*THE HON’BLE SRI JUSTICE K.C.BHANU % Dated : 07.07.2011 + WRIT PETITION No.18976 OF 2008 #The Singareni Collieries Workers’ Union & 3 others ..... Petitioners AND $The Singareni Collieries Company Limited & another ..... Respondents WRIT PETITION No.15661 OF 2009 #Singareni Collieries Workers’ Union & 2 others ..... Petitioners AND $Singareni Collieries Company Limited & 3 others ..... Respondents WRIT PETITION No.16160 OF 2009 #Telangana Boggu Ghani Karmika Sangham & 2 others ..... Petitioners AND $Singareni Collieries Company Limited & 3 others ..... Respondents AND WRIT PETITION No.23384 OF 2009 #Telangana Boggu Ghani Karmika Sangham & another ..... Petitioners AND $Singareni Collieries Company Limited & 3 others ..... Respondents ! Counsel for Petitioners : Sri C.V. Mohan Reddy ^Counsel for Respondents: Sri Nandigama Krishna Rao <GIST : >HEAD NOTE : ? Cases referred : AIR 1995 Supreme Court 319(1) (1990) 4 Supreme Court Cases 744 1999(5) ALD 619 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SEVENTH DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.18976 OF 2008 Between: The Singareni Collieries Workers’ Union & 3 others ..... Petitioners AND The Singareni Collieries Company Limited & another ..... Respondents WRIT PETITION No.15661 OF 2009 Between: Singareni Collieries Workers’ Union & 2 others ..... Petitioners AND Singareni Collieries Company Limited & 3 others ..... Respondents WRIT PETITION No.16160 OF 2009 Between: Telangana Boggu Ghani Karmika Sangham & 2 others ..... Petitioners AND Singareni Collieries Company Limited & 3 others ..... Respondents AND WRIT PETITION No.23384 OF 2009 Between: Telangana Boggu Ghani Karmika Sangham & another ..... Petitioners AND Singareni Collieries Company Limited & 3 others ..... Respondents HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION Nos.18976 of 2008, 15661 of 2009, 16160 of 2009 and 23384 of 2009 COMMON ORDER: Writ Petition No.18976 of 2008 is filed under Article 226 of the Constitution of India, seeking to issue a writ of Mandamus declaring the action of the 2nd respondent in issuing Proceedings Ref.No.CRP/PER/IR, dated 27.08.2008, for penal deduction of wages under Section 9(2) of Payment of Wages Act, 1936 (for short, ‘the Act’) at the rate of two days wages for each workmen who participated in strike on 20.08.2008 as illegal, arbitrary, voilative of principles of natural justice and without jurisdiction. 2. Writ Petition Nos.15661 of 2009 and 16160 of 2009 are filed under Article 226 of the Constitution of India, seeking to issue a writ of Mandamus declaring the action of the 2nd respondent in issuing the Proceedings Ref.No.CRP/PER/IR/S/ 550/1823, dated 23.07.2009, imposing penal deduction of wages at the rate of two days for each day of illegal strike (not exceeding eight days wages for the strike) under Section 9(2) of the Act from the workmen of GDK-10 Incline, who have participated in strike from 2nd shift of 19.07.2009 to 1st shift of 20.07.2009 from the wages for the month of July, 2009, payable in August, 2009, as illegal, arbitrary, violative of principles of natural justice and without jurisdiction and consequently set aside the same. 3. Writ Petition No.23384 of 2009 is filed under Article 226 of the Constitution of India, seeking to issue a writ of Mandamus declaring the action of the 4th respondent in imposing the penal deduction of wages at the rate of two days for each day for the alleged illegal strike, dated 05.10.2009, from the workmen of GDK- 10A Incline as illegal, arbitrary, violative of principles of natural justice and without jurisdiction and consequently set aside the same. 4. Since the common point involved in all the Writ Petition, they are being taken up for disposal together by this Common Order. 5. The brief facts that are necessary for the disposal of these Writ Petitions are as follows: The petitioners are the employees of the first respondent company, the Singareni Collieries Company Limited, and the first petitioner is a recognized trade union operating in the first respondent company. The petitioners’ union issued a notice, dated 04.08.2008, for one day token strike by the employees of the first respondent company along with employees of public sector undertakings, Banks, etc., for redressal of demands concurring working class in the entire country on 20.08.2008. The second respondent, the Chief General Manager (Personnel) of first respondent, issued Proceedings Ref.No.CRP/PER/IR/P/427/1628, dated 27.08.2008, imposing penal deduction of wages at the rate of two days wages for each day of illegal strike from the workmen who participated in strike on 20.08.2008 from the wages for the month of August, 2008, payable in September, 2008. In response to the same, the Chief General Manger (Personnel), Bhoopalpalli, ordered for recovery of penal wages for two days from the workmen of KTK-1, KTK-2, KTK-5 and KTK-6 mines vide endorsement Circular No.BHP/PER/2008/27/3301, dated 27.08.2008. Thereafter, a notice was displayed on the notice board, the Circular Ref. No.BHP/PER/2006/16/3411, dated 30.08.2008, displaying number of workmen whose wages are to be deducted for participating in strike on 20.08.2008. The employees of the first respondent company are being paid wages as per National Coal Wage Agreement-VII, dated 15.07.2005, which came into effect from 01.07.2001. The lower paid employee in the company is daily rated General Mazdoor, Category-I. A fresh recruited employee in that category will draw minimum wage of Rs.358.16 per day. If it is multiplied by 26 days, the monthly rate of wage would be Rs.9,312.16. The list of employees whose wages are going to be deducted was displayed by the company vide letter, dated 30.08.2008. The lower pay to be recovered from an employee is Rs.715.73. Thus, the employee is drawing more than Rs.6,500/- per month. The recovery is sought to be made under the Act. Under Section 1(6) of the Act, the provisions of the Act do not apply to the employees working in the first respondent company as they are drawing more than Rs.6,500/- per month as wages. Hence, this Writ Petition. 