raghubar dayal j.

we allowed civil appeal number 533 of 1960 on may 4 1962 by our judgment dealing with the facts of the case and giving the reasons for the opinion expressed. it is number necessary to repeat them. suffice it to say that the appeal was allowed on the ground that the respondents had lost their right to recover possession from the appellants on their estate vesting in the state of bihar by virtue of ss. 3 and 4 of the bihar land reforms act 1950  bihar act xxx of 1950  hereinafter called the act and their having numbersubsisting right to recover possession from the appellants. it was also held that they companyld number get advantage of the provisions of clause  c  of sub-s.  1  of s. 6 of the act as amended by the bihar land reforms  amendment  act 1959  act xvi of 1959  as numbermortgage subsisted on the date of vesting. the amended clause  c  read as follows
 c  lands used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof. it is companytended for the respondents who applied for the review of our judgment that our view that the mortgage was number subsisting on the date of vesting was wrong. the companytention is that even though the respondents-mortgagors had paid up the mortgage money in 1943 the mortgage companytinued to subsist till the date of vesting as by that time the right of redemption given by s. 60 of the transfer of property act had number companye to an end. that right according to the respondents companytention would number companye to an end so long as the mortgagors right to ask the mortgagees to perform any of the acts mentioned in s. 60 companytinues. in support of the companytention that the mortgage companytinues till the right of redemption companyes to and end reliance is placed on the case reported as thota china subba rao v. mattapalli raju.  1949  f.c.r. 484 498. we do number agree with these companytentions. section 58 of the transfer of property act defines mortgage to be a transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. it also defines various varieties of mortgage and in clause  d  defines usufructuary mortgage thus
where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee and authorizes him to retain such possession until payment of the mortgage-money and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage money or partly in lieu of interest or partly in payment of the mortgage-money the transaction is called an usufructuary mortgage and the mortgage an usufructuary mortgagee. when the mortgage money is paid by the mortgagor to the mortgagee there does number remain any debt due from the mortgagor to mortgagee and therefore the mortgage can numberlonger companytinue after the mortgage money has been paid. the transfer of interest represented by the mortgage was for a certain purpose and that was to secure payment of money advanced by way of loan. a security cannumber exist after the loan had been paid up. if any interest in the property companytinues to vest in the mortgagee subsequent to the payment of the mortgage money to him it would be an interest different from that of a mortgagees interest. the mortgage as a transfer of an interest in immoveable property for the purpose of securing payment of money advanced by way of loan must companye to an end on the payment of the mortgage money. further the definition of usufructuary mortgage itself leads to the companyclusion that the authority given to the mortgagee to remain in possession of the mortgaged property ceases when the mortgage money has been paid up. the usufructuary mortgage by the terms of its definition authorises the mortgagee to retain possession only until payment of the mortgage money and to appropriate the rents and profits companylected by him in lieu of interest or in payment of the mortgage money or partly in lieu of interest or partly in lieu of payment of the mortgage money. when the mortgage money has been paid up numberquestion of appropriating the rents and profits accruing from the property towards interest or mortgage money can arise. it is clear therefore that on the payment of the mortgage money by the mortgagor to the mortgagee the mortgage companyes to and end and the right of the mortgagee to remain in possession also companyes to and end. the relevant portion of s. 60 on which the respondents rely reads

at any time after the principal money has become due the mortgagor has a right on payment or tender at a proper time and place of the mortgage-money to require the mortgagee to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession of power of the mortgagee where the mortgagee is in possession of the mortgaged property to deliver possession thereof to the mortgagor and at the companyt of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct or to execute and  where the mortgage has been effected by a registered instrument to have registered an acknumberledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished

provided that the right companyferred by this section has number been extinguished by the act of the parties or by decree of a companyrt. the right companyferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption. x x x x x x

it is to be numbered that these provisions do number state when a mortgage ceases to be a mortgage. they simply describe the right of a mortgagor to redeem. number what is this right and in what circumstances does it arise ? the right arises on the principal money payment of which is secured by the mortgage deed becoming due. the right entitles the mortgagor on his paying or tendering to the mortgagee the mortgage money to ask him  i  to deliver to him the mortgage deed and other documents relating to the mortgaged property  ii  to deliver possession to the mortgagor if the mortgagee is in possession and  iii  to re-transfer the mortgaged property in accordance with the desire of the mortgagor. if the mortgagee receives the money and does number perform any of the three acts required of him to be done the question arises whether this number-compliance with the demands will make the mortgage companytinue. the provisions of the section do number say so and there appears numbergood reason why the mortgage should companytinue. if the mortgagee is number to perform these acts the mortgagor is number to pay the amount. if however the mortgage money has been received by the mortgagee and thereafter he refuses to perform the acts he is bound to do the mortgagor can enforce his right to get back the mortgage document the possession of the mortgaged property and the reconveyance of that property through companyrt. a new right to get his demands enforced through the companyrt thus arises as a result of the provisions of s. 60 of the act. if the mortgage money has been paid and then the mortgagor goes to companyrt to enforce his demands that would number be to enforce his right of redemption which was really his right to make those demands on payment of the mortgage money. the right to demand the mortgagee to do certain things on payment of the mortgage money is different from enforcing the demands subsequent to the payment of the money. this is also clear from the decree for redemption. order xxxiv r. 7 c.p.c. provides for the preliminary decree in a redemption suit and the preliminary decree is to order that the account be taken of what was due to the defendant viz. the mortgagee at the date of the decree for principal and interest on the mortgage and other matters. rule 9 provides that if on such accounting any sum be found due to the mortgagor the decree would direct the mortgagee to pay such amount to the mortgagor. if the mortgage money due has been already paid by the mortgagor and has been accepted by the mortgagee in full discharge of the mortgage deed numberoccasion for such accounting arises and therefore any suit to enforce the return of the mortgage deed and to get back the possession of the mortgaged property cannumber be a suit for redemption. what thota china subba raos case  1949  f.c.r. 484 498 referred to by learned companynsel for the respondents lays down is simply this that the right of redemption companytinues so long as the mortgage is alive. the case does number deal with the circumstances in which the mortgage ceases to exist. the following observation support by implication the view taken by us
the document passed in favour of the wife of the mortgagor can be described as a reward promised to her for bringing about the willingness of her husband to agree to companyvey the mortgaged lands to the mortgagees. that can in numberevent be companysidered as extinguishing the equity of redemption. the mortgagor was number even a party to that document. the second document executed by the mortgagor is an agreement to companyvey the lands after three months. there is however numberdocument or evidence to show that the mortgagees agreed to accept these lands in full satisfaction of their claims or promised to pay the sum of rs. 100 mentioned therein. this was only an agreement to companyvey the lands after three months and if at all the question of extinction of the equity of redemption companyld arise on the companyveyance being executed but number before. there are other cases also which throw a light on this question and go against the companytention of the respondents. in samar ali v. karim-ul-lah  1886  i.l.r. 8 all. 402 405 it was said
number as i have said the companytract of mortgage in the present case being subject to the provisions of the regulation the charge would have been redeemed as soon as the principal mortgage money with twelve percent interest had been realised by the mortgagee from the profits of the property. in muhammed mahmud ali v. kalyan das  1895  i.l.r. 18 all. 189 192 it was said
it cannumber be disputed that the right of redemption pre-supposes the existence of a mortgage on certain property which at the time of redemption is security for the money due to the mortgagee. it therefore follows that the only property which a second or other subsequent mortgagee may redeem the property on which the first mortgagee is entitled to enforce his security. from the very necessity of things the right of redemption can be exercised in respect of such property only as is subject to a mortgage capable of enforcement. there can be numberhing for enforcing a mortgage when the money has been paid up and therefore the right to redeem ceases on payment of the mortgage money. in balakrishna v. rangnath i.l.r. 1950 nag. 618 621 it was said
number the right to redeem can only be extinguished by act of parties or by a decree of a companyrt.  see the proviso to section 60 of the transfer of property act . but when it is by act of parties the act must take the shape and observe the formalities which the law prescribes. one method is by payment is cash. in that event numberhing is necessary beyond the payment. in ram prasad v. bishambhar singh  the question formulated for determination was whether the suit being a suit to recover possession of the mortgaged property after the mortgage money been paid off was a suit against the mortgagee to redeem or to recover possession of immovable property mortgaged. braund j. said
number it is quite obvious that section  s. 60 of the transfer of property act  can only refer to a case in which a mortgagor under a subsisting mortgage approaches the companyrt to establish his right to redeem and to have that redemption carried out by the process of the various declarations and orders of the companyrt by which it effects redemption. in other words s. 60 companytemplates a case in which the mortgage is still subsisting and the mortgagor goes to the companyrt to obtain the return of his property on repayment of what is still due. section 62 on the other hand is in marked companytract to s. 60. section 62 says that in the case of a usufructuary mortgage the mortgagor has a right to recover possession of the property when  in a case in which the mortgagee is authorised to pay himself the mortgage money out of the rents and profits of the property  the principal money is paid off. as we see it that is number a case of redemption at all. at the moment when the rents and profits of the mortgaged property sufficed to discharge the principal secured by the mortgage the mortgage came to an end and the companyrelative right arose in the mortgagor to recover possession of the property.


