Judgment:
R.K. Abichandani, J.
1. The petitioners seek a declaration that the impugned action of the respondents treating the absence of the petitioners on 1st September, 1980 as an extraordinary leave on loss of pay was unconstitutional being violative of Articles 14, 16, 19 and 31 of the Constitution and therefore void. They have sought an order for permanently restraining the respondents from implementing the order directing the wages for the day of absence to be deducted on the principle of 'no work no pay'. Though the petitioners had prayed for granting permission to them for filing and prosecuting this Special Civil Application in a representative capacity, it appears that no such permission was granted.
2. The petitioners were serving as Development Officers in the Life Insurance Corporation of India, the respondent No. 1 and were members of the National Federation of Insurance Field Workers of India. On July 24, 1980, the General Secretary of the said Trade Union issued a Circular calling upon its members to hold a zonal rally in front of their respective Zonal Offices. In response to the said call, the petitioners applied for casual leave for 1st September, 1980. The Branch Managers were competent so pass orders on such leave applications. According to the petitioners though the applications were made before 1st September, 1980, they were not informed about refusal of leave or any other decision on their applications. The petitioners resumed their duty on 3rd September, 1980, 2nd September, being a public holiday. It is only by Office Order dated 20th September, 1980 that the petitioners were informed by the concerned authority that their leave for one day, that is on 1st September, 1980 was refused. According to the petitioners they had submitted their applications for casual leave for attending the rally and that these applications were individually submitted without there being any concerted action on their part.
3. Mr. N.D. Nanavati, the learned Counsel appearing for the petitioners strongly contended that the application of the petitioners for casual leave which was given on 30th August, 1980 was not rejected and therefore the petitioners were justified in proceeding on leave on 1st September, 1980. He submitted that if the petitioners were informed in time about the refusal of casual leave, they would not have remained absent on 1st September, 1980. He submitted that no hearing was given to the petitioners before passing the impugned order dated 20th September, 1980 and therefore the action of the respondents in deducting the wages for the day of their absence was contrary to principles of natural justice and void.
4. Admittedly, the petitioners are governed by the Life Insurance Corporation of India (Staff) Regulations, 1960, which are framed by the Corporation in exercise of its powers under Section 49 of the Life Insurance Corporation Act, 1956. Regulation 30(1), inter alia, provides that an employee shall not absent himself from his duties without having obtained the permission of the competent authority nor shall he absent himself in case of sickness or accident without submitting a medical certificate to the competent authority provided that in case of unforeseen emergency, an employee may be allowed to avail of one casual leave without prior sanction subject to the condition that the competent authority is promptly advised of the circumstances in which sanction could not be obtained. Sub-regulation (2) of Regulation 30 provides that an employee who absents himself from duty without leave or overstays his leave, shall not be entitled to draw any pay and allowances during such absence or overstay and shall further be liable to such disciplinary measures as the competent authority may deem necessary. It also inter alia provides that the competent authority may treat such period of absence as a period spent on special or extraordinary leave but the employee shall not be entitled as of right to such treatment. Regulation 61 of the said Regulations, which lays down general conditions governing grant of leave, inter alia, provides that leave cannot be claimed as a matter of right. It is also provided that sanction of leave may not be presumed and leave asked for should not be availed of unless it has been specifically sanctioned. It is also laid down that casual leave may normally be availed of only after getting sanction of the competent authority but one day's casual leave may be availed of without such prior sanction in case of unforeseen emergency provided that the competent authority is promptly advised of the circumstances in which prior sanction could not be obtained. It is clear from the plain reading of the provisions of Regulation 30 and Regulation 61 that one day's casual leave may be availed of without prior sanction only in case of unforeseen emergency. Admittedly, the petitioners wanted one day's casual leave for taking part in the rally on 1-9-1980 in response to the call given by the Trade Union on 24th July, 1980. Obviously, therefore, there was no question of any unforeseen emergency and the petitioners were required to get their one day's casual leave sanctioned in advance. As noted above, the sanction of leave could not have been presumed by the petitioners and they could not have availed of the leave unless it was specifically sanctioned in view of the explanation to Regulation 61. As provided in Regulation 30(2), an employee who absented himself from duty without leave, was not entitled to drew any pay and allowances during such absence. In other words, when an employee remained absent without leave, no pay and allowances would become payable to him for the period of his absence without leave. Since in such case no right accrues to receive the pay, there can be no question of giving any hearing while not granting the pay and allowances for the period of absence without leave. Such an employee cannot make a grievance that he should be given a hearing for not being paid the pay and allowances to which he is not entitled in view of the said Regulation for the period of absence without leave on the principle of 'no work no pay'.
