1. An interesting question on the scope of S. 9 of the Payment of Wages Act, 1936, (hereinafter referred to as the Act), as to whether a prior opportunity should be given to an employee — person by an employer before making deduction for absent from duty under S. 9 of the Act or not, arises in this writ petition.
2. The facts of the case are not in much dispute. The petitioner is a public sector motor transport undertaking. The second respondent is an employee of the petitioner-Corporation, who joined in service as bus conductor on December 1, 1978. The second respondent did not report for duty on August 13, 1983, and hence, he was marked absent on that date. According to the petitioner, he reported for duty at about 13 hours on the next day. The petitioner alleges that without producing the fitness certificate from the Medical Officer of the Pandian Roadways Corporation Hospital, the second respondent tried to join the duty. Hence, the second respondent was directed to report before the Branch Manager, who directed the second respondent to produce the medical certificate from the Medical Officer of the Pandian Roadways Corporation Hospital. He was informed that the medical certificate of a private medical practitioner produced by the second respondent would not satisfy the requirements of the rules and regulations of the Corporation, The case of the petitioner is that the second respondent did not report before the Medical. Officer in the Pandian Roadways Corporation Hospital on August 17, 1983, and he continued to be absent till August 23, 1983. When the petitioner issued notice to the second respondent informing him that he had been remaining absent without getting prior approval or leave from August 15, 1983, onwards, and made its intention clear that suitable disciplinary proceedings will be taken against the second respondent, the second respondent reported for duty on August 23, 1983, with the fitness certificate issued by the Medical Officer of the Pandian Roadways Corporation Hospital, According to the petitioner, there was an unauthorised absence from duty by the second respondent for the period from August 15, 1983 to August 22, 1983, and the petitioner-Corporation decided to deduct a sum of Rs. 159 being the wages for the period from August 15, 1983 to August 22, 1983. The petitioner, therefore, deducted the wages for the said period. The second respondent filed an application under S. 15(2) of the Act claiming that the sum of Rs. 159 was illegally deducted from his wages for the period from August 15, 1983 to August 22, 1983. The authority under the Payment of Wages Act considered the application and held that the deduction effected was not in accordance with the provisions of rule 14 of the Tamil Nadu Payment of Wages Rules. The authority, therefore, held that no opportunity as mentioned in the said rule was given to the second respondent before making deduction and hence, the deduction was not made in accordance with the provisions of the Act and rules. He, therefore, directed the petitioner to refund the deducted amount in full to the second respondent within 15 days from the date of the receipt of the order.
3. The writ petition has been filed challenging the order, inter alia, on the ground that the deduction from wages for the absence from duty is a normal deduction made under S. 9 of the Act and S. 9 of the Act does not provide for any prior opportunity to be given to the employee before making the deduction. It is alleged that under the scheme of the Act, there is no necessity to grant an opportunity before making deduction for absence from duty. It is also stated that rule 14 of the Tamil Nadu Payment of Wages Rules has no application to the facts of the case. It is alleged that if an opportunity is required to be given to every employee, who is absent himself from duty, it will impose a heavy administrative burden on the employer. It is claimed that the absence from duty of the second respondent was unauthorised and hence, the deduction made under S. 7(2)(b) of the Act was an authorised deduction. The main thrust is that if prior opportunity is required to be given before making deduction for an unauthorised absence, it will impose heave administrative burden on the petitioner.
4. In the counter-affidavit filed by the second respondent, it is stated that his absence from duty was not unauthorised, but on the other hand, he was prevented from joining duty for no fault of the second respondent and there was no absence during the period in question.
5. Though in the affidavit filed in support of the writ petition as well as in the arguments advanced by learned counsel for the petitioner and by learned counsel for the second respondent, several grounds have been raised, it is unnecessary to consider the grounds raised in detail. In the case of the same writ-petitioner, the same question whether an opportunity should be given before making deduction by the employer for the absence of the employee came before this Court in Pandian Roadways Corporation, Ltd. v. Principal, District Judge, Madurai [(1996) 3 I.L.R 1200], herein Abdul Wahab, J., has held that the purpose of notice of enquiry before an order is passed or decision is taken affecting any civil right of a citizen is to give him an opportunity to defend, if there is a possibility to defend. The principle behind the granting of an opportunity is that the affected person should not be taken by surprise, i.e, his right should not be affected in a surprising or unexpected manner, but when the petitioner is aware of the consequences of his own action or he is expected to know about such consequences when he does not act, it cannot be said that even in such circumstances, a decision has been taken or order has been passed affecting his rights to the surprise of the persons affected. The learned Judge, therefore, held that the deduction for absence is a normal deduction and not a penal deduction and hence the principles of natural justice are not applicable to the normal deduction of wages for the period of absence under S. 9(1) of the Payment of Wages Act, 1936. The above view has been arrived at after a detailed consideration of the following case-laws in the subject, namely:
(i) Dharam Singh v. Bank of India [1979 L.& I.C 1979];
(ii) State of Orissa v. Binapani Dei [A.I.R 1967 S.C 1269];
(iii) Divisional Accounts Officer, Eastern Railway v. Dal Singar [(1971) 41 F.J.R 131];
(iv) Union of India v. J.N Sinha [1971 L.& I.C 8];
(v) State of Punjab v. K.R Erry and Sobhag Rai Mehta [1973 (1) L.L.N 74];
(xi) D. Balaiah v. Indian Detonators, Ltd. [1976 (2) L.L.N 50]; and
(vii) Orient Paper Mills Sramik Congress v. Orient Paper Mills [1988 (2) L.L.N 132].
I do not find any reason to differ from the well considered views of the learned Judge and following the said decisions, I also hold that the deduction by the employer for the absence of the employees without prior notice under the provisions of the S. 9(1) of the Payment of Wages Act, 1936, is justified and the writ petition deserves to be allowed and accordingly, the writ petition is allowed. The petitioner has challenged the impugned order on the question of principle and hence, I direct that the amount paid to the second respondent need not be recovered from him. There will be no order as to costs.