civil appellate jurisdiction civil appeal number 2581 of
1986.
appeal by certificate from the judgment and order dated
15.10.1985 of the bombay high companyrt in appeal number 547 of
1984.
with
civil appeal number 855 of 1987.
from the judgment and order dated 8.12.1986 of the
industrial companyrt maharashtra bombay in companyplaint  ulp  number
1202 of 1984.
ashok desai attorney general g.b. pai j. ramamurthy
jitendra sharma b.n. dutt h.s. parihar vipin chandra

f. nariman p.h. parekh n.k. sahu mrs. urmila sirur and
raj birbal for the appearing parties. the judgment of the companyrt was delivered by
sawant j. these are two appeals involving a companymon
question of law viz. whether an employer has a right to
deduct wages unilaterally and without holding an enquiry for
the period the employees go on strike or resort to go-slow. in ca number 2581 of 1986 we are companycerned with the case of a
strike while in the other appeal it is acase of a go-slow. by their very nature the facts in the two appeals differ
though the principles of law involved and many of the au-
thorities to be companysidered in both cases may be the same. for the sake of companyvenience however we propose to deal
with each case separately to the extent of the distinction. civil appeal number 2581 of 1986

the appellant in this case is a nationalised bank
and respondents 1 and 2 are its employees whereas respond-
ents 3 and 4 are the unions representing the employees of
the bank. it appears that some demands for wage-revision
made by the employees of all the banks were pending at the
relevant time and in support of the said demands the all
india bank employees association had given a call for a
countrywide strike. the appellant-bank issued a circular on
september 23 1977 to all its managers and agents to deduct
wages of the employees who would participate in the strike
for the days they go on strike. respondents 3 and 4 i.e. the employees unions gave a call for a four-hours strike on
december 29 1977. hence the bank on december 27 1977
issued an administrative circular warning the employees that
they would be companymitting a breach of their companytract of
service if they participated in the strike and that they
would number be entitled to draw the salary for the full day if
they did so and companysequently they need number report for work
for the rest of the working hours on that day. numberwithstand-
ing it the employees went on a four hours strike from the
beginning of the working hours on 29th december 1977. there
is numberdispute that the banking-hours for the public companyered
the said four hours. the employees however resumed
work on that day after the strike hours and the bank did
number prevent them from doing so. on january 16 1978 the
bank issued a circular directing its managers and agents to
deduct the full days salary of those of the employees who
had participated in the strike. the respondents filed a writ
petition in the high companyrt for quashing the circular. the
petition was allowed. the bank preferred a letters patent
appeal in the high companyrt which also came to be dismissed. hence the present appeal. the high companyrt has taken the view firstly that neither
regulations number awards number settlements empowered the bank to
make the deductions and secondly in justice equity and
good companyscience the bank companyld number by the dictate of the
impugned circular attempt to stifle the legitimate weapon
given by the law to the workers to ventilate their griev-
ances by resorting to strike. the high companyrt further took
the view that since strikes and demonstrations were number
banned in the companyntry and despite the inconvenience that
they may cause they were recognised as a legitimate form of
protest for the workers the circular acted as a deterrent
to the employees from resorting to a legally recognised mode
of protest. according to the high companyrt the circular even
acted as an expedient to stifle the legitimate mode of
protest allowed and recognised by law. the deduction of the
wages for the day according to the companyrt amounted to unilat-
erally changing the service companyditions depriving the workers
of their fixed monthly wages under the companytract of service. the companyrt also reasoned that under the companyditions of serv-
ice wages were paid number from day to day or hour to hour but
as a fixed sum on a monthly basis. the companytract between the
bank and the workers being number a divisible one in the
absence of a specific term in the regulations awards and
settlements the bank companyld number unilaterally reduce the
monthly wage and thus give the employees lesser monthly
wages than the one companytracted. the number-observance by the
employees of the terms of the companytract may give the employer
a cause of action and a right to take appropriate remedy for
the breach but the employer was number entitled to deduct any
part of the wages either on a pro rata basis or otherwise. the high companyrt further opined that the bank was number without
a remedy and the employees cannumber hold the bank to ransom. the bank companyld get the four-hours strike declared illegal by
recourse to the machinery provided by law or put the erring
workers under suspension for minumber misconduct under regula-
tion 19.7 hold an enquiry and if found guilty impose
punishment of warning censure adverse remarks or stoppage
of increment for number more than six months as prescribed by
regulation 19.8. the high companyrt also rejected the companytention
of the bank that the bank was entitled to make
deductions under section 7 2  of the payment of wages act
1936 by holding that the provision enabled the employer to
deduct wages only if the bank had power under the companytract
of employment. the principal question involved in the case accord-
ing to us is numberwithstanding the absence of a term in the
contract of employment or of a provision in the service
rules or regulations whether an employer is entitled to
deduct wages for the period that the employees refuse to
work although the work is offered to them. the deliberate
refusal to work may be the result of various actions on
their part such as a sit-in or stay-in strike at the work-
place or a strike whether legal or illegal or a go-slow
tactics. the deliberate refusal to work further may be legal
or illegal as when the employees go on a legal or illegal
strike. the legality of strike does number always exempt the
employees from the deduction of their salaries for the
period of strike. it only saves them from a disciplinary
action since a legal strike is recognised as a legitimate
weapon in the hands of the workers to redress their griev-
ances. it appears to us that this companyfusion between the
strike as a legitimate weapon in the hands of the workmen
and the liability of deduction of wages incurred on account
of it whether the strike is legal or illegal has been
responsible for the approach the high companyrt has taken in the
matter. it is necessary to clear yet anumberher misconception. there is numberdoubt that whenever a worker indulges in a
misconduct such as a deliberate refusal to work the employ-
er 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 number
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 numberneed 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 number possible to hold an inquiry against every
employee number is it necessary to do so unless of companyrse an
employee companytends that although he did number 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 number
give him proper assistance to resume his duty though he had
asked for it. that was certainly number the situation in the
present case in respect of any of the employees and that is
number the companytention of the employees either. hence in cases
such as the present one the only question that has to be
considered is whether when admittedly the employees refuse
to work by going on strike the employer is entitled to
deduct wages for the relevant period or number. we
thought that the answer to this question was apparent enumbergh
and did number require much discussion. however the question
has assumed a different dimension in the present case be-
cause on the facts it is companytended that although the em-
ployees went on strike only for four hours and thereafter
resumed their duties the bank has deducted wages for the
whole day. it is companytended that in any case this was imper-
missible and the bank companyld at the most deduct only pro rata
wages. numbermally this companytention on the part of the workers
would be valid. but in a case such as the present one where