5. As noticed above, the call for the concerted action for holding a mass rally before the respective Zonal Offices was given by the Union as far back as on 24th July, 1980 and the rallies were to be organised in response to the call on 1st September, 1980. Admittedly, the application which the petitioners gave for casual leave, mentioned holding of a rally as the reason for seeking the casual leave. This fact emanates from the paragraphs 13 and 14 of the petition. It appears from the communication dated September 20, 1980 at Annexure 'A' to the petition addressed to the petitioner No. 2 by the Branch Manager that the application for casual leave was given on 30th August, 1980. Admittedly, leave application was not sanctioned and 31st August, 1980 was a holiday being Sunday. It was contended on behalf of the petitioners that since no orders were passed rejecting their leave applications, they were justified in presuming that their applications were not rejected and were accepted. Such an assumption on the part of the petitioners was not at all warranted because as provided in explanation to Regulation 61, 'sanction of leave may not be presumed and leave asked for should not be availed of unless it has been specifically sanctioned'. This explanation clearly put to guard all the employees that they cannot avail of the leave unless it was specifically sanctioned. Therefore, the petitioners were not at all justified in proceeding on leave on the ground that the orders were not passed on their applications and that therefore they may presume the sanction. Thus, apart from the fact that whether sufficient time was left for the authorities to pass an order after the application for casual leave was put in on 30th August, 1980 in view of the intervening holiday on 31st August, 1980, due to Sunday, it is clear that the petitioners could not have validity availed of the leave since admittedly it was not specifically sanctioned. There is no dispute about the fact that, on 1st September, 1980, the petitioners and other employees had organised 'Dharna' programme before the Zonal Offices. It is clear that, organisation of such rallies/Dhama programme was pursuant to the call given by the Trade Union and these employees absented themselves from work for that purpose on 1st September, 1980. There was, therefore, admittedly, a cessation of work by a body of persons who acted in combination. This is why the communication dated 28th September, 1980 at Annexure 'A' to the petition describes the said programme as a concerted action amounting to a strike. Under Regulation 30(2), the competent authority was empowered to treat such absence from duty without leave as period spent on extraordinary leave for which no salary was admissible as provided in Regulation 69(4) of the said Regulations. It is clear from the above Regulations governing the petitioners that they were not entitled to any pay and allowances for the day that they remained absent without getting the leave sanctioned. It is also clear that there was cessation of work by these employees on 1st September, 1980 due to their concerted action which was rightly described as a strike in the impugned order and therefore the petitioners were not entitled to any pay and allowances for the work not done on the said day.
