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PETITIONER: BANK OF INDIA

       Vs.

RESPONDENT: T.S. KELAWALA AND ORS.WITHS.U. MOTORS PRIVATE LTD.V.THE WORK

DATE OF JUDGMENT04/05/1990

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. KULDIP SINGH (J)

CITATION:  1990 SCR  (3) 214        1990 SCC  (4) 744  JT 1990 (2)   339        1990 SCALE  (1)140

ACT:     Payment of Wages Act, 1936: Sections 7(2) and 9--Absence from  work or indulging in go-slow tactics--Pro-rata  deduc- tion/non-payment of wages by employer--Whether justified.

HEADNOTE:     In  the former appeal, the appellant is  a  nationalised Bank.  In 1977, some demands for wage revision made  by  the employees of all Banks were pending and in support of  their demands,  a  call for a country wide strike was  given.  The appellant-Bank  issued a Circular on September 23,  1977  to its  managers and agents directing them to deduct  wages  of the employees for the days they go on strike. The respondent Unions  gave  a car for a four hour strike on  December  29, 1977. Two days before the strike, the appellant-Bank  issued an  Administrative  Circular warning the employees  that  if they  participate in the strike, they would be committing  a breach  of their contract of service and they would  not  be entitled to salary for the full day and they need not report for  work  for the rest of the working hours  on  that  day. However, the employees went on strike as scheduled, for four hours  which included banking hours of the public,  and  re- sumed  duty thereafter. The appellant-Bank did  not  prevent them  from doing so. The appellant Bank by its circular  di- rected  the  managers and agents to deduct  the  full  day’s salary of those employees who participated in the strike. On a  writ  petition filed by the respondents, the  High  Court quashed  the said Circular. The Letters Patent Appeal  filed by  the  appellant was dismissed. Hence, the appeal  by  the Bank.     In  the latter appeal, the appellant is a company  whose workers  had  indulged in "go-slow" in  July  1984,  thereby bringing  down  production. The workers did  not  attend  to their  work  and  were loitering in the  premises  and  were indulging in go-slow tactics to pressurise the 215 company to concede their demands. The company suspended  its operation  by  giving a notice of lock out. It did  not  pay wages to the workers for July , 1984 on the ground that they did not work during all the working  hours and had not their wags. The workers’ union filed a complaint before the Indus- trial  Court  complaining  that the  appellant  company  had

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indulged  in  unfair labour practice and that  the  lock-out declared  was  illegal- The Industrial Court held  that  the deduction of wages for July, 1984 on account of the  go-slow was  not  justified- It also declared that the  company  had committed  an  unfair  labour practice by  not  paying  full monthly wages to the workers and directed the company to pay the  said wages for the month of July, 1984. Aggrieved,  the appellant company has preferred the appeal. Allowing the appeals, this Court,     HELD:  1.1  There  is no doubt that  whenever  a  worker indulges  in  a misconduct such as a deliberate  refusal  to work, the employer can take disciplinary action against  him and  impose on him the penalty prescribed for it  which  may include some deduction from his wages. However, when miscon- duct  is not disputed but is, on the other band, ’  admitted and is resorted to on a mass scale such as when the  employ- ees go on strike, legal or illegal, there is no need to hold an inquiry. To insist on an inquiry even in such cases is to pervert  the  very object of the inquiry. In a  mass  action such as strike it is not possible to hold an inquiry against every  employee  nor  is it necessary to do  so  unless,  of course,  an employee contends that although he did not  want to  go on strike and wanted to resume his duty, he was  pre- vented  from  doing so by the other employees  or  that  the employer  did not give him proper assistance to  resume  his duty though he had asked for it. That was certainly not  the situation  in  the  present case in respect of  any  of  the employees  and that is not the contention of  the  employees either. It is true that in the present case when the employ- ees  came back to work after their four-hours  strike,  they were  not  prevented from entering the  Bank  premises.  But admittedly, their attendance after the four-hours strike was useless  because there was no work to do during the rest  of the  hours. It is for this reason that the Bank had made  it clear,  in  advance,  that if they went on  strike  for  the four-hours as threatened, they would not be entitled to  the wages  for the whole day and hence they need not report  for work thereafter- Short of physically preventing the  employ- ees  from resuming the work which it was unnecessary to  do, the Bank had done all hi its power to warn the employees  of the  consequences of their action and if the  employees,  in spite  of it, chose to enter the Bank’s premises where  they had no work to do, and in fact did not 216 do any, they did so of their own choice and not according to the  requirement of the service or at the direction  of  the Bank. In fact, the direction was to the contrary. Hence, the later resumption of work by the employees was not in fulfil- ment of the contract of service or any obligation under  it. The  Bank was therefore not liable to pay either full  day’s salary  or  even the pro rata salary for the hours  or  work that  the  employees remained in the Bank  premises  without doing any work. It is not a mere presence of the workmen  at the place of work but the work that they do according to the terms  of the contract which constitutes the  fulfilment  of the contract of employment and for which they were  entitled to be paid. [222E-H; 223A-F]     1.2 Although the service regulations do not provide  for a  situation where employees on a mass scale resort  to  ab- sence  from duty for whole day or a part of the day  whether during crucial hours or otherwise they do provide for treat- ing  an  absence from duty of an individual  employee  as  a misconduct and for taking appropriate action against him for such absence. [224D-E]     2.1. When the contract, Standing Orders, or the  service

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rules/  regulations  are silent, but enactment such  as  the payment of Wages Act providing for wage-cuts for the absence from duty is applicable to the establishment concerned,  the wages  can  be deducted even under the  provisions  of  such enactment. [231F]     2.2. The working class has indisputably earned the right to strike as an industrial action after a long struggle,  so much so that the relevant industrial legislation  recognises it  as  their implied right. However, the  legislation  also circumscribes  this  right by prescribing  conditions  under which  alone its exercise may become legal. Whereas,  there- fore,  a legal strike may not invite  disciplinary  proceed- ings,  an illegal strike may do so, it being  a  misconduct. However, whether the strike is legal or illegal, the workers are  liable  to  lose wages for the period  of  strike.  The liability  to  lose wages does not either  make  the  strike illegal  as  a  weapon or deprive the workers  of  it.  When workers  resort  to  it, they do so knowing  full  well  its consequences.  During the period of strike the  contract  of employment continues but the workers withhold their  labour. Consequently, they cannot expect to be paid. [232C-E]     2.3. The contract, which is this case is monthly, cannot be subdivided into days and hours. If the contract comes  to an end amidst a month by death, resignation or retirement of the employee, he would not be entitled to the  proportionate payment for the part of the month 217 he  served. If the employment-contract is held  indivisible, it will be so for both the parties. There is no  difficulty, inequity  or impracticability in construing the contract  as divisible into different periods such as days and hours  for proportionate reimbursement or deduction of wages, which  is normally done in practice. [232G-H; 233A]     2.4. The contract of employment, Standing Orders or  the service  rules provide for disciplinary proceedings for  the lapse on the part of a particular individual or  individuals when the misconduct is disputed. As things stand today, they do not provide a remedy for mass-misconduct which is  admit- ted or cannot be disputed. Hence, to drive the management to hold disciplinary proceedings even in such cases is  neither necessary nor proper. The service conditions are not expect- ed  to visualise and provide for all situations.  When  they are  silent  on  unexpected  eventualities,  the  management should  be deemed to have the requisite power to  deal  with them  consistent with law and the other  service  conditions and  to the extent it is reasonably necessary to do so.  The pro rata deduction of wages is not an unreasonable  exercise of  power on such occasions. Whether on such occasions,  the wages are deductable at all and to what extent will,  howev- er, depend on the facts of each case. Although the employees may strike only for some hours but there is no work for  the rest of the day as in the present case, the employer may  be justified  in  deducting salary for the whole  day.  On  the other  hand, the employees may put in work after the  strike hours and the employer may accept it or acquiense in it.  In that  case the employer may not be entitled to deduct  wages at  all  or  be entitled to deduct only  for  the  hours  of strike. If statutes such as the Payment of Wages Act or  the State  enactments  like  the Shops  and  Establishments  Act apply,  the  employer ,may be justified in  deducting  wages under  their provisions. Even if they do not apply,  nothing prevents the employer from taking guidance from the legisla- tive  wisdom contained in it to adopt measures on the  lines outlined therein, when the contract of employment is  silent on the subject. [233B-F]

