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R. Rajamanickam, for Himself and on Behalf of ors. Award Staff Vs. Indian Bank - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberW.P. No. 1529 of 1978
Judge
Reported in(1981)IILLJ367Mad
ActsIndustrial Disputes Act - Sections 2, 2-A, 4-A and 10; Constitution of India - Article 226; Employees State Insurance Act, 1948; Payment of Wages Act, 1936 - Sections 2; West Bengal Shops and Establishments Act, 1963; Tamil Nadu Shops and Establishments Act, 1947 - Sections 6
AppellantR. Rajamanickam, for Himself and on Behalf of ors. Award Staff
RespondentIndian Bank
Cases ReferredPremier Automobiles v. K. S. Wadke
Excerpt:
labour and industrial - breach of contract - sections 2, 2-a, 4-a and 10 of industrial disputes act, article 226 of constitution of india, employees state insurance act, 1948 and section 2 of payment of wages act, 1936 - petitioner challenged circular intending to deduct salaries of staff who participated in demonstration against bank for revision of wages and other service conditions - petitioner and other award staff did not render any service in any part of day in question - for four hours petitioner abstained from work committing breach of contract of service - respondent-bank rightly treated them in breach and did not acquiesce same - rule no work no pay applies to facts of case - action by respondent-bank tenable. - - employees are also put on notice that the bank has employed.....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.....
Judgment:

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 withdrawal of co-operation, the employees may resort to various sagitational methods such as work-to-rule, go-slow, refusal to work overtime, refusal to observe staggered or split duty hours, refusal to do jobs assigned to them, demonstrations/mass deputations meetings during working hours, etc. All such action would be in breach of the employees' contracts of service and consequently the concerned employees disentitle themselves to pay and allowances for the full days on which they resort to such action and as such no pay and allowances should be paid to them for the particular days. Cases of refusal by workmen, staff to work overtime within prescribed limit, when required may be proceeded with on the same basis as refusal of lawful and reasonable orders.

We enclose a draft of a notice to be displayed in the Office Staff Notice Board.'

The Draft of the notice referred in the Circular runs as follows :

'In Supersession of all prior notices on the subject but without prejudice to any action taken or which may hereafter be taken under such prior notices, all employees of the Bank are hereby reminded that their contract of service and the nature of their duties require their effective functioning for, and throughout, all their working hours on days on which the Bank is open (except for authorised absence) consequently, all employees are hereby put on notice that if any of them is or has been unauthorisedly absent even for a part of the day during the working hours fixed for him/her by the management, he/she will be in breach of his/her contract of service and, consequently, would not be entitled to that particular day's pay and allowances and as such no pay and allowances will be paid to him/her for that particular day.

Employees are also put on notice that the Bank has employed each of them to do a full day's normal work during the timings fixed for each of them by the Bank and any failure to do so will be in breach of their respective contracts of service, and, consequently such employee will not be entitled to that particular day's pay and allowances and as such no pay and allowances will be paid to him/her for that particular day.

The employees are further put on notice that management has a right to require any workman staff to work overtime within prescribed limits and any workman who refused to work overtime when required by the management, will render himself liable for disciplinary action'.

The petitioner challenges the circular No. 2/78 dated 3-1-1978 and prays for direction to the respondent-Bank to give full credit to the salaries of the petitioner and other Award Staff, deduced under the above circular in the month of December, 1977.

8. Mr. K. Chandru, learned counsel appearing for the petitioner, would submit that the contract of employment is one whole and indivisible : it is on monthly basis and cannot be divided into number of days or number of hours and minutes; and the respondent-Bank has no right to deduct the salary of an employee, if an employee is absent for a part of the day. Learned counsel further states that if an employee absents himself without authority for a part of the day, the only remedy available to the respondent-Bank would be to proceed against such employee for misconduct or for breach of contract after satisfying the appropriate formalities including those of Industrial Disputes Act. Learned counsel places strong reliance on the judgment of Padmanabhan, J. in V. Ganesan v. State Bank of India, : (1981)ILLJ64Mad . I shall presently refer to the ratio decidendi of the said decision, while discussing the aspects of the present case.

