Amarendra Nath Sen, J.
1. An interesting question of some importance concerning the rights and obligations of the Management and the Award Staff of a nationalized Bank arises for consideration in this writ petition.
2. Six employees of Bank of India, a nationalized Bank, (hereinafter referred to as the Bank), and Bank of India Employees' Union, the recognized union of the Bank, have presented this writ petition in which the validity of two orders or notices passed by the Management of the Bank have been questioned. The first order or notice dated 25.6.1975 is contained in Annexure ('A') to the petition and is in the following terms:
Deduction of pro rata wages for mass demonstration.
Certain members of award staff of Calcutta Branch and Regional Offices held mass demonstrations on the following days leaving their respective desks:
Date Time3.6.1975 2-30 p.m. to 4.30 a.m. 2 hours4.6.1975 11-10 a.m. to 11-35 a.m. 25 minutes6.6.1975 2-30 p.m. to 3-00 p.m. 30 minutes17.6.1975 2-45 p.m. to 1-15 p.m. 30 minutes(Note:-The duration of 20 minutes on 6.6.1975 from 2-10 p.m. to 2.30 p m. has not been taken into account, since this is pan of the usual lunch hour recess of 30 minutes)
Since any cessation of work by employee amounts to a strike, it has been decided to make pro rata deduction of wages from the salary to staff members payable for July, 1975.
The members of award staff, who did not participate the mass demonstrations, should inform the Bank, in writing, by 10.7.75, individually or collectively, in this behalf, so that such deduction of pro rata wages in their cases may not be done.
25.6.1975(Sd.) R.M Bose
The other notice or order dated 3rd July, 1975 which is contained in Annexure 'C' to the petition reads as follows:
Bank of India
Office of the Executive Regional Manager, Eastern Region,
23B, Netaji Subhas Road, Calcutta-1.
July 3, 1975
Ref : RO SKC
Re : Deduction of salaries
(i) 30th June-Half Yearly Closing DayAbsence from duties on the above date by the award staff who did not obtain prior sanction of leave should be treated as leave without pay. The deduction of one full day's salary should be effected from the salary for the month of July, 1975 since June salary has already been disbursed.
(ii) Mass Demonstration and Meeting on 1st and 2nd July, 1975 between 2 and 2-30 p.m.It has been noticed that lunch recess for the purpose of taking tiffin was availed of beyond the hours of 2-00 p.m. and 2-10 p.m. Therefore, pro rata salary for half an hour for each of these two days must be deducted from the current month's salary of the award staff on the principle of 'no work no pay '
Those members of award staff who did not participate in the mass demonstration and the meeting may apply for exemption from the 'pay cut'.
This may also be noted that mast demonstration and holding of meetings within the Bank's premises without Management's permission constitute violation of the bipartite agreement.
(Sd.) S.K. Chakraborty,
Executive Regional Manager, Eastern Region.
Copy to all Branches:
The Agents are requested to verify the factual position in their respective Branches relating to the subject-matter of the above note sent to the Manager. Calcutta Branch If the circumstances are similar kindly note that pro rat a salary will have to be deducted under advice to us without any exception.
Kindly acknowledge receipt in the cut out slip given below.
Ref. DateThe Executive Regional Manager,
I acknowledge receipt of your Circular Ref. Ref. SKC of 3rd July. 1975 and confirm that your instructions will be complied with meticulously without any exception.
3. It is not in dispute in the instant case that on the days mentioned in the notice or order dated the 20th of June, 1975 there was a demonstration by certain members of the Award Staff of the Bank for ventilating what the employee's considered to be their grievances. It may, however, be noted that though there is no dispute of the fact that there were mass demonstrations by the employees on the days mentioned, some disputes have been raised as to the hour and duration of the demonstration on some of the days mentioned in the said notice or order. It is also not in dispute in the instant case that on the 30th of June, 1975, a section of the Award Staff did not attend office on the ground that on the basis of the practice prevailing in the Bank, the employees who are not connected with the work of closing are not required to attend office and the days of half yearly and yearly closing of accounts of the Bank are holidays for them. It is also not in dispute that on the 1st and 2nd of July, 1975 there was a mass demonstration by the members of the Award Staff between 2 and 2-30 p.m.
4. Mr. Somnath Chatterjee, the learned Counsel appearing on behalf of the petitioners, has raised the following principal contentions: (1) In the absence of any specific provisions in the contract of employment or in any statute, the Bank has no power or authority to deduct any part of the salary of the Award Staff who are permanent employees of the Bank on the basis of monthly salaries payable to them under the contract of employment; (2) The monthly pay of an employee is his property and no employee can be deprived of his pay except in due process of law; (3) Any diminution in the monthly pay of an employee affects his rights and interests prejudicially and no order can be passed by the Back reducing the monthly salary under the contract or deducting any part there. from without giving the employee concerned a reasonable opportunity of making his representations; (4) The orders in question are mala fide; (5) If the Bank which is a statutory body passes any order in excess of its power or authority or in violation of the principles of natural justice, such an order can be questioned in a writ proceeding.
5. In support of his first contention, namely, that in the absence of any specific provision in the contract or in any statute the Bank does not have any power or authority to deduct any part of the salary of the employee, Mr. Chatterjee has argued that these employees of the Bank are not piece-rated employees who earn their salary on the basis of any particular amount of work done by them and they are also not paid on any daily or hourly basis. Mr. Chatterjee argues that they are permanent employees of the Bank and on the basis of contract of employment they enjoy and they are entitled to enjoy, a fixed monthly salary It is the argument of Mr. Chatterjee that the employees are not daily wage earners a and they are salaried employees of the Bank and their salary is a fixed monthly amount. Mr. Chatterjee in this connection has relied on the following observations of the Allahabad High Court in the .case of GOC in Chief, Central Command, Luknow v. Purnilal reported in 19 0 Allahabad Law Journal 161 at page 162; 'Salary must be a fixed monthly allowances by way of pay or personal allowance'. Mr. Chatterjee has referred to the provisions: contained in the Award of the National Industrial Tribunal. (Bank Disputes), (popularly known as Desai Award), to the Award of All India Industrial Tribunal (Bank Disputes), (popularly known as the Sastry Award). and also to the Bipartite Settlement on the Industrial Disputes between certain Banking Companies and their workmen (hereinafter referred to as the settlement) and has submitted that there is no provision in any of these two awards and also in the settlement which may authorise or empower the Bank to make any deduction from the monthly salary payable to the employees. Mr. Chatterjee has referred to paras 13.7 and 13.27 of the settlement and has argued that only in cases of absence for the whole day the employee in certain cases may be deprived of big pay and allowances and that only after the employee had an opportunity of offering his explanation. Mr. Chatterjee has argued that there is no provision in the Desai Award, and in the settlement on the basis of which the Bank can make any pro rat a deduction of wages from the salary payable to the employees. Mr. Chatterjee has argued that in the Payment of Wages Act there are specific provisions in Sections 7 and 9 of the said Act authorizing deduction from pay in case of any unauthorized absence for a day or any particular part of a day on a pro rata basis; but the said Act has no application to the Bank and its employees Mr. Chatterjee has submitted that the Shops and Establishments Act, 1963 which applies to the Bank does not contain any provisions similar to the provisions contained in Section 7 and 9 of the Payment of Wages Act, although the Shops and Establishments Act adopts the definition of wages given in the Payment of Wages Act. Mr. Chatterjee has argued that neither in common law nor under any statute the Bank enjoys the right of deducting any part of the salary of the employees payable to the employees on the expiry of the month if the contract of employment is subsisting. It is the argument of Mr. Chatterjee that if an employee does not discharge his obligation under the contract of employment, the Bank may have a cause of action against the employee of breach of contract and can cram damages. In support of this contention that in common law the right of the employer is only to claim damages against an employee for breach on contract of employment on the part of the employee, Mr. Chatterjee has referred to Halsbury's Laws of England (3rd Edition), Vol. 25 and has relied on Article 897 in chitty on Contracts, Vol. II (23rd Edition). He has also referred to Articles 742, 743 and 751 in Chitty on Contracts Vol. II (23rd Edition). He has also relied on Article 902 at page 606 in Mayne on Damages (13th Edition). In this connection Mr. Chatterjee has also referred to the following decisions:
National Coal Board V. Galley 1958 1 All ER 91.