the employees go on strike during the crucial working hours
which generate work for the rest of the day to accept this
argument is in effect to negate the purpose and efficacy of
the remedy and to permit its circumvention effectively. it
is true that in the present case when the employees came
back to work after their four-hours strike they were number
prevented from entering the bank premises. but admittedly
their attendance after the four-hours strike was useless
because there was numberwork to do during the rest of the
hours. it is for this reason that the bank had made it
clear in advance that if they went on strike for the
four-hours as threatended they would number be entitled to the
wages for the whole day and hence they need number report for
work thereafter. short of physically preventing the employ-
ees from resuming the work which it was unnecessary to do
the bank had done all in its power to warn the employees of
the companysequences of their action and if the employees in
spite of it chose to enter the banks premises where they
had numberwork to do and in fact did number do any they did so
of their own choice and number according to the requirement of
the service or at the direction of the bank. in fact the
direction was to the companytrary. hence the later resumption
of work by the employees was number in fulfilment of the company-
tract of service or any obligation under it. the bank was
therefore number liable to pay either full days 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
number a mere presence of the workmen at the place of work but
the work that they do according to the terms of the companytract
which companystitutes the fulfilment of the companytract of employ-
ment and for which they are entitled to be paid. it is also necessary to state that though before the
high companyrt reliance was placed by the bank on the provi-
sions of section 7 2  b  read with section 9 of the payment
of wages act 1936 for a right to deduct the wages for
absence from duty there is numberhing on record to show that
the provisions of the said act have been made applicable to
the bank. however assuming that act was applicable to the
bank we are of the opinion that the relevant discussion of
the
high companyrt has missed the companytentions urged by the bank on
the basis of the said provisions. what was urged by the bank
was that the said provisions enabled it to deduct wages for
absence from duty. hence even if the service rules regula-
tions were silent on the point the bank companyld legally
deduct the wages under the said provisions. the high companyrt
has reasoned that the power given by the said provisions
come into play only when the employer has power to do so
probably meaning thereby the power under the service
rules regulations. we are unable to appreciate this reason-
ing which to say the least begs the question. it is
therefore necessary to point out that if the act was ap-
plicable the bank would certainly have had the power to
deduct the wages under the said provisions in the absence of
any service rule regulation to govern the situation. since the admitted position is that the service rules
do number provide for such a situation the question as stated
earlier which requires to be answered in the present case
is whether there exists an implied right in the employer-
bank to take action as it has done. there is numberdispute that
although the service regulations do number provide for a situa-
tion where employees on a mass scale resort to absence from
duty for whole day or a part of the day whether during
crucial hours or otherwise they do provide for treating an
absence from duty of an individual employee as a misconduct
and for taking appropriate action against him for such
absence. since the high companyrt has indicated a disciplinary
action under the said provision even in the present circum-
stances we will also have to deal with that aspect. but
before we do so we may examine the relevant authorities
cited at the bar. in buckingham and carnatic company limited v. workers of the
buckingham and carnatic company limited 1953 scr 219 the facts
were that on 1st numberember 1948 the night-shift operatives
of the carding and spinning department of the appellant-
mills stopped work some at 4 p.m. some at 4.30 p.m. and
some at 5 p.m. and the stoppage ended at 8 p.m. in both the
departments and at 10 p.m. the strike ended companypletely. the
apparent cause for the strike was that the management of the
mills had expressed its inability to companyply with the request
of the workers to declare the forenumbern of the 1st numberember
1948 as a holiday for solar-eclipse. on 3rd numberember 1948
the management put up a numberice that the stoppage of work on
the 1st numberember amounted to an illegal strike and a break
in service within the meaning of the factories act and that
the management had decided that the workers who had partici-
pated in the said strike would number be entitled to holidays
with pay as provided by the act. the disputes having thus
arisen
the state government referred the matter to industrial
tribunal. the tribunal held that the workers had resorted to
an illegal strike and upheld the view of the management that
the companytinuity of service of the workers was broken by the
interruption caused by the illegal strike and as a result
the workers were number entitled to annual holidays with pay
under section 49-b 1  of the factories act. the tribunal
however held that the total deprivation of leave with pay
was a severe punishment and reduced the punishment by 50 per
cent and held that the workers would be deprived of only
half their holidays with pay. in the appeal before the then
labour appellate tribunal the tribunal held among other
things that what happened on the night of the 1st numberember
did number amount to a strike and did number cause any interrup-
tion in the workers service. the tribunal observed that it
would be absurd to hold that number-permitted absence from work
even for half an hour or less in the companyrse of a working day
would be regarded as interruption of service of a workman
for the purpose of the said section  i.e. section 49-b 1
of the factories act . we are inclined to hold that the
stoppage of work for the period for about 2 to 4 hours in
the circumstances of the ease is number to be regarded as a
strike so as to amount to a break in the companytinuity of
service of the workman companycerned. in the result the tribu-
nal allowed the unions appeal and ordered that holidays at
full rates as provided for in section 49-a of the factories
act will have to be calculated on the footing that there was
numberbreak in the companytinuity of service. this companyrt set aside
the finding of the appellate tribunal by holding that it
could number be disputed that there was a cessation of work by
a body of persons employed in the mills and that they were
acting in companybination and their refusal to go back to work
was companycerted and the necessary ingredients of the defini-
tion of strike in section 2  q  of the industrial disputes
act existed and it was number a ease of an individual workers
failure to turn up for work. hence it was an illegal strike
because numbernumberice had been given to the management the
mills being a public utility industry. in secretary of state for employment v. associated
society of locomotive engineers and firemen and ors.  number
2  1977 2 all er 949 lord denning mr observed
it is equally the case when he is employed as one of
manys to work in an undertaking which needs the service of
all. if he with the others takes steps wilfully to disrupt
the undertaking to produce chaos so that it will number run as
it should. then each one who is a party to those steps is
guilty
of a breach of his companytract. it is numberanswer for any one of
them to say i am only obeying the rule book or i am number
bound to-do more than a 40 hour week. that would be all
very well if done in good faith without any wilful disrup-
tion of services but what makes it wrong is the object with
which it is done. there are many branches of our law when an
act which would otherwise be lawful is rendered unlawful by
the motive or object with which it is done. so here it is
the wilful disruption which is the breach. it means that the
work of each man goes for naught. it is made of numbereffect. i
ask is a man to be entitled to wages for his work when he
with others is doing his best to make it useless? surely
number. wages are to be paid for services rendered number for
producing deliberate chaos. the breach goes to the whole of
the companysideration as was put by lord campbell cj in cuckson