9. On the other hand, Mr. Venkataraman, learned counsel appearing for the respondent-Bank, would submit that the principle to be adopted is 'No work - No pay' and in the instant case, the Award Staff of the respondent-Bank, including the petitioner, did not work for the day in question and hence, they cannot claim salary for that day. Learned counsel would further submit that the action on the part of the Award Staff in abstaining from work even for four hours on the day in question would amount to a strike within the meaning of S. 2(q) of the Industrial Disputes Act, hereinafter referred to as the Act; the said strike was an illegal strike and the question, whether the respondent-Bank was justified in effecting the wage cut for 29-12-1977 is essentially a matter to be decided by a competent Court constituted under the Act and on a reference to be made by the appropriate Government in this behalf and the petitioner and the other. Award Staff could not invoke the jurisdiction of this Court under Art. 226 of the Constitution of India for the reliefs prayed for by them. According to the learned counsel, the respondent-Bank legitimately declined to permit the petitioner and the other Award Staff to work for the rest of the day and the same could even be termed as justified lock-out for that part of the day by the respondent-Bank; the respondent-Bank had not acquiesced in the breach of the contract of employment committed by the petitioner and the other Award Staff by allowing them to work for the rest of the day, and these questions will have to be properly agitated and adjudicated upon through and in a properly raised industrial dispute.

10. It is now admitted that the Award Staff of the respondent-Bank throughout the country did not attend office for four hours from the commencement of working hours on 29-12-1977. The total hours of work a day are 6 1/2 hours. The respondent-Bank, as per the circulars issued, refused employment to the Award Staff for the rest of the day on 29-12-1977. Hence, the impugned circular has relevancy for the present case only to the abstention from work for four hours by the Award Staff of the respondent-Bank on 29-12-1977 and the consequent refusal of employment for the rest of the day by the respondent-Bank and its refusal to pay the salary to the petitioner and the other Award Staff for 29-12-1977.

11. It is true that a contention has been raised by the respondent-Bank the agitation for the relief asked for in the present writ petition should be done only by raising an industrial dispute and not by straightaway resorting to the process under Art. 226 of the Constitution of India. In other words, the respondent-Bank would urge that the petitioner and the other Award Staff have got an effective alternative remedy and on this ground this Court should decline to go into the questions and dismiss the writ petition. Since I am of the view that in the instant case, it is not proper to dismiss the writ petition on the ground that the petitioner and the other Award Staff should resort to the process under the Industrial Disputes Act - and I shall give the reasons therefor subsequently - I propose to deal with the other substantial question as to whether the respondent-Bank is justified in deducting the salary for the day in question, viz., 29-12-1977.

12. At the first blush the rule which would normally appeal to any sense, judicial or common, is that it is inequitous besides being opposed to the norms of contractual obligations to make the employer pay the employee when the employee has not discharged his obligations under the contract with reference to the quantum of service expected to him. To put it the other way, it is not at all justifiable to make the employer pay for services not rendered by the employee. The development of law on this subject by judicial precedents, though not uniform, has, to a very great extent, recognised the rule 'No work, no pay'. It is worthwhile to refer to the judicial precedents placed before me in this connection to find out how Courts have viewed this problem.