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    V.T.  Khanzode & Ors. v. Reserve Bank of India &  Anr., [1982] 3 SCR 411; Paluru Ramkrishnaiah & Ors. etc. v.  Union of  India & Anr. etc., [1989] 1 JT 595 and  Senior  Superin- tendent of Post Office & Ors. v. lzhar Hussain, [1989] 3  JT 411, relied on.      Buckingham  and  Carnatic Co. Ltd. v.  Workers  of  the Buckingham and Carnatic Co. Ltd., [1953] SCR 219; V. Ganesan v.  The State Bank of India & Ors., [1981] 1 LLJ  64;  State Bank  of  India, Canara Bank, Central Bank etc.  &  Ors.  v. Ganesan, Jambunathan, Venkatara- 218 man, B.V. Kamath, V.K. Krishnamurthy, etc. & Ors., [1989]  1 LLJ  109;  Sukumar Bandyopadhyyay & Ors. v.  State  of  West Bengal & Ors., [1976] IX LIC 1689; Algemene Bank  Nederland, N.V.  v. Central Government Labour Court, Calcutta  &  Ors., [1978]  II LLJ, 117; V. Ramachandran v. Indian Bank,  [1979] I  LLJ  122; Dharam Singh Rajput & Ors. v.  Bank  of  India, Bombay  &  Ors., [1979] 12 LIC 1079;  R.  Rajamanickam,  for himself  and on behalf of other Award Staff v. Indian  Bank, [1981]  II LLJ 367; R.N. Shenoy & Anr. etc. v. Central  Bank of India & Ors. etc., [1984] XVII LIC 1493; Prakash  Chandra Johari  v. Indian Overseas Bank & Anr., [1986] II  LLJ  496; Workmen  of  M/s. Firestone Tyre & Rubber Co. of  India  (P) Ltd.  v.  Firestone  Tyre & Rubber Co., [1976]  3  SCR  369; Krishnatosh Das Gupta v. Union of India & Ors., [1980] 1 LLJ 42;  Sant Ram Sharma v. State of Rajasthan & Anr., [1968]  1 SCR  111; Roshan Lal Tandon v. Union of India, [1968] 1  SCR 185; Secretary of State for Employment v. Associated Society of Locomotive Engineers and Firemen and Ors. (No. 2), [1972] 2  All  ER  949; Miles v.  Wakefield  Metropolitan  District Council,  [1989] I LLJ 335 and Cutter v. Pwell, [1795] 6  TR 320, referred to.     3.1.  There  cannot be two opinions that  go-slow  is  a serious misconduct being a covert and a more damaging breach of the contract of employment. It is an insidious method  of undermining  discipline and at the same time a crude  device to defy the norms of work. It has been roundly condemned  as an industrial action and has not been recognised as a legit- imate weapon of the workmen to redress their grievances.  In fact  the  model standing orders as well  as  the  certified standing  orders  of most of the  industrial  establishments define  it  as  a misconduct and  provide  for  disciplinary action for it. Hence, once it is proved. those guilty of  it have to face the consequences which may include deduction of wages and even dismissal from service. [237G-H; 238A]     3.2.  The  proof  of go-slow, particularly  when  it  is disputed,  involves investigation into various aspects  such as  the nature of the process of production, the  stages  of production  and their relative importance, the role  of  the workers engaged at each stage of production, the pre-produc- tion  activities and the facilities for production  and  the activities  of  the workmen connected  therewith  and  their effect  on  production, the factors hearing on  the  average production etc. The go-slow further may be indulged in by an individual  workman or only some workmen either in one  sec- tion  or different sections or in one shift or  both  shifts affecting  the  output in varying degrees and  to  different extent depending upon the nature of product and the  produc- tive process. Even where it is admitted, go-slow may in some case present 219 difficulties in determining the actual or approximate  loss, for  it may have repercussions on production after  the  go- slow  ceases which may be difficult to estimate. The  deduc- tion of wages for go-slow may, therefore, present  difficul-

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ties  which  may not be easily resoluble.  When,  therefore, wages  are sought to be deducted for breach of  contract  on account  of go-slow, the quantum of deduction may  become  a bone  of contention in most of the cases inevitably  leading to an industrial dispute to he adjudicated by an independent machinery  statutory or otherwise as the parties may  resort to. The simplistic method of deducting uniform percentage of wages from the wages of all workmen calculated on the  basis of the percentage fail in production compared to the  normal or  average production may not always be equitable.  It  is, therefore,  necessary that in all cases where the factum  of go-slow  and/or  the  extent of the loss  of  production  on account of it, is disputed, there should he a proper inquiry on charges which furnish particulars of the go-slow and  the loss  of  production on that account. The rules  of  natural justice  require it, and whether they have been followed  or not will depend on the facts of each case. [238B-G]     3.3. In the instant case, there is a finding recorded by the Industrial Court that there was a go-slow resorted to by the workmen resulting in loss of production during the  said period. Since the said finding is not challenged, it is  not possible  to  interfere with it in this appeal.  Though  the appellant  is  justified  in deducting wages  for  the  said period,  in  the facts and circumstances of the case  it  is directed that it will not deduct more than 5 per cent of the wages  of the workmen for the month of July, 1984 when  they indulged in go-slow tactics. [239D-F]     M/s.  Bharat Sugar Mills Ltd. v. Shri Jai Singh &  Ors., [1962]  3  SCR 684; T.S. Kelwala & Ors. v. Bank of  India  & Ors., [1981] 43 FLR 341 and Apar (Pvt) Ltd. v.S.R. Samant  & Ors., [1980] II LLJ 344, referred to.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2581  of 1986.      Appeal by Certificate from the Judgment and Order dated 15.10.1985  of  the Bombay High Court in Appeal No.  547  of 1984. WITH Civil Appeal No. 855 of 1987. 220     From  the  Judgment  and Order dated  8.12.1986  of  the Industrial Court, Maharashtra, Bombay in Complaint (ULP) No. 1202 of 1984.     Ashok Desai, Attorney General, G.B. Pai, J.  Ramamurthy, Jitendra  Sharma,  B.N. Dutt, H.S. Parihar,  Vipin  Chandra, R.F. Nariman, P.H. Parekh, N.K. Sahu, Mrs. Urmila Sirur  and Raj Birbal for the appearing parties. The Judgment of the Court was delivered by     SAWANT,  J.  These are two appeals  involving  a  common question  of law, viz., whether an employer has a  right  to deduct wages unilaterally and without holding an enquiry for the period the employees go on strike or resort to  go-slow. In  CA No. 2581 of 1986 we are concerned with the case of  a strike while in the other appeal, it is a,case of a go-slow. By  their very nature, the facts in the two appeals  differ, though  the principles of law involved and many of  the  au- thorities  to be considered in both cases may be  the  same. For  the  sake of convenience, however, we propose  to  deal with each case separately to the extent of the distinction. Civil Appeal No. 2581 of 1986     2.  The appellant in this case is a  nationalised  bank, and  respondents 1 and 2 are its employees whereas  respond-