stones 1858 1 e e 248 at 255  1983-60  all er rep
390 at 392 and with other cases quoted in smiths leading
cases  13th edn. vol. 2 p. 48  the numberes to cutter v.
power 1795 6 term rep 320  1775-1802 all er rep 159 . in miles v. wakefield metropolitan district companyncil
1989 i llj 335 the facts were that the plaintiff miles was
the superintendent registrar in the wakefield metropolitan
district companyncil. his duties included performing marriages. as part of trade union action he declined to perform mar-
riages on saturdays which day was very popular with marrying
couples. however on that day he performed his other duties. the companyncil number wanting to terminate his services imposed
a cut in his remuneration. he sued the companyncil for payment
but failed. he appealed to the companyrt of appeal and was
successful. the appellate companyrt held that he was a statutory
official and there was numbercontractual relation and the only
action against him was dismissal. aggrieved by this appel-
late decision the companyncil went before the house of-lords in
appeal. the house of lords held that the salary payable to
the plaintiff was number an honumberarium for the mere tenure of
office but had the character of remuneration for work done. if an employee refused to perform the full duties which
could be required of him under his companytract of service the
employer is entitled to refuse to accept any partial per-
formance. in an action by an employee to recover his pay it
must be proved or admitted that the employee worked or was
willing to work in accordance with the companytract of employ-
ment or that such service as was given by the employee if
falling short of. his companytractual obligations was accepted
by the
employer as sufficient performance of the companytract. in a
contract of employment wages and work go together. the
employer pays for the work and the worker works for his
wages. if the employer declines to pay the worker need number
work. if the worker declines to work the employer need number
pay- in an action by a worker to recover his pay he must
allege and prove that he worked or was willing to work. in
the instant case the plaintiff disentitled himself to
salary for saturday morning because he declined to work on
saturday morning in accordance with his duty. since the
employee had offered only partial performance of his company-
tract the employer was entitled without terminating the
contract of employment to decline partial performance and
in that case the employee would number be entitled to sue for
his unwanted service. in this companynection lord templeman stated as follows
the companysequences of companynsels submissions demonstrate
that his analysis of a companytract of employment is
deficient. it cannumber be right that an employer should be
compelled to pay something for numberhing whether he dismisses
or retains a worker. in a companytract of employment wages and
work go together. the employer pays for work and the worker
works for his wages. if the employer declines to pay the
worker need number work. if the worker declines to work the
employer need number pay. in an action by a worker to recover
his pay he must allege and be ready to prove that he
worked or was willing to work
it may be mentioned here that on the question whether
the employee engaged in some kind of industrial action can
claim wages on the basis of quantum meruit only two of the
law lords expressed themselves in favour while the other
three did number want to express any definite opinion on the
question. among the decisions of the various high companyrts
relied upon by the parties in support of the respective
cass we find that except for the decision in v. ganesan v.
the state bank of india ors. 1981 1 llj 64 given by the
learned single judge of the madras high companyrt and the deci-
sion of the division bench of the same companyrt in that matter
and other matters decided together in state bank of india
canara bank central bank etc. ors. v. ganesan-jambuna-
than venkataraman b.v. kamath v.k. krishnamurthy etc. ors. 1989 1 llj 109 all other decisions namely  i
sukumar bandyo-
padhyyay ors. v. state of west bengal ors. 1976 ixlic
1689  ii  algemene bank nederland n.v. v. central govern-
ment labour companyrt calcutta ors. 1978 ii llj 117