13. In Chokalinga Mudaliar v. Mohomed Sherief Saib, : (1912)23MLJ680 , Sadasiva Aiyar, J., dealt with a case where the engagement of an employee was for one year from 1st April, 1908 to 31st March, 1909, he left the service without justification on 20th March, 1909; though the salary was fixed at Rs. 18 a month, the engagement was for one full year and his salary was agreed to be payable in a lumpsum of Rs. 216 at the end of the year. On a suit by the employee for recovery of the salary due to him from 1st April, 1908 to 20th March, 1909 at Rs. 18 a month or Rs. 216 a year, the first Court held that the employee lost all right to wages for the 11 months and 20 days during which he actually worked. The first Court followed the rule of law established by English decisions, which is to the effect that the contract must be deemed an entire indivisible contract and the performance of the services for the whole time agreed upon was in the nature of a condition precedent to the right to recover even a portion of the wages. Sadasiva Aiyar, J., discussed the principles involved and ultimately held that the employee is entitled to recover wages for the 11 months during which he did service, there being no allegation in the written statement that by reason of his not working during the last 10 days of the stipulated period of one year, the employer sustained any damages, which he is entitled to set off. The learned Judge held that the Court should not be too strict in treating the contracts of service for a certain period and for a certain wages as indivisible; servants are entitled to wages for the full months during which they did service and that the presumption that the work agreed to be done is indivisible and the wages to be given for such work is also indivisible is not in most cases in conformity with equity. The ratio of the learned Judge is to the effect that the employee is entitled to be paid and the employer is bound to pay the wages for the periods during which the employee worked.

14. In Nutan Mills Ltd. v. Employees State Insurance Corporation, 1956 1 L.L.J. 215, a Division Bench of the High Court of Bombay, consisting of M. C. Chagla, C.J. and Dixit, J., had occasion to consider the question as to whether compensation for lay-off constitutes wages and on that basis, whether the employer is liable to pay special contribution under the Employees State Insurance Act 34 of 1948. The learned Judges found that during the period of lay-off the contract of employment, although not necessarily at an end, is not a subsisting and effective contract and if the contract of employment is suspended, then there is no obligation upon the employee to serve the employer, nor is there a reciprocal obligation upon the employer to pay wages. The learned Judges pointed out that the test is that the employee must be under an obligation to serve his master and consequently the employer must be under an obligation to pay wages and if the relationship of master and servant was suspended, then the suspension must involve the suspension of the payment of wages.

15. In Balasubrahmanya v. B. C. Patil, : (1958)ILLJ773SC , the question arose as to whether 'bonus' is 'wages' within the meaning of the payment of Wages Act. 1936, Vivian Bose, J., speaking for the Court, observed that remuneration is only a more formal version of 'payment' and payment is a recompense for service rendered.

16. In Anusuya v. J. H. Mehta, : (1959)IILLJ742Bom , a Division Bench of the High Court of Bombay, consisting of Chainani, C.J. and V. S. Desai, J., considered as to what the term 'wages' as defined in S. 2(vi) of the Payment of Wages Act, 1936 would mean and they laid down that three conditions must be satisfied. Firstly, it must be remuneration. Secondly, it must be payable if the terms of employment are fulfilled. Thirdly, it must be payable in respect of the employment or work done in such employment. The Division Bench placed reliance on the decision of the Supreme Court in Balasubrahmanya v. B. C. Patil, (supra)

17. In Employment Section v. Aslef (N.I.R.C.), (1972) 2 WLR (1962), the following observations of Lord Denning M.R. are really elucidative :

'Now I quite agree that a man is not bound positively to do more for his employer than his contract requires. He can withdraw his goodwill if he pleases. But what he must not do is wilfully to obstruct the employer as he goes about his business. That is plainly the case where a man is employed singly by a single employer. Take a homely instance, which I put in the course of argument. Suppose I employ a man to drive me to the station, I know there is sufficient time, so that I do not tell him to hurry. He drives me at a slower speed than he need, with the deliberate object of making me lose the train and I do lose it. He may say that he has performed the letter of the contract; he has driven me to the station : but he has wilfully made me lose the train, and that is a breach of contract beyond all doubt. And what is more, he is not entitled to be paid for the journey. He was broken the contract in a way that goes to the very root of the consideration; so he can recover nothing -

.............

'So much for the case when a man is employed singly. It is equally the case when he is employed, as one of many, to work in an undertaking which needs the service of all. If he, with the others, takes steps wilfully to disrupt the undertaking, to produce chaos so that it will not run as it should, then each one who is a party to those steps is guilty of a breach of his contract'.

