Case: Express Newspapers (P) Ltd Vs. Michael Mark And Another

could, however, not be taken back even after the strike ended because their vacancies had been filled up.3. One of the workmen filed an application under S. 15 of the Payment of Wages Act, 1936 in which a claim was made for 30 days wages in lieu of notice, 20 days wages in lieu of leave, two months wages as compensation and full pay from March 26, 1957. The claims for the last two items were given up by that worker. On September 12, 1957, the Payment of Wages Authority granted the application in so far as the first and second items were concerned. Against this order a writ petition was filed before the High Court of Bombay which was allowed on November 26, 1957. It may be mentioned that 116 other workmen had also filed application claiming similar relief before the Payment of Wages Authority, including the first respondent in C.A. 294 of 1961 and the first 97 respondents in the other. It would appear that these applications were kept pending till the decision of the High Court in the application earlier mentioned. Following the view taken by the High Court with regard to the claim in that application all the 116 applications were dismissed by the Payment of Wages Authority. Most of the aggrieved parties preferred writ petitions to the High Court of Bombay which were allowed by it. Against the decision of the High Court these two appeals have been preferred before us.4. What is strenuously urged by Mr. Viswanath Sastri on behalf of the appellants is that the respondents by going on an illegal strike had not only deserted from their posts but also abandoned their employment. They had, therefore, ceased to be workmen as from January 14, 1957 and could consequently not claim the reliefs which they had sought before the Payment of Wages Authority. He points out that under Standing Order 25 an employee is entitled to such reliefs if his service is terminated by the employer. But he contends that if, as here, the service is not terminated by the employer but the employment itself is abandoned by the employee he gets no right under the Standing Order.5. It is common ground that the respondents claim is based upon the aforesaid Standing Order. The High Court seems to think that where it is admitted on both the sides that employment of an employee has come to an end, Standing Order 25(1) would apply and the employee would be entitled to compensation thereunder. Prima facie that does not appear to be quite the right way of interpreting the standing order. The Standing Order 25 contemplates separately cases of termination of employment by the employer and by the employee and provides for compensation only where the termination is by the employer. However that may be, we have no doubt that here it was the appellants who had terminated the services of the respondents. The respondents by going on strike clearly indicated that they wanted to continue in their employment but were only demanding better terms. Such an attitude, far from indicating abandonment of employment, emphasises the fact that the employment continued as far as they were concerned. Mr. Sastri, however, contended that where a person deliberately absents himself from work he would not be entitled to his wages and, therefore, it would not be right to regard such a person as being in service where the abstention from work is attributable to an illegal strike. Whether the strike was legal or illegal is not a matter on which we need express any opinion in this case. All that we want to say is that where the employees absent themselves from work because they have gone on strike with the specific object of enforcing the acceptance of their demands they cannot be deemed to have abandoned their employment.6. Mr. Sastri then refers us to the various notices given by the management from time to time indicating that if the workers did not return to work by a certain date they will be deemed to have abandoned their employment. In our opinion the management could not, by imposing a new term of employment, unilaterally convert the absence from duty of striking employees into abandonment of their employment. It may well be that under the standing orders the appellants could, if the strike was in fact illegal, take disciplinary action against the strikers and even dismiss them. If they did that the strikers would not be entitled to any compensation whatsoever under Standing Order 25. But that is not what the appellants purported to do. They did not serve a charge-sheet on any of the respondents but hoped to get the benefit of disciplinary action without holding any inquiry by purporting to treat the strikers absence as abandonment of employment. In their notices and particularly in their notice of January 14, the appellants have said that the names of those who had not returned to duty would be removed from the muster roll as from 2 p.m. on that day, that is, on January 14. Clearly, therefore, according to this notice the strikers continued to be the appellants employees till 2 p.m. on January 14, 1957. It is only thereafter that they ceased to be their workmen. The reason why they ceased to be workmen was the removal of their names from the muster roll. This means nothing else than termination of their employment. The relevant portion of Standing Order 25(1) reads thus:"The employment of a permanent employee employed on monthly rates of pay may be terminated by giving one months notice or on payment of one months wages (including all allowances) in lieu of notice...................................."Under this provision the respondents in question were entitled to the reliefs sought by them before the Payment of Wages Authority inasmuch as the action of the appellants in removing their names from the muster rolls as from 2 p.m. on January 14, 1957 was in fact termination of their services without notice.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. It is common ground that the respondents claim is based upon the aforesaid Standing Order. The High Court seems to think that where it is admitted on both the sides that employment of an employee has come to an end, Standing Order 25(1) would apply and the employee would be entitled to compensation thereunder. Prima facie that does not appear to be quite the right way of interpreting the standing order. The Standing Order 25 contemplates separately cases of termination of employment by the employer and by the employee and provides for compensation only where the termination is by the employer. However that may be, we have no doubt that here it was the appellants who had terminated the services of the respondents. The respondents by going on strike clearly indicated that they wanted to continue in their employment but were only demanding better terms. Such an attitude, far from indicating abandonment of employment, emphasises the fact that the employment continued as far as they werethe strike was legal or illegal is not a matter on which we need express any opinion in this case. All that we want to say is that where the employees absent themselves from work because they have gone on strike with the specific object of enforcing the acceptance of their demands they cannot be deemed to have abandoned theirour opinion the management could not, by imposing a new term of employment, unilaterally convert the absence from duty of striking employees into abandonment of their employment. It may well be that under the standing orders the appellants could, if the strike was in fact illegal, take disciplinary action against the strikers and even dismiss them. If they did that the strikers would not be entitled to any compensation whatsoever under Standing Order 25. But that is not what the appellants purported to do. They did not serve a charge-sheet on any of the respondents but hoped to get the benefit of disciplinary action without holding any inquiry by purporting to treat the strikers absence as abandonment of employment. In their notices and particularly in their notice of January 14, the appellants have said that the names of those who had not returned to duty would be removed from the muster roll as from 2 p.m. on that day, that is, on January 14. Clearly, therefore, according to this notice the strikers continued to be the appellants employees till 2 p.m. on January 14, 1957. It is only thereafter that they ceased to be their workmen. The reason why they ceased to be workmen was the removal of their names from the muster roll. This means nothing else than termination of theirthis provision the respondents in question were entitled to the reliefs sought by them before the Payment of Wages Authority inasmuch as the action of the appellants in removing their names from the muster rolls as from 2 p.m. on January 14, 1957 was in fact termination of their services without notice.