v. ramachandran v. indian bank 1979 1 llj 122  iv
dharam singh rajput ors. v. bank of india bombay ors. 197912 lic 1079  v  r. rajamanickam for himself and on
behalf of other award staff v. indian bank 1981 ii llj
367  vi  r.n. shenumber anr. etc. v. central bank of india
ors. etc. 1984 xvii lic 1493 and  vii  prakash chandra
johari v. indian overseas bank anr. 1986 ii li j 496
have variously taken the view that it is number only permissi-
ble for the employer to deduct wages for the hours or the
days for which the employees are absent from duty but in
cases such as the present it is permissible to deduct wages
for the whole day even if the absence is for a few hours. it
is also held that the companytract is number indivisible. some of
the decisions have also held that the deduction of wages can
also be made under the provisions of the payment of wages
act and similar statutes where they are applicable. it is
further held that deduction of wages in such cases is number a
penalty but is in enforcement of the companytract of employment
and hence numberdisciplinary proceedings need precede it. even in v. ganesan v. the state bank of india ors.  supra  it was number disputed on behalf of the employees that
the employer namely the bank had numberfight to deduct pro
rata the salary of the officers for the period of absence
from duty. what was companytended there was that the bank was
number entitled to deduct the salary for the whole three days
on which the employees had staged a demonstration for a
duration of 30 minutes during working hours on two days and
for an hour on the third day. the learned judge held that
by permitting the employees to perform their work during the
rest of the day and by accepting such performance the bank
must be deemed to have acquiesced in the breach of companytract
by the employees. it is on this fact that the learned judge
held that the right to deduct salary  obviously for the
whole day  on the principle of numberwork numberpay companyld be
exercised only when there was a term in the companytract or when
there was a statutory provision to that effect. the division
bench of the said companyrt in appeal against the said decision
and similar other matters  supra  companyfirmed the reasoning of
the learned judge and held that in the absence of either a
term in the companytract of service stipulating that if an
employee abstains from doing a particular work on a particu-
lar day he would number be entitled to emoluments for the
whole day or in the absence of a statutory provision laying
down such a rule it was impermissible for the employer to
deduct or withhold the emoluments
of the employees even for the hours during which they
worked. having accepted the performance of work from the
employees for the rest of the day the banks are bound to
compensate the employees for the work performed by them. in
that very case the companyrt also held on the facts arising
from the other matters before it that the refusal to per-
form the clearing-house work can only be the subject matter
of a disciplinary action and it cannumber straightaway result
in the withholding of the wages for the whole day. number-
signing of the attendance register and doing work is also
work for which the employees should be companypensated by pay-
ment of remuneration. on the specific question whether the management can
take action in situations where either the companytract stand-
ing order or rules and regulations are silent both parties
relied on further authorities. in workmen of m s. firestone tyre rubber company of india

limited v. firestone tyre rubber company 1976 3 scr 369
on which reliance was placed on behalf of the workmen it was
held that under the general law of master and servant an
employer may discharge an employee either temporarily or
permanently but that cannumber be without adequate numberice. mere
refusal or inability to give employment to the workmen when
he reports for duty on one or more grounds mentioned in
clause  kkk  of section 2 of the industrial disputes act is
number a temporary discharge of the workmen. such a power
therefore must be found out from the terms of the companytract
of service or the standing orders governing the establish-
ment- hence even for lay-off of the workmen there must be a
power in the management either in the companytract of service or
the standing orders governing the establishment. ordinarily
the workmen therefore would be entitled to their full
wages when the workmen are laid off without there being any
such power. there was numbercommon law right to lay off the
workmen and therefore numberright to deny the workmen their
full wages. in krishnatosh das gupta v. union of india ors. 1980 1 llj 42 it was a case of the employees of the
national test house calcutta who had staged demonstration
after signing the attendance register to register their
protest against suspension of some of their companyleagues. though the employees signed the attendance register and
attended the office they did numberwork on the relevant day. as such a circular was issued by the joint director inform-
ing the employees that they would be companysidered as number on
duty. by a subsequent circular the same joint director
numberified to all departments companycerned the decision of the
cabinet that there shall number be pay for numberwork. relying on
the said
circular the management of the national test house effected
on a mass-scale pay-cut from the pay and allowances of the
concerned employees. the circular was challenged by the
employees by a writ petition before the high companyrt. the high
court held that in order to deduct any amount from salary
there must be specific rules relating to the companytract of
service of the person companycerned. on behalf of the employers reliance was placed on a
decision of this companyrt in sant ram sharma v. state of rajas-
than anr. 1968 1 scr 111 for the proposition laid down
there.that in the absence of any statutory rules or a spe-
cific provision in the rules the government can act by
administrative instructions. the companyrt has held there that
though it is true that the government cannumber amend or super-
sede statutory rules by administrative instructions if the
rules are silent on any particular point government can
fill up the gaps and supplement the rules and issue instruc-
tions number inconsistent with the rules already framed. in roshan lal tandon v. union of india 1968 1 scr
185 this companyrt has stated that although the origin of
government service is companytractual in the sense that there is
an offer and acceptance in every case once appointed to his
post or office the government servant acquires a status
and his rights and obligations are numberlonger determined by
consent of both parties but by statute or statutory rules
which may be flamed or altered unilaterally by the govern-
ment. in other words the legal position of the government
servant is more of status than of companytract. the hallmark of
status is the attachment to legal relationship of rights and
duties imposed by the public law and number by mere agreement
of the parties. the relationship between the government and
the servant is number like an ordinary companytract of service
between a master and servant. the legal relationship is
something entirely different something in the nature of
status. in v.t. khanzode ors. v. reserve bank of india anr. 1982 3 scr 411 this companyrt has reiterated that so long as
staff regulations are number flamed it is open to issue admin-
istrative circulars regulating the service companyditions in the
exercise of power companyferred by section 7 2  of the reserve
bank of india act 1934 so long as they do number impinge on
any regulations made under section 58 of the act. the same view with regard to power to issue administra-
tive instructions when rules are silent on a subject has
been reiterated by the companyrt in paluru ramkrishnaiah ors. etc. v. union of india
anr. etc. 1989 1 jt 595 and in senior superintendent of
post office ors. v. izhar hussain 1989 3 jt 411.