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ents  3 and 4 are the Unions representing the  employees  of the  Bank.  It appears that some demands  for  wage-revision made  by the employees of all the banks were pending at  the relevant  time, and in support of the said demands  the  All India  Bank  Employees’ Association had given a call  for  a countrywide strike. The appellant-Bank issued a circular  on September 23, 1977 to all its managers and agents to  deduct wages  of the employees who would participate in the  strike for  the days they go on strike. Respondents 3 and 4,  i.e., the employees’ Unions gave a call for a four-hours strike on December  29,  1977. Hence, the Bank on  December  27,  1977 issued an Administrative Circular warning the employees that they  would  be  committing a breach of  their  contract  of service  if  they participated in the strike and  that  they would not be entitled to draw the salary for the full day if they did so, and consequently, they need not report for work for the rest of the working hours on that day. Notwithstand- ing  it, the employees went on a four hours strike from  the beginning of the working hours on 29th December 1977.  There is no dispute that the banking-hours for the public  covered the said four hours. The employees, however, resumed 221 work  on that day after the strike hours, and the  Bank  did not  prevent  them from doing so. On January 16,  1978,  the Bank issued a Circular directing its managers and agents  to deduct  the full day’s salary of those of the employees  who had participated in the strike. The respondents filed a writ petition  in the High Court for quashing the  circular.  The petition  was allowed. The Bank preferred a  Letters  Patent Appeal  in the High Court which also came to  be  dismissed. Hence, the present appeal.     The High Court has taken the view, firstly, that neither regulations nor awards nor settlements empowered the Bank to make  the deductions, and secondly, in justice,  equity  and good  conscience  the Bank could not by the dictate  of  the impugned  circular attempt to stifle the  legitimate  weapon given  by the law to the workers to ventilate  their  griev- ances  by resorting to strike. The High Court  further  took the  view  that since strikes and  demonstrations  were  not banned  in  the country and despite the  inconvenience  that they may cause, they were recognised as a legitimate form of protest  for the workers, the circular acted as a  deterrent to the employees from resorting to a legally recognised mode of  protest. According to the High Court, the circular  even acted  as  an  expedient to stifle the  legitimate  mode  of protest allowed and recognised by law. The deduction of  the wages for the day according to the Court amounted to unilat- erally changing the service conditions depriving the workers of their fixed monthly wages under the contract of  service. The  Court also reasoned that under the conditions of  serv- ice, wages were paid not from day to day or hour to hour but as a fixed sum on a monthly basis. The contract between  the Bank  and  the  workers being not a divisible  one,  in  the absence  of a specific term in the regulations,  awards  and settlements,  the  Bank could not  unilaterally  reduce  the monthly  wage  and thus give the  employees  lesser  monthly wages  than  the one contracted. The non-observance  by  the employees of the terms of the contract may give the employer a cause of action and a right to take appropriate remedy for the breach, but the employer was not entitled to deduct  any part  of the wages either on a pro rata basis or  otherwise. The High Court further opined that the Bank was not  without a  remedy and the employees cannot hold the bank to  ransom. The Bank could get the four-hours strike declared illegal by recourse to the machinery provided by law or put the  erring

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workers under suspension for minor misconduct under  Regula- tion  19.7,  hold  an enquiry and if  found  guilty,  impose punishment of warning, censure, adverse remarks or  stoppage of  increment for not more than six months as prescribed  by Regulation 19.8. The High Court also rejected the contention of the Bank that the Bank was entitled to make 222 deductions  under Section 7(2) of the Payment of Wages  Act, 1936  by holding that the provision enabled the employer  to deduct  wages only if the Bank had power under the  contract of employment.     4. The principal question involved in the case,  accord- ing to us, is, notwithstanding the absence of a term in  the contract  of  employment or of a provision  in  the  service rules  or  regulations, whether an employer is  entitled  to deduct  wages  for the period that the employees  refuse  to work  although the work is offered to them.  The  deliberate refusal  to  work may be the result of  various  actions  on their  part such as a sit-in or stay-in strike at the  work- place  or  a strike whether legal or illegal, or  a  go-slow tactics. The deliberate refusal to work further may be legal or  illegal as when the employees go on a legal  or  illegal strike.  The legality of strike does not always  exempt  the employees  from  the  deduction of their  salaries  for  the period  of  strike. It only saves them from  a  disciplinary action  since a legal strike is recognised as  a  legitimate weapon  in the hands of the workers to redress their  griev- ances.  It  appears to us that this  confusion  between  the strike  as a legitimate weapon in the hands of  the  workmen and the liability of deduction of wages incurred on  account of  it,  whether the strike is legal or  illegal,  has  been responsible for the approach the High Court has taken in the matter.     5.  It is necessary to clear yet another  misconception. There  is  no  doubt that whenever a worker  indulges  in  a misconduct such as a deliberate refusal to work, the employ- er can take a disciplinary action against him and impose  on him  the  penalty prescribed for it which may  include  some deduction  from his wages. However, when misconduct  is  not disputed but is, on the other hand, admitted and is resorted to on a mass scale such as when the employees go on  strike, legal  or illegal, there is no need to hold an  inquiry.  To insist  on an inquiry even in such cases is to  pervert  the very  object  of  the inquiry. In a mass action  such  as  a strike  it is not possible to hold an inquiry against  every employee nor is it necessary to do so unless, of course,  an employee  contends  that although he did not want to  go  on strike and wanted to resume his duty, he was prevented  from doing so by the other employees or that the employer did not give him proper assistance to resume his duty though he  had asked  for it. That was certainly not the situation  in  the present case in respect of any of the employees and that  is not the contention of the employees either. Hence, in  cases such  as the present one, the only question that has  to  be considered is whether, when admittedly the employees  refuse to  work  by going on strike, the employer  is  entitled  to deduct wages for the relevant period or not. We 223 thought that the answer to this question was apparent enough and  did not require much discussion. However, the  question has  assumed a different dimension in the present  case  be- cause  on the facts, it is contended that although  the  em- ployees  went on strike only for four hours  and  thereafter resumed  their duties, the Bank has deducted wages  for  the whole day. It is contended that in any case this was  imper-