6. A detailed counter affidavit has been filed by the respondents, inter alia, contending that the dispute in the Writ Petitions is an ‘industrial dispute’ within the meaning of Section 2(k) of the Industrial Disputes Act, 1947. The strike by the petitioners was without complying with the mandatory provisions of Section 22 of the Industrial Disputes Act, 1947, and that though all the employees working in the first respondent company are drawing more than Rs.6,500/- per month, it is open for the Government, either State or Central, by giving due notice to extend the provisions of the Act to any class of persons or class of establishment and that by virtue of a notification, dated 30.12.1947, all the provisions of the Act have been extended to all classes of persons except Section 8(4) of the Act. Therefore, the contention that the Act has no application to the employees of the first respondent company is not correct, that by virtue of the Government notification, dated 22.06.2009, the first respondent company was declared to be a public utility service for the purpose of the Industrial Disputes Act, 1947, for a period of six months from 28.06.2009. In spite of the said notification, illegal strike was called by the workmen. The petitioners failed to make out a prima facie case and, hence, he prays to dismiss the Writ Petition. 7. Sri G. Vidya Sagar, learned counsel appearing for the petitioners in all the Writ Petitions contended that the first respondent company has decided to invoke Section 9(2) of the Act for the purpose of imposing a penal deduction of wages and admittedly, all the employees of the first respondent company are drawing more than Rs.6,500/- per month as wages, and so, the Act has no application in view of Section 1(6) of the Act and once the Act has no application invoking any one of the provisions thereof, is without jurisdiction and illegal. 8. On the other hand, Sri C.V. Mohan Reddy, learned senior counsel appearing for respondents 1 and 2 contended that the language used in Section 1(6) of the Act, which is substituted by amendment in the year 2005, would clearly indicate that by mutual understanding between the Management and the employees, the provisions of the Act can be extended, and that all the unions agreed for the application of provisions of Payment of Wages Act in all respects, and now, they cannot turn around and say that the Act has no application; that, even alternatively, quoting a wrong provision is not a ground for setting aside the impugned proceedings; that, the power of the second respondent, who passed the impugned proceedings, can be traced through its Certified Standing Orders which prescribe penalty for absenteeism; that, in view of the fact that a mass strike was called by the employees, it may not be possible to give individual notices so as to comply with the principles of natural justice; that, when it is not the case of the employees that they have not participated in the strike, it would be an empty formality calling for their explanation as their participation in the strike is not in dispute; that, the strike is unjust and illegal and in such circumstances, issuance of notice and conducting an enquiry would be an empty formality; that, the power of the second respondent to pass the impugned order can be traced to the Certified Standing Orders No.27.1; that, for the purpose of deciding whether the strike is legal or not, a separate forum is available under Section 15 of the Act and also an appeal is provided for, against the order of the said forum and, hence, Writ Petition is not maintainable. 9. It is not in dispute before this Court that the members of the petitioners union and some others absented themselves from duty on 20.08.2008 in response to the one day token strike call given by the recognized unions and few registered unrecognized unions in pursuance of the decision taken by the sponsoring committee of a few National Trade Unions against the Government policies. It is not in dispute before this Court that under Certified Standing Order No.25.31, absence from duty without sanctioned leave or sufficient cause or overstaying beyond sanctioned leave is one of the misconducts. Similarly, under Certified Standing Order No.25.11, going on illegal strike either singly or with other workmen without giving 14 days’ prior notice is also amount to misconduct. The impugned order is passed by the second respondent exercising the powers invoking Section 9(2) of the Act. 10. The main ground of attack of the impugned orders by the learned counsel for the petitioner is that the authority who issued the order has no jurisdiction to invoke Section 9(2) of the Act. Section 9 of the Act deals with ‘Deduction for absence from duty’. Under Section 9(2) of the Act, the amount of such deduction shall in no case bear to the wages payable to the employed person in respect of the wage period for which the deduction is made a larger proportion than the period for which he was absent bears to the total period, within such wage period, during which by the terms of his employment, he was required to work. So, Section 7(2)(b) of the Act says that deductions from the wages from the employed persons shall be made only in accordance with the provisions of the Act and may be with the following kinds namely - (a) --------- (b)deductions for absence from duty. Now, the question is whether the Act is applicable to all the employed persons. 