Non-payment of salary for the period of absence from work cannot be held deduction of salary.

1. On 20.7.1990 there was a bandh initiated by the State Government itself. The petitioner-management did not declare holiday. Except 24 employees, other employees did not report for duty. So, the management did not pay the salary to the employees, who did not report for work on the said date. On that basis as many as 66 employees filed an application before the Deputy Commissioner of Labour, Tirunelveli in Application No.44 of 1990. The other set of employees 101 in number filed another application in Application No.36 of 1990. The said applications were filed under the provisions of the Payment of Wages Act, 1936, on the ground that the deduction of salary for the said date was illegal. The Deputy Commissioner of Labour allowed the applications, accepting the case of the employees. Aggrieved, the petitioner management filed appeal in Appeal Nos.78 and 79 of 1992. Even the learned District Judge, Nagercoil on extraneous consideration of facts, dismissed the appeals. Still aggrieved, the petitioner-management has filed the above revisions.

2. The only reason that has been stated in the application field by the employees was that the Government declared 20.7.1990 as holiday with wages and so they are entitled for the wages. Unfortunately, the Deputy Commissioner of Labour and the learned District Judge proceeded on the basis that conducting bandh is a matter of right and that the petitioner-management should have declared that day as a holiday, when the Government itself sponsored the said bandh. The learned District Judge unfortunately accepted the argument that everybody should participate in the bandh, when the Government sponsoring the same, whether one likes it or not. The further reason given by the learned District Judge was that if such participation is not there, then there will be a law and order problem. I am not able to see any substance in the said finding. When the State Government is having a duty to maintain law and order problem, merely because somebody is not participating in the bandh it cannot be said that there will be a law and order problem. From a reading of the order and the pleadings, it is very clear that the employees could not report for duty not due to some compelling circumstances, and they did not attend the work only because they had participated in the bandh. It is also relevant to mention here that as many as 24 employees had attended the work.

3. The learned counsel appearing for the petitioner has rightly submitted that when the employees are able to attend the work, and also in view of the fact that the management did not declare that day as holiday, it is the duty of the employees to attend the work, or they have to lose their salary. Since the employees had not attended the work, as rightly submitted by the learned counsel for the petitioner, the petitioner-management sustained loss of production, and, at the same time, the employees cannot insist for salary. He has also submitted, according to me which is sustainable, that if the employees want to participate in the bandh, they must be ready to lose their benefit also. They cannot participate in the bandh at the costs of the employer. The learned counsel appearing for the respondents have submitted, relying on the decision in Pandian Roadways Corporation Ltd. v. Principal District Judge (1996)2 L.L.J. 205that absence from work is not wilful, but due to the bandh. In the absence of any pleading to the effect that beyond their control, the employees could not attend the work, the absence should be construed only as wilful. So, the said decision cannot be relied on to the facts of the present case. It is also not the case of the respondents that the management had declared holiday on that date.

4. Sec.2(vi) of the Payment of Wages Act, reads as follows:

“‘wages’ means all remuneration (whether by way of salary, allowances or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employ