In re: Samarendra Nath Guha Roy v. . — 1983 DIGILAW 104 (CAL)

ORDER The present application under Article 226 of the Constitution of India has been filed by twenty seven officers of Bengal Chemical and Pharmaceuticals Limited, (hereinafter referred to as the Company), a Public Sector Undertaking fully owned by the Government of India. The facts and circumstances leading to the filing of the application are as under :- 2. Three Workers’ Unions of the Company placed certain charter of demands before the Company and on January 6, 1983 they intimated that in case their demands were not met they would observe token strike on January 14, 1983 in all the Unis of the Company in India. On receipt of the intimation of the proposed strike the management of the Company, by its notice dated January 13, 1983, advised the workmen not to participate in the strike on 14.1.83 in the overall interest of the Company. The Company also requested the police authorities to take appropriate precautionary measures to avoid any unpleasant situation and to prevent any breach of peace in and around their factory at 164, Manicktolla Main Road, Calcutta and their City Office located at 6, Ganesh Chandra Avenue, Calcutta. On 14.1.1983 the petitioners, who are all attached to the Manicktolla Factory, absented from work and on that very day each of them separately wrote to the Deputy Manager (Personnel) of the Company that due to unavoidable circumstances he could not attend duties on 14th January, 1983 and prayed for sanction of one day's casual leave for his absence. In reply thereto the Company intimated each of them that the management was not in a position to sanction leave for January 14, 1983. Apprehending that their pay packet, for the month of January, 1983 would not include their salary for that days the petitioners filed the instant writ application on February 1, 1983 when this Court directed them to serve it copy of the application upon the Company so that the application could be disposed of as a contested application. Pursuant to the said direction the Company appeared and filed its affidavit-in-opposition to which the petitioners also filed their reply. 3. Pursuant to the said direction the Company appeared and filed its affidavit-in-opposition to which the petitioners also filed their reply. 3. According to the petitioners, a meeting of their Association, named and styled as Bengal Chemical Officers’ Association was held on 12.1.83 to decide their course of action in the light of the strike notice of the workers and it was resolved that the members of the Association should not treat the day (14.1.83) as a "Strike day" and would attend the office as usual but in the event of any obstruction they might not try to enter the office forcibly thereby endangering their lives. In that meeting it was further resolved that they would not support the strike but in case they could not enter into the office after having come to the gate or gates they would be at liberty to apply for leave. The petitioners assert that pursuant to the said resolution they went to the office gate on 14.1.83 for joining their duties but they failed so enter the office premises owing to the obstruction caused by the members of the Workers’ Union and they were compelled to leave the place after waiting for an hour. If was under those circumstances, the petitioners claim, that they applied for leave, which as already stated was refused. 4. The Company however contends that there was no obstruction by any one from the Workers’ Union which could have prevented the petitioners to enter into the premises of the Company on 14.1.983 and in fact a number of employees and officers attended their duties According to the Company though there was adequate police arrangement and there was no provocation by the workers, the petitioners did not attend the office out of sympathy for the strike and in that context their leave was refused and one day's salary for the month of January, 1983 was deducted. 5. At the time of hearing of the Writ application a preliminary objection was raised on behalf of the Company as to the maintainability of this Writ application without making the Company a party. Mr. Bose, appearing for the petitioners, fairly conceded that notwithstanding the fact that the Chairman, The Managing Director, The Deputy Manager (Personnel) and the Director of Finance of the Company were made parties the Company was a necessary party and submitted that through inadvertence it was not impleaded. Mr. Bose, appearing for the petitioners, fairly conceded that notwithstanding the fact that the Chairman, The Managing Director, The Deputy Manager (Personnel) and the Director of Finance of the Company were made parties the Company was a necessary party and submitted that through inadvertence it was not impleaded. He accordingly prays for leave of this Court to add the Company as a respondent. In my considered view the objection raised though substantial is a technical one