11. Section 1(6) of the Act reads, “This Act applies to wages payable to an employed person in respect of a wage period if such wages for that wage period do not exceed six thousand five hundred rupees per month on such other higher sum which, on the basis of figures of the consumer expenditure survey published by the National Sample Survey Organization, the Central Government, may after every five years, by notification in the official Gazette, specify.” In this case, we are concerned with only first clause of this Section which says that the Act applies only to the persons whose wages do not exceed Rs.6,500/- per month. When the words of provision in a statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning, the Courts are bound to give effect to that meaning irrespective of consequences. 12. On this aspect, the learned counsel for the respondents contended that this clause has to be read along with Section 1(5) of the Act. Section 1(5) reads as follows: “The State Government may, after giving three months' notice of its intention of so doing, by notification in the Official Gazette, extend the provisions of this Act or any of them to the payment of wages to any class of persons employed in any establishment or class of establishments specified by the Central Government or a State Government under sub- clause (h) of clause (ii) of section 2.” It is not in dispute before this Court that by virtue of the Notification issued by the Central Government in FAC 52(1), dated 30.12.1947, extending all the provisions of the Act except Section 8(4) of the Act to payment of wages to all classes of persons employed in the coal mines. Therefore, when the Central Government issued a Gazette notification extending all the provisions of the Act to all classes of persons, it can be made applicable to all the persons working in the first respondent company irrespective of their wages. While substituting the present provision under Section 1(6) of the Act, the statement of objects and reasons of the Amendment Act 1947 of 2003 is very clear that, the then existing ceiling of Rs.1,000/- per month was last revised to Rs.1,600/0 per month in 1982 and since then a large number of persons have gone out of the purview of the Act due to successive rise in wage levels resulting from rise in the cost of living, and with a view to cover more employed persons, it is proposed to enhance the wage ceiling from Rs.1,600/- per month to Rs.6,500/- per month. So, the legislature thought it fit to regulate the payment of wages to certain classes of persons as indicated in this Act so as to benefit certain classes of employed persons. 13. Before substitution of Section 1(6) of the Act, it reads thus: “Nothing in the Act shall apply to wages payable in respect of a wage period which, over such wage-period, average one thousand six hundred rupees a month or more.” The present substituted clause for the purpose of this Writ Petition reads thus: “This Act applies to wages payable to an employed person in respect of a wage-period, if such wages for that wage-period do not exceed six thousand five hundred rupees per month or….” The learned senior counsel for the respondent contended that there is a considerable change in the language used before substitution of Section 1(6) of the Act. Negative words are ordinarily used as a legislative device to make the provision imperative. Another mode of showing a clear intention that the provision enacted is mandatory, is by clothing the command in a negative form. Before substitution of Section 1(6) of the Act, it says that the Act would not apply to wages payable above Rs.1,600/- per month. The substituted provision was put in positive form by way of affirmative words. The affirmative words may also be so limiting as to imply a negative. In other words, affirmative words are absolute and explicit. The substituted provision is very clear that the Act applies to employed persons whose wages do not exceed Rs.6,500/- per month. 14. It is contended by the learned senior counsel that in view of agreement between management and employees, the Act can be made applicable even to the employed persons whose wages are more than Rs.6,500/-. There cannot be any dispute that a contract in violation of mandatory statutory provision of law can only be read and enforced in the terms of law and in no other way. It is very settled principle of law that there can be no estoppel against the statute. An excess of statutory power cannot be validated by acquiescence in or by the operation of an estoppel. Therefore, the contention of the learned senior counsel on this aspect is untenable and wholly devoid of merit. 15. From the scheme of the Act, it is clear that it intends to give protection to the workmen whose emoluments are less than Rs.6,500/- per month. The Parliament has amended the Act keeping in mind the Section of the employees whose emoluments is less than Rs.6,500/- per month, they should be given protection from irregular payment of wages and various other protections provided under the Act and the employees who are getting more than Rs.6,500/- per month are excluded from the purview of the benefit of the legislation. When a legislation extends umbrella protection to the employees of particular class, it cannot be faulted. If the classification made between two categories of employees i.e., those drawing wages upto Rs.6,500/- and those drawing wages more than Rs.6,500/-, it is fairly intelligible on the ground that the object of the legislation being to