Madhya Pradesh High Court
M.P.E.B. Diploma Engineers' ... vs M.P. Electricity Board Through Its ... on 23 March, 2006
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
ORDER A.K. Shrivastava, J.
1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners have pressed only prayer No. 2 made in the petition that the wages in between 18/10/1993 to 26/10/1993 which have been deducted on account of their participation in the agitation by the petitioners be paid to them.
2. The facts are not disputed that the petitioners had undergone an agitation between 18/10/1993 to 26/10/1993. According to the petitioners, the third phase of the agitation began on 25/10/1993 when three members of the petitioners sat on 'Fast unto death'. Thereafter there was a meeting between the respondents and the members of the Negotiation Committee of petitioner No. 1 on 25/10/1993 at 10.30 a.m. The chairman persuaded the petitioners to withdraw the agitation. On this very day a copy of the minutes of the meeting dated 13/9/1993 (Annexure-P/21) was supplied to petitioner No. 1 According to the learned Counsel for the petitioners, as desired by the Chairman, petitioner No. 1 believing that some positive steps would be taken now towards fulfilment of the demand, the agitation was withdrawn in the evening of 26/10/1993. The 'Fast unto death' was also put to an end. The Chairman only insisted on withdrawal of the agitation before any talks about the solution of demands could begin. The talk virtually failed and thereafter petitioner No. 1 gave a notice on the same day for a Lightening Agitation (Annexure-P/22). The Chairman gave an assurance for an early solution of the grievances and fulfilment of the demand according to their merits. The talks continued even during the day of 26/10/1993. Petitioner No. 1 and its office bearers believing the words of the Chairman that he would take positive steps in that direction of solving the grievances, the agitation was withdrawn from the evening of 26/10/1993 including the 'Fast unto death' was also put to an end.
3. The contention of learned Counsel for the petitioners is that during the period of agitation, the petitioners submitted an application for obtaining the leave but the same was refused and that period was treated as unauthorised absence. The respondents have deducted the wages from the employees who remain unauthorisedly absent and took part in the agitation. The contention is that 22/10/1993 was a holiday of Durga Ashtami, 23/10/1993 was an optional holiday and local holiday and 24/10/1993 was Sunday. Still it was ordered to deduct the salary of the participants on those holidays as well. Thus, it has been prayed that the wages deducted by the respondents be directed to be paid.
4. By inviting my attention to the averments made in the return, it has been argued by Shri Jaiswal, learned senior counsel for the respondents, that some members of petitioner No. 1 deliberately refused to do the work and participated in the agitational activities like pen down, Dharna, rally, hunger strike and fast unto death. The refusal of work due to agitational activities amounts to illegal strike and the Board is entitled to deduct the wages during the period of agitation/strike on the principle of 'no work no pay'. In that regard there are circulars of the Board authorising to deduct the pay of employees for participation of the agitational activities like Dharna and absenting themselves from work etc. Copies of circulars are Annexure-R/5 and R/6. The contention of learned senior counsel for the respondents is that the petitioners members cannot be permitted to resort to illegal activities under the cover of taking casual leave and, therefore, the Board was justifying in treating the absence as unauthorised. On these premised submissions, it has been argued that this petition be dismissed.
5. In reply, Shri Rajendra Tiwari, learned senior counsel for the petitioners, submitted that earlier in the year 1987 despite there being the circulars, the respondents did not deduct the salary from the pay-bills of the agitators and adjusted their absence in their leave accounts. In 1987 the MPEB Employees Federation representing Class III and Class IV employees and followed with INTUC, had staged a rally at Jabalpur. Every participant asked for casual leave and some kind of leave. The respondents in that situation, did not implement the above said circulars and vide Annexure-P/23 dated 21/10/1987 it was directed by the Board that the employees who had participated in the rally dated 9/9/1987 should be sanctioned casual leave or earned leave to which they are entitled. Thus, the petitioners are also entitled for the similar treatment.