Hartley v. Pease and Partners Ltd. 1975 1 KB 698.
Moriarty v. Regents Garage Co. 1921 1 KB 423.
6. Mr. Chatterjee has argued that on a true construction of the contract of employment on the basis of the two awards and the settlement the contract must be held to be one and an indivisible one and other under the contract the members of the Award Staff who are monthly salaried employees must be held to be entitled to their salary on the expiry of the month, so long as the contract of employment subsists. It is his argument that a monthly salaried employee does not earn his salary from hour to hour and on the basis of the contract of employment which is an indivisible one, the salary paid to the employees, cannot. be considered to accrue from second to second, hour to hour and day to day on the basis of the work done by the employees under the contract. Such a construction, according to Mr. Chatterjee, will lead to absurd results and can also give no sound or reasonable basis for computation. Mr. Chatterjee has submitted that in the facts and circumstances of the instant case the concept of wage earning by an employee from second to second or minute to minute is opposed to basis postulates of the law of contract, as the contract of employment is one and indivisible and the amount payable as salary under the contract is a fixed monthly sum. Referring to the provisions contained in para 14.2 of the settlement, Mr. Chatterjee has argued that undoubtedly on the basis of the contract the employees are required to work for hours every day on week days excluding Saturdays and for 4 hours on Saturdays and the time fixed for work of the employees is undoubtedly a term of the contract. Mr. Chatterjee has argued that if there has been any breach of the said term of employment by an employee, the Bank may have a cause of action against the employee for damages for breach of the said term of con-tract and may even initiate disciplinary proceeding in terms of the service conditions contained in the settlement, but the Bank cannot arbitrarily assess the damages and deduct any amount from the salary of the employee by way of damages or otherwise. Mr. Chatterjee has argued that even if the hours of work fixed under the contract be considered to form the consideration of the contract, the Bank even then will not be entitled to deduct any part of the salary of the employees, as any breach in the said stipulation with regard to the number of working hours will only amount to a partial failure of the consideration in consequence whereof the Bank in law may be entitled to claim compensation. Mr. Chatterjee has argued that the law on these questions is well-settled. According to Mr. Chatterjee, it is well-settled that if there is a breach of any term of contract the party aggrieved may that the contract as subsisting and claim damages for the breach; and incase of any partial failure of the consideration, the contract may remain subsisting and a claim for compensation arises. In support of this content on Mr. Chatterjee has relied on the following observation in para 1694 at page 788 in Chitty on Contracts (23rd Edition) Vol. 1:
However, apart from these cases a claim for money had and received is not maintainable if the contract has been partly performed and the plaintiff has derived some of the benefits for which he bargained. This is based on the theory that the consideration is 'whole and indivisible' and that the Courts will not divide or apportion it unless the parties have done so; another reason is that the parties could not be restored to the situation in which they stood when the contract was made.
Mr. Chatterjee has also relied on the following passage at pages 581, 582 in Anson's 'Principles of the English Law of Contract (22nd Edition)': 'It is necessary, however, for the failure of consideration to be total, and of a kind which entitles the person paying the money to threat the contract as at an end If the contract has been partly performed and the plaintiff has derived some benefit from it, or if he has elected to threat the contract as still continuing he cannot claim to recover the money which he has paid.
7. Mr. Chattcrjee has next contended that the pay which the employees get is property and the employees cannot be deprived of their pay which is property except in due process of law. In support of the contention that pay is property reliance has been placed by Mr. Chatterjee on the following decisions of the Supreme Court:
Deokinandan prased v. The State of Bihar and Ors. : (1971)ILLJ557SC .
Bombay Dyeing & . v. The State of Bombay and Ors. 1958 I L.L.J. 778 : A.I.R. 1968 S.C. 328.
8. In support of his third contention that any diminution in the monthly pay of an employee affects his rights and interests prejudicially and no order can be passed by the Bank reducing the monthly salary payable under the contract or deducting any part there from without giving the employee concerned a reasonable opportunity of making representation to the orders making pro rata deductions from the salary of the employees clearly affects their rights and interests prejudicially and no such order can be passed by the authorities without giving the employees concerned a reasonable opportunity of making their representations. It is the argument of Mr. Chatterjee that principles of natural justice are clearly attracted in the passing of any order by the Management of the Bank, if the order affects in any way the interests of the employee. He argues that the Bank is a nationalized Bank and is a statutory body and even any executive order which affect the rights of tin employees cannot be passed by the Bank without complying with the principles of natural justice. He contends that the notices or orders in question clearly indicate that the Bank has passed orders without affording any opportunity to the employees concerned to make their representations. In this connection Mr. Chatterjee has referred to the relevant provisions contained in Sections 7 and 9 of the Payment of Wages Act which authorize pro rata deduction of pay for any cessation of work on the part of the employees and on the basis of provisions contained therein Mr. Chatterjee has submitted that while making such provisions the Legislature has thought it tit to provide that an opportunity should be given to the employees to make their representations before any order deducting any part of the pay of the employees can be passed, it is the contention of Mr. Chatterjee that the said provision as to opportunity has been made in conformity with the principles of natural justice which necessarily applies before any order affecting the interests of the employees prejudicial by ally be passed. Mr. Chatterjee has argued that it is now well-settled that the principles of natural justice apply to executive orders. In support of the contention that principles of natural justice are applicable, reference has been made to the following decisions:
A. K. Kraipak and Ors. v. Union of India and Ors. : 1SCR457 .
Daud Ahmad v. The District Magistrate Allahabad and Ors. : 3SCR405 .
