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PETITIONER: EXPRESS NEWSPAPERS (P) LTD.

       Vs.

RESPONDENT: MICHAEL MARK AND ANOTHER

DATE OF JUDGMENT: 25/07/1962

BENCH: MUDHOLKAR, J.R. BENCH: 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

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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.

JUDGMENT: 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

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             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

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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 thereunder.   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  com- pensation  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

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abandonment  of  employment.  In their  notices  and  parti- cularly  in their notice of January 14, the appellants  have said  that the names of those who bad 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 months 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.                                        Appeal dismissed                 -----------