the dispute in question is not an industrial dispute and imposition of tax is not within the Industrial Disputes Act. According to the said learned Advocate this is not a case where wages are being reduced but tax is sought to be deducted from the wages in case of payment in cash. According to the said learned Advocate there is no law by which the respondent authorities can recover the said aforesaid tax paid by them, from their employees.
8. Reference was made by the said learned Advocate to paragraph 15 of the decision reported at (Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors.). Paragraph 15 of the said report is quoted below:
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the Constitutional law as they still hold the field.
9. In answer to the respondents' learned Advocate referring to Section 1(6) of the said Act of 1936, the learned Advocate for the petitioners referred to paragraph 6 of the affidavit-in-reply on behalf of the petitioners wherein it has been stated inter alia that-
that vide Section 3 of the West Bengal Amendment Act 28 of 1993 subsection (6) of Section 1 of the Payment of Wages Act, 1936 have been omitted in West Bengal. Therefore the said sub-section does not have any applicability in the present case. In West Bengal, for applicability of the Payment of Wages Act, 1936, the amount of wages is unlimited.
10. Section 6 of the said Act of 1936 provides as follows:
6. Wages to be paid in current coins or currency notes.- All wages shall be paid in current coin or currency notes or in both:
Provided that the employer may, after obtaining the written authorisation of the employed person, pay him the wages either by cheque or by crediting the wages in his bank account.
11. Section 7 of the said Act of 1936 deals with deductions which may be made from wages. In Section 7(1) it has been provided as follows:
Notwithstanding the provisions of Sub-section (2) of Section 47 of the Indian Railways Act, 1890 (9 of 1890), the wages of an employed person shall be paid to him without deductions of any kind except those authorised by or under this Act.
Explanation I.- Every payment made by the employed person to the employer or his agent shall, for the purpose of this Act, be deemed to be a deduction from wages.
Explanation II.- Any loss of wages resulting from the imposition, for good and sufficient cause, upon a person employed of any of the following penalties, namely:
(i) the withholding of increment or promotion (including the stoppage of increment at an efficiency bar);
(ii) the reduction to a lower post or time-scale or to a lower stage in a time-scale; or
(iii) suspension;
shall not be deemed to be a deduction from wages in any case where the rules framed by the employer for the imposition of any such penalty are in conformity with the requirements, if any, which may be specified in this behalf by the State Government by notification in the Official Gazette.
12. Section 7(2) of the said Act of 1936 provides that the deductions from the wages of an employed person shall be made only in accordance with the provisions of the said Act of 1936, and may be of the kinds mentioned in the said Section 7(2). It appears from the perusal of the said Section 7(2) of the said Act of 1936 that the recoveries of aforesaid tax sought to be made by the respondents from their employees is not included in the said provision of law. Therefore, it can be said that such recovery by the respondents is not permissible under the law. The learned Advocate for the respondents could not show any law under which such recovery of tax can be made by the respondents from their employees. That apart, Section 6 of the said Act of 1936 says that wages have to be paid in current coin or currency notes or in both unless the employer obtains a written authorisation from the employee for making payment of wages either by cheque or by crediting the wages in the bank account. Thus, unless such written authorisation is given by the employee to the employer, the employer cannot of its own make payment of wages by cheque. In the instant case, even though the option has been given by the respondents to their employees but such option is illusory because of the fact that if the employee chooses to have his wages in cash then it will be subject to the proportionate deduction of tax. The end result would be that an employee receiving wages in cheque will be getting more amount of money than an employee who opts to receive his wages in cash even though the wages of the two employees are equal. In the instant case the writ petitioners, who are representing the employees, have not in any way consented to payment of wages by cheque and/or crediting the wages in any bank account. On the other hand, the writ petitioners have raised objections against the stand taken by the respondents on the basis of the impugned notifications and have come to this Court by way of a writ petition challenging the impugned notifications. Article 265 of the Constitution of India says as follows:
265. Taxes not to be imposed save by authority of law.- No tax shall be levied or collected except by authority of law.
13. The impugned notifications show that the respondents are attempting to recover the amount which they might have to pay by way of the aforesaid tax. Therefore, when the respondents subsequently attempt to recover such tax proportionately from their employees it would ultimately result in the employees paying the said tax even though there is no law which authorises imposition of such tax upon the employees. There is also no law by which the respondents can collect such taxes proportionately from the employees. The question raised by the respondents' learned Advocate as to how the payment of the aforesaid tax can be made by the respondents unless it is recovered from their employees proportionately, will have to be answered by the respondents themselves. The employees of the respondents are not required to answer such question. The question, in the instant case, is whether the act of the respondents which has been challenged in the writ petition, as indicated above, is legal or not.
14. In view of the discussions made above, this Court is of the view that the act of the respondents, as indicated above, on the basis of the impugned notifications, is not authorised by law and is illegal. The respondents have no authority to collect the aforesaid tax from their employees in case of payment of the wages in cash. The respondents also cannot compel the employees to accept wages in cheque. In view of the legal position, as it stands, the respondents are bound under the law to make payment of wages in current coin or currency notes or in both unless there is a written authorisation by the employee for payment of wages either by cheque or by crediting the wages in their bank account. In such circumstances, the impugned notifications issued by the respondent authorities with regard to the mode of payment of salaries/wages by cheque or cash are quashed and the respondents are restrained from recovering any part of the banking cash transaction tax, if any, from then-employees and the respondents are also restrained from compelling their employees to receive wages by way of cheque unless the employee concerned chooses to authorise the employer for payment of his wages by cheque or by crediting his wages in the bank account.
15. The writ petition stands disposed of. There will, however, be no order as to costs.
16. Urgent xerox certified copy of this order, if applied for, be given to the parties on compliance of usual formalities.