Sambhunath Bhattacharjee v. Orient Paper Mills

1. Common appellate order in two appeals under S. 17 of the Payment of Wages Act, 1936 (hereinafter referred to as the Act) one by the employee and the other by the employer resulting in dismissal of the application under S. 15 of the Act claiming unpaid wages and bonus, is grievance of the employee in these two revisions.

2. Undisputed facts at this stage are that petitioner was appointed as a typist in the office of the opposite party at Brajrajnagar. On 17 December, 1985, on office order was issued transferring petitioner to Bhubaneswar office which petitioner received on 19 December, 1985.

3. It was staled in the office order that petitioner was transferred with immediate effect and he was to report to Chief Resident Officer at Bhubaneswar who would allocate work to petitioner. When petitioner did not join till 16 January, 1986, he was communicated that day that non-compliance of the order amounts to wilful insubordination and disobedience of lawful orders. His entry into the factory premises amounts to unauthorised entry. His gossiping in the type section causes dislocation of work. Despite caution, he was signing the attendance register unauthorisedly. He was intimated that he would not be entitled to any salary from 17 December, 1985, till he reports to duty at Bhubaneswar. Petitioner was directed to report at Bhubaneswar within three days of receipt of the letter. Petitioner was prohibited from entering into the factory premises without specific permission. Receiving letter petitioner intimated that he has challenged the order in Court of Munsif and he should be allowed to work at Brajrajnagar till a final decision. He requested to pay his salary from Brajrajnagar. During pendency of the suit, petitioner filed application under S. 15 of the Act for salary from 17 December, 1985, bonus for 1985–86 and compensation. During pendency of the application suit was dismissed and appeal against the decree was also dismissed later.

4. It is now settled in the decision Rameswar Lal v. Somendra Das [I.L.R 1970 Cut. 587], District Transport Manager, State Transport v. Satrughana Guru [A.I.R 1970 Orissa. 121] and Gopabandhu Pati v. Executive Engineer, Orissa State Electricity Board, Bhadrak Electrical Division [1992 (73) C.L.T 165], that revision lies against appellate order under S. 17 of the Act. Thus, these two revisions are entertainable. Decision reported in Labangalata Dei… v. Sk. Azizullah…Opposite Party. [A.I.R 1958 Orissa 123], was distinguished in 1970 L. & I.C 560 (vide supra), since the revision was against the order of authority under S. 15 and not under S. 17 of the Act.

5. Question for consideration is whether authority under S. 15(1) of the Act can give the reliefs prayed for and whether on the facts and circumstances petitioner is entitled to any relief. For this purpose the relief prayed for can be classified as under:

(i) Bonus for the year 1985–86;

(ii) Salary for the period 17 December, 1985 to 19 December, 1985;

(iii) Salary for the period 20 December, 1985 to 16 January, 1985;

(iv) Salary for the period after 16 January, 1985;

(v) Compensation.

6. Wide definition of the term “wages” in S. 2(vi) of the Act would include bonus as well, since it is remuneration whether by way of salary allowance or otherwise expressed in terms of money. Therefore, an employee can claim for bonus which has not been paid. In the present case, O.P.W 1 stated that bonus was sent to petitioner who did not receive it. Accordingly, there being no objection of the employer, bonus amount may be sent again to petitioner. If this time he refused to receive, he shall not be entitled to recover the same under the Act.