M. K. Bose v. Bank of India, : (1977)IILLJ285Cal , Amarendra Nath Sen, J., of the High Court of Calcutta was considering a contention that in the absence of any specific provision in the contract of employment or in any statue, the employer-Bank has no authority to effect any cut in the salary. The question arose because the employer-Bank passed two orders deducting the wages of its employees on a pro rata basis for the time during which they were absent from their desks and participated in demonstrations. The learned Judge held that the contract of employment is not a divisible one, the consideration for payment of salary to the employee may be the service to be rendered by him, yet, the consideration is not related to any fixed period of work for any month; the consideration is one and indivisible and is not entirely dependent on the particular hours of work put in; and the failure or refusal on the part of the employee to do a fixed period of work on any particular day results in partial failure of the consideration in consequence whereof an employer may claim compensation against the employee, but the employer cannot claim the right to deduct any part of the salary on any pro rata basis or otherwise.

18. In contrast to the above proposition, we have the judgment of Sabyasachi Mukherjee, J., in Algemene Bank v. Central Govt. L.C., : (1978)IILLJ117Cal , and the learned judges held that wages were payments for the services rendered and deduction from wages pro rata for failure of consideration from the employee's side is permissible in law. To this case, the provisions of the West Bengal Shops and Establishments Act, 1963 applied.

19. In V. Ramachandran v. Indian Bank, : (1979)ILLJ122Mad , a Division Bench of this Court, to which I was a party, dealt with a case where an office bearer of the employees union, along with others working at Madurai, went on a deputation during office hours to the Branch Manager to protest against certain grievance and the Management, viewing it as disruption of the normal functioning of the Bank, effected a cut in the salary proportionately for the period of their abstention from duty. A question arose as to whether the principle 'no work, no pay' should be applied. It is true, it was not brought to our notice that the provisions of the Tamil Nadu Shops and Establishments Act, 1947 does not apply to the Bank in view of the exemption declared under S. 6 of the said Act by the Government. But, that does not alter the legal maxims expressly pronounced by us in that decision. The following observations in the said judgment need extracting, so that it can be expressed categorically that we had no ambiguity in our minds that the principle that has to be applied in cases of the present character should be 'no work, no pay' and in order to earn his wages an employee will have to do his duty and absence from duty undoubtedly will mean that the employee had not worked during the period of his absence :

'To our minds it appears the principle that has to be applied in cases of this character should be 'No work No pay'. On the application of this principle, it will naturally follow that an employee, in order to earn his wages, will have to do his duty. Absence from duty, undoubtedly, would mean that the employee had not worked during that period of absence.

... ... ...

It is on the basis (the basis being that the employees left their seats during office hours and returned after a gap of 15 minutes, disrupting the normal functioning of the branch which resulted in inconvenience to the public) that the deduction is sought to be made. In passing we may also note this is on the principle 'no work, no pay'. Having regard to these admitted facts, it is clear that the petitioner was absent from his place of work, namely, his seat.

... ... ...

Nor again, are we able to accept his argument that the contract is to pay salary and it is indivisible in character and, therefore, no question of deduction of wages could arise. This is because of the principle which we have enunciated earlier, namely, 'no work, no pay'

... ... ...

'Then again as Mr. Dolia points out, if an employee were to turn up for duty only just ten minutes before the office close, could it be said notwithstanding he being absent from duty for the major part of the working day, the remedy of the employer would be to sue for breach of contract and claim compensation In our considered view, it should not be so'.

The last of the passages extracted above clearly indicates that we repelled the contention that in those circumstances, the only remedy available to the employer is to see for breach of contract and claim compensation. We referred to the judgment of Sabyasachi, J, in Algemene Bank v. Central Government L.C., : (1978)IILLJ177Ker and we expressed our view that the said decision lays down the correct principle.

