Express Newspapers (P) Ltd. Vs.
Michael Mark & ANR [1962] INSC 215 (25 July 1962)
25/07/1962 MUDHOLKAR, J.R.
MUDHOLKAR, J.R.
GAJENDRAGADKAR, P.B.
DAS, S.K.
CITATION: 1963 AIR 1141 1963 SCR Supl. (3)
405
CITATOR INFO :
R 1972 SC 277 (8) R 1979 SC 582 (6)
ACT:
Wages, payment of--Strike by employees in
enforcement of demands--Refusal to return on date specified by employer--If can
be taken to be abandonment of employment --Premptory termination of
employment--If termination without notice--Payment of Wages Act, 1936 (4 of
1936); s. 15--Standing Order, 25(1).
HEADNOTE:
The employees of the appellant made certain
demands which were not accepted and they went on strike. The appellant issued
notices to the employees that if they did not return to work immediately, they
would be deemed to have abandoned their employment. The strike was continued
and thereupon the following notice was issued :
"Further to our notices dated January 1,
1957, and January 3, 1957, the workers who are not attending work since December
31, 1956, in spite of several requests to resume work, are hereby advised that
their names are removed from the Muster as from 2 p.m. today (January 14, 1957)
as their having left our services of their own accord. Arrangements have been
made to fill up the vacancies occurring as a result of desertion of workers
from their places of duty.
"Arrangements will be made to make
payment of their dues, if any." The strike was called off on March 26,
1937. A number of employees could not be taken back as their 'vacancies had
been filled up. The first respondent in C.A. No. 94 and the first 97
respondents in the other appeal, who were not taken back, applied, along with
others, for relief to the Authority under the Payment of Wages Act, who
dismissed the application. Most of the employees moved the High Court under
Art. 226 of the Constitution and their writ petitions were allowed. Standing
Order 25(1) which applied provided as follows: "The employment of
permanent employees on monthly rates of pay may be terminated by giving one
month's notice 406 or on payment of one month's wages (including all
allowances) in lieu of notice........
Held, that the Standing Order contemplated
termination of employment by the employer and in the instant cases there could
be no doubt that the appellant had terminated the employment of the respondents
by removing their names from the Muster roll without giving them any notice of
such removal.
If employees absent themselves from work
because of strike in enforcement of their demands, there can be no question of
abandonment of employment by them. The management cannot by imposing a new term
of employment unilaterally, convert the absence from work into abandonment of
employment.
If the strike was in fact illegal, the
appellant could take disciplinary action against the employees under the
Standing Order and dismiss them. If that were done, the strikers would not have
been entitled to any compensation under Standing Order 25 ; but that was not
what the appeal. plant purported to do. The respondents were therefore entitled
to the relief.
CIVIL APPELLATE JURISDICTION : Civil Appeal
Nos. 294 and 295 of 1961.
Appeals from the judgment and orders dated
September 4 and 5, 1958, and October 6, 1958, of the Bombay High Court in
Special Civil Applications Nos. 1426 and 3190 of 1958 respectively.
A. V. Viswanatha Sastri, G. Gopalakrishnan
and V.J Merchant, for the appellants.
K. T. Sule and Janardan Sharma, for the respondents.
1962, July 25, This Judgment of the Court was
delivered by MUDHOLKAR, J.-The judgment will govern C. As. 294 and 295 of 1961
which arise out of identical facts. The facts necessary for deciding these
appeals may be stated thus;
407 The first respondent in C.A. 294 of 1961
and the first 97 respondents in the other appeal were employees of the Express
Newspapers Ltd., the appellants, at Bombay. On December 31, 1956, all the
employees, of the appellants went on strike because three demands which were
made by them on the previous day were not granted by the appellants. On' that
day the appellants posted the following two notices addressed to the workmen
who had struck work on their notice board:
"TO ALL WORKMEN WHO HAVE STRUCK WORK You
have struck work in contravention of the provision of the Industrial Disputes
Act. The undersigned takes a serious view of the uncalled for and unjustified
strike.
If you do not resume work immediately the
management will be free to take such action as it deems fit in the
matter." "TO ALL WORKMEN WHO HAVE STRUCK WORK Further to our notice
of date, we have to inform all the workers on strike that unless they resume
work unconditionally with immediate effect the management will make alternative
arrangements to fill in the vacancies caused by the desertion of workers from
their places of duty.
It may be noted that the management will take
disciplinary action against those workers who have instigated others to go on
strike." On the next day they published a third notice standing therein
that those workers who are desirous of resuming duty should report for duty 408
on January 2, 1957 at 10 a.m. That notice also stated "if the workers fail
to resume duty by 10 a.m. on January 2, 1957 we shall consider that they are not
interested in continuing in our employment and as such shall remove their names
from our muster as their having left services of their own accord." It
would appear that a letter was also addressed to the workers' union on December
31, 1956. In answer to it the General Secretary of the Union said in his reply
dated January 2, 1957 that the workers went on strike because their demands
were not met and that no other alternative was left to them for securing their
demands. He further stated that the strike was perfectly legal and that the
various notices which were being published one after another by the appellants
will not deter the workers in their resolve to continue the strike till their
demands were met. On January 14, 1957, the General Manager of the appellants
sent by registered post a letter to every employee on strike in the following
terms:
"Further to our notices dated January 1,
1957 and January 3, 1957, the workers who are not attending work since December
31, 1956 in spite of several requests to resume work, are hereby advised that
their names are removed from the Muster as from 2 p.m. today (January 14, 1957)
as their having left our services of their own accord. Arrangements have been
made to fill up the vacancies occurring as a result of desertion of workers
from their places of duty.