7. As regards non-payment of salary from 17 December, 1985, question is whether it amounts to deduction or delayed payment of wages. Petitioner is employed on terms of payment of wages monthly. Unless terms of contract or conditions of service provide for non-payment of wages proportionately under circumstances indicated therein, he is entitled to his wages for the month at the end of the month which is the normal accepted principle. Under S. 15(2) of the Act, an employee coming within scope of the Act can approach the authority appointed under S. 15(1) for a direction under S. 15(3) of the Act. Section 15(2) provides that in cases where contrary to provisions of the Act any deduction has been made from the wages or any payment of wages has been delayed, employee has a right to approach the forum created. Receipt of wages is a civil right. In absence of any restriction a person employed can sue the employer for recovery of unpaid wages. Having made a contract to pay an employer cannot refuse to pay by deduction from the pay or make delay in payment with object of protecting classes of employees as provided, by making available cheap and speedy remedy Legislature brought the Act to statute book creating a special forum. Being a benevolent statute liberal interpretation is to be given to “deduction” and “delay.” Non-payment of the entire salary on the due date is delay and non-payment of a part or whole of the salary for the period, when payment is to be made is deduction. It does not cover only admitted deduction or delayed payment. Where entitlement to payment by an employee is disputed, authority appointed under S. 15(1) can go into the dispute. This has been made clear by legislation by amending S. 15 in 1964 authorising the authority to decide ancillary matters relating to payment of wages. Since S. 15(2) provides that deduction from or delay in payment of wages contrary to provisions of the Act gives cause of action to an employee, authority has to examine, if raised by parties, whether the deduction or delay is contrary to the provisions of the Act. Normal rule being payment on the stipulated contracted or traditional day, non-payment is to be presumed to be contrary to provisions of the Act and employer has to explain to the authority that non-payment by deduction or delay is within the scope of circumstances within the Act.

8. In this case non-payment is mainly on account of absence from duty. Under S. 7(2)(b) of the Act an employer can make deduction from the wages of the employee in accordance with provisions of the Act for absence of the employee from duty. Section 9 provides the circumstances under which deductions can be made for absence from duty. Section 9(1) provides that deduction under S. 7(2)(b) can be made only on account of the absence of the employee from the place or places where by terms of employment, he is required to work, such absence being for the whole or any part of the period during which he is so required to work. Section 9(2) provides for the amount that is to be deducted. Section 9 was subject to interpretation of this Court in Orient Paper Mills Sramik Congress, Brajarajnagar v. Vice-President, Orient Paper Mills, Brajarajnagar [1988 - II L.L.N 132], Talcher Coal-Mines Employees' Union v. Talcher Colliery [1990 — II L.L.N 1145]. Adjudication of dispute relating to non-payment on account of absence from duty is within jurisdiction of the authority under S. 15. Cause of such absence and justification for non-payment is to be considered by the authority appointed.

9. In this case order of transfer was received by petitioner on 19 December, 1985. It is not the case that on 17 December, 1985 to 19 December, 1985, petitioner was absent from the place of work or refused to work. Therefore, deduction under S. 7(2)(b) for this period is in contravention of provisions of the Act. Petitioner is entitled to a direction for payment for this period.

10. Next period for which wages have not been paid is from 20 December, 1985 and 16 January, 1985. During this period, petitioner after receipt of the order did not report to duty at the new station although the order discloses that it is to take effect immediately. Time for joining was not fixed. If an employee does not join the new station because no time is stipulated, his absence at the new station cannot be treated to be absence from duty to authorise deduction of pay under S. 9 read with S. 7 of the Act. If any provision relating to joining time as in the rules relating to conditions of service of Government employees would have been brought to notice of the authorities under the Act, possibly a different view could have been taken. In absence of such condition of service, an employer cannot be construed to have wide power to deduct pay. Provisions in the Act are benevolent provisions for protection of employees. Appreciating that a long time and energy may be consumed for an aggrieved employee who may have heavy financial burden and harassment on this account to recover his pay to which he is entitled, by approaching the civil Court, special law was made creating forums to give directions under S. 15(2) of the Act. Such provisions are to be given liberal interpretation so that employee gets the benefit of the legislation. Accordingly, I am not inclined to accept submission of Sri J. Das, learned counsel for the opposite party, that deduction of pay for the period after 19 December, 1985 till 16 January, 1986, is authorised. Direction is to be given to opposite party to pay the wages of this period to the employee-petitioner.