State of Punjab v. K.R. Erry and Anr. 1973 I L.L.J. 331 : A.I.R. 1973 S.C. 596.
The Government of Mysore and Ors. v. J.V. Bhat etc. : 2SCR407 .
Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr. : (1975)ILLJ399SC .
The Divisional Personnel Officer Southern Railway and Anr. v. T.R. Challappan : (1976)ILLJ68SC .
Mr. Chetterjee has placed particular reliance on the following observations of the Supreme Court in the case of Divisional Personnet Officer, Southern Railway and Anr. v. T.R. Challappan : (1976)ILLJ68SC . 'The statutory provision referred to above merely imports a rule of natural justice in enjoining that before taking final action in the matter the delinquent employee should be heard and the circumstances of the case may be objectively considered This is in keeping with the sense of justice and fair play.
9. Mr. Chatterjee has next submitted that the orders in question are mala fids. He bas argued that the very nature of the orders which have been passed without giving the employee concerned any opportunity clearly go to indicate that the orders have been passed for curbing the legitimate tradeunioa activities of the employees and for penalizing and victimizing the employees for carrying on trade union activities, it is the argument of Mr. Chatterjee that employees are entitled to carry on their legitimate trade union activities for vindication of what they consider to be their legitimate grievances, Mr. Chatterjee in this connection has referred to the decision of the Supreme Court in the case of Management of Churakulam Tea Estate (P.) Ltd. v. Workmen and Anr. reported in : (1969)IILLJ407SC and he has placed particular reliance on the observations in paragraph 24 of the said decision to show that the order directing payment of wages even for the strike period had been upheld by the Supreme Court in this case.
10. Mr. Chatterjee has finally submitted that this writ petition is perfectly competent, it is argument that the Bank which is a nationalized Bank is a statutory body and has to act within its jurisdiction and lawful authority. Ha has further argued that a statutory body in passing any such order against any employee affecting the rights and interests of the employee must necessarily act in conformity with the principles of natural justice. It is the argument of Mr. Chatterjee that if a statutory body acts in excess of its jurisdiction or power or authority or in violation of the principles of natural justice, a writ will undoubtedly lie against the statutory authority. In support of this contention Mr. Chatterjee has relied on the decision of the Supreme Court in the case of Sukhdev Singh and Ors. v. Bhagairam Sardar Singh Rvghuvanshi and Anr. reported in : (1975)ILLJ399SC . Mr. Chatterjee has further argued that the service conditions of the employees incorporated in the two Awards and the Bipartite Settlement have statutory force and in any event, they provide the statutory authority with necessarily guide lines. It is the argument of Mr. Chatterjee that the statutory authority even administratively cannot act arbitrarily and are bound to follow the said guide lines and cannot be permitted to depart from the same arbitrarily and any arbitrary departure from the guide lines can be set right by this Court in this jurisdiction. In support of this contention Mr. Chatterjee has relied on the decision of the Supreme Court in Union of India v. K.P. Joseph and Ors. reported in : 2SCR752 .
11. Mr. Subrata Roy Chowdhury, learned Counsel appearing on behalf of the Bank of and the authorities of the Bank, respondent Nos. 1, 2 and 3 herein, has submitted that both the orders passed by the Bank and sought to be challenged in this proceeding are perfectly lawful and valid. lie has contended that the principal question involved in this proceeding is whether the Bank is under any liability to its employees to pay to them for a day or a part of a day during which the employee concerned has not worked in terms of the contract of employment. It is his contention that though in the notices the words 'deduction' and 'pay cut' have been used, the substance of the matter is payment by the Bank to the employees of the legitimate wages earned by them. He has argued that unless an employee works in terms of the contract he does not earn his wages. It is his argument that if an employee has not worked on any particular day or any part of a particular day he has not earned his wages for the period be has not worked and the Bank is under no obligation to pay to him for the period the employee has not worked Mr. Roy Chowdhury has argued that though the members of Award Staff get their salaries on a monthly basis the salary paid to each of the employees is indeed nothing but the wages earned by them for the service rendered by them in course of the month on the basis of the terms of their employment. Mr. Roy Chowdhury submits that wages mean wages earned and not wages capable of being earned or potential wages. Relying on the definition of wages Mr. Roy Chowdhury has argued that the definition of wages necessarily implies that (1) it is a remuneration; (2) it is only payable if the teems of employment are fulfilled and not otherwise; and (3) it must be payable in respect of the employment or work done by the employee. It is his argument that to be 'remuneration', there has to be a quid pro quo and the quid pro quo is indeed the work done or services rendered by the employee. Mr. Roy Chowdhury has further submitted that performances of the work by an employee in terms of the contract of employment is a condition precedent to his entitlement to his salary or wages, and according to Mr. Roy Chowdhury, this proposition is supported by the definition itself. Mr. Roy Chowdhury in this connection has also referred to the dictionary meaning of the word 'wages' and 'salary' and he has referred to Shorter Oxford Dictionary, Vol. II for ascertaining the dictionary meaning of the said two words. In support of this contention Mr. Roy Chowdhury has relied on the following decisions:
Divisional Engineer, GIP Railway v. Mahadeo Raghoo and Anr. A.I.R. 1955 SC. 1295.
Bala Subraamanya Rajaram v. B.C. Patel and Ors. : (1958)ILLJ773SC .
Arvind Mills Ltd. v. K.B. Gadgil A.I.R. 1941 Bombay 2
Cotton Mills v. Employees' Slate Insurance Corporation. : (1956)ILLJ215Bom .
Anusuya Vithal and Ors. v. J.H. Mehta and Anr. A.I.R. 1960 Bombay 201.
N. Venkatavaradan v. Sembiam Saw Mills : (1955)IILLJ11Mad .
12. Mr Roy Chowdhury in this connection has relied on Article 915 at in page 475 in Halsbury's Laws of England (3rd Edition), Vol. 25. Mr. Roy Chowdhury has commented that the authorities referred to by Mr. Chatterjee are not of any assistance to the petitioners and the said authorities do not lay down the proposition that the employees are entitled to get the remuneration without rendering the services in terms of the contract of employment. According to Mr. Roy Chowdhury the said authorities support the case of the Bank and the said authorities lay down that the employer in additions to not paying the employee the salary or wages which he has not earned by rendering services required of him under the contract of employment, may further claim damages against the employee and take other action according to law.