20. In Dharam Singh v. Bank of India, Bombay, (1978) Lab. I.C. 1079, a Division Bench of the High Court of Punjab & Haryana consisting of S. S. Sandhawalia, C.J. and Harbans Lal, J., held that the working hours of each day should be considered as one single unit and it could not be split up into several sub-units. The learned Judges further held that it is not reasonable and permissible to held that it is left to the free and unrestricted discretion of the employee to report for work at any time of the day and be at liberty to do work for any part of the day only at his whim and caprice and still enjoy the right so claim wages for the remaining part of the day.

21. Padma Khastgir, J., of the High Court of Calcutta, in Krishhnatosh Das Gupta v. Union of India, 1980 I L.L.J. 42, chose to hold that in order to deduct any amount from the salary, there must be specific rules relating to the contract of service of the person concerned.

22. In Apar (Pvt.) Ltd. v. S. R. Samant, : (1980)IILLJ344Bom , the question that arose for consideration before the Division Bench of the High Court of Bombay, consisting of Deshpande and Mohta, JJ., was as to whether the employer can unilaterally reduce the wages on the ground that the employees have adopted go-slow tactics in violation of the terms of the subsisting settlement. The Bench gave the answer stating that in the absence of a specific term in the settlement or statutory provision an employer has no right to reduce the wages or emoluments on the allegations that the workers had resorted to go-slow tactics or had not performed their part of the obligation in the settlement.

23. In V. Ganesan v. State Bank of India, : (1981)ILLJ64Mad , Padmanabhan, J., dealt with a case where the petitioners, all Bank employees, had staged demonstration for various periods of duration, on three days, during working hours and the management had deducted wages for the whole day irrespective of the duration of the demonstration and the petitioners challenged the deductions in writ petitions. One fact which had weighed with the learned Judge, to a very great extent is that on the days in question though the employees abstained from work for certain duration only, they were permitted by the Bank to resume the work for the rest of the working hours on those days. The learned Judge held that by permitting the employees to perform their work for the rest of the day and by accepting such performance, the Bank must be deemed to have acquiesced in the breach committed by the employees and in the light of the contention of the Bank that is a matter of pure contract of employment between the employees and the Bank and the employees have committed breach thereof, the Bank should have treated the contract as having been discharged by breach committed by the employees and this they did not do. On the other hand, they acquiesced in the breach which meant that in a sense they recognised the continuance of the contract and they allowed the employees to work and accepted performance of their part of the contract by the employees after becoming aware of the breach and it will be idle on the part of the Bank to contend that they were not bound to pay for the period for which the employees had worked. The learned Judge also opined that the contract of employment is one whole and indivisible and it is on a monthly basis and it cannot be divided into number of days or number of hours and minutes. In that case, there was a concession made by the counsel appearing for the employees that the Bank will be entitled to deduct the pro rata salary of the employees for the period of their absence from duty, but they will not be entitled to deduct the whole days salary. Reliefs were granted on the basis of this concession and the learned Judge made it clear that he has not considered the question whether the Bank will be entitled to deduct pro tata salary for the period of absence of an employee. The learned Judge did refer to the judgment of the Bench of this Court in V. Ramachandran v. Indian Bank, : (1979)ILLJ122Mad , but, he was not expressed any reason for not following the ratio of the Bench.

24. In the instant case, one significant aspect which cannot be omitted to be taken note of is the relevant clause in the bipartite settlement. Chapter 13 deals with leave rules. Clause 13.27 thereof reads as follows :

13.27 Any absence from duty without satisfying the requisite conditions under which leave may be taken or obtaining such leave on false grounds would justify any bank, after giving the employee an opportunity to explain, in not treating the employee as on casual leave but as being absent without leave on loss of pay and allowances'.