11. In the decision of this Court Orissa Police Co-operative Syndicate, Cuttack v. Binoy Kumar Bose [I.L.R (1978) 1 Cut. 533], it has been held that where there is a dispute regarding payability of wages, authority under the Act has no jurisdiction to entertain an application under S. 15(2) of the Act. In the present case, there is no dispute that a reference under the Industrial Disputes Act is pending in respect of entitlement of petitioner to wages after 16 January, 1986. In the letter, dated 16 January, 1986, it was categorically intimated to the petitioner in Para. 5 as follows:

“Further you are hereby informed that you will not be entitled to any salary from the date of issuance of the office order, dated 17 December, 1985, till you report for duty at Bhubaneswar.”

No doubt, petitioner immediately submitted a representation on the same day to allow him till disposal of the suit to work at Brajarajnagar and pay his salary. However, representation until allowed will not be of any assistance to petitioner. An employer has right to give direction to an employee to work at any other place, unless conditions of service is violated thereby. If petitioner could have obtained an order of temporary injunction in the suit, the order of transfer would have remained suspended and petitioner would have been entitled to his salary till the order of transfer would have remained suspended as has been held by this Court in the decision Aswini Kumar Das v. Superintending Engineer, Electrical Circle, Balasore [(1989) 68 C.L.T 359]. Notwithstanding pendency of the reference before the Industrial Tribunal. I would have directed payment of the salary in view of the decision of the Division Bench of this Court 1988 - II L.L.N 132 (vide supra), where it has been laid down that in view of the language of S. 15(1) of the Act, the authority appointed has jurisdiction to hear and decide all claims” arising out of deduction from the wages.” In the said decision also notwithstanding pendency of a reference before the Industrial Tribunal, Division Bench directed authority to decide whether deduction from salary of the employees who were absent was contrary to provisions of the Act. If the suit would have been decided in favour of the petitioner, the same would have been the effect. However, there being no temporary injunction and suit having been decided against petitioner, it would be desirable to leave the dispute to be resolved in the reference without expressing my opinion. It was observed in 1988 - II L.L.N 132:

“For disposing of the present case we have not thought it fit to express our views on this matter inasmuch as the reference is still pending before the Industrial Tribunal and expression of any view by us may prejudice either of the parties in the adjudication by the Tribunal.”

Accordingly, no direction is to be given under Ss. 15(2) and 15(3) of the Act in respect of the period after 16 January, 1986, at this stage.

12. Under S. 15(3) of the Act, compensation can be directed to be paid. This is within the discretion of the authority under the Act appointed under S. 15. Maximum compensation is provided to be ten times the deduction. In the proviso to S. 15(3), circumstances under which compensation shall not be directed to be paid are indicated. In this case, there was no justification for deduction of pay for the period between 17 December, 1985 to 19 December, 1985, without communicating the order of transfer since an employee cannot be expected to join the new station without getting the order. Therefore, employer's conduct cannot be said to be fair and petitioner suffered inconvenience on account of non-receipt of the pay. Therefore, employer is liable to pay compensation. Original forum decided to direct payment of compensation equal to the amount deducted it appears, to be reasonable and calls for no change. Period after 19 December, 1985 till end of 16 January, 1986, stands on a different consideration. If petitioner would have joined at the new station on receipt of the order on 19 December, 1985, which was to take effect immediately within a reasonable period though no time was fixed and would have explained to the employer the circumstances under which he could not join earlier and thereafter employer would not have paid the wages. I would have considered the question of directing payment of compensation depending upon the explanation. To direct payment of compensation in a case where employee ignored the order and did not join the new station would breed indiscipline in the organisation. Accordingly, I am not inclined to direct payment of any compensation for this period.

13. In conclusion:

(i) Bonus which was sent by the employer shall again be sent to the employee within one month from today. If the employee refuses to receive the same, he shall not be entitled to realise it under the Act;

(ii) opposite party is directed to pay the salary to petitioner for the period between 17 December, 1985 and 16 January, 1986; and

(iii) opposite party is directed to pay compensation equal to the wages for the period between 17 December, 1985 and 19 December, 1985 to the petitioner.

14. In result, both the civil revisions are allowed in part. There shall be no order as to costs.