13. Mr. Roy Chowdhury has next contended that the principles of natural justice have no application to a case of refusal by the employer to pay to the employee any salary or wages for failure on the part of the employee to do the work or to render the service required of him under the contract of employment. It is the contention of Mr. Roy Chowdhury that in such a case the refusal to pay the salary or wages which the employee has not earned because of his failure to reader services in terms of the contract of employment does not amount to any penalty or punishment. Mr. Roy Chowdhury argues that in such a cane the employer pays the employees the amount legitimately due to him and does not pay to the employee the sum which he has not earned. It is his argument that the payment of legitimate dues of the employee on the basis of services rendered by him in terms of the contract of employment and the refusal to pay the amount which he has not earned by not rendering services in terms of the contract do not and cannot affect the right of the employee in any way and as no right of the employee is affected prejudicially or otherwise, the question of applying the principles of natural justice does not arise. In this connection Mr. Roy Chowdhury has referred to Section 14 of the West Bengal Shops and Establishments Act and he has submitted that the said section clearly indicates that there 11 no question of any notice or of any opportunity to the employee in a case where the employer refuses to pay the employee the salary for not doing the work in terms of the contract of employment. Mr. Roy Chowdhury in support of this submission has also referred to the provisions contained in Chapter 13 of the settlement and he has placed particular reliance on para 131 which provides that any absence without leave will entail loss of pay and allowance on the part of the employee. Mr. Roy Chowdhuty has in this connection also referred to Chapter 19 of the Settlement which deals with disciplinary action and punishment. Referring to para 19.7 of the Settlement, Mr. Roy Chowdhury has argued that absence without leave also constitutes a minor misconduct Mr. Roy Chowdhury has pointed out that in para 198 of the settlement the punishment or penalty imposed for such misconduct provides for (a) warning or censure, (b) an entry of adverse remark against the employee, or (c) a stoppage of increment for a period not longer than six months. Mr. Roy Chowdhury has submitted that no provision for nonpayment of salary for the period of absence has been included in the said para and it is the submission of Mr. Roy Cnowdhury that the lack of provision relating to non-payment of salary for absence without leave is not considered to be a penalty. He has further submitted that no such provision with regard to non-payment of salary has been deliberated included in the said para, as the said question does not arise inasmuch as the employee does not earn his salary during such period of absence without leave and is not entitled to receive any salary for the said period. Mr. Roy Chowdhury has argued in at determination of the amount payable as wages to any employee is a management function. It is his argument that the law imposes obligation on the employer to pay wages and for due discharge of the obligation, the employer has to determine the amount payable to the employees and the determination of the amount is a duty of the employer to enable the employer has to discharge his obligation under the law. The determination by the employer of the amount payable to the employee may be right or wrong argues Mr. Roy Chowdhury, but in the matter of such determination there is no question of any application of the principles of natural justice. Mr. Roy Chowdhury argues that if an employee is dissatisfied with the determination of his salary or wages by the employer the employee can take necessary action under the law; and in the instant case, any employee who may feel aggrieved can take action under Section 14 of the West Bengal Shops and Establishments Act. Mr. Roy Chowdhury has contended that the principles of natural justice may apply when the right of an employee is prejudicially affected by any decision or order of the employer or when the employer may choose to inflict any punishment or penalty on the employee in any disciplinary proceeding, but the said principles can have no application when the employer pays to the employee the legitimate amount salary due to him in the course of employment on the employer's determination of the amount payable to the employee. Mr. Roy Chowdhury in this connection has contrasted the provision contained in Rule 31 of the West Bengal Shops and Establishments Rules with the provisions contained in Rule 20 thereof.
14. Mr. Roy Chowdhury has also contended that in the facts and circumstances of this case the principles of natural justice, if the same can be said to have any application at all, have been duly complied with and reasonable opportunity was given to the employees to make their representation. Mr. Roy Chowdhury has argued that on the 4 days mentioned in the notice dated 25th of June, 1975 there were admittedly mass demonstrations by the employees and as the employees had held demonstrations during these hours they could not have possibly rendered any services in terms of the contract of employment during those hours. Mr. Roy Chowdhury has submitted that such conduct on the part of Mr. Roy Chowdhury has, submitted that such conduct on the employees also constitutes misconduct for which the Bank may be entitled to take disciplinary proceeding against them and the disciplinary action, if any, against the employee must be in accordance with the procedure laid down in the settlement and also in accordance with the principles of natural justice. It is, however, his submission that it is not obligatory on the part of the Management to take disciplinary action. Mr. Roy Chowdhury argues that by the said notice an opportunity was given to the employees to take their representations to the Bank, He contends that in case of such a mass demonstration by the employees a general notice to the employees is sufficient and it is not possible to serve individual notices in the employees. It is the contention of Mr. Roy Chowdchry that by the said general notice an opportunity was given to all the employees and Mr. Roy Chowdhury has submitted that after the issuing of the said notice a number of employees had made their representations and their cases had been considered by the Bank. In this connection Mr. Roy Chowdhury has relied on the following passage in Clause 8 at page 169 in Judicial Review of Administrative Action, (Third Edition) by S.A. De. Smith.
(8) Where appropriate substitutes for prior notice an opportunity to be heard are available.
15. In come administrative situations remote from the typical settings of adjudication, the Courts have held that failure to give any formal opportunity to be heard is immaterial if the person affected was in fact aware of what was proposed or knew or ought to have known that he could have made representations had he wished. This may occasionally be a common sense approach; it will be appropriate, however, only in cases were there is no difficulty in making informal representations. Doubtless there are also many cases where procedures involving inspection, testing or examination can be regarded as adequate substitutes for hearing, for example, a decision to grant or refuse a test certificate in respect of a used motor vehicle is given after an examination, not a hearing.
16. Can the absence of a bearing before a decision is made be adequately compensated for by a hearing ex post facto? A prior hearing may be better than a subsequent hearing, but a subsequent hearing is better than no hearing at all; and in some cases the courts have held that statutory provisions for an administrative appeal or even full judicial review on the merits are sufficient to negative the instance of any implied duty to hear before the original decision is made. This approach may be acceptable where the original derisions does not cause serious detriment to the preteen affected, or where here is also a paramount need for prompt action, or where it is impracticable to afford antecedent hearings: Although it ought not to be adopted as a general rule, one must bear in mind (i) that many decisions by Courts are taken on the basis of ex prate application, subject to subsequent reconsiderations if and when the matter is fully argued, and (ii) that some of the most familiar and important classes of decisions in the general field of administrative laws (e.g., tax assessments and decisions on planning applications, certain social security benefits and some licensing applications) are normally made without any 'hearing' and on the strength of written submissions or applications (occasionally supplemented by an informal interview), subject to a right to be heard on appeal to a special Tribunal. If, of course, the initial decision is only provisional in the sense that it docs not take effect at all until a prescribed period for lodging objections has expired, the opportunities thus afforded to a person aggrieved are in substance a right to an antecedent ' hearing'.
