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Cites 2 docs
Bank Of India vs T.S. Kelawala And Ors.Withs.U. ... on 4 May, 1990
The Payment of Wages Act, 1936

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Kerala High Court
Manager, Reserve Bank Of India vs V. Raveendran, Secretary, ... on 2 March, 2000
Equivalent citations: 2001 (88) FLR 391, (2000) IIILLJ 176 Ker
Author: M H Nair
Bench: M H Nair

ORDER

M.R. Hariharan Nair, J.

1. The common question that arises in these Original Petitions is the validity of the order issued by the employer-Reserve Bank of India cutting a full day's wage for partial strike held by its employees. In O.P. No. 8748 the strike involved was from 11-30 a.m. to 2-00 p.m. on October 5, 1990 whereas in O.P. No. 9075/1993 it was from 1-00 p. m. to 2-00 p. m. on March 7, 1991.

2. The working hours in the Bank's cash and customer related sections, it is not disputed would expire by 2-00 p.m. everyday. The contention of the respondents, who arc the workmen of the Reserve Bank of India, Trivandrum and the members of the Reserve Bank Employees' Association, is that since there was work turned out atleast for part of the day, on the above dates, there is no justification for cutting the entire day's wage for a partial strike and that only a pro-rata cut would have been justified.

3. What is under challenge in both these cases is the validity of Ext. P3 award of the Industrial Tribunal, Kollam holding that the Management, (Reserve Bank of India) is not justified in regularising the absence of employees for a part of the particular day by treating it as 'extraordinary leave without pay and allowances not counting for increment' and declaring that the workers would be entitled to get the pro-rata wages on that day.

4. The management relied on Ext. Ml circular issued by the Reserve Bank of India on July 6, 1988 informing the workmen that if employees working in the departments dealing with the public, do not discharge their duties as a part of concerted action or otherwise during the business hours, and thereby cause disruption in public service even for a part of the business hours, such employees will not be paid pay and allowances for the whole day, even if they have performed duties during the remaining part of the day. Reliance is also placed on Ext. M2 office order issued by the Reserve Bank of India, Trivandrum Office on July 23, 1998 conveying the very same decision to the employees. The departments of the Bank which are affected by the decision have also been specified in Ext. M2. The contention is that though the employees worked in part on the relevant days, by virtue of the operation of the aforesaid circulars, they have deprived themselves of the right to get any portion of the day's wages.

5. The learned counsel appearing for the respondents in these two cases, during hearing, relied on the decision in Bank of India v. T.S. Kelawala 1990 (4) SCC 744 : 1990-II-LLJ-39 as also on an unreported decision of the Madras High Court passed in Writ Petition Nos. 10241/1982, 994 and 1995/1983 and 4707, 4710 and 4925/1981 to contend that if the employees have worked at least in part, the Management would be disentitled to cut the whole day's wages. It was also argued that by allowing the employees to work in part the Management has acquiesced in the action of the employees and as such only pro-rata cut can be implemented.

6. It is obvious from the decision in Kelawala's case (supra) that the strike that arose in that case though not governed by any service rules or regulations, was governed by warnings and circulars specifying that the Management would be cutting the full day's wages in the case of strike. The circular had specified that even for partial strike the full day's wages would be cut and that workers need not report for duty for the rest of the working hours on the day of strike. The employees, however struck work for the 4 hours (banking hours) as announced, but resumed attendance thereafter. The Bank did not prevent them from doing so. It was found that the Bank, in the circumstances, was not bound to pay either full day's salary or even pro-rata salary for the period when remained in the office without doing any work. A perusal of para 4 of the said judgment makes it clear that what was considered by the Supreme Court was whether notwithstanding the absence of a term in the contract of employment or of a provision in the service rules or regulations, whether an employer would be entitled to deduct wages for the period that the employees refused to work, although work was offered to them.

7. In the instant case Exts. M1 and M2 marked by the Industrial Tribunal show that definite directions governing the matter had been issued specifying that even for strike for a part of the day the Management would be cutting the entire day's wages. I am of the view that the Industrial Tribunal was wrong in finding that cutting of wages for the full day, made in the instant case, was irregular on the principles laid down in Kelawala's case (supra).

8. In para 13 of the judgment in Kelawala's case (supra) itself the Supreme Court has referred to a catena of decisions which take the view that it is not only permissible for the employer to deduct wages for the hours or the days for which the employees were absent from duty, but it is also permissible to deduct wages for the whole day even if the absence is only for a few hours. In paras 22 and 24 the Supreme Court summarised the legal position as follows in 1990-II-LLJ-39 at 49:

"22. Where the contract, Standing Orders or the service rules/regulations are silent on the subject, the management has the power to deduct wages for absence from duty when the absence is a concerted action on the part of the employees and the absence is not disputed. Whether the deduction from 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, whether the work was in fact done and whether it was accepted and acquiesced in, etc.

23. xx xx xx xx

24. When the contract, Standing Orders, or the service rules/regulations are silent, but enactment such as the Payment of Wages Act providing for wage cuts for the absence from duty is applicable to the establishment concerned, the wages can be deducted even under the provisions of such enactment."

9. In para 28 the Supreme Court further made the position clear by holding that whether wages are deductible at all and to what extent will, however, depend on the facts of each case and that even if the employees may strike only for some hours; if there is no work for the rest of the day (as it was in Kelawala 's case (supra) the employer would be justified in deducting salary for the whole day. On the other hand, the employees may put in work after the strike hours and the employer may accept it or acquiesce it. In that case the employer may not be entitled to deduct wages in full or even the pro-rata wages for the hours of strike.

10. In the instant case the question of acquiescence does not arise because here is a case where the employees worked for certain time and then struck work. The principle of acquiescence was considered in Kelawala's case (supra) because the strike that arose in that case was in the forenoon and the Management admitted the workers and allowed them to be in the office in the afternoon. The question of granting such permission did not arise in the present case as the work had already been done in part in the forenoon (upto 11-30 a.m. on October 5, 1990 and upto 1-00 p.m. on March 7, 1991) and thereafter, they got themselves out of work. It may be mentioned here that in consequence of the respondent's partial work during the working hours there remained work to be done for the rest of the working hours albeit most of it was non-banking hours. Thus in the present case the management lost work in consequence of the partial strike. The consequences mentioned in the circular have therefore to follow.

11. Shenoyv. Central Bank of India 1984 Lab IC 1493 also went into the question whether the Management can cut the full day's wages where the strike was only partial. The Bench, which considered the question, answered it in favour of the Management. It was held that the question is whether they discharged their duty for the full day as the day is the unit of the contract of employment. According to me the principles laid down in Kelawala's case (supra) do not indicate to the contrary. The question is not whether they discharged their duty in part; but whether they failed to work for any part. Viewed from that perspective, the answer that can be given is that there was failure on the part of the employees to comply with the directions in Exts. Ml and M2 circulars marked by the Industrial Tribunal and consequent exposure to the consequences enumerated therein. The action of the management in cutting the full day's wages is therefore justified and the impugned decision of the Industrial Tribunal, made without properly understanding the principles laid down in Kelawala's case as also the impact of Exts.M1 and M2 on the employees on the facts of this case is unjustified.

12. The original Petitions are, hence, allowed and Ext. P8 award passed in these two cases are set aside.

13. It is declared that the employees of the Bank who struck work on October 5, 1990 and March 7, 1991 respectively as per details in O.P. Nos. 8748/1993 and 9075/1993 are not entitled to any wages for the respective days and that the action of the Bank in effecting full day's wage cut for the said days is correct and legal .