Lt. Governor Government Of Nct Of ... vs Delhi Flood Control Mazdoor Union ...
2006 Latest Caselaw 1292 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. This writ petition has been directed against the award dated 13.1.1997 passed by Industrial Tribunal whereby it held that the workers were entitled to wages for the strike period from 2.2.1988 to 20.4.1988.

2. Brief facts relevant for purpose of deciding this writ petition are that Flood Control Department of the petitioner employed daily wagers and work charge employees for doing the duty of flood control. The employees formed a union which is respondent No. 1 in this case. This union had been agitating for redressal of demands of its members i.e. daily wagers and work charge employees. As a result of the efforts of respondent No. 1, a settlement was arrived at between the Government and the union before the conciliation officer and a memorandum of settlement under Section 12(3) of Industrial Disputes Act was signed on 6.11.1986. According to this settlement, the workmen were to be regularized in phased manner according to their seniority as and when regular vacancies were created by the Government. The Government was supposed to create regular vacancies keeping in view the work and requirement of regular employees. The Government had also agreed to provide other facilities and benefits. However, some of the employees went on strike on 2.2.1988 and continued to remain absent from duty till 20th April, 1988. The management deducted their wages for this period on the principle of " no work no pay" which led to raising of an industrial dispute by the union.

3. Department took the plea that the strike of respondents was illegal and the majority of employees affiliated with recognized union had not gone on strike. Rival Union of striking employees was not recognized. Therefore, the management applied the rule of "no work no pay". The striking employees resumed duty of their own without any assurance from the management.

4. The claim of the rival union was that strike was legal and justified because the settlement arrived at between the workers and management was not being implemented.

5. The Tribunal arrived at a conclusion that since Flood Control Department had partially implemented the demands of the workers and there was no explanation given by the Union of India as to why the memorandum of settlement had not been fully implemented, the strike of the workmen was justified. It also observed that Union of India had not claimed that strike by the workmen was in contravention of the provisions of Section 2 to 24 of the Act or any other law or the terms of their employment. The Tribunal held that the strike could not be said to be illegal in any manner and, therefore, the workmen who had gone on strike were not entitled for the wages of the strike period.

6. I have heard the arguments and perused the record. It is undisputed that the petitioner had entered into an agreement with the recognized union of the workmen and as per this agreement, the petitioner had conceded to some of the demands. These conceded demands, were regularization of staff in work charge establishment, conversion of certain category of staff from work charge to regular establishment and issuance of Polarized I-Cards to work charge staff etc etc. It is undisputed and has been recorded by the Tribunal that for early implementation of the settlement, a committee was constituted by the department and the committee was to give its report by the end of January, 1988. It is also undisputed that part of demands as agreed in the settlement had already been implemented by the Government and other demands were being implemented in phased manner. It is also undisputed that only a few employees who were members of rival group had gone on strike and they returned to duty voluntarily without any assurance from the Government.

7. In Canara Bank and Ors. v. R. Jambunathan and Ors. 1994 5 SCC 573 Supreme Court held:

There is, therefore, nothing in the decisions of this Court in Churakulam Tea Estate and Crompton Greaves cases or other earlier decisions cited above which is contrary to the view taken in T.S. Kelawala . What is held in the said decisions is that to entitle the workmen to the wages for the strike period, the strike has both to be legal and justified. In other words, if the strike is only legal but not justified or if the strike is illegal though justified, the workers are not entitled to the wages for the strike period. In fact, in India General Navigation case the Court has taken the view that a strike which is illegal cannot at the same time be justifiable. According to that view, in all cases or illegal strike, the employer is entitled to deduct wages for the period of strike and also to take disciplinary action. This is particularly so in public utility services. (para 24)

We, therefore, hold endorsing the view taken in T.S. Kelawala that the workers are not entitled to wages for the strike period even if the strike is legal. To be entitled to the wages for the strike period, the strike has to be both legal and justified. Whether the strike is legal or justified are questions of fact to be decided on the evidence on record. Under the Act, the question has to be decided by the industrial adjudicator, it being an industrial dispute within the meaning of the Act. (para 25)