17 Mr. Roy Chowdhury has next argued that the orders passed by the Management are perfectly bona fide and have been made in the best interests of the Bank. It is his argument that in the larger interest of the Bank it is the duty of the Management to enforce discipline and to see that the employees discharge their duties properly and do not act in a manner prejudicial to the interest of the Bank and the constituents of the Bank: He has commented that there are no proper averments of mala fides in the petition,
18. Mr. Roy Chowdhury has finally submitted that this writ petition is incompetent. It is submission that the terms and conditions of service of the Award Stuff as embodied in the two Awards and the Settlement, are not statutory rules and regulations framed by the Bank relating to conditions of service of the employees and they have no statutory force. Mr. Roy Chowdhury argued that in this jurisdiction the Court interferes when there is any violation of any statutory rule or regulation by a statutory body. It is his argument that in this jurisdiction the Court does not interfere with an order which is not in violation of any statutory rule or regulation. He has submitted that the decisions of the Supreme Court do not lay down any contrary proposition and they do not lay down that any and every order passed by a statutory authority may be challenged in a writ proceeding. Mr. Roy Chowdhury has also argued that the petitioners have an alternative remedy and if they are aggrieved, the petitioners can make the necessary application before the appropriate authority under Section 14 of the Shops and Establishments Act
19. On behalf of the respondent, Union of India, the arguments advanced by Mr. Roy Chowdhury have been mainly adopted and it has further been submitted that this writ petition is incompetent as the Bank for the purpose of Income Tax Act is treated and considered to be a company. It has been argued as the Bank is a company no writ against the company will lie.
20. The first question that falls for consideration is whether the employees have been paid their legitimate salary in accordance with the terms and conditions of their service or whether there has been any deduction from the salary payable to them under the contract of employment. If the employees have been paid their legitimate salary on the basis of the terms of employment they cannot have any real grievances If, however, there has been any deduction from the salary payable to the employees under the contract of employment, different considerations will arise.
21. The members of the Award Staff art permanent employees of the Bank. Each of the employees is entitled to a monthly salary on the basis of his scale of pay under the terms and conditions of his employment. The monthly salary payable to each of the employees is a fixed sum. Under the contract of employment the employees are required to attend to their work during fixed hours. Although the employees are required under the terms of employment to work during fixed hours, it cannot be said, in my opinion, that the employees are paid on the basis of number of hours put in by the employees in course of any month. The salary payable to an employee is a fixed sum. The number of working hours, however, is not a constant und fixed number and the number of working hours may vary from month to month Some months consists of 30 days while some months consist of 30 days and the month of February usually consists of 28 days Again, in a particular month there may be holidays and the number of holidays may again vary from month to month. The employees are also entitled to get leave with pay and such leave may be casual leave or earned leave. The number of hours of work put in by the employee must, therefore, necessarily vary from month to month. Although the number of hours of work may vary from month to month, the employees get and are entitled to get the same amount of salary to which the employees are entitled under the contract of employment every month. To my mind, it cannot, therefore, be said that the employees earn their salary in any particular month on the basis of the number of hours of work put in. As the employees do not earn their monthly salary by putting in any fixed number of hours of work in course of the month, it cannot be said, in my opinion, that the employees earn their salary from hour to hour. They become entitled to their salary under the contract of employment so long as the contract of employment subsists. The employees are undoubtedly required under the terms of employment to work during the fixed hours of work An employer engages the employee for getting his services and an employer agrees to pay the salary or wages co the employee for getting his services. The rights and obligations of the employer and of the employee are generally governed by the contract of employment between the parties, subject, however, to any statutory enactment which may have any bearing on the question. The tours of work fixed for an employee under the settlement constitute a term of the employment. If any employee commits any breach of the said term by not doing the work in accordance therewith, the employer may have a cause of action against the employee for breach of contract and may seek appropriate relief for the breach. If, however, the contract of employment is kept anvil and is subsisting, the employer cannot refuse to pay to the employee the salary payable to him under the contract and cannot claim to deduct any part of the salary payable to the employee unless the contract of employment or any other law authorizes the employer to do so. If the hours of work fixed under the settlement be treated as the consideration for the engagement of the employee, any failure or refusal on the part of an employee, to work during some part of the entire period of the working hours will result in a partial failure of the consideration. The employer for partial failure of the consideration by the refusal or failure on the part of the employee to do the work for the fixed hours in their entirety cannot deduct any portion of the salary payable to the employee under the contract if the contract of employment is kept alive and subsisting, unless the contract of employment is held to be a divisible contract and on the basis of the divisibility of the contact of employment recovery can be made on the basis of the partial failure of the consideration. It is well-settled that in such a case the right of the employer is to claim compensation.
22. In the instant case, the contract of employment is not a divisible one. The consideration of payment of the salary to the employees is not related to any fixed period of work for any month. The consideration is one and indivisible and on the basis thereof, the monthly salary is payable. As the consideration is not divisible and is not entirely dependent on the particular hours of work put in and the consideration is one, the failure or refusal on the part of an employee to do the fixed period of work on any particular day results in a 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.
23. The contention of Mr. Roy Chowdhury that an employee does not earn his salary or wages for the number of minutes, hours of days during which he has not done his work and cannot, therefore, necessarily have of make any claim for salary or wages for the said period, has been based mainly on the definition of wages. The definition of wages as given in Section 2(vi) of the Payment of Wages Act, 1936 and adopted in Section 2(15) of the West Bengal Shops and Establishments Act, 1963 which is applicable to the Bank reads:
'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 employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and, includes-
(a) any remuneration payable under any award or settlement between the parties or order of a Court;
(b) any remuneration to which the person employed is entitled in respect of overtime work or holidays or any leave period:
(c) any additional remuneration payable under the terms of employment (whether called a bonus or by any other name);
(d) any sum which by reason of the termination of employment of the person employed is payable under any law, contract or instrument which provides for the payment of such sum, whether with or without deductions, but does not provide for the time within which the payment is to be made;
(e) any sum to which the person employed is entitled under any scheme framed under any law for the time being in force; bat does not include-
(1) any bonus (whether under a scheme of profit sharing or otherwise) which does not form part of the remuneration payable under the terms of employment or which is not payable under any award or settlement between the parties or order of a Court;
(2) any value of any house-accommodation, or of the supply of light, water, medical attendance or other amenity or of any service excluded from the computation of wages by a general or special order of the State Government;
(3) any contribution paid by the employer to any person or provident fond, and the interest which may have accrued thereon;
(4) any travelling allowance or the value of any travelling concession;
(5) any sum paid to the employed person to defray special expenses entitled on him by the nature of his employment;
(6) any gratuity payable on the termination of employment in oases other than those specified in Sub-clause (d).