and the application should not be allowed to fail on the sole ground that the Company which is a necessary party has not been made party. I, therefore, allow the said prayer and now proceed to consider the respective contentions of the parties on the merits of the case. 6. It is not in dispute that the petitioners did not attend their duties on January 14, 1983. As already stated while the petitioners contend that due to circumstance beyond their control they could not attend the duties the Company claims that the petitioners did not attend their duties wilfully. In other words, the parties have joined issue on the question whether the absence was voluntary or not. In this Writ jurisdiction I cannot decide this disputed question of fact and I am left with no ether alternative but to proceed on the basis of admitted facts, namely, that the petitioners absented themselves from duties on 14.1.1983, that on that very day they submitted individual applications for leave on identical ground, namely, due to unavoidable circumstances they could not join their duties; and that the Company also on identical ground rejected the application of each of them regretting that the management was not in a position to sanction the leave. 7. Mr. Bose, first contended that having regard to the fact that the petitioners were paid on a monthly basis the Company could not legally deduct the salary for a day. According to Mr. Bose in the absence of any Statute governing the employment of the petitioners the Company had no power or authority to deduct any part of the salary. Mr. Bose argued that the petitioners were entitled to receive a fixed monthly salary under their terms of employment and as such there could not be any scope for non-payment of salary for a day in the month. In support of his contention Mr. Mr. Bose argued that the petitioners were entitled to receive a fixed monthly salary under their terms of employment and as such there could not be any scope for non-payment of salary for a day in the month. In support of his contention Mr. Bose relied upon the judgments of this Court in the cases of Monoj Kanti Bose v. Bank of India, reported in 1976 Calcutta Law Journal page 427, and D.K. Gupta v. Union of India, reported in 79(3) Service Law Reporter, Page 681. 8. Mr. Roy Chowdhury, appearing on behalf of the Company on the other hand contended that the monthly salary is paid to the petitioners on the consideration that they would work on all the working days of a particular month and therefore if an employee did not work on a particular day of a month he was not entitled to the salary for that day even though he was a monthly paid employee. In support of his contention Mr. Roy Chowdhury relied upon the judgment in the Case of Secretary of State v. A.S.L.S reported in 1972(2) All England Reporter 949 and a judgment of this Court in the case of Algemene Bank v. Central Government Labour Court, reported in 1978(1) Calcutta Law Journal, page 1. 9. The first question that fell for consideration in the case of Monoj Kanti Bose (supra), relied upon by Mr. Bose, was whether an employer was entitled to deduct a part of the monthly salary paid to its employees for their failure or refusal to carryon their work during some period of the fixed hours of duty and in deciding the said question the learned Judge held that such failure or refusal to carry on with the work during working hours might constitute neglect of work and for that matter misconduct and might be dealt with accordingly but it did not authorise or empower the employer to deduct any part of their salary. The learned Judge then distinguished the case of employees refusing to carry out duties during some period of fixed hours from the case of employees’ absenting themselves for the where of a working day on the ground that unauthorised absence from office for a day necessarily amounted to leave without sanction or authority. In the other case cited by Mr. The learned Judge then distinguished the case of employees refusing to carry out duties during some period of fixed hours from the case of employees’ absenting themselves for the where of a working day on the ground that unauthorised absence from office for a day necessarily amounted to leave without sanction or authority. In the other case cited by Mr. Bose, namely, that of K.D. Gupta (supra), the only question involved related to the authority of the employer to deduct salary of employee for not discharging usual duties during working hours and in deciding the same the learned Judge relied upon and followed the judgment in the case of Monoj Kanti Kose (supra). In this case we are nor concerned with such deduction but only with the question whether the management is competent to deduct a day's salary for the absence of the employees on a particular day. The view expressed by the learned Judge on that question in the case of Monoj Kanti Bose (supra) was considered by Sabyasachi Mukharji, J. (As His Lordship then was) in the