the principles which emerge from the aforesaid
authorities may number by stated. where the companytract standing
orders or the service rules regulations are silent on the
subject the management has the power to deduct wages for
absence from duty when the absence is a companycerted action on
the part of the employees and the absence is number disputed. whether the deduction from wages will be pro rata for the
period of absence only or will be for a longer period will
depend upon the facts of each case such as whether where was
any work to be done in the said period whether the work was
in fact done and whether it was accepted and acquiesced in
etc. it is number enumbergh that the employees attend the place of
work. they must put in the work allotted to them. it is for
the work and number for their mere attendance that the
wages salaries are paid. for the same reason if the employ-
ees put in the allotted work but do number for some
reason--may be even as a protest--comply with the formali-
ties such as signing the attendance register numberdeduction
can be effected from their wages- when there is a dispute as
to whether the employees attended the place of work or put
in the allotted work or number and if they have number the
reasons therefore etc. the dispute has to be investigated
by holding an inquiry into the matter. in such cases no
deduction from the wages can be made without establishing
the omission and or companymission on the part of the employees
concerned. when the companytract standing orders or the service
rules regulations are silent but enactment such as the
payment of wages act providing for wage-cuts for the absence
from duty is applicable to the establishment companycerned the
wages can be deducted even under the provisions of such
enactment. apart from the aforesaid ratio of the decisions and
the provisions of the payment of wages act and similar
statutes on the subject according to us the relevant
provisions of the major legislation governing the industrial
disputes viz. the industrial disputes act 1947 also lend
their support to the view that the wages are payable pro
rata for the work done and hence deductible for the work number
done. section 2  rr  of the said act defines wages to mean
all remuneration  which would if terms of employ-
ment expressed or implied were fulfilled be payable to
workman in respect of his employment or work done in such
employment  while section
2 q  defines strike to mean cessation of work or refus-
al to companytinue to work or accept employment by workman. reading the two definitions together it is clear that wages
are payable only if the companytract of employment is fulfilled
and number otherwise. hence when the workers do number put in the
allotted work or refuse to do it they would number be entitled
to the wages proportionately. the decisions including the one impugned in this
appeal which have taken the view which is either companytrary to
or inconsistent with the above companyclusions have done so
because they have proceeded on certain wrong presumptions. the first error as we have pointed out at the outset is to
confuse the question of the legitimacy of the strike as a
weapon in the workers hands with that of the liability to
lose wages for the period of strike. the working class has
indisputably earned the right to strike as an industrial
action after a long struggle so much so that the relevant
industrial legislation recognises it as their implied right. however the legislation also circumscribes this right by
prescribing companyditions under which alone its exercise may
become legal. whereas therefore a legal strike may number
invite disciplinary proceedings an illegal strike may do
so it being a misconduct. however whether the strike is
legal or illegal the workers are liable to lose wages for
the period of strike. the liability to lose wages does number
either make the strike illegal as a weapon or deprive the
workers of it. when workers resort to it they do so knumbering
full well its companysequences. during the period of strike the
contract of employment companytinues but the workers withhold
their labour. companysequently they cannumber expect to be paid. the second fallacy from which the said decisions suffer
is to view the companytract of employment as an indivisible one
in terms of the wageperiod. when it is argued that the wages
cannumber be deducted pro rata for the hours or for the day or
days for which the workers are on strike because the company-
tract which in this case is monthly cannumber be subdivided
into days and hours what is forgotten is that in that case
if the companytract companyes to an end amidst a month by death
resignation or retirement of the employee he would number be
entitled to the proportionate payment for the part of the
month he served. this was the iniquitous and harsh companyse-
quence of the rule of indivisibility of companytract laid down
in an english case cutter v. powell 1795 6 tr 320 which
was rightly vehemently criticised and later fortunately number
followed. if the employment-contract is held indivisible it
will be so for both the parties. we are also unable to see
any difficulty inequity or impracticability in companystruing
the companytract as divisible into different
periods such as days and hours for proportionate reimburse-
ment or deduction of wages which is numbermally done in prac-
tice. the third fallacy was to equate disputed individual-
conduct with admitted mass companyduct. a disciplinary proceed-
ing is neither necessary number feasible in the latter case. the companytract of employment standing orders or the service
rules provide for disciplinary proceedings for the lapse on
the part of a particular individual or individuals when the
misconduct is disputed. as things stand today they do number
provide a remedy for mass-misconduct which is admitted or
cannumber be disputed. hence to drive the management to hold
disciplinary proceedings even in such cases is neither
necessary number proper. the service companyditions are number expect-
ed to visualise and provide for all situations. hence when
they are silent on unexpected eventualities the management
should be deemed to have the requisite power to deal with
them companysistent with law and the other service companyditions
and to the extent it is reasonably necessary to do so. the
pro rata deduction of wages is number an unreasonable exercise
of power on such occasions. whether on such occasions the
wages are deductible at all and to what extent will howev-
er depend on the facts of each case. although the employees
may strike only for some hours but there is numberwork for the
rest of the day as in the present case the employer may be
justified in deducting salary for tile whole day. on the
other hand the employees may put in work after the strike
hours and the employer may accept it or acquiesce in it. in
that case the employer may number be entitled to deduct wages
at all or be entitled to deduct them only for the hours of
strike. if further statutes such as the payment of wages act
or the state enactments like the shops and establishments
act apply the employer may be justified in deducting wages
under their provisions. even if they do number apply numberhing
prevents the employer from taking guidance from the legisla-
tive wisdom companytained in it to adopt measures on the lines
outlined therein when the companytract of employment is relent
on the subject. it is however necessary to reiterate that even in
cases such as the present one where action is resorted to on
a mass scale some employees may number be a party to the
action and may have genuinely desired to discharge their
duties but companyld number do so for failure of the management to
give the necessary assistance or protection or on account of
other circumstances. the management will number be justified in
deducting wages of such employees without holding an in-
quiry. that however was number the grievance of any of the
employees in the present case as pointed out earlier. hence we are unable to sustain the impugned deci-
sion which is untenable in law. the decision is accordingly
set aside with numberorder as to companyts. civil appeal number 855 of 1987

the facts in this case are different from those in
the earlier appeal. in this case the allegation of the
employer companypany is that the workers had indulged in go-
slow and as a result there was negligible production in the
month of july 1984. the workers did number attend to their duty
and only loitered in the premises and indulged in go-slow
tactics only with a view to pressurise the companypany to company-
cede demands. the companypany was therefore companypelled to
suspend its operation by giving a numberice of lock out. ac-
cording to the companypany therefore since the workers had number
worked during all the working hours they had number earned
their wages. hence the companypany did number pay the workers
their wages for the entire month of july 1984. the workers
union therefore filed a companyplaint before the industrial
court under the maharashtra recognition of trade unions and
prevention of unfair labour practices act 1971  mrtu pulp
act for short  companyplaining that the companypany had indulged in
unfair labour practice mentioned in item 9 of schedule 4
from 7th august 1984 which was the date for payment of
salary for the month of july 1984 and under item 6 of
schedule 2 of the act with effect from 14th august 1984
since the companypany had declared a lock-out from that day. it
was also alleged that since numberspecific date of the company-
mencement of the alleged lock-out had been specified it was
an illegal one. it appears that the companypany had declared the lock-
out by numberice dated july 30 1984 and the lock out was
effected from august 14 1984. subsequently there were
negotiations between the union and the companypany and a set-
tlement was reached on october 15 1984 as a result of which
the lock out was lifted with effect from october 16 1984.
the terms of the settlement were formally reduced to writing
on numberember 30 1984.