8. In this case the bank employees had resorted to strike and worked only for some hours in a day and the Court held that bank could deduct wages for whole of the day on which employees were on strike for some hours. In Bank of India v. T.S. Kelawala (1990) 4 SCC 744, Supreme Court held:

The Principal question involved in the case, according to us, is notwithstanding the absence of a term in the contract of employment or a provision in the service rules or regulations, whether an employer is entitled to deduct wages for the period that the employees refuse to work although the work is offered to them. The deliberate refusal to work may be the result of various actions on their part such as a sit-in or stay-in strike at the workplace or a strike whether legal or illegal, or a go-slow tactics. The deliberate refusal to work further may be legal or illegal as when the employees go on a legal or illegal strike. The legality of strike does not always exempt the employees from the deduction of their salaries for the period of strike. It only saves them from a disciplinary action since a legal strike is recognized as a legitimate weapon in the hands of the workers to redress their grievances. It appears to us that this confusion between the strike as a legitimate weapon in the hands of of the workmen and the liability of deduction of wages incurred on account of it, whether the strike is legal or illegal, has been responsible for the approach the High Court has taken in the matter. (para 4)

The principles which emerge from the aforesaid authorities may now be stated. 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. (para 22)

The third fallacy was to equate disputed individual conduct with admitted mass conduct. A disciplinary proceeding is neither necessary nor feasible in the latter case. The contract of employment, Standing Orders or the service rules provide for disciplinary proceedings for the lapse on the part of a particular individual or individuals when the misconduct is disputed. As things stand today, they do not provide a remedy for mass misconduct which is admitted or cannot be disputed. Hence, to drive the management to hold disciplinary proceedings even in such cases is neither necessary nor proper. The service conditions are not expected to visualize and provide for all situations. Hence, when they are silent on unexpected eventualities, the management should be deemed to have the requisite power to deal with them consistent with law and the other service conditions and to the extent it is reasonably necessary to do so. The pro rata deduction of wages is not an unreasonable exercise of power on such occasions. Whether on such occasions the wags are deductible at all and to what extent will, however, depend on the facts of each case. Although the employees may strike only for some hours but there is no work for the rest of the day as in the present case, the employer may 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 in it. In that case the employer may not be entitled to deduct wages at all or be entitled to deduct them only for the hours of strike. If further statutes such as the Payment of Wags Act or the State enactments like the Shops and Establishments Act apply, the employer maybe justified in deducting wags under their provisions. Even if they do not apply, nothing prevents the employer from taking guidance from the legislative wisdom contained in it to adopt measures on the lines outlined therein, when the contract of employment is silent on the subject.(para 28)

9. Despite the fact that the settlement between workers' union and the petitioner was being implemented and the petitioner was serious to implement the settlement so much so that a committee was constituted for earlier implementation of the settlement, the Tribunal came to conclusion that the strike was legal because there was only partial implementation of the settlement. I consider that the conclusion of the Tribunal was perverse and contrary to the facts on record. The settlement itself provided that regularization would be in a phased manner.

10. While considering the principle of "no work no pay", in case of the workmen being on strike, the Court has to consider all circumstances of the case and has also to consider the bona fide of the workmen and management. If there are two unions, one is recognized and the other is non recognized and the recognized union is not dormant but actively resorting to strike by some members of another union to gain popularity cannot be justified and for this reason only the decision to strike was not followed by the majority of the workmen, I consider the only conclusion which can be drawn is that the strike was unjustified and illegal and the strike was used as a tool, not for the welfare of the workmen but for welfare of few union leaders to enhance their own influence. Such a strike should not be encouraged and the workmen who resorted to such a strike, cannot claim wages for the strike period.

11. I allow the writ petition. The award of the Tribunal is set aside. The respondent workmen are not entitled for the wages for the period they remained on strike. No orders as to cost.