24. A definition of any word in any particular statute is for proper understanding of the meaning and import of the word used in the statute for the purpose of true construction of the statute in which the said word has been used by applying the definition of the word wherever the said word has been used in the statute. The definition of any word by itself does not create any right or liability and it is only intended to give the true meaning of the word defined and used in the various sections of the statute. The rights and obligations under any statute arise not under the definition of any word in the statute but under the various provisions contained in the statute creating such rights and obligations. In construing the statute and its various provisions, the definition of the words given in any statute has to be generally applied and considered whenever the said words are used in the statute. The definition of wages is, therefore, of no help. The various decisions which were cited by Mr. Roy Chowdhury in this connection are also of no assistance The said decisions were concerned with the interpretation of the definition of the word 'wages' in considering whether the claim in question could be said to constitute 'wages' within the meaning of the definition of the word in the particular statute which came up for consideration, and mainly, the Payment of Wages Act. Certain observations in the said decisions on which Mr. Roy Chowdhury placed particular reliance may appear to give some support to his contention; but the said observations have to be understood in the context of the claims made or disputes raised in the facts and circumstances of the cases. Even the definition of wages which I have already noted does not go to indicate or establish that an employee earns his salary or wages from minute to minute or hour to hour by virtue of his work done during the said period and do wages or salary become payable to an employee, if the employee fails or neglects to work for a few seconds, minutes or hours after coming to his place of work, for the said period for which he has failed or neglected to do his work in terms of the contract of employment. The definition itself contemplates payment to employees on holidays or for any leave period during which the employee does not put in any work If the true intent and effect of definition of wages were that the employee did not earn wages or salary for the period during which he had not worked after attending office, Sections 7 and 9 of the Payment of Wages Act, 1936 would be redundant and wholly unnecessary. Relevant provisions of the said sections may be set out:
Deductions which may be made from wages.-(1) Notwithstanding the provisions of Sub-section (2) of Section 47 of the Indian Railways Act, 1890 (Act No. IX of 1890) the wages of an employed person shall be paid to him without deductions of any kind except those authorized by or under this Act..
(2) Deductions from the wages of an employed person shall be made only in accordance with the provisions of this Act, and may be of the following kinds only, namely:
(b) deductions for absence from duty;
Deduction for absence from duty.-(I) Deductions may be made under Clause (b) of Sub-Section (2) of Section 7 only on account of the absence of an employed persons from the place or places where, by the terms of his employment, he is required to work, such absence being for the whole or any part of the period during which he is so required to work.
(2) The amount of such deductions shall in no case bear to the wages payable to the employed person in respect of the wage period for which the deduction is made, a larger proportion than the period for which he was absent bears to the total period, within such wage period during which by the terms of his employment, he was required to work;
Provided, that subject to any rules made in this behalf by the State Government, if ten or more employed persons acting in concert absent themselves without due notice (that is to say, without giving notice which is required under the terms of their contracts of employment) and without reasonable cause, such deduction from any such person may include such amount not exceeding his wages for eight days as may by any such terms be due to the employer in lieu of due notice.Explanation: For the purposes of this section an employed person shall be deemed to be absent from the place, he refuses, in pursuance of a stay In-strike or for any other cause which is not reasonable in the circumstances, to carry out his work.
25. If, under the definition of wages under the Payment of Wages Act, the employee had not earned any wages or salary for the period for which he hag not worked, there could be no question of any deduction from his wages for the said period and these provisions would be meaningless The question of deduction from wages can only arise when wages are payable and there can be no question of any deduction from wages which are not due and payable. Notwithstanding the definition of wages given in-The Payment of Wages Act, the Legislature has thought it fit and necessary to introduce the said Sections 7 and 9 in the Act. The power of authority to make any deduction from the wages of an employee is conferred under these sections and not by the definition given in Section 3(6) of the Act. The Payment of Wages Act has no application in the instant case. The Shops and Establishments Act 1 which applies in the instant case contains no provisions similar to the provisions contained in Sections 7 and 9 of the Payment of Wages Act authorisng and empowering the employer to make any deduction from the wages of the employee for absence from duty.
26. It has to be noted that the language used in Sections 7 and 9 of the Act speaks of deduction from wages. In the notices or orders in question the language used is also deduction from salary. As it cannot be said that the employees have not earned their wages or salary for their refusal or failure to do the work during the period they indulged in mass demonstration, the notices or orders in substance and in effect direct deduction from salary payable to the employees. Unless the employer is empowered or authorized by any Act or under the terms and conditions of the employment to deduct any part of the salary from the salary payable to the employees, any such deduction will be unauthorized and in excess of the power of the employer and will, therefore, be illegal. Under the conditions of service contained in the two Awards and the Settlement there is no provision authorising the Bank to deduct any part of the salary on a pro rata basis for failure or refusal on the part of the employees to carry on their work during any part of the working hours after the employees have attended office and joined their duties. The Settlement, to my mind indicates that provisions has been made for this kind of conduct on the part of the employees, should any occasion sc arise. Under the Settlement this kind of conduct on the part of the employees is considered to be misconduct and relevant provisions have been made for dealing with acts of misconduct of the employees. The specific provisions in the Settlement relating to such conduct on the part of the employees also go to show that the Bank cannot be said to enjoy the power of such deduction by any necessary implication. Para 19.5 of the Settlement which defines grots misconduct inter alia provides 19.5. By the expression gross misconduct shall be meant any of the following acts and omissions on the part of an employee:
(d) Wilful damage or attempt to cause damage to the property of the Bank or any of its customers;
(e) Wilful insubordination or disobedience of any lawful and reasonable order of the management or of a superior;
(g) Wilful slowing down in performance of work;
(j) Doing any act prejudicial to the interest of the Bark or gross negligence or negligence involving or likely to involve the Bank in serious loss.
Para 19.7 which defines 'minor misconduct' inter alia provides-' 19.7 toy the expression Minor misconduct' shall be meant any of the following acts and omissions on the part of an employee;
(a) Absence without leave or overstaying sanctioned leave without sufficient grounds;
(b) Unpunctual or irregular attendance;
(c) Neglect of work, negligence in performing duties;
(d) Breach of any rule of business of the Bank or instruction for the running of any department;
(h) Holding or attempting to hold of attenting any meeting on the premises of the Bank without the previous permission of the Management or except in accordance with the provisions of any Rule or Law for the time being in force:
Failure or refusal to carry on with the work during working hours may constitute neglect of work and may also in appropriate cases constitute an act prejudicial to the interest of the Bank or gross negligence or negligence involving of likely to involve the Bank in serious lots. Depending on the facts and circumstances, an act of refusal or failure on the part of employees to tarry on with their work during working hours by holding mass demonstrations during working hours instead of engaging themselves in their work may constitute 'gross' or 'minor' misconduct and suitable disciplinary action may be token against, employees concerned in accordance with the provisions contained in the Settlement. Such an act on the part of the employee, though it may constitute misconduct und may be dealt with accordingly does not authorize or empower the Bank to deduct any part of their salary. To enable the Bank to make any deduction from the salary of the employees the Bank must have that power either on the basis of the terms of employment or under any law. By any neglect of work during working hours, whether by the failure or refusal to carry on with the work during the fixed hours it cannot be said that the employee does not earn his salary for the period during which he has not to worked. As in the instant case neither the contract of employment nor any other law outhouses the Bank to deduct any part of the salary from the salary payable to the employee on the ground of the employee's failure or refusal to do the work during the said period, the notices or orders directing deduction on a pro rata bests from the salary payable to the employees must be held to be without any lawful authority and in excess of the powers enjoyed by the Bank.