When the petitioner and the other Award Staff abstained from duty for 4 hours on 29-12-1977, the respondent-Bank did not acquiesce in the breach of the contract and chose to treat the contract of employment for the day as totally breached and declared that there will be no pay for the day in question. Hence, the aspect of acquiescence, which had very much weighed with Padmanabhan, J. in V. Ganesan v. State Bank of India, : (1981)ILLJ64Mad , is significantly absent in the present case. As stated earlier, it would be wholly inequitous to compel the employer to pay the employee when he has not worked to earn his wages. I am in entire agreement with the view expressed by Sadasiva Aiyar, J., in the earliest pronouncement in Chokalinga Mudaliar v. Mohomed Sherif Saib, : (1912)23MLJ680 , that the Court should not be too strict in treating the contract of service for ascertain period and for a certain wages as indivisible. After all, a man should work to earn his wages and if he has not worked, he cannot be permitted to claim wages by bringing in too technical a rule that the contract is indivisible and in the absence of statutory provisions and rules, the employer must pay out wages even though not earned by the employee by performance of actual work and the employer must seek his remedy only by claiming compensation elsewhere. Clause 13.27 of the bipartite settlement, to a very great extent, supports the stand of the respondent-Bank that absence from duty without satisfying the requisite conditions will be treated as absence without leave on loss of pay and allowances. It is not as if the employees in the present case were not put on notice about the proposed action, may be, it would be a good ground for disciplinary action, invoking the aid of clause 13.27 of the bipartite settlement. But the proposition 'no work, no pay' has been declared and settled without any ambiguity in V Ramachandran v. Indian Bank, : (1979)ILLJ122Mad , by the Division Bench if this Court. It cannot be stated that we expressed our views only on the basis that the provisions of the Tamil Nadu shops and Establishment Act, 1947 applied to the facts of that case. We were more on the general law that should apply to the stated situation. Admittedly, 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. As the matter stands, I am bound by the above pronouncement of the Division Bench. Viewed from this angle, I could not say that the action taken by the respondent Bank is wholly untenable and has got to be discountenanced.

25. Coming to the question of alternative remedy, the writ petition was admitted by this Court on 28-4-1878 and a rule nisi has been issued. It is not a case where an industrial dispute can be raised under S. 2-A of the Industrial Disputes Act, 1947. This Court having admitted the writ petition, it would not be in consonance with the well accepted principles to throw out the writ petition on the ground that alternative remedy ought to have been resorted to even if it is available, at the final hearing of the writ petition. The respondent-Bank at least ought to have been vigilant and ought to have taken steps immediately on service of notice for bringing this aspect to this Court and coveted a decision one way or the other on this question. The raising of an industrial dispute on the questions raised and getting them referred under S. 10 of the Industrial Disputes Act, 1947 are not matters of course and they cannot be claimed as of right and hence, it is not possible to consider that course as an effective alternative remedy and hold that the writ petition is barred on that ground. Learned counsel for the respondent-Bank draws my attention to a judgment of the Division Bench of the High Court of Allahabad in Munni Lal Sharma v. Executive Engineer, (1981) 43 F.L.R. 42, on this question, That was a case of termination of services of the petitioners, who were workmen within the meaning of that expression as defined in the U.P. Industrial Disputes Act and in that context, the learned Judges held that they have an adequate and effective alternative remedy under S. 4-A of the said Act.

26. In contrast, we have the judgment of the Division Bench of the High court of Delhi in Malkhan Singh v. Union of India, : (1981)IILLJ174Del , where it has been held that the word 'remedy' normally denotes a procedure to which an aggrieved person can resort as of right and the remedy under S. 10 of the Industrial Disputes Act, 1947, is not one available as of right. In the present case, dispute arises out of a right or liability under the general law and not strictly under the Industrial Disputes Act, 1947 and as pointed out by the Supreme Court in Premier Automobiles v. K. S. Wadke, : (1975)IILLJ445SC , if the dispute is an industrial dispute arising out of a right or liability under the general common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular case. 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. After all, the existence of an alternative remedy is not a bar taken into consideration for exercising the writ jurisdiction. On the facts and circumstances of the case, I do not feel compelled to throw out the writ petition on the ground of an alternative remedy of agitation of the question by way of an industrial dispute.

27. Since I have held that the action taken by the respondent-Bank is tenable, the prayer in the writ petition cannot be countenanced. Accordingly, the writ petition fails and it is dismissed. There will, however, be no order as to costs.


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