case of Algemene Bank (supra) and His Lordship, after taking into consideration the judgment in the case of Secretary of Sate v. A.S.L.S (supra), observed as follows :- “I am of the opinion that the wages, as in the words of Lord Denning, are the payment for services rendered. I am inclined to think that it is not so much a question of whether the contract is divisible or entire but of reciprocal promises as the consideration, that is to say, the employer provides the employment and pays the remuneration and the employee performs the work during the period he is supposed to do the work. Therefore, the right of the employee to get the remuneration depends upon the performance of his work during the period of employment. If there is any failure of that consideration then taking a strict view of the matter the employer is entitled to refuse any payment at all. But as has been noticed in the contract of ‘Employment’ by M.R. Preedland, referred to hereinbefore, that very often policy considerations enter and deduction on pro rata basis is made to avoid undue hardship in the employer employee relationship” 10. But as has been noticed in the contract of ‘Employment’ by M.R. Preedland, referred to hereinbefore, that very often policy considerations enter and deduction on pro rata basis is made to avoid undue hardship in the employer employee relationship” 10. Though the above view expressed by His Lordship was tentative, I am of the opinion that the right of an employee to get his monthly remuneration is conditional upon his performance of duty on all the working days of a month. An employee has to earn his salary and consequently even if there is no express term of contract it must be held to be an implied term of such contract that to earn his salary an employee has to work on all the working day of a particular month. If therefore an employee absents himself on a particular day he does not earn his salary for the Jay and the employee has every right not to pay him salary for the day. 11. The next question is whether the absence of the employees on 14.1.83 was unauthorised or not. Needless to say, if the petitioners’ absence was regularised by giant of leave asked for, such absence would be authorised and they would be entitled to salary for that day. In that context it has now to be decided whether the management was justified in refusing them leave for the day Relying upon a judgment of B.N. Banerjee, J. in the case of Rabindra Nath vs. First Industrial Tribunal, reported in AIR 1963 Calcutta 313 it was contended by Mr. Roy Chowdhury that an employee had to obtain leave before availing of the same and as in the instant case the petitioners did not ask for leave carrier, the management was within its right to refuse the leave. Mr. Roy Chowdhury also submitted that grant of leave was at the discretion of the management and no employee was entitled to leave as a matter of right. 12. It cannot be gained that grant of leave is at the discretion of the management and normally leave is to be asked for before availing of the same. Mr. Roy Chowdhury also submitted that grant of leave was at the discretion of the management and no employee was entitled to leave as a matter of right. 12. It cannot be gained that grant of leave is at the discretion of the management and normally leave is to be asked for before availing of the same. But then there may be unavoidable reasons or unforeseen circumstances for which an employee may be unable to join his duties on a particular day and in such a case an employee can legitimately ask for regularising the absence by subsequent grant of leave on proof of such reasons or circumstances. As stated earlier the petitioners in this writ application prayed for leave all the ground of unvoidable circumstances on 14.1.83, the date of their absence. Whether the circumstances were unavoidable or not, is not for me to decide in this writ jurisdiction but then before refusing their prayer for leave, I am of the opinion, the management was obligated to give them an opportunity of explaining the unavoidable circumstances and substantiating such claim. The same principle was enunciated by the learned Judge in the case of M.K. Bose (supra). It must therefore be held that the management was not justified in refusing the prayer of leave of the petitioners without giving them an opportunity to justify their claim that they could not attend the office on January 14, 1983 due to unavoidable circumstances. 13. For the foregoing discussion I quash the decision of the management as contained in the letter dated January 24, 1983 addressed to each of the petitioners refusing to sanction the leave prayed for by them for January 14, 1983 and direct the management to consider the prayer of the petitioners for leave on January 14, 1983 in accordance with law and in the light of the observations made in this judgement. 14. The application is thus disposed of. There will be no order as to costs. Impugned decision quashed.