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missible and the Bank could at the most deduct only pro rata wages. Normally, this contention on the part of the  workers would be valid. But in a case such as the present one, where the employees go on strike during the crucial working  hours which generate work for the rest of the day, to accept  this argument is in effect to negate the purpose and efficacy  of the remedy, and to permit its circumvention effectively.  It is  true  that in the present case when the  employees  came back  to work after their four-hours strike, they  were  not prevented  from entering the Bank premises. But  admittedly, their  attendance  after the four-hours strike  was  useless because  there  was  no work to do during the  rest  of  the hours.  It  is  for this reason that the Bank  had  made  it clear,  in  advance,  that if they went on  strike  for  the four-hours as threatended, they would not be entitled to the wages  for the whole day and hence they need not report  for work thereafter. Short of physically preventing the  employ- ees  from resuming the work which it was unnecessary to  do, the Bank had done all in its power to warn the employees  of the  consequences of their action and if the  employees,  in spite  of it, chose to enter the Bank’s premises where  they had  no work to do, and in fact did not do any, they did  so of their own choice and not according to the requirement  of the  service or at the direction of the Bank. In  fact,  the direction  was to the contrary. Hence, the later  resumption of  work by the employees was not in fulfilment of the  con- tract  of service or any obligation under it. The  Bank  was therefore not liable to pay either full day’s salary or even the pro rata salary for the hours of work that the employees remained in the Bank premises without doing any work. It  is not a mere presence of the workmen at the place of work  but the work that they do according to the terms of the contract which constitutes the fulfilment of the contract of  employ- ment and for which they are entitled to be paid.     6. It is also necessary to state that though, before the High  Court, reliance was placed by the Bank on  the  provi- sions of Section 7(2)(b) read with Section 9 of the  Payment of  Wages  Act,  1936 for a right to deduct  the  wages  for absence  from duty, there is nothing on record to show  that the provisions of the said Act have been made applicable  to the  Bank. However, assuming that Act was applicable to  the Bank, we are of the opinion that the relevant discussion  of the 224 High  Court has missed the contentions urged by the Bank  on the basis of the said provisions. What was urged by the Bank was that the said provisions enabled it to deduct wages  for absence from duty. Hence, even if the Service  rules/regula- tions  were  silent  on the point, the  Bank  could  legally deduct  the wages under the said provisions. The High  Court has  reasoned  that the power given by the  said  provisions come  into play only when the employer has power to  do  so, probably  meaning  thereby,  the  power  under  the  Service rules/regulations. We are unable to appreciate this  reason- ing,  which  to  say the least, begs the  question.  It  is, therefore,  necessary to point out that if the Act  was  ap- plicable,  the  Bank would certainly have had the  power  to deduct the wages under the said provisions in the absence of any service rule regulation to govern the situation.     7. Since the admitted position is that the service rules do not provide for such a situation, the question as  stated earlier  which requires to be answered in the present  case, is  whether there exists an implied right in  the  employer- Bank to take action as it has done. There is no dispute that although the service regulations do not provide for a situa-

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tion where employees on a mass scale resort to absence  from duty  for  whole  day or a part of the  day  whether  during crucial hours or otherwise, they do provide for treating  an absence from duty of an individual employee as a  misconduct and  for  taking  appropriate action against  him  for  such absence.  Since the High Court has indicated a  disciplinary action under the said provision even in the present  circum- stances,  we  will also have to deal with that  aspect.  But before  we  do so, we may examine the  relevant  authorities cited at the Bar.     8. In Buckingham and Carnatic Co. Ltd. v. Workers of the Buckingham  and Carnatic Co. Ltd., [1953] SCR 219 the  facts were  that on 1st November, 1948 the night-shift  operatives of  the  carding and spinning department of  the  appellant- Mills  stopped work, some at 4 p.m., some at 4.30  p.m.  and some at 5 p.m. and the stoppage ended at 8 p.m. in both  the departments, and at 10 p.m. the strike ended completely. The apparent cause for the strike was that the management of the Mills had expressed its inability to comply with the request of the workers to declare the forenoon of the 1st  November, 1948 as a holiday for solar-eclipse. On 3rd November,  1948, the management put up a notice that the stoppage of work  on the  1st November amounted to an illegal strike and a  break in service within the meaning of the Factories Act and  that the management had decided that the workers who had partici- pated  in the said strike would not be entitled to  holidays with  pay as provided by the Act. The disputes  having  thus arisen, 225 the  State  Government  referred the  matter  to  Industrial Tribunal. The Tribunal held that the workers had resorted to an illegal strike and upheld the view of the management that the  continuity of service of the workers was broken by  the interruption  caused by the illegal strike and as  a  result the’  workers were not entitled to annual holidays with  pay under  Section 49-B(1) of the Factories Act.  The  Tribunal, however,  held that the total deprivation of leave with  pay was a severe punishment and reduced the punishment by 50 per cent  and  held that the workers would be deprived  of  only half their holidays with pay. In the appeal before the  then Labour  Appellate Tribunal, the Tribunal held,  among  other things, that what happened on the night of the 1st  November did  not amount to a strike and did not cause any  interrup- tion in the workers’ service. The Tribunal observed that "It would be absurd to hold that non-permitted absence from work even for half an hour or less in the course of a working day would  be regarded as interruption of service of  a  workman for  the purpose of the said section (i.e., Section  49-B(1) of  the  Factories Act). We are inclined to  hold  that  the stoppage  of work for the period for about 2 to 4  hours  in the  circumstances  of the ease is not to be regarded  as  a strike  so  as  to amount to a break in  the  continuity  of service of the workman concerned". In the result, the Tribu- nal allowed the Union’s appeal and ordered that holidays  at full rates as provided for in Section 49-A of the  Factories Act will have to be calculated on the footing that there was no break in the continuity of service. This Court set  aside the  finding  of the Appellate Tribunal by holding  that  it could not be disputed that there was a cessation of work  by a  body of persons employed in the Mills and that they  were acting  in combination and their refusal to go back to  work was concerted, and the necessary ingredients of the  defini- tion of "strike" in Section 2 (q) of the Industrial Disputes Act existed and it was not a ease of an individual  worker’s failure to turn up for work. Hence, it was an illegal strike

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because  no  notice had been given to  the  management,  the Mills being a public utility industry.      In  Secretary  of State for  Employment  v.  Associated Society  of Locomotive Engineers and Firemen and  Ors.  (No. 2), [1977] 2 All ER 949, Lord Denning MR observed: "...It  is  equally the case when he is employed as  one  of many’s to work in an undertaking which needs the service  of all. If he, with the others, takes steps wilfully to disrupt the undertaking to produce chaos so that it will not run  as it  should. then each one who is a party to those  steps  is guilty 226 of a breach of his contract. It is no answer for any one  of them to say ’I am only obeying the rule book’, or ’I am  not bound  to-do  more than a 40 hour week’. That would  be  all very  well if done in good faith without any wilful  disrup- tion of services; but what makes it wrong is the object with which it is done. There are many branches of our law when an act which would otherwise be lawful is rendered unlawful  by the  motive or object with which it is done. So here  it  is the wilful disruption which is the breach. It means that the work of each man goes for naught. It is made of no effect. I ask: is a man to be entitled to wages for his work when  he, with  others, is doing his best to make it  useless?  Surely not.  Wages  are to be paid for services rendered,  not  for producing deliberate chaos. The breach goes to the whole  of the consideration, as was put by Lord Campbell CJ in Cuckson v.  Stones, [1858] 1 E & E 248 at 255, (1983-60) All ER  Rep 390  at 392 and with other cases quoted in  Smith’s  Leading Cases  (13th  Edn., Vol. 2, p. 48), the notes to  Cutter  v. Power, [1795] 6 Term Rep 320, (1775-1802)All ER Rep 159)".     In  Miles v. Wakefield Metropolitan District Council,  [ 1989] I LLJ 335 the facts were that the plaintiff, Miles was the  Superintendent Registrar in the Wakefield  Metropolitan District Council. His duties included performing  marriages. As  part of trade union action, he declined to perform  mar- riages on Saturdays which day was very popular with marrying couples. However, on that day he performed his other duties. The Council, not wanting to terminate his services,  imposed a  cut in his remuneration. He sued the Council for  payment but  failed.  He  appealed to the Court of  Appeal  and  was successful. The appellate court held that he was a statutory official and there was no contractual relation and the  only action  against him was dismissal. Aggrieved by this  appel- late decision, the Council went before the House of-Lords in appeal.  The House of Lords held that the salary payable  to the  plaintiff was not an honorarium for the mere tenure  of office but had the character of remuneration for work  done. If  an  employee refused to perform the  full  duties  which could be required of him under his contract of service,  the employer  is entitled to refuse to accept any  partial  per- formance. In an action by an employee to recover his pay, it must  be proved or admitted that the employee worked or  was willing  to work in accordance with the contract of  employ- ment  or that such service as was given by the employee,  if falling  short of. his contractual obligations was  accepted by the 227 employer  as  sufficient performance of the contract.  In  a contract  of  employment  wages and work  go  together.  The employer  pays  for the work and the worker  works  for  his wages. If the employer declines to pay, the worker need  not work. If the worker declines to work, the employer need  not pay-  In an action by a worker to recover his pay,  he  must allege  and prove that he worked or was willing to work.  In