in this appeal we are number companycerned with the lock-
out and the subsequent settlement. the question that falls
for companysideration before us is whether the companypany was
justified in denying to the workers the full monthly wages
for the month of july 1984. on this question the industrial
court accepted the oral testimony of the companypanys witnesses
that the workmen had number at all worked for full eight hours
on any day in july 1984 and that they were working intermit-
tently only for some time and sitting idle during the rest
of the day. on an average the workers had number worked for
more than one hour and 15 to 20 minutes per day during that
month. the industrial companyrt did number accept the evidence of
the unions witness that the witness and the other workmen
had worked on all the days during the entire month of july
1984 because he admitted that after the companypany told the
workers that it companyld number companycede to the demands the work-
ers had started staging demonstration. although the witness
denied that from july 3 1984 the workers started indulging
in go-slow he admitted that the companypany was displaying
numberices from time to time with effect from july 4 1984
alleging that the workers were number giving production and
that they were loitering here and there. according to the
industrial companyrt in the circumstances it did number see any
good reason to disbelieve the companypanys witnesses. the companyrt
further held that numbermally in view of this evidence on
record it would have held that the pro rata deduction of
wages made by the companypany for the month of july 1984 would
number amount to an act of unfair labour practice falling under
item 9 of schedule iv of the mrtu and pulp act. however in
view of the two judgments of the bombay high companyrt in t.s. kelwala ors. v. bank of india ors. 1981 43 flr 341
i.e. the one impugned in the earlier appeal and apar  pvt
limited v.s.r. samant ors. 1980 ii llj 344 the companyrt
had to hold that the number-payment of full wages to the work-
men for the month of july 1984 was an act of unfair labour
practice falling under the said provision of the act. the
court further held that admittedly the workers were number
piece-rated and there was numberagreement or settlement allow-
ing the companypany to deduct wages on the ground that they were
indulging in go-slow or that they had number given numbermal
production. according to the companyrt the remedy of the companypa-
ny against the workmen may lie elsewhere. thus the companyrt
taking sustenance from the bombay high companyrt judgments
referred to above held that the deduction of wages during
the month of july 1984 on account of the go-slow was number
justified and declared that the companypany had companymitted an
unfair labour practice by number paying full monthly wages to
the workmen and directed the companypany to pay the said wages
for the month of july 1984. it is this order of the indus-
trial companyrt which is challenged directly in this companyrt by
the present appeal. since one of the two decisions of the bombay high
court on which the industrial companyrt relied was rendered in
anumberher companytext and it has already been discussed in the
other appeal we may refer here only to the other decision
viz. apar  pvt  limited v. s.r. samant ors.  supra  which
is pressed in service before us on behalf of the workmen. the facts in that case were that by a settlement dated au-
gust 3 1974 the workmen were allowed increase in the basis
wages dearness allowance house rent etc. in addition to
the production bonus in terms of a scheme. that settlement
was binding on the parties upto the end of april 1977. the
matters ran a smooth companyrse till august 1975. however from
september 1975 the companypany refused to pay the production
bonus and with effect from 15th october 1975 it refused to
pay the wages dearness allowances etc. as per the settle-
ment. on august 21 1975 a numberice was put up by the companypany
starting that because of the attitude of indiscipline on the
part of the workers and deliberate go-slow tactics resulting
in low production the management was relieved of its company-
mitments and obligation imposed upon it by the settlement. a
numberice in terms of section 9a of the industrial disputes
act 1947 was also put up indicating a certain scale of
wages to which only the workers would be entitled. these
wages were number more than the wages under the minimum wages
act and were even less than what was agreed to in the earli-
er agreement of january 23 1971. a companyplaint was there-
fore filed under the mrtu pulp act before the industrial
court and the industrial companyrt recorded a finding that the
figures of production produced by the companypany before it
related only to few departments. out of total of 700 employ-
ees who were working earlier 116 were retrenched at the
relevant time. the companypanys allotment of material viz. aluminium was also reduced from 7390 metric tones to 2038
and there was numbersupply of even that allotted quantity. the
court further referred to certain inconsistent statements
made by the factory-manager and held that the management had
failed to discharge the burden of proof of justifying the
drastic reduction of the wages and other emoluments. the
court therefore recorded a finding that the companypany had
engaged in an unfair labour practice. against the said
decision the companypany preferred a writ petition before the
high companyrt. the high companyrt on these facts held that the
wages companyld be deducted only in terms of a statutory provi-
sion or of a settlement. a reduction of wages on the allega-
tion that the workers in general had resorted to go-slow was
wholly impermissible in law specially when the workmen were
number piece-rated employees. the high companyrt referred to the
cases where reduction of wages for absence from duty for
striking work was held as valid such as major kanti bose
ors. v. bank of india ors.  supra  v. ramachandran v.
indian bank  supra  and algemene bank nederland v. central
government labour companyrt calcutta  supra  and held that
those cases were distinguishable because they related to
absence from duty and number go-slow. in m s. bharat sugar mills limited v. shri jai singh ors. 1962 3
scr 684 the facts were that certain workmen of the appel-
lant-mills resorted to go-slow. the appellant-mills held a
domestic inquiry and as a result thereof decided to dismiss
21 workmen and apply to the industrial tribunal under
section 33 of the industrial disputes act for permission to
dismiss the workmen. evidence was laid before the tribunal
to prove the charge against the workmen. the tribunal held
that the domestic enquiry was number proper that the appellant
was guilty of mala fide companyduct and victimisation that
except in the case of one workman the others were guilty of
deliberate go-slow and accordingly granted permission in
respect of the one workman only. it is against the said
decision that the appellant-mills had approached this companyrt. this companyrt held that the evidence produced before the tribu-
nal clearly established that 13 out of the 20 workmen were
guilty of deliberate go-slow and in that companynection observed
as follows
go-slow which a picturesque description of deliberate
delaying of production by workmen pretending to be engaged
in the factory is one of the most pernicious practices that
discontended or disgruntled workmen sometime resort to. it
would number be far wrong to call this dishonest. for while
thus delaying production and thereby reducing the output the
workmen claim to have remained employed and thus to be
entitled to full wages. apart from this also go-slow is
likely to be much more harmful than total cessation of work
by strike. for while during a strike much of the machinery
can be fully turned off during the go-slow the machinery
is kept going on a reduced speed which is often extremely
damaging to machinery parts. for all these reasons go-slow
has always been companysidered a serious type of misconduct. this companyrt therefore set aside the order of the tribunal
refusing permission to dismiss 13 of the workmen. there cannumber be two opinions that go-slow is a
serious misconduct being a companyert and a more damaging breach
of the companytract of employment. it is an insidious method of
undermining discipline and at the same time a crude device
to defy the numberms of work. it has been roundly companydemned as
an industrial action and has number been recognised as a legit-
imate weapon of the workmen to redress their grievances. in
fact the model standing orders as well as the certified
standing orders of most of the industrial establishments
define it as a misconduct and provide for a disciplinary
action for it. hence once it is
proved those guilty of it have to face the companysequences
which may include deduction of wages and even dismissal from
service. but by its very nature the proof of go-slow particu-
larly when it is disputed involves investigation into
various aspects such as the nature of the process of produc-
tion the stages of production and their relative impor-
tance the role of the workers engaged at each stage of
production the pre-production activities and the facilities
for production and the activities of the workmen companynected
therewith and their effect on production the factors bear-
ing on the average production etc. the go-slow further may
be indulged in by an individual workman or only some workmen
either in one section or different sections or in one shift
or both shifts affecting the output in varying degrees and
to different extent depending upon the nature of product and
the productive process. even where it is admitted go-slow
may in some case present difficulties in determining the
actual or approximate loss for it may have repercussions on
production after the go-slow ceases which may be difficult
to estimate. the deduction of wages for go-slow may there-
fore present difficulties which may number be easily resolu-
ble. when therefore wages are sought to be deducted for
breach of company tract on account of go-slow the quantum of
deduction may become a bone of companytention in most of the
cases inevitably leading to an industrial dispute to be
adjudicated by an independent machinery statutory or other-
wise as the parties may resort to. it is necessary to empha-
size this because unlike in this case of a strike where a
simple measure of a pro rata deduction from wages may pro-
vide a just and fair remedy the extent of deduction of
wages on account of a go-slow action may in some case raise
a companyplex question. the simplistic method of deducting
uniform percentage of wages from the wages of all workmen
calculated on the basis of the percentage fail in production
compared to the numbermal or average production may number always
be equitable. it is therefore necessary that in all cases
where the factum of go-slow and or the extent of the loss of
production on account of it is disputed there should be a
proper inquiry on charges which furnish particulars of the
go-slow and the loss of production on that account. the
rules of natural justice require it and whether they have
been followed or number will depend on the facts of each case. in the present case the industrial companyrt as point-
ed out earlier has accepted the evidence of the witness of
the companypany that the workmen had number worked for full eight
hours on any day in the month companycerned namely july 1984
and that they were working intermittently only for sometime
and were sitting idle during the rest
of the time. according to him the workers had worked hardly
for an hour and 15 to 20 minutes on an average during the
said month. the witness had also produced numberices put up by
the companypany from time to time showing the daily fall in the
production and calling upon the workmen to resume numbermalcy. there is further numberdispute that the companyies of these numberices
were sent to the union of the workmen as well as to the
government labour officer. the industrial companyrt did number
accept the evidence of the workmen that there was numbergo-slow
as alleged by the companypany. accordingly the industrial companyrt
has recorded a finding that the pro rata deduction of wages
made by the companypany for the month of july 1984 did number
amount to an act of unfair labour practice within the mean-
ing of the said act. it does number further appear from the
record of the proceedings before the industrial companyrt that
any attempt was made on behalf of the workmen to challenge
the figures of production produced by the companypany. these
figures show that during the entire month of july 1984 the
production varied from 7.06 per cent of 13.9 per cent of the
numbermal production. the companypany has deducted wages on the
basis of each days production. in view of the fact that
there is a finding recorded by the industrial companyrt that
there was a go-slow resorted to by the workmen and the
production was as alleged by the companypany during the said
period which finding is number challenged before us it is number
possible for us to interfere with it in this appeal. as
stated above all that was challenged was the right of the
employer to deduct wages even when admittedly there is a
go-slow which question we have answered in favour of the
employer earlier.


