Bombay High Court
All India Central Government Health ... vs Union Of India (Uoi) And Ors. on 28 April, 2005
Equivalent citations: (2006)ILLJ798BOM, 2005(4)MHLJ939
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
JUDGMENT B.P. Dharmadhikari, J.
1. By this petition under Article 226 of the Constitution of India, the petitioner No. 1 Union and petitioner No. 2 its members, challenged communication dated 22-6-1992, by which the respondents have sought to recover salary paid to the petitioners during strike in the month of May, 1992 and June, 1992.
2. I have heard Advocate Kukdey for petitioner and Advocate A. B. Choudhari, for respondents. Advocate Kukdey, states that there was a settlement between the parties in relation to the said strike and as per the settlement dated 11-6-1992, the period of strike was to be treated as "dies non". He states that it was not agreed between the parties that for the period of strike the principle of no work no pay was to be applied, and as such the employees have been rightly paid their salary for the month of May, 1992 and June, 1992. He contends that as such the communication dated 22-6-1992, by which the recovery as sought to be made for all the salary paid for that period is unsustainable.
3. The learned Assistant Solicitor General of India, argues that the wording of the settlement are very clear and "dies non" means there was no activity during that period. As there was no activity the employees have not performed/discharged their duties, and as such there is no question of paying any salary by the employer for that period. He contends that in other words, only that period is not to be counted in service, but as there was no activity, the employees have not earned their wages, and as such the salary which has been paid is sought to be recovered.
3A. After hearing both the Counsel. I find that the said word has been defined to mean as "no activity" in Oxford Dictionary. Chambers 20th Century Dictionary states word "dies" means "day". Word "dies festi" or "dies profesti" means "days on which judgment could be pronounced on which Court could be held in ancient Rome or lawful days". "Dies fautus" means "lucky day". "Dies non" is stated to mean "a day on which judges do not sit, or one on which normal business is not transacted." Use of word "dies non" in settlement dated 11-6-1992, therefore means that said period is to be treated as without any business and therefore, non-existent by both i.e. employer and employees. Employees are therefore, not entitled to any remuneration for such period. The impugned notice dated 22-6-1992, specifically states that the employees were not entitled to any salary during the strike period, and therefore, it proposed to recover the salary for absence on account of strike during May, 1992 and June, 1992, and as such I find no substance in the argument advanced.
4. Advocate Kukdey, further states that all the employees are Class-IV employees and reduction in one lumpsum from their salary for these two months will be leaving them high and dry and without any income. He therefore contends that the deduction should be allowed to be effected in easy instalment. Advocate Choudhary, opposes this request. He contends that the salaries have now enhanced substantially in the 5th pay revision, and as such there is no question of granting any instalment. However, I find that the salary for about two months is sought to be recovered in one lumpsum from the employees. Considering the fact that these employees are class IV employees, it would be appropriate to permit the respondents to recover the said amount in 4 equal monthly instalments from the salaries of members of the petitioner No. 1 Union.
5. In the circumstances, the Writ Petition is partly allowed. Rule is made absolute in the above terms. Respondents are directed to effect recovery of salaries paid to the members of the petitioner No. 1 union for the strike period in 4 equal monthly instalments. No costs.