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1981 IILLJ 367 Mad
S N Sundaram
R. Rajamanickam, For Himself And On Behalf Of Ors. Award Staff
Versus
Indian Bank
Decided on: 1/10/1981
.
INDUSTRIAL DISPUTES ACT - WAGES - DEDUCTION - NO WORK NO PAY - AWARD STAFF - STRIKE - LOCK-OUT - CONTRACT OF EMPLOYMENT - INDIVISIBLE - BI-PARTITE SETTLEMENT - LEAVE RULES - ABSENCE FROM DUTY - LOSS OF PAY AND ALLOWANCES - ALTERNATIVE REMEDY - WRIT JURISDICTION - INDUSTRIAL DISPUTE - ELECTION OF SUITOR - GENERAL LAW - CIVIL COURT JURISDICTION.
Fact of the Case:
The petitioner, an Award Staff working in the Harbour Branch of the respondent Bank, participated in a demonstration for limited hours in December, 1977, demanding revision of wages and other service conditions and payment of bonus. The respondent Bank issued a circular directing the employees to report for duty for the rest of the working hours on that day. The petitioner and other Award Staff reported for duty at 2 P.M. on that day, but the branch offices of the respondent Bank refused to allow them to work. On 3-1-1978, the respondent Bank issued another circular stating that the employees who resorted to various agitational methods such as work-to-rule, go-slow, refusal to work overtime, etc., would be disentitled to pay and allowances for the full days on which they resorted to such action. The petitioner challenged the circular and prayed for a direction to the respondent Bank to give full credit to the salaries of the petitioner and other Award Staff, deducted under the circular in the month of December, 1977.
Finding of the Court:
The Court held that the petitioner and the other Award Staff did not render any service in any part of the day in question. For four hours they abstained from work, committing a breach of the contract of service, which must deem to contemplate service being rendered for the whole of the day. Rightly, the respondent Bank treated them in breach, did not acquiesce in the same, and declined to permit them to work for the rest of the working hours. The result is there was no service rendered by the employees for the whole day in question. Hence the rule "no work, no pay" squarely applied.
Issues: 1. Whether the respondent Bank was justified in deducting the salary for the day in question, viz., 29-12-1977? 2. Whether the petitioner and the other Award Staff should have resorted to the process under the Industrial Disputes Act instead of straightaway resorting to the process under Art. 226 of the Constitution of India?
Ratio Decidendi: 1. The Court held that the principle "no work, no pay" should be applied in cases where employees abstain from work for a part of the day. The Court reasoned that it is inequitable to compel the employer to pay the employee when he has not worked to earn his wages. The Court also held that the contract of employment is indivisible and cannot be divided into number of days or number of hours and minutes. 2. The Court held that the existence of an alternative remedy is not a bar taken into consideration for exercising the writ jurisdiction. The Court reasoned that the question that has come up for consideration in the instance case requires an answer not on any facts, complex or otherwise, but purely on principle.
Final Decision: The Court dismissed the writ petition, holding that the action taken by the respondent Bank was tenable.
1. The prayer in the writ petition is for the issue of a writ of certiorarified mandamus, quashing the circular No. 2/8 dated 3-1-1978 issued by the Personnel Department of the respondent-Bank and directing them to give full credit to the salaries of the petitioner and other Award Staff affected under the circular in the month of December, 1977 in the petitioner's and other Award Staff's respective accounts in the respondent-Bank, without any deductions as stated in the circular dated 3-1-1978 issued by the Personnel Department of the respondent-Bank.
2. The prayer has come to be projected on the background of the following facts : The respondent-Bank is a nationalised Bank. The petitioner was an Award Staff working in the Harbour Branch of the respondent-Bank as a cashier. Pursuant to a call given by the All India Bank Employees' Association, the employees (Award Staff of all Nationalised Banks in the country) proposed to stage a demonstration for limited hours in December, 1977, demanding revision of wages and other service conditions any payment of bonus. With regard to the said proposed agitation, the respondent-Bank issued a Circular No. 225/77 dated 27-12-1977, [addressed to all its branches and runs as follows :-
Circular No. 225/77
Dated 27th Dec. 1977
Circular to All Branches in
India/DMS/RMS/AGMS or Regions
Heads of Departments.
Dear Sir,
Re : Proposed Agitation by Award Staff Members on 29th and 30th of this month and on certain dates in January, 1978."
You may be aware that the Federation of Indian Bank Employees' Union and India Bank Staff Union have directed their members to go on strike for 4 hours on 29th from commencement of business hours and for a full day on 30th of this month and on certain other dates in future.
3. In this connection please put up a notice in you Staff Notice Board as per draft enclosed. The employees who abstained from duty for 4 hours from commencement of working hours on 29th of this month need not be permitted to report for duty for the rest of the working hours of that day.
4. Please also follow our instructions meticulously given by us in our Circular No. 110/77, 135/77, and 192/77 dated 7-7-1977, 18-8-1977 and 18-11-1977 respectively.
5. The draft of the notice enclosed along with the said circular reads as follows :
"Notice to Members of Award Staff.
.....
Notice is hereby given on behalf of the Bank to all employees who propose to strike work that the Bank has employed them to perform a day work from and during their normal hours of work on working day of the Bank except when authorised to remain away. If any employee of the Bank does not report for work or does not work during any part of his working hours he will be in breach of his contract of service and will not earn salary for that day and consequently need not report for work for the rest of the working hours that day. The Bank management is not bound to issue this notice. Nevertheless the Bank has considered it desirable to advise the employees of their contractual obligations.
"Manager."
6. The agitation was prosecuted on 29-12-1977 and the Award Staff in the respondent Bank in the country did not attend the office for four hours from commencement of business hours, viz., 10 a.m. and participated in the demonstration. The demonstration lasted for a limited period of four hours. Thereafter, the petitioner and the other Award Staff are stated to have reported for duty at 2 P.M. on that day. But, the branch offices of the respondent Bank refused to allow the petitioner and other Award Staff to work on that day, as directed by the respondent-Bank in the above Circular No. 225/77 dated 27-12-1977.
7. On 3-1-1978, the respondent - Bank issued Circular No. 2/78 to all its branches and its text runs as follows :
"To All Branches in India/DMS/RMS/AGMS/of Regions/Heads of Departments in Head Office.
Dear Sir,
In response to a direction given by the All India Bank Employees' Association and its affiliated units it is likely in the guise of with
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