Arrangements will be made to make payment of
their dues, if any.
A notice was published on the notice board at
the premises of the appellants in similar terms. The 409 strike was called of
on March 26, 1957. It may be mentioned that all the employees of the appellants
had not joined the strike and that some of those who hid gone on strike
rejoined before the strike was called off. A considerable number of the
appellants' employees could, however, not be taken back even after the strike
ended because their vacancies. had been filled up.
One of the workmen filed an application under
s. 15 of the Payment of Wages Act, 1936 in which a claim was made for 30 days'
wages in lieu of notice, 20 days' wages in lieu of leave, two month wages as
compensation and full pay from March 26, 1957. The claims for the last two
items were given up by that worker. On September 12, 1957, the Payment of Wages
Authority granted the application in so far as the first and second items were
concerned. Against this order a writ petition was filed before the High Court
of Bombay which was allowed on November 26, 1957, It may be mentioned that II 6
other workmen had also filed applications claiming similar relief before the
Payment of Wages Authority, including the first respondent in CA. 294 of 1961
and the first 97 respondents in the other. It would appear that these
applications were kept pending till the decision of the High Court in the
application earlier mentioned.
Following the view taken by the High Court
with regard to the claim in that application all the 116 applications were
dismissed by the Payment of Wages Authority. Most of' the aggrieved parties
preferred writ petitions to the High Court of Bombay which were allowed by it,
Against the decision of the High Court these two appeals have been preferred
before us.
What is strenuously urged by Mr. Viswanatha
Sastri on behalf of the appellants is that the respondents by going on an
illegal strike had not only deserted from their posts but also abandoned their
employment. They had, therefore, ceased to be 410 workmen as from January 14,
1957 and could consequently not claim the reliefs which they had sought before
the Payment of Wages Authority, He points out that under Standing Order 25 an
employee is entitled to such reliefs if his service is terminated by the
employer, But he contends that if, as here, the service is not terminated by
the employer but the employment itself is abandoned by the employee he gets no
right under the Standing Order.
It it common ground that the respondents
claim is based upon the aforsaid Stainding Order. The High Court seems to think
that where it admitted on both the sides that employment of an employee has
come to an end, Standing Order 25 (1) would apply and the employee would be
entitled to compensation there under. Prima facia that does not appear to be
quite the right Way of interpreting the Standing Order. The Standing Order 25
contemplates separately cases of termination of employment by the employer and
by the employee and provides for compensation only where the termination is by
the employer. However that may be, we have no doubt that here it was the
appellants who had terminated the services of the respondents. The respondents
by going on strike clearly indicated that they wanted to 'continue in their
employment but were only demanding better terms. Such an attitude, far from
indicating abandonment of employment, emphasizes the fact that the employment
continued as far as they were concerned. Mr. Sastri however, contended that
where a person deliberately absents himself from work he would not be entitled
to his wages and, therefore, it would not be right to regard such a person as
being in service where the abstention from work is attributable to an illegal
strike Whether the strike was legal or illegal is not a matter on which we need
express any opinion in this case, All that we want to say is that where the 411
employees absent themselves from work because they have gone on strike with the
specific object of enforcing the acceptance of their demands they cannot be
deemed to have abandoned their employment, Mr. Sastri then refers us to the
various notices given by the management from time to time indicating that if
the workers did not return to work by a certain date they will be deemed to
have abandoned their employment. In our opinion, the management could not, by
imposing a new term of employment, unilaterally convert the absence 'from duty
of striking employees into abandonment of their employment. It may well be that
under the standing orders the appellants could, if the strike was in fact
illegal, take disciplinary action against the strikers and even dismiss' them:
If they did that the strikers would not be entitled to any compensation
whatsoever under Standing Order 25. But that is not what the appellants
purported to do. They did not serve a charge sheet on any of the respondents
but hoped to get the benefit of disciplinary action without holding any inquiry
by purporting to treat the strikers! absence as abandonment of employment. In
their notices and particularly in their notice of January 14, the appellants
have said that the names of those who had not returned to duty would be removed
from the muster roll as from 2 p. m. on that day, that is, on January 14.
Clearly, therefore, according to this notice the strikers continued to be the
appellants' employees till 2 p. m. on January 14, 1957. It in only thereafter
that they ceased to be their workman.
The reason why they ceased to be workman was
the removal of their names from the must or roll. This means nothing else than
termination of their employment. The relevant portion of Standing Order 25 (1)
reads thus.
412 "The employment of a permanent
employee employed on monthly rates of pay may be terminated by giving one
mouth's notice or on payment of one month’s wages (including all allowances) in
lieu of notice...... " Under this provision, the respondents, in question
were entitled to the reliefs sought by union before the Payment of Wages
Authority inasmuch as the action of the appellants in removing their name from
the Muster rolls as from 2 p. m.
on January 14, 1957 was in fact termination
of their service without notice.
The appeals, therefore, fail and are
dismissed with costs.
Both the appeals were heard together and
there will be one hearing fee.
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