6. At this stage of the judgment, the learned Counsel for the petitioners drew my attention to the Division Bench Judgment of this Court in Special Civil Application No. 1715 of 1978 decided on April 19, 1991 (Ashok N. Naik v. Dena Bank) and relied upon it in support of his contention that hearing should have been given to the petitioners before ordering that their absence on 1-9-1980 should be treated as an extraordinary leave on loss of pay and directing wages to be deducted for the day of absence on the principle of 'no work no pay'. On carefully going through the said judgment, it becomes clear that in that case, the employees had abstained from work only for about half an hour and though they had worked for the rest of the day. and even over-time, their salary for the full day was sought to be deducted on an allegation that during the half an hour they had abstained from work they had gheraoed the Branch Manager on July 29, 1978. The employees had gone to the Branch Manager at about 12-15 p.m. with a representation against the deduction of their salary which was made for one day, i.e., July 13, 1978 when they had gone on strike. They remained with the Branch Manager upto 12-45 p.m. It is clear that, when the employees had abstained from work only for half an hour, they could not have been penalised by deducting whole day's wages when admittedly they were allowed to work and even over-time work was taken from them on that day. The Division Bench, following the decision of the Supreme Court in Bank of India v. T.S. Kelawala and Ors., (reported in : (1990)IILLJ39SC ) and emphasising the fact that there was a dispute between the workmen and the Bank management as regards the conduct of the workmen on the day in question and that the workmen had actually worked for the rest of the day and also over-time work was taken from them, held that in such a situation the Bank was not justified in passing the order of deduction of wages for the whole day. It will, thus, be seen that the said decision of this Court deal with the situation where even though the workmen had abstained from work only for a limited period their salary for the whole day was deducted while in the instant case, there is no such dispute because the petitioners remained absent without getting the leave sanctioned on 1st September, 1980 and admittedly they did not do any work on that day but carried out rallies along with other employees pursuant to the call of the Union in front of the Zonal Offices. In a case like this where the absence from duty is not disputed and where such absence was on a mass scale amounting to a strike, there was no need to hold any enquiry. It is not the case of the petitioners that, although they did not want to go on strike and wanted to resume their duty, they were prevented from doing so by other employees or that the employer did not give them proper assistance to resume duty on that day. This was a case where the petitioners and the other employees had made clear their intention beforehand to hold mass rallies on 1st September, 1980 pursuant to a Union call and for that purpose they wanted to remain absent on 1st September, 1980 from duty. Such cessation of work was rightly treated as a strike since it was concerted action and there was no need to hold any enquiry in such a case In this context, the following observations of the Supreme Court in Bank of India v. T.S. Kelawala and Ors. : (1990)IILLJ39SC would conclude the controversy about hearing in such cases:
It is necessary to clear yet another misconception. There is no doubt that whether a worker indulges in a misconduct such as a deliberate refusal to work, the employer can take a disciplinary action against him and impose on him the penalty prescribed for it which may include some deduction from his wages. However, when misconduct is not disputed but is, on the other hand, admitted and is resorted to on a mass scale such as when the employees go on strike, legal or illegal, there is no need to hold an inquiry. To insist on an inquiry even in such cases is to pervert the very object of the inquiry. In a mass action such as a strike it is not possible to hold an inquiry against every employee nor is it necessary to do so unless, of course, an employee contends that although he did not want to go on strike and wanted to resume his duty, he was prevented from doing so by the other employees or that the employer did not give him proper assistance to resume his duty though he had asked for it. That was certainly not the situation in the present ease in respect of any of the employees and that is not the contention of the employees either. Hence, in cases such as the present one, the only question that has to be considered is whether, when admitted the employees refuse to work by going on strike, the employer is entitled to deduct wages for the relevant period or not; We thought that the answer to this question was apparent enough and did not require much discussion.... The Bank was therefore not liable to pay either full day's salary or even the pro rata salary for the hours of work that the employees remained in the Bank premises without doing any work. It is not a mere presence of the workmen at the place of work but the work that they do according to the terms of the contract which constitutes the fulfilment of the contract of employment and for which they are entitled to be paid.
7. It is, thus, clear that it was not necessary to give any hearing to the petitioners while treating the period of their absence on 1-9-1980 as extraordinary leave for which no salary was paid on the principle of 'no work no pay'. The petition, therefore, deserves to be dismissed. It appears that, ad-interim relief was granted in terms of para 32 of the petition subject to the condition that in case the petition ultimately fails the amount will be liable to be adjusted against future salary.
8. Since the petitioners fail, the amount in question will be liable to be adjusted against their future salary as stipulated in the interim order. Rule is discharged with no order as to costs.