give protection of service conditions to the weaker sections of the employees belonging to that category. Section 9(2) of the Act provides that the amount of deduction that may be made for absence from duty in proportion to the wage period. The proviso to Section 9(2) of the Act enables the employer to make a penal deduction where ten or more employees go on unjustified strike. Section 9(2) of the Act does not prohibit any deduction from wages for absence from duty due to strike whether legal or illegal, whereas the proviso thereto provides deduction of penal wages where employees absent themselves due to illegal strike. Admittedly, all the petitioners and the employees of the registered trade unions are getting more than Rs.6,500/- per month as wages as on the date of issuance of the present impugned proceedings. Such is the case, the second respondent company has no power to exercise under Section 9(2) of the Act. When a power is not conferred on him under a statute, question of exercising the power does not arise. Such a power can be exercised by him only in respect of those employees who are drawing less than Rs.6,500/- per month. 16. It is contended by the learned counsel for the first respondent company that as per the Certified Standing Orders No.9.1, wages to all workmen shall be paid in accordance with the provisions of the Act as amended from time to time. No doubt, the Certified Standing Order as approved by the competent authority would only show that the wages to all workmen shall be paid in accordance with the provisions of the Act. It is only an enabling provision which provides for payment of wages, but to whom those Certified Standing Orders would apply is controlled by Section 1(6) of the Act. There is no agreement between the employees and the employer with regard to application of the Act in respect of persons who are drawing wages more than Rs.6,500/- per month. Even if such agreement is there, it runs contrary to Section 1(6) of the Act, and so, it cannot be said to be proper in accordance with law. Therefore, the action of the second respondent in issuing the proceedings especially invoking the jurisdiction under Section 9(2) of the Act is without jurisdiction and he cannot exercise such a power in view of the fact that all the petitioners and the employees of the petitioners union are getting more than Rs.6,500/- as wages. 17. Learned counsel for the first respondent company contended that power of the second respondent can be traced through its Certified Standing Orders which prescribe penalty for absenteeism, and so, quoting a wrong provision of Section 9(2) of Payment of Wages Act is not a ground for setting aside the order. Power of imposing punishment can be traceable through a Certified Standing Order where the authority can impose penalty including fine when there is misconduct. Certified Standing Order No.26 empowers the appointing/disciplinary authority to impose penalties for misconduct. But there is no pleading to the effect that the first respondent company exercised its power though not under Section 9(2) of the Act, but under clause 26 of the Certified Standing Orders of Singareni Collieries Company Limited. 18. Learned counsel for the respondents also placed a strong reliance with regard to punishment for illegal strike upon a decision reported in SYNDICATE BANK AND ANOTHER VS. K. UMESH NAYAK WITH CANARA BANK AND OTHERS VS. JAMBUNATHAN AND OTHERS AND STATE BANK OF INDIA AND OTHERS VS. STATE BANK STAFF UNION[1], wherein it is held thus: “We, therefore, hold endorsing the view taken in T.S.Kelawala, (1990 (4) SCC 744) that the workers are not entitled to wages for the strike- period even if the strike is legal. To be entitled to the wages for the strike-period, the strike has to be both legal and justified. Whether the strike is legal or justified are questions of fact to be decided on the evidence on record. Under the Act, the question has to be decided by the industrial adjudicator, it being an industrial dispute within the meaning of the Act.” 19. He also relied upon another decision reported in BANK OF INDIA VS. T.S. KELAWALA AND OTHERS WITH S.U. MOTHERS PRIVATE LTD. VS. WORKMEN[2], wherein it is held thus, “The principal question involved in the case, according 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 workplace 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 recognized as a legitimate weapon in the hands of the workers to redress their grievances. 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.” The question whether the strike is illegal or not may not come up for consideration of this Court in view of the fact that the second respondent has no jurisdiction to pass the impugned orders exercising power under Section 9(2) of the Act, in view of the fact that the Act has no application to the employed persons like the petitioners who are admittedly getting wages more than Rs.6,500/- per month. 20. Learned counsel for the petitioners placed reliance on the decision of this Court reported in TYRE RETREADING SHOP COMMITTEE VS. APSRTC AND OTHERS[3], wherein it is held thus, “It is also true that the decision of this Court in W.P.No.4346 of 1992 dated 13-11-1992 and the decision in WA No.3 of 1995 and batch, dated 8-4- 1996 were brought to the notice of the Division Bench. But it is required to notice that the Division Bench having referred to the said judgment has not expressed any opinion taking any different view other than the one taken by the learned single Judge and the Division Bench in WP No.4346 of 1992 and WA No.3 of 1995 and Batch, respectively. It is also required to notice that the judgment of the Division Bench in WP No.12017 of 1992