KRISHNATOSH DAS GUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS Writ petition has been taken out by 125 employees of the National Test House, Calcutta for necessary reliefs against the six respondents.

(2.) IN the month of April, 1978 because of issuance of orders of suspension on three employees and for taking of disciplinary proceedings against them, according to the petitioners, without any valid reasons and with a view to coerce and intimidate the said employees, it created great dissatisfaction, amongst the employees at large and besides holding some meetings, the employees demonstrated their dissatisfaction in lawful and peaceful manner and requested the withdrawal of the suspension order. A letter was sent on the 9th May, 1978 by Sri Dipen Ghose, General secretary, Central Co-ordination Committee of Central Government Employees' and workers' Union and Association, West Bengal to which the respondent No. 5 is affiliated for settlement of the dispute. After a long discussion the Joint Director agreed to come to a settlement on the issue of withdrawal of the said suspension order. Thereafter on the 10th of May, 1978 a Circular No. DTH/misc/78 was issued by the Joint Director stating that number of groups III and IV employees of national Test House, Calcutta have done no work for some days since 27th April, 1978 though they attended office and signed the attendance Register; as such by the said circular it was threatened that there would be deduction from the pay and allowances of staff. A protest was made as there was no stay-in-strike as wrongly alleged in the said circular. By another circular dated 15th of may, 1978 bearing No. DTH/misc/78 the joint Director informed that employees who did not attend their normal duties but merely came to the office and signed in the attendance register would be considered as "not on duty" it is the case of the petitioners that none of the employees were in stay-in-strike as it is the case of the petitioners that they were not in strike but only were compelled to stage demonstrations in a democratic manner and peaceful manner to fulfil their grievances. By a circular bearing No. DTH/misc/78 dated 12/15th of may, 1978 the Joint Director, National Test house, notified that the Cabinet decision contained in the Department of Personnel and administrative Reforms Office Memorandum no. 33011/1/77 'b' dated 25th of April, 1978 regarding payment for the period of strike by central Government employees, in respect of the Central Government employees who participated in a strike in the month of May, 1971 the circular directed that all ministries must observe the principles of "no work no pay" and this should not be circumvented in any way including by grant of leave for the period of a strike. Relying on the said circular, the management and authorities of the National test House effected a mass scale pay cut from the pay and allowance of the employees of the national Test House for the month of May, 1978. The Secretary of the Association wrote to the Director demanding a list of members whose pay was being deducted but no reply was given to the said letter nor any list was furnished to the Secretary. According to the petitioners, such deductions have been made arbitrarily and without any basis. The petitioners contended that the said memorandum and/or circulars mentioned above were illegal, unconstitutional, ultra vires and in excess of jurisdiction as said principle of "no work no pay" has no application in the case of employees of the Central Government holding posts carrying monthly rate of pay as the terms and conditions of employment of the petitioners are governed by Statutory rules framed under art, 309 of the Constitution of India and the principle "no work no pay" has no place or foundation in the said rules. As there is a comprehensive code containing disciplinary procedure applicable to the employees of the central Government embodied in the Central civil Services (Classification, Control and appeal) Rules, 1965 and the Fundamental rules, an employee of the Central Government can be dealt with under the said rules for any act of misconduct or misbehaviour; as such any alleged absence from duty or alleged dereliction or negligence of duty can only be dealt with under the said rules for the purpose of inflicting any penalty on any employee of the Central Government and in any such proceeding under the said rules the employee has an opportunity to show cause and to present his case according to the procedure established thereunder. But in the instant case the procedure of arbitrary pay cut on the principle of "no work no pay" is completely violative of the protection under the said rules and this new circular or procedure is made to circumvent or by pass the said rules and disciplinary proceeding and cannot be sustained in law. Deduction of pay and allowances visit a Government servant with civil consequences and is a penalty and no such penalty can be imposed on any Government servant without following the procedure established by law and without adherence to the rules of natural justice; as such the purported application of the principle of "no work no pay" in this particular case is in gross violation of the legal and constitutional provisions protecting the rights and interests of the Government servants. Hence the present petition has been taken out against the said impugned circulars dated 10th/15th of may, 1978 as also 12/15th of May, 1978 or the ground that, those are violative of the provisions of the Constitution of India and the Rules framed thereunder and the Central Services (Classification, Control and Appeal) Rules, 1965. In fact, the petitioners were neither in strike nor in "stay-in-strike". As such any allegation to that effect is without any justification and basis.

(3.) MR. N. Chakraborty appeared in support of the petition and submitted that, first of all, in view of the specific rules applicable in the case of permanent Central Government employees, no such circular introducing new rule of "no work no pay" can be exercised by the respondents without first amending the rules applicable to the employees. Secondly, he submitted that even assuming for the sake of argument that those notification and regulation of "no work no pay" are applicable in the case of the petitioner but those rules were framed for meeting the situation when the employees are either in strike or "stay-in-strike" as such on facts alone the said rules can never be made applicable in the case of the petitioners. As such he prayed that the Rule must be made absolute.