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the  instant  case,  the plaintiff  disentitled  himself  to salary  for Saturday morning because he declined to work  on Saturday  morning  in accordance with his  duty.  Since  the employee  had offered only partial performance of  his  con- tract,  the employer was entitled, without  terminating  the contract of employment, to decline partial performance,  and in  that case the employee would not be entitled to sue  for his unwanted service. In this connection, Lord Templeman stated as follows:       "The consequences of counsel’s submissions demonstrate       that  his  analysis  of a contract  of  employment  is deficient.  It  cannot be right that an employer  should  be compelled to pay something for nothing whether he  dismisses or  retains a worker. In a contract of employment wages  and work go together. The employer pays for work and the  worker works  for his wages. If the employer declines to  pay,  the worker  need not work. If the worker declines to  work,  the employer  need not pay. In an action by a worker to  recover his  pay  he  must  allege and be ready  to  prove  that  he worked or was willing to work  .....  "      It  may be mentioned here that on the question  whether the  employee engaged in some kind of industrial action  can claim wages on the basis of quantum meruit, only two of  the Law  Lords expressed themselves in favour, while  the  other three  did not want to express any definite opinion  on  the question.      9.  Among  the  decisions of the  various  High  Courts relied  upon  by the parties in support  of  the  respective cass, we find that except for the decision in V. Ganesan  v. The State Bank of India & Ors., [1981] 1 LLJ 64 given by the learned Single Judge of the Madras High Court and the  deci- sion of the Division Bench of the same Court in that  matter and  other matters decided together in State Bank of  India, Canara  Bank, Central Bank etc. & Ors. v.  Ganesan,-Jambuna- than, Venkataraman, B.V. Kamath, V.K. Krishnamurthy, etc.  & Ors.,  [1989]  1 LLJ 109, all other decisions,  namely,  (i) Sukumar Bandyo- 228 padhyyay & Ors. v. State of West Bengal & Ors., [1976] IXLIC 1689; (ii) Algemene Bank Nederland, N.V. v. Central  Govern- ment  Labour  Court, Calcutta & Ors., [1978]  II  LLJ,  117; (iii) V. Ramachandran v. Indian Bank, [1979] 1 LLJ 122; (iv) Dharam Singh Rajput & Ors. v. Bank of India, Bombay &  Ors., [1979]12  LIC 1079; (v) R. Rajamanickam, for himself and  on behalf  of other Award Staff v. Indian Bank, [1981]  II  LLJ 367; (vi) R.N. Shenoy & Anr. etc. v. Central Bank of India & Ors.  etc., [1984] XVII LIC 1493 and (vii)  Prakash  Chandra Johari  v. Indian Overseas Bank & Anr. [1986] II LI  J  496, have variously taken the view that it is not only  permissi- ble  for the employer to deduct wages for the hours  or  the days  for  which the employees are absent from duty  but  in cases such as the present, it is permissible to deduct wages for the whole day even if the absence is for a few hours. It is  also held that the contract is not indivisible. Some  of the decisions have also held that the deduction of wages can also  be made under the provisions of the Payment  of  Wages Act  and similar statutes where they are applicable.  It  is further held that deduction of wages in such cases is not  a penalty but is in enforcement of the contract of  employment and hence no disciplinary proceedings need precede it.     Even  in V. Ganesan v. The State Bank of India  &  Ors., (supra), it was not disputed on behalf of the employees that the  employer, namely, the Bank had no fight to  deduct  pro rata  the salary of the officers for the period  of  absence from  duty. What was contended there was that the  Bank  was

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not  entitled to deduct the salary for the whole three  days on  which  the employees had staged a  demonstration  for  a duration of 30 minutes during working hours on two days  and for  an hour, on the third day. The learned Judge held  that by permitting the employees to perform their work during the rest  of the day and by accepting such performance the  bank must be deemed to have acquiesced in the breach of  contract by the employees. It is on this fact that the learned  Judge held  that  the right to deduct salary  (obviously  for  the whole  day)  on the principle of "no work no pay"  could  be exercised only when there was a term in the contract or when there was a statutory provision to that effect. The Division Bench of the said Court in appeal against the said  decision and similar other matters (supra) confirmed the reasoning of the  learned Judge and held that in the absence of either  a term  in  the  contract of service stipulating  that  if  an employee abstains from doing a particular work on a particu- lar  day,  he would not be entitled to  emoluments  for  the whole day or in the absence of a statutory provision  laying down  such a rule, it was impermissible for the employer  to deduct or withhold the emoluments 229 of  the  employees  even for the  hours  during  which  they worked.  Having  accepted the performance of work  from  the employees  for the rest of the day, the Banks are  bound  to compensate the employees for the work performed by them.  In that  very case, the Court also held, on the  facts  arising from  the other matters before it, that the refusal to  per- form the clearing-house work can only be the subject  matter of  a disciplinary action and it cannot straightaway  result in  the  withholding of the wages for the  whole  day.  Non- signing  of the attendance register and doing work  is  also work  for which the employees should be compensated by  pay- ment of remuneration.     10. On the specific question whether the management  can take action in situations, where either the contract, Stand- ing Order or rules and regulations are silent, both  parties relied on further authorities.     In Workmen of M/s. Firestone Tyre & Rubber Co. of  India (P) Limited v. Firestone Tyre & Rubber Co., [1976] 3 SCR 369 on which reliance was placed on behalf of the workmen it was held  that under the general law of master and  servant,  an employer  may  discharge an employee either  temporarily  or permanently but that cannot be without adequate notice. Mere refusal or inability to give employment to the workmen  when he  reports  for duty, on one or more grounds  mentioned  in clause (kkk) of Section 2 of the Industrial Disputes Act  is not  a  temporary discharge of the workmen.  Such  a  power, therefore, must be found out from the terms of the  contract of  service or the Standing Orders governing the  establish- ment- Hence, even for lay-off of the workmen there must be a power in the management either in the contract of service or the standing orders governing the establishment. Ordinarily, the  workmen,  therefore, would be entitled  to  their  full wages when the workmen are laid off without there being  any such  power.  There was no common law right to lay  off  the workmen, and, therefore, no right to deny the workmen  their full wages.      In  Krishnatosh  Das Gupta v. Union of  India  &  Ors., [1980]  1  LLJ  42, it was a case of the  employees  of  the National  Test House, Calcutta who had staged  demonstration after  signing  the attendance register  to  register  their protest  against  suspension of some  of  their  colleagues. Though  the  employees signed the  attendance  register  and attended  the office, they did no work on the relevant  day.

