The Depot Secretary, APSRTC National Mazdoor Union, Midhani Depot v. The APSRTC & Anr.

Act read with Section 24 thereof, that the strike was contrary to G.O.Ms.No.278, 29-10-1994 since strikes were prohibited in the APSRTC for six months from 04-11- 1994, in terms of Section 3(1) of the AP Essential Services Maintenance Act, 1971. The order would reflect that the Corporation sustained loss of revenue to a tune of Rs.1.5 lakhs in addition to the image of the Corporation being tarnished. While taking note of the fact that under Section 9(2) of the Payment of Wages Act, employees who participated in the strike from 11-11-1994 to 13-11-1994 were liable for penal wage cut upto eight (8) days in addition to recovery of wages for the strike period from those who had gone on strike illegally. The show notice called upon the employees to show cause as to why eight days penal wage cut should not be imposed. After considering the explanation submitted by the employees, the second respondent concluded that a penal wage cut of three days be imposed in addition to denial of wages for these three days. Sri A.K.Jayaprakash Rao, learned counsel for the petitioner, would submit that since the very order imposing penal wage cut is said to be under Section 9(2) of the Payment of Wages Act and inasmuch as the provisions of the said Act have no application to employees whose monthly salary is in excess of Rs.1,600/-per month and as, it is not in dispute that the employees of APSRTC including members of the petitioner-Union are drawing a monthly salary far in excess of Rs.1,600/-, the provisions of Payment of Wages Act have no application and consequently, the impugned order dated 18-03-1995 imposing a penal wage cut of three days purported to have been issued under Section 9(2) of the Payment of Wages Act, is without jurisdiction. Learned counsel would place reliance on Tyre Retreading Shop Committee V. APSRTC. Sri V.T.M.Prasad, learned standing counsel for the respondent-Corporation, on the other hand, would place reliance on Section 22 of the Act, which relates to Prohibition of strikes and lock-outs. Under sub-section (1) thereof, no person employed in a public utility service shall go on strike in breach of contract within 14 days of giving notice in this regard. Learned counsel would submit that since the notice was received by the Corporation on 30-10-1994 and since it was stated in the notice itself that the petitioner would be going on strike from 15-11-1994 onwards their striking work from 11-11-1994 to 13-11-1994, well within the 14 days period prescribed under clause (b) of Section 22(1) of the Act, was clearly illegal. Learned counsel would refer to Section 24(1) of the Act, wherein a strike or a lock-out if commenced in contravention of Section 22 or Section 23 is illegal. While the submission of Sri V.T.M.Prasad, learned standing counsel for the respondent-Corporation, that the strike resorted to by the petitioner-Union from 11- 11-1994 to 13-11-1994 is contrary both to the strike notice dated 29-10-1994 and to the provisions of Section 22 and 24 of the Act, is not without merit, the question which arises for consideration is the consequence of such an illegal strike. The power of the APSRTC to impose a penal wage cut is traced to Section 9 of the Payment of Wages Act, which relates to deduction for absence from duty and reads thus:

2. Deductions may be made under clause (b) of sub-section (2) of Section 7 only on account of the absence of an employed person from the place or places where, by the terms of his 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. 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 large 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: Provided that, subject to any rules made in this behalf by the State Government, if ten or more employed persons acting in concert absent themselves without due notice (that is to say without giving the notice which is required under terms of their contracts of employment) and without reasonable cause, such deduction from any such person may include such amount not exceeding his wages for eight days as may by any such terms be due to the employer in lieu of due notice. Under sub-section (2) concerted abstention from duty, without reasonable cause, would enable the employer to deduct from any such person, wages for the period not exceeding eight days. The Payment of Wages Act, as is clear from Section 1(6) thereof, does not apply to wages payable in respect of a wage period which, over such wage-period, averages, Rs.1,600/- per month. It is not in dispute that employees of the APSRTC, including the members of the petitioner-Union, all draw a monthly salary far in excess of Rs.1,600/- per month and as such, the provisions of the Payment of Wages Act are not applicable. In this context, this Court in Tyre Retreading Shop Committee1, following the earlier judgments of this Court in W.P.No.4346 of 1992, dated 13-11-1992; W.P.No.3878 of 1996, dated 14-08-1996; W.A.No.3 of 1995 and batch, dated 08-04- 1996; W.P.No.12017 of 1992 and batch, dated 02-05-1995, held thus: “ It is, therefore, clear that this Court took consistent view that the respondent- Andhra Pradesh State Road Transport Corporation has no authority in law to proceed against such of its employees, who are drawing monthly wages of Rs.1,600/- and more, under the provisions of the Act. The legal position is so obvious and there is no scope for taking any other view other than the one taken by this Court. However, it would be entirely a different matter altogether, where the dispute centers around quantum of wage cut. In such a case, the matter may have to be required to be adjudicated in a properly constituted Forum before the Industrial Tribunal, under the provisions of the Industrial Disputes Act, 1947”. Since the order of penal wage cut, passed in exercise of the powers conferred under Section 9(2) of the Payment of Wages Act, is an order without jurisdiction inasmuch as the Payment of Wages Act itself has no application to employees of APSRTC, the impugned order is liable to be set aside. It is therefore wholly unnecessary for this Court to examine as to whether the Depot Manager, who issued the impugned order, had or not agreed to impose any penal wage cut on employees of the APSRTC or on the members of the petitioner-Union. The writ petition is allowed and the impugned order dated 18-03-1995 is set aside. However in the circumstances without costs. _______________ 21-03-2006