27. Though the notices or orders directing deduction of pay on a pro rata basis for failure or refuel on the part of the employees to carry on with their work during some period of the fixed hours may not be lawful being in excess of the Bank's power and authority, to my mind, the notice or orders directing deduction of a day's pay from the salary of the employees who absented themselves and did not report for duty on the 30th of June, the day of half yearly closing of the Bank, stands on a different looting. On this day some of the employees did cot attend office without obtaining any leave on the ground that on the basis of the practice prevailing in the Bank they were not required to attend office as they were not corrected with the work of the closing of accounts. This is. therefore, a case of absence for a whole day and this case is not concerned with the question of any pro rata deduction from the salary for failure or refusal to carry on with the work dining sometime of the fixed hours of duty. Unauthorized absence from office for a day necessarily amounts to leave without sanction or authority. The authorises and enables (sic) the Bank to make any deduction from the salary for absence of the employees on the 20th of June, 1975, the absence bas to be unauthorised and the Bank must have necessary authority under the conditions of service or any other statute to make the necessary deduction. I have no doubt in the facts and circumstances of the instant case that the absence of the employees on the 30th of June on the pica of the practice set up by them is clearly unauthorised and with, out any justification. The case of the employees of tie practice prevailing in the Bank requiring the employee connected with the closing of the work to attend and permitting other employees to enjoy a holyday is clearly untenable. According to petitioners this practice has been prevailing in the Bank for over 2 years This practice mutt, therefore, have been in vogue and force at the time when the Settlement was arrived at Para 14.9 of the Settlement provides:
Any days declared as holidays under the Negotiable Instruments Act, 1881 for half yearly and yearly closing of accounts, shell be deemed to be normal working days for all workmen employed in all Banks.
28. This particular provision in the Settlement clearly indicates that 30th June would be deemed to be a normal working day for all workmen employed in all Banks. As employees in certain Banks must have claimed that it was not necessary for all employees to attend on the half yearly and yearly closing days and might have set up a kind of practice prevailing in any Bank and as the Banks must have insisted that all employees should attend on these two dates this provision in the Settlement must have been incorporated to put an end to any kind of practice that might have prevailed in any particular Bank with regard to attendance of all the employees of the Bank on these two days. It has also to be noted that the Settlement itself contains special provisions for some Banks in Chapter 21 and in Para 21.6 of the Settlement some special provisions for Bank of India have been made; but no special provision preserving or maintaining such practice, if there was any of the Bank requiring only the employees connected with the closing of accounts to attend on these two days of closing of accounts and exempting the other employees from attending office on these two days has been made. The said Settlement is binding on the parties. In view of the specific provision made in Para If.9 of the Settlement expressly stating that any days declared as holidays under the Negotiable Instrument Act for half yearly and yearly closing of accounts shall be deemed to be normal working days for all workmen employed in all Banks, no reliance can be placed on the case of the employees who absented themselves on the 30th of June on the plea of such practice and the said case must be rejected. It has to be further noted that before the 30th of June the Bank bed been issuing a notice every year to the effect that the said day would be considered to be normal working day for ell employees and all employees would be required to attend. It does not appear that any protests were made with regard to the issuing of such notices by the Bank by raising the plea of the prevailing practice. The fact that notwithstanding the provisions contained in the Settlement and the notices issued by the Bank some employees had not attended on these days of closing of accounts and had been paid their salary in the past does net either establish the practice or justify the claim and conduct of the petitioners. In view of the specific provision in the Settlement which is binding on the petitioners the absence of the employees who absented themselves on the 30th of .Tune without any application for leave must necessarily be held to be unauthorized and unjustified.
29. The conditions of service, to my mind, postulate that in case of such unauthorized absence the Bank will be justified in deducing the salary of the employee for the day of such unauthorized absence. Chapter XII of the Settlement deals with various kinds of leave available to an employee of the Bank and makes provisions for necessary rules relating to such leave. Para 13.7 contained in the said Chapter, inter alia, provides 'An employee who overstays his leave (except under circumstances beyond his control for which be must tender a satisfactory explanation shall not be paid his pay and allowances 'other than house rent allowance based on pay, that is, basic pay, officiating and special allowance) if any. last drawn) for the period he overstays and shall further render himself liable to such disciplinary action as the Management may think fit to impose'. Para 11.27 contained in the said Chapter lays down 'Any absence from duty without satisfying the requisite conditions under which leave may be taken or obtaining such leave on falsie 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 allowance.' The aforesaid conditions read with the other conditions of service indicate, to my mind, that an unauthorized absence from duty for a day justifies the Bank in deducting the pay and allowance to the employees for that day from the pay and allowances payable to the employee. In my opinion, the conditions of service make this position sufficiently clear expressly, and if no expressly, in any event by necessary implication. In the view that I have taken, it does not appear to me necessary to consider and deal with the various authorities which have been cited from the Bar on this aspect. The decision of Sabyasachi Mukherji, J., dated the 13th November, 1975 in Matter No. 798 of 1973 (SuKumar Bandopadhya and Ors. v. State at West Bengal and Ors.) is also of no assistance, as the said decision turns on a construction of the specific provisions contained in the Rules. The said authorities to my mind, do not have any direct bearing on the question involved and are not of any great assistance.
30. The conditions of service may authorise and empower the Bank not to pay the pay and allowance for unauthorised absence from duty to an employee who did not attend office on the half-yearly closing day, that is the 30th of Juno, 1975 on the plea that he was not required to attend office on the basis of the practice, in the Bank. This refusal to pay the pay and allowance to the employee for that day will, however, amount to a deduction from the pay and allowance payable to the employee in terms of the contract of employment. Refusal to pay is proper and justified not on the ground that the employee did not earn his pay and salary by not attending to work but on the ground that the Bank under the terms of employment is entitled to refuse to pay the pay and allowances for that day for unauthorised absence on the part of the employee.