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As such, a circular was issued by the Joint Director inform- ing  the employees that they would be considered as "not  on duty".  By  a subsequent circular the  same  Joint  Director notified  to all departments concerned the decision  of  the Cabinet that there shall not be pay for no work. Relying  on the said 230 circular the Management of the National Test House  effected on  a mass-scale pay-cut from the pay and allowances of  the concerned  employees.  The circular was  challenged  by  the employees by a writ petition before the High Court. The High Court  held that in order to deduct any amount from  salary, there  must  be specific rules relating to the  contract  of service of the person concerned.     On  behalf  of the employers, reliance was placed  on  a decision of this Court in Sant Ram Sharma v. State of Rajas- than & Anr., [1968] 1 SCR 111 for the proposition laid  down there.that  in the absence of any statutory rules or a  spe- cific  provision  in the rules, the Government  can  act  by administrative  instructions. The Court has held there  that though it is true that the Government cannot amend or super- sede statutory rules by administrative instructions, if  the rules  are  silent on any particular point,  Government  can fill up the gaps and supplement the rules and issue instruc- tions not inconsistent with the rules already framed.     In  Roshan  Lal Tandon v. Union of India, [1968]  1  SCR 185,  this  Court  has stated that although  the  origin  of Government service is contractual in the sense that there is an offer and acceptance in every case, once appointed to his post  or office, the Government servant acquires  a  status, and  his rights and obligations are no longer determined  by consent  of both parties but by statute or  statutory  rules which  may be flamed or altered unilaterally by the  Govern- ment.  In other words, the legal position of the  Government servant is more of status than of contract. The hallmark  of status is the attachment to legal relationship of rights and duties  imposed by the public law and not by mere  agreement of the parties. The relationship between the Government  and the  servant  is not like an ordinary  contract  of  service between  a  master and servant. The  legal  relationship  is something  entirely  different, something in the  nature  of status.     In V.T. Khanzode & Ors. v. Reserve Bank of India & Anr., [1982] 3 SCR 411, this Court has reiterated that so long  as Staff Regulations are not flamed, it is open to issue admin- istrative circulars regulating the service conditions in the exercise  of power conferred by Section 7(2) of the  Reserve Bank  of India Act, 1934 so long as they do not  impinge  on any regulations made under Section 58 of the Act.     The same view with regard to power to issue  administra- tive  instructions  when rules are silent on a  subject  has been reiterated by the Court in Paluru Ramkrishnaiah &  Ors. etc. v. Union of India & 231 Anr.  etc., [1989] 1 JT 595 and in Senior Superintendent  of Post Office & Ors. v. Izhar Hussain, [1989] 3 JT 411.     11.  The  principles  which emerge  from  the  aforesaid authorities may now by stated. Where the contract,  Standing Orders  or the service rules/regulations are silent  on  the subject,  the management has the power to deduct  wages  for absence from duty when the absence is a concerted action  on the  part of the employees and the absence is not  disputed. Whether  the deduction from wages will be pro rata  for  the period  of absence only or will be for a longer period  will depend upon the facts of each case such as whether where was

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any work to be done in the said period, whether the work was in fact done and whether it was accepted and acquiesced  in, etc.     It is not enough that the employees attend the place  of work. They must put in the work allotted to them. It is  for the  work  and  not  for  their  mere  attendance  that  the wages/salaries are paid. For the same reason, if the employ- ees  put  in  the  allotted  work  but  do  not,  for   some reason--may  be even as a protest--comply with the  formali- ties  such as signing the attendance register, no  deduction can be effected from their wages- When there is a dispute as to  whether the employees attended the place of work or  put in  the  allotted  work or not, and if they  have  not,  the reasons  therefore etc., the dispute has to be  investigated by  holding  an inquiry into the matter. In such  cases,  no deduction  from the wages can be made  without  establishing the omission and/or commission on the part of the  employees concerned.     When  the  contract,  Standing Orders,  or  the  service rules/regulations  are  silent, but enactment  such  as  the Payment of Wages Act providing for wage-cuts for the absence from duty is applicable to the establishment concerned,  the wages  can  be deducted even under the  provisions  of  such enactment.     12. Apart from the aforesaid ratio of the decisions  and the  provisions  of  the Payment of Wages  Act  and  similar statutes  on  the  subject, according to  us,  the  relevant provisions of the major legislation governing the industrial disputes, viz., the InduStrial Disputes Act, 1947 also  lend their  support  to the view that the wages are  payable  pro rata for the work done and hence deductible for the work not done. Section 2 (rr) of the said Act defines "wages" to mean "all  remuneration  ....  which would, if terms  of  employ- ment,  expressed or implied, were fulfilled, be  payable  to workman  in respect of his employment or work done  in  such employment ..." while Section 232 2(q) defines "strike" to mean "cessation of work" or "refus- al  to  continue to work or accept employment  by  workman". Reading the two definitions together, it is clear that wages are payable only if the contract of employment is  fulfilled and not otherwise. Hence, when the workers do not put in the allotted work or refuse to do it, they would not be entitled to the wages proportionately.     13.  The  decisions including the one impugned  in  this appeal which have taken the view which is either contrary to or  inconsistent  with the above conclusions, have  done  so because  they have proceeded on certain wrong  presumptions. The first error, as we have pointed out at the outset, is to confuse  the question of the legitimacy of the strike  as  a weapon  in the workers’ hands with that of the liability  to lose  wages for the period of strike. The working class  has indisputably  earned  the right to strike as  an  industrial action  after a long struggle, so much so that the  relevant industrial legislation recognises it as their implied right. However,  the legislation also circumscribes this  right  by prescribing  conditions under which alone its  exercise  may become  legal.  Whereas, therefore, a legal strike  may  not invite  disciplinary proceedings, an illegal strike  may  do so,  it being a misconduct. However, whether the  strike  is legal  or illegal, the workers are liable to lose wages  for the  period of strike. The liability to lose wages does  not either  make the strike illegal as a weapon or  deprive  the workers of it. When workers resort to it, they do so knowing full well its consequences. During the period of strike  the

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contract  of employment continues but the  workers  withhold their labour. Consequently, they cannot expect to be paid.     The second fallacy from which the said decisions  suffer is to view the contract of employment as an indivisible  one in terms of the wageperiod. When it is argued that the wages cannot be deducted pro rata for the hours or for the day  or days  for which the workers are on strike because  the  con- tract,  which in this case is monthly, cannot be  subdivided into days and hours, what is forgotten is that, in that case if  the  contract comes to an end amidst a month  by  death, resignation  or retirement of the employee, he would not  be entitled  to the proportionate payment for the part  of  the month  he served. This was the iniquitous and  harsh  conse- quence  of the rule of indivisibility of contract laid  down in an English case, Cutter v. Powell, [1795] 6 TR 320  which was rightly vehemently criticised and later, fortunately not followed. If the employment-contract is held indivisible, it will  be so for both the parties. We are also unable to  see any  difficulty, inequity or impracticability in  construing the contract as divisible into different 233 periods such as days and hours for proportionate  reimburse- ment or deduction of wages, which is normally done in  prac- tice.     The  third  fallacy was to equate  disputed  individual- conduct with admitted mass conduct. A disciplinary  proceed- ing  is neither necessary nor feasible in the  latter  case. The  contract of employment, Standing Orders or the  service rules provide for disciplinary proceedings for the lapse  on the part of a particular individual or individuals when  the misconduct  is disputed. As things stand today; they do  not provide  a remedy for mass-misconduct which is  admitted  or cannot  be disputed. Hence, to drive the management to  hold disciplinary  proceedings  even  in such  cases  is  neither necessary nor proper. The service conditions are not expect- ed to visualise and provide for all situations. Hence,  when they are silent on unexpected eventualities, the  management should  be deemed to have the requisite power to  deal  with them  consistent with law and the other  service  conditions and  to the extent it is reasonably necessary to do so.  The pro rata deduction of wages is not an unreasonable  exercise of  power on such occasions. Whether on such  occasions  the wages are deductible at all and to what extent will,  howev- er, depend on the facts of each case. Although the employees may strike only for some hours but there is no work for  the rest of the day as in the present case, the employer may  be justified  in  deducting salary for tile whole day.  On  the other  hand, the employees may put in work after the  strike hours and the employer may accept it or acquiesce in it.  In that  case the employer may not be entitled to deduct  wages at  all or be entitled to deduct them only for the hours  of strike. If further statutes such as the Payment of Wages Act or  the State enactments like the Shops  and  Establishments Act apply, the employer may be justified in deducting  wages under  their provisions. Even if they do not apply,  nothing prevents the employer from taking guidance from the legisla- tive  wisdom contained in it to adopt measures on the  lines outlined therein, when the contract of employment is  relent on the subject.     14. It is, however, necessary to reiterate that even  in cases such as the present one where action is resorted to on a  mass  scale,  some employees may not be a  party  to  the action  and  may have genuinely desired to  discharge  their duties but could not do so for failure of the management  to give the necessary assistance or protection or on account of