6. After having heard learned Counsel for the parties, I am of the view that this petition deserves to be dismissed.
7. It has not at all been disputed by learned Counsel for the petitioners that before going to Dharna and pen down strike and absenting from the work, no notice as required under the law was given and, thus, it can be said that it was an illegal strike. Merely because on earlier occasion on 9/9/1987 the employees took part in the rally and they were permitted to take casual leave or earned leave vide Annexure-P/23 dated 21/10/1987 by the Board would not confer any right in the petitioners because Article 14 of the Constitution of India cannot be given effect to in a negative manner. In this regard I may profitably rely the decisions of Supreme Court, they are Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and Ors. , Arikaravula Sanyasi Raju v. Branch Manager, SBI and Shri Jagannath Temple Puri Management Committee v. Chintamani Khuntia and Ors. . In the case of Arikaravuia Sanyasi Raju (supra), it was held by the Apex Court that the grant of pension dehors the rules in a case, cannot be a ground for others to claim pension on the ground of parity with such a case. Similarly in the case of Daulatmal Jain and Ors. (supra) it has been held that if some persons have derived benefit illegally, other similarly circumstanced cannot claim the same benefit on the ground of equality as that would amount to perpetuating the illegality through judicial process which Court cannot do. In the case of Chintamani Khuntia and Ors. (supra) again the same principle has been reiterated by the Apex Court holding that merely because by mistake a person has been conferred some benefit, others cannot allege discriminatory treatment in violation of Article 14 of the Constitution of India. Thus, even if some wrong action was taken by the Board in allowing those persons to take casual leave or earned leave, would not confer any right in the present petitioners in order to pray that they may also be permitted to obtain casual leave or earned leave.
8. Apart from this, as argued by Shri Jaiswal, learned senior counsel appearing for the respondents that the rally on 9/9/1987 was arranged to emphasis their demand and it was organised after the duty hours and for a limited period for an hours or two without effecting the working of the department and, therefore, the decision was taken by the Board to sanction the leave to those persons who took part in the rally. But, the case of rally of 9/9/1987 cannot be compared to the present factual scenario because in the present case there was a Dharna, Hunger Strike and Pen Down strike and the petitioners absented themselves from the work during the period 18/10/1993 to 26/10/1993. By inviting my attention to the decision of Bank of India v. T.S. Kelawala and Ors. , it has been submitted by Shri Jaiswal, learned senior counsel for the respondents, that even if there is no contract, Standing Orders or the service rules/regulations are silent on the subject, the management has the power to deduct the wages for absence hours of duty when the absence is a concerted action on the part of the employees and the absence is not disputed. It has been further submitted by placing reliance on this decision that whether the deduction from the wages will be pro rata for the period of absence only or will be for a longer period will depend upon the facts of each case such as whether there was any work to be done in the said period and whether it was accepted and acquiesced in and in that situation reduction of salary for the whole day cannot be said to be unjustified. The view of this Court is that there is merit in the contention. The Supreme Court in the said case of T.S. Kelawala and Ors. (supra) specifically held that where the employees strike only for some hours but there is no work for the rest of the day, the employer in the such a situation may be justified in deducting the salary for the whole day. The Apex Court further held that the employees may put in work after the strike hours and the employer may accept or acquiesce in it. In that case the employer may not be entitled to deduct wages at all or may entitle to deduct them only for the hours of strike. In the given case in hand there are circulars of the Board Annexure-R/5 and R/6 in that regard and, therefore, the wages have rightly been deducted by the respondents. Similar is the view of the Apex Court in the case of H.M.T. Ltd. v. H.M.T. Head Office Employees' Assocn and Ors. . By placing reliance on these two decisions it cannot be said that the action of the respondents deducting the wages is arbitrary or unreasonable.
9. This petition is found to be bereft of any substance and the same is hereby dismissed with no order as to costs.