31. As non-payment of pay and allowance for unauthorised absence results in deduction from the pay and allowance payable to the employee in accordance with the contract of employment, principles of natural justice are, in my opinion, attracted The question that, their fore, requires consideration is whether in making the deduction for the unauthorised absence on the 30th of June, the principles of natural justice have been followed,
32. Requirements of natural justice depend on the facts and circumstances of a particular case and mutt necessarily vary from case to case. The main purpose and object of applying the principles of natural justice is to give the person affected an opportunity of having his say in the matter before any decision or action is taken. Whether such opportunity had been given or not will necessarily depend on the facts and circumstances of each particular case. Conditions of service require that for any absence from duty for a day the employee has to apply for leave. The said conditions further require the employee to offer satisfactory explanation for such absence from duty in, certain cases. It is, therefore, for employee concerned to make the necessary application for leave or to offer satisfactory explanation for his absence so that the absence may not be considered to be unauthorized. This opportunity is contemplated and afforded by the conditions of service themselves In the absence of any application from any employee for leave and/or any satisfactory explanation for his absence, the absence becomes unauthorized and the Bank in consequence of such unauthorised absence become empowered to deduct the pay. If the Bank fails to consider such application for leave properly there will undoubtedly be a violation of the principles of natural justice. The words used in the notice or order dated the 3rd of July, 1975 in relation to deduction of salary for absence from duty on the 30th of June, the half yearly closing day of the Bank, may not be happy and may appear rolled some support to the contention of Mr. Chatterjee that there has been violation of the principles of natural justice in the matter of such deduction. If any employee had made an application for leave whether before or after the 30th of June and the Bank had refused to consider such application its merits and had proceeded to make the deduction of the day's pay, I would have no hesitation in coming to the conclusion that there had been a violation of the principles of natural justice. That is however, not the position in the instant case. In spite of the opportunity that the petitioners enjoy under the conditions of service for applying for leave by offering satisfactory explanation for the absence on the 30th of June, 1975, no application had been made by the petitioners and no explanation had been offered for their absence, the stand taken by the petitioners in this petition is that they are not required to attend on the 30th of Jane and 30ih June is a holiday for them because of the practice, which they allege, prevails in the Bank. I have already held that this stand of the petitioners is unjustified and untenable. As under the conditions of service there was opportunity for the petitioners to offer their explanation for the unauthorized absence and as it is undoubtedly their duty to apply for leave by offering necessary explanation for the absence, I am of the opinion that in the facts and circumstances of this case there has been no violation of the principles of natural justice in directing or ordering deduction of the pay and allowance for the 30th of June, 1975 from the pay and allowance payable to the petitioners. The petitioners who have not availed themselves of the opportunity under the conditions of service of applying for leave and of offering satisfactory explanations for tile unauthorised absence on the 30th of June cannot have arty legitimate grievance at out the violation of the principles of natural justice particularly in view of the stand taken by them On behalf of the Bank it was stated before me that notwithstanding the said order or notice applications for leave even subsequent to the 30th of June for the absence on the 30th of Jane had been received by the Bank from some employees and had been considered by the Bank and had in fact many cases been allowed by the Bank, judging each application on its merits. I am, therefore, of the opinion that there has been no violation of the principles of natural justice in passing the order for deduction from the salary of the petitioners for their unauthorized absence on the 30th of June, 1975 The fact that the salary for the month of June had been paid by the Bank without any deduction, to my mind, does not make any difference and does not debar the Bank from deducting the said amount in the subsequent month. For administrative reasons it is not possible to make the deduction from the salary for the month of June in the month of June. If the right to deduct is established, there is no bar to the exercise of that right in the subsequent month There is no question of waiver of the right or of any destruction of the right, The judgment of Sabyasachi Mukherjee. J., delivered on 13.11.75 in Matter No. 796 of 1973 (Sukumar Bandopadhyaya and Ors. v. State of Went Bengal and Ors.) to my mind, lends support to this view.
33. The contention of Mr. Chatterjee that the orders in question are mala fide, does not impress me and I am unable to accept the same. The facts and circumstances of this case clearly go to establish that the Bank passed the said orders bona file in seeking to preserve and maintain discipline in the larger interest of the Bank. The Bank does not employ its employees for carrying on trade union activities. Persons are normally employed for doing their duties under the contract of employment, though the employees may undoubtedly have the power to carry on legitimate trade union activities. In the view that have taken it does not become necessary for me to decide the question whether the mass demonstrations carried on by the employees could be said to constitute legitimate trade union activity on the part of the employees of the Bank. The fact that the orders passed by the Bank directing pro rata deduction from their salary for the period of demonstration were beyond the power and authority of the Bank does not go to show that the said orders are mala fide and were passed for curbing the trade union activities of the employees. The employees have to bear in mind that they are employed essentially for the purpose of serving the Bank and not for carrying on trade union activities, though they may be entitled to carry on legitimate trade union activities for promoting the welfare of the employees. The submission of Mr. Roy Chowdhury that unless the orders directing prorate deduction for mass demonstration are held to be valid and lawful and upheld by the Court, enforcement of discipline and proper functioning of the Sank will be in jeopardy, does not appeal to inc. As I have earlier noted the Settlement, clearly makes necessary provision for taking appropriate action against an employee if any occasion arises, and empowers and authorizes the Bank to take necessary action for proper enforcement of discipline and for smooth functioning of the bank. But for this purpose or for any other purpose the Bank cannot use and exercise powers which the Bank does not possess. Any arbitrary exercise of power not possessed by the Bank even for the sake of maintaining discipline, cannot be held to be valid.
34. The only other question that remains to be considered is whether the writ petition is competent and the Court can interfere with the said orders of the Bank in this jurisdiction Though for the purpose of the income Tax Act and Income Tax assessment the Bank may be considered to be a company, the Bunk after nationalization is dearly not n company to which a writ will not be directed to issue. After nationalization the Bank clearly becomes a national undertaking and a statutory body. The two awards and a Settlement may or may not have the force of statutory rules and regulations. A statutory body, however, must act within the four coiners of its authority. A statutory body cannot act in excess of its powers and if any statutory body acts in excess of its powers, the statutory body will be exceeding its jurisdiction and will be acting without jurisdiction. Any act done by any statutory authority beyond its powers and authority and in excess of its jurisdiction or done in violation of the principles of natural justice where such principles are applicable can be properly questioned in a writ proceeding. To my mind, this proposition cannot be disputed.
35. In the instant case the notice or orders directing deduction from salary on a pro rata basis for absence from work on the dates mentioned in the said two notices or orders due to participation in mass demonstrations are not merely in contravention of the terms of employment but are clearly beyond the authority and competence of the Bank. In passing the said orders the statutory body has acted without any authority and in excess of its power and jurisdiction. The said orders are, therefore, liable to be interfered with in this proceeding, so far as the order or notice directing deduction from salary for absence on the 30th of June the statutory authority is empowered to pass the said order or notice and in the issuing of the said order there has been no violation of the principles of natural justice.
36. The petition, therefore, succeeds in part. The notice or order dated 25.6.75 directing prorate deduction cannot be given any effect and the respondents arc hereby directed to forbear from giving any effect to the said order. Similarly, the order or direction contained in the notice or order dated 3rd July, i975 directing pro rata deduction of salary for absence from work due to mass demonstration on 1st and 2nd .July, 1975 is illegal and unauthorized and cannot be operative. The Bank is hereby directed not to give any effect to that part of the order contained in the notice or order dated 3rd July. Accordingly, appropriate writs are directed to issue and the rule to this extent is made absolute. The other part directing deduction from salary for absence on the 30th of June, 1973 contained in the said notice or order dated 3rd July, 1975 is valid and the Bank may proceed to implement the same and the rule to that extent is discharged. All interim orders will stand vacated. There will be no orders will stand vacated. There will be no order as to cost.