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other circumstances. The management will not be justified in deducting  wages  of such employees without holding  an  in- quiry.  That, however, was not the grievance of any  of  the employees in the present case, as pointed out earlier. 234     15.  Hence, we are unable to sustain the impugned  deci- sion which is untenable in law. The decision is  accordingly set aside with no order as to costs. Civil Appeal No. 855 of 1987     16.  The facts in this case are different from those  in the  earlier  appeal. In this case, the  allegation  of  the employer  Company is that the workers had indulged  in  "go- slow" and as a result there was negligible production in the month of July 1984. The workers did not attend to their duty and  only loitered in the premises and indulged  in  go-slow tactics  only with a view to pressurise the Company to  con- cede  demands.  The  Company was,  therefore,  compelled  to suspend  its operation by giving a notice of lock  out.  Ac- cording to the Company, therefore, since the workers had not worked  during  all the working hours, they had  not  earned their  wages.  Hence, the Company did not  pay  the  workers their wages for the entire month of July 1984. The  workers’ Union,  therefore, filed a complaint before  the  Industrial Court under the Maharashtra Recognition of Trade Unions  and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act, for short) complaining that the Company had indulged in unfair  labour practice mentioned in Item 9 of  Schedule  4, from  7th  August, 1984 which was the date  for  payment  of salary  for  the  month of July 1984, and under  Item  6  of Schedule  2  of the Act with effect from 14th  August,  1984 since the Company had declared a lock-out from that day.  It was  also  alleged that since no specific date of  the  com- mencement of the alleged lock-out had been specified, it was an illegal one.     17.  It appears that the Company had declared the  lock- out  by  notice  dated July 30, 1984 and the  lock  out  was effected  from  August 14, 1984.  Subsequently,  there  were negotiations  between the Union and the Company, and a  set- tlement was reached on October 15, 1984 as a result of which the  lock out was lifted with effect from October 16,  1984. The terms of the settlement were formally reduced to writing on November 30, 1984.     18. In this appeal, we are not concerned with the  lock- out  and the subsequent settlement. The question that  falls for  consideration  before  us is whether  the  Company  was justified  in denying to the workers the full monthly  wages for the month of July 1984. On this question, the Industrial Court accepted the oral testimony of the Company’s witnesses that the workmen had not at all worked for full eight  hours on any day in July 1984 and that they were working intermit- 235 tently  only for some time and sitting idle during the  rest of  the  day. On an average the workers had not  worked  for more than one hour and 15 to 20 minutes per day, during that month.  The Industrial Court did not accept the evidence  of the  Union’s witness that the witness and the other  workmen had  worked on all the days during the entire month of  July 1984  because  he admitted that after the Company  told  the workers that it could not concede to the demands, the  work- ers had started staging demonstration. Although the  witness denied that from July 3, 1984, the workers started indulging in  go-slow,  he admitted that the  Company  was  displaying notices  from  time to time with effect from  July  4,  1984 alleging  that  the workers were not giving  production  and that  they were loitering here and there. According  to  the

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Industrial  Court in the circumstances, it did not  see  any good reason to disbelieve the Company’s witnesses. The Court further  held  that  normally in view of  this  evidence  on record,  it would have held that the pro rata  deduction  of wages  made by the Company for the month of July 1984  would not amount to an act of unfair labour practice falling under Item 9 of Schedule IV of the MRTU and PULP Act. However,  in view  of the two judgments of the Bombay High Court in  T.S. Kelwala  & Ors. v. Bank of India & Ors., [1981] 43  FLR  341 i.e.  the one impugned in the earlier appeal and Apar  (Pvt) Limited  v.S.R. Samant & Ors., [1980] II LLJ 344, the  Court had to hold that the non-payment of full wages to the  work- men  for the month of July 1984 was an act of unfair  labour practice  falling under the said provision of the  Act.  The Court  further  held that admittedly the  workers  were  not piece-rated and there was no agreement or settlement  allow- ing the Company to deduct wages on the ground that they were indulging  in  "go-slow" or that they had not  given  normal production. According to the Court, the remedy of the Compa- ny  against the workmen may lie elsewhere. Thus,  the  Court taking  sustenance  from  the Bombay  High  Court  Judgments referred  to above held that the deduction of  wages  during the  month of July, 1984 on account of the go-slow  was  not justified,  and declared that the Company had  committed  an unfair  labour practice by not paying full monthly wages  to the workmen, and directed the Company to pay the said  wages for  the month of July 1984. It is this order of the  Indus- trial  Court which is challenged directly in this  Court  by the present appeal.      19.  Since one of the two decisions of the Bombay  High Court  on which the Industrial Court relied was rendered  in another  context  and it has already been discussed  in  the other appeal, we may refer here only to the other  decision, viz.,  Apar (Pvt) Ltd. v. S.R. Samant & Ors., (supra)  which is  pressed in service before us on behalf of  the  workmen. The facts in that case were that by a settlement dated Au- 236 gust 3, 1974 the workmen were allowed increase in the  basis wages,  dearness allowance, house rent, etc. in addition  to the  production bonus in terms of a scheme. That  settlement was  binding on the parties upto the end of April 1977.  The matters ran a smooth course till August 1975. However,  from September  1975, the Company refused to pay  the  production bonus and with effect from 15th October, 1975 it refused  to pay  the wages, dearness allowances etc. as per the  settle- ment. On August 21, 1975, a notice was put up by the Company starting that because of the attitude of indiscipline on the part of the workers and deliberate go-slow tactics resulting in  low production, the management was relieved of its  com- mitments and obligation imposed upon it by the settlement. A notice  in  terms of Section 9A of the  Industrial  Disputes Act,  1947  was also put up indicating a  certain  scale  of wages  to  which only the workers would be  entitled.  These wages  were not more than the wages under the Minimum  Wages Act and were even less than what was agreed to in the earli- er  agreement of January 23, 1971. A complaint  was,  there- fore, filed under the MRTU & PULP Act before the  Industrial Court, and the Industrial Court recorded a finding that  the figures  of  production produced by the  Company  before  it related only to few departments. Out of total of 700 employ- ees  who  were working earlier, 116 were retrenched  at  the relevant  time. The Company’s allotment of  material,  viz., aluminium  was also reduced from 7390 metric tones  to  2038 and there was no supply of even that allotted quantity.  The Court  further referred to certain  inconsistent  statements

