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High Court Of Calcutta
A. M. Bhattacharjee, Ajit Kumar Nayak
STATE BANK OF INDIA - Appellant
Versus
AMAL KUMAR SEN - Respondent
A. O. D. 3138 Of 1986
Decided On : 12/24/1987
SOCIAL JUSTICE - WAGE-CUT - INTERPRETATION OF FACTS AND LAWS - INJUNCTION - BALANCE OF CONVENIENCE - EMPLOYEES' INTERESTS PROTECTED.
Fact of the Case:
Employees alleged that the Bank illegally decided to deduct one day's salary for not working for several hours on a particular day. The Bank claimed the right to deduct wages for unauthorized absence from work.
Finding of the Court:
The court found that the question of whether the employees worked or abstained from work was a disputed question of fact and could not be decided on the materials on record. The court also found that there was a conflict in the case law on whether pro rata wage-cut could be resorted to for monthly-salaried employees who abstained from work.
Issues: 1. Whether the employees worked or abstained from work on the day in question. 2. Whether the employer could resort to pro rata wage-cut for that day without resorting to any disciplinary proceeding.
Ratio Decidendi: 1. The court held that if two interpretations are reasonably possible, whether of the facts or the laws involved, the interpretation in favor of the weaker or the poorer section is to be adopted to ensure social justice. 2. The court found that the balance of convenience and inconvenience would be in favor of the employees, as the deduction of wages would cause more injury to them than the temporary prevention of such deduction would cause to the employer.
Final Decision: The court dismissed the appeal and confirmed the impugned order of temporary injunction passed by the learned Chief Judge.
( 1 ) A. M. Bhattacharjee, J.- We dismiss this appeal and affirm the order of temporary injunction granted by the learned Chief Judge, City Civil Court, Calcutta. But a few prefatory words by way of introduction before we proceed to state our reasons.
( 2 ) OUR resolve in the Preamble to our Constitution to secure 'social Justice' to all must not be taken to be a mere sonorous prelude to a grandiloquent parchment. Because in the Directive Principles of State Policy also, which have been declared in Article 37 to be "fundamental in the governance of the country", 'the State' in Article 38, has been categorically commanded "to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order", in which 'social Justice' "shall inform all the institutions of the national life".
( 3 ) JURISTS have very often indulged in metaphysical hyper-boles and legal verbomania in mystifying the concept of Justice. Even Lord Denning has said only the other day in his "the Road to Justice" (1955 - page 4) that "the question, 'what is Justice?' has been asked by many men far wiser than you or me and no one has yet found a satisfactory answer". According to the Socialist thinkers, however, all these obfuscations about Justice have been deliberately done by or at the behest of the ruling class so that those who are ruled may remain confused and may not, therefore, take up y bellicose attitude to demand Justice.
( 4 ) WE have no doubt that in the Indian context, in the class-ridden Society that we live in, 'social Justice' should mean Justice to the weaker and poorer section of the Society and in the light of the Preamble to our Constitution, where we have resolved to secure to all "economic Justice" also and "equality of Status and Opportunity", securing 'justice' would mean securing that to the weaker and the poorer section which would make them Equal with the rest of the Society.
( 5 ) AS we have already noted, Article 38 mandates the 'state to secure and protect 'social Justice' and as would be evident from the definition of the expression 'state' in Article 36 read with Article 12 of the Constitution, and as has been pointed out by Mathew, J. in Kesavananda Bharati (A. I. R. 1973 S. C. 1461 at 1949), all the organs of the State, 'including the Judiciary', are under the constitutional obligation to secure, protect and administer 'social Justice'. This being our Constitutional ethos, the least the Judiciary can do is to evolve a new Jurisprudence, a new consequential juristic principle to be applied to our forensic adjudicatory process, to ensure administration and advancement of 'social Justice'. Commenting on the system of trial that is operating in India known as ",adversary System of Trial", Justice Krishna Iyer has once observed thus, though extra-Judicially in a Paper presented to the Third International Conference of Appellate Judges in New Delhi in 1984: -"adversarial process is gladiatorial justice, the strong win the bout, the weak lose it with punched nose, bleeding face and. broken head. The (robed) Umpire is uninterested in the justice of' the cause but forbids violation of the boxing rules (called law) and there ends his duty. This neatly fits into the capitalistic ethic of industrialist and worker fighting without any special consideration for the weaker party, the bonded serf and the feudal chief disputing in a far-off court equally free to bring lawyers. Both have equal chance and if 'might' proves itself 'right' because of the uneven fight, the Judge says the system is 'that' and be is a part of the system. Is the Proletariat equal in the contest to the Proprietariat in presenting, proving and pressing the rival cases right upto the forensic apex? Is the poor debtor as against the money lender, the prisoner as against the jailor; the handicapped as against the hefty, the deserted wife as against the brutal husband, the low-caste pariah as 'against the hi
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