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made by the factory-manager and held that the management had failed  to discharge the burden of proof of  justifying  the drastic  reduction  of the wages and other  emoluments.  The Court  therefore  recorded a finding that  the  Company  had engaged  in  an  unfair labour practice.  Against  the  said decision,  the Company preferred a writ petition before  the High  Court.  The High Court on these facts  held  that  the wages could be deducted only in terms of a statutory  provi- sion or of a settlement. A reduction of wages on the allega- tion that the workers in general had resorted to go-slow was wholly impermissible in law specially when the workmen  were not  piece-rated employees. The High Court referred  to  the cases  where  reduction of wages for absence from  duty  for striking  work was held as valid such as Major Kanti Bose  & Ors.  v. Bank of India & Ors., (supra); V.  Ramachandran  v. Indian Bank, (supra) and Algemene Bank, Nederland v. Central Government  Labour  Court, Calcutta, (supra) and  held  that those  cases  were distinguishable because they  related  to absence from duty and not go-slow. In  M/s. Bharat Sugar Mills Ltd. v. Shri Jai Singh  &  Ors., [1962] 3 237 SCR  684 the facts were that certain workmen of  the  appel- lant-Mills resorted to "go-slow". The appellant-Mills held a domestic inquiry and as a result thereof decided to  dismiss 21  workmen,  and  apply to the  Industrial  Tribunal  under Section 33 of the Industrial Disputes Act for permission  to dismiss  the workmen. Evidence was laid before the  Tribunal to  prove the charge against the workmen. The Tribunal  held that the domestic enquiry was not proper, that the appellant was  guilty  of mala fide conduct  and  victimisation,  that except in the case of one workman, the others were guilty of deliberate  go-slow  and accordingly granted  permission  in respect  of  the one workman only. It is  against  the  said decision that the appellant-Mills had approached this Court. This Court held that the evidence produced before the Tribu- nal  clearly established that 13 out of the 20 workmen  were guilty of deliberate go-slow and in that connection observed as follows: "Go-slow  which  a  picturesque  description  of  deliberate delaying  of production by workmen pretending to be  engaged in the factory is one of the most pernicious practices  that discontended  or disgruntled workmen sometime resort to.  It would  not be far wrong to call this dishonest.  For,  while thus delaying production and thereby reducing the output the workmen  claim  to  have remained employed and  thus  to  be entitled  to full wages. Apart from this also, "go-slow"  is likely to be much more harmful than total cessation of  work by strike. For, while during a strike much of the  machinery can be fully turned off, during the "go-slow" the  machinery is  kept going on a reduced speed which is  often  extremely damaging to machinery parts. For all these reasons "go-slow" has always been considered a serious type of misconduct." This  Court, therefore, set aside the order of the  Tribunal refusing permission to dismiss 13 of the workmen.     20.  There  cannot  be two opinions that  go-slow  is  a serious misconduct being a covert and a more damaging breach of the contract of employment. It is an insidious method  of undermining  discipline and at the same time a crude  device to defy the norms of work. It has been roundly condemned  as an industrial action and has not been recognised as a legit- imate weapon of the workmen to redress their grievances.  In fact  the  model standing orders as well  as  the  certified standing  orders  of most of the  industrial  establishments define  it  as a misconduct and provide for  a  disciplinary

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action for it. Hence, once it is 238 proved,  those  guilty of it have to face  the  consequences which may include deduction of wages and even dismissal from service.     But  by its very nature, the proof of go-slow,  particu- larly  when  it  is disputed,  involves  investigation  into various aspects such as the nature of the process of produc- tion,  the  stages of production and their  relative  impor- tance,  the  role of the workers engaged at  each  stage  of production, the pre-production activities and the facilities for  production and the activities of the workmen  connected therewith and their effect on production, the factors  bear- ing  on the average production etc. The go-slow further  may be indulged in by an individual workman or only some workmen either in one section or different sections or in one  shift or  both shifts affecting the output in varying degrees  and to different extent depending upon the nature of product and the  productive process. Even where it is admitted,  go-slow may  in  some case present difficulties in  determining  the actual or approximate loss, for it may have repercussions on production  after the go-slow ceases which may be  difficult to estimate. The deduction of wages for go-slow may,  there- fore,  present difficulties which may not be easily  resolu- ble.  When, therefore, wages are sought to be  deducted  for breach  of con tract on account of go-slow, the  quantum  of deduction  may  become a bone of contention in most  of  the cases  inevitably  leading to an industrial  dispute  to  be adjudicated by an independent machinery statutory or  other- wise as the parties may resort to. It is necessary to empha- size  this because unlike in this case of a strike  where  a simple  measure of a pro rata deduction from wages may  pro- vide  a  just and fair remedy, the extent  of  deduction  of wages on account of a go-slow action may in some case  raise a  complex  question.  The simplistic  method  of  deducting uniform  percentage of wages from the wages of  all  workmen calculated on the basis of the percentage fail in production compared to the normal or average production may not  always be equitable. It is, therefore, necessary that in all  cases where the factum of go-slow and/or the extent of the loss of production on account of it, is disputed, there should be  a proper  inquiry on charges which furnish particulars of  the go-slow  and  the loss of production on  that  account.  The rules  of natural justice require it, and whether they  have been followed or not will depend on the facts of each case.     21. In the present case, the Industrial Court, as point- ed out earlier, has accepted the evidence of the witness  of the  Company that the workmen had not worked for full  eight hours on any day in the month concerned, namely, July  1984, and that they were working intermittently only for  sometime and were sitting idle during the rest 239 Of the time. According to him, the workers had worked hardly for  an hour and 15 to 20 minutes on an average  during  the said month. The witness had also produced notices put up  by the Company from time to time showing the daily fall in  the production and calling upon the workmen to resume  normalcy. There is further no dispute that the copies of these notices were  sent  to the Union of the workmen as well  as  to  the Government  Labour  Officer. The Industrial  Court  did  not accept the evidence of the workmen that there was no go-slow as alleged by the Company. Accordingly, the Industrial Court has recorded a finding that the pro rata deduction of  wages made  by  the  Company for the month of July  1984  did  not amount to an act of unfair labour practice within the  mean-

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ing  of  the said Act. It does not further appear  from  the record  of the proceedings before the Industrial Court  that any  attempt was made on behalf of the workmen to  challenge the  figures  of production produced by the  Company.  These figures show that during the entire month of July 1984,  the production varied from 7.06 per cent of 13.9 per cent of the normal  production.  The Company has deducted wages  on  the basis  of  each day’s production. In view of the  fact  that there  is  a finding recorded by the Industrial  Court  that there  was  a  go-slow resorted to by the  workmen  and  the production  was  as alleged by the Company during  the  said period, which finding is not challenged before us, it is not possible  for  us to interfere with it in  this  appeal.  As stated  above, all that was challenged was the right of  the employer  to  deduct wages even when admittedly there  is  a go-slow  which  question we have answered in favour  of  the employer earlier. The question with regard to the quantum of deduction  from the wages, therefore, does not arise  before us for consideration. It is, however, likely that the  work- men  did not question the figures of production  before  the Industrial Court because they were armed with the two  deci- sions of the High Curt (supra) which according to them,  had negatived the right of the employer to deduct wages even  in such  circumstances. While, therefore, allowing the  appeal, we direct that the appellant will not deduct more than 5 per cent of the wages of the workmen for the month of July 1984. 22.  The appeal is allowed accordingly with no order  as  to costs. G.N.                                   Appeals allowed. 240