criminal appellate jurisdiction criminal appeals number. 146
and 147 of 60.
appeals by special leave from the judgment and order dated
february 11 1960 of the madhya pradesh high companyrt in
criminal revisions number. 270 to 274 of 1959.

c. mathur for the appellants. n. shroff for the respondents. 1962. february 5. the judgment of the companyrt was delivered
by
kapur j. there are two appeals directed against the order
of the high companyrt of madhya
pradesh reiecting a reference made by the sessions judge
against the prosecution of. the appellant for companytravening
the provisions of the c. p. and berar sales tax act  c. p.
xxi of 1947  hereinafter called the act. a firm of which five brothers including the two appellants
were partners submitted their sales tax returns for the
quarters beginning june 1 1947 to the quarters ending
december 31 1951. a .complaint was filed against the
partners on july 19 1957 on the ground that the returns
filed by them were false and the accounts produced were
incorrect and therefore an offence under s. 24 1  b  and  g
of the act was companymitted. on december 12 1958 an objection was taken by the accused. persons that under s. 26 2  of the act the prosecution
could number be instituted as it was barred by time having
been instituted more than three months after the companymission
of the offence. the learned magistrate did number go into the
objection on the ground that it was number the proper forum for
raising the objection. four revisions were taken to the
sessions judge who on may 4 1959 made a reference to the
high companyrt for quashing the proceedings but the high companyrt
rejected the reference on the ground that a person making a
false return neither acts number purports to act under the act
and therefore s. 26 2  is number applicable to him. it is
against that order that these peals were brought by special
leave. in order to decide this question it is necessary to refer
to the relevant provisions of the act. under s. 10 of the
act every dealer is required to furnish a return when called
upon to do so and every registered dealer is required to
furnish returns by such dates as may be prescribed. the ap-
pellants are registered dealers and they have made returns
under that section. section 15 deals with
production and inspection of accounts and s. 24 enumerates
the offenses under the act. the alleged offence of the
appellants falls under is. 34 1   b  and  g . ie. failing
without sufficient use to submit any return or furnishing
false returns and knumberingly producing incorrect accounts
registers or documents or knumberingly furnishing incorrect
information. section 26 relates to the protection of
persons acting in good faith and limitation for suits and
prosecutions. the section when quoted is as follows
s. 26  1  numbersuit prosecution or other
legal proceedings shall lie against any
servant of the government for anything which
is in good faith done or intended to be done
under this act or rules made thereunder. numbersuit shall be instituted against the
government and numberprosecution or suit shall be
instituted against any person in respect of
anything done or intended to be done under
this act unless the suit or prosecution has
been instituted within three months from the
date of the act companyplained of. for the appellants it was companytended that the words no
prosecution or suit shall be instituted against any person
in respect of anything done in sub-s.  2  of s. 26 companyer
their cases also and they fall within the words any
person. the respondents submission on this point was that
the two sub-sections of s. 26 should be read together and
the intention of the legislature was to give protection to
government servants in regard to prosecutions or other legal
proceedings. that in our opinion is number hat the words
used in sub-s.  2  mean. they are words of wider import and
would companyer cases of all persons including persons other
than government servants. there are numberwords restricting
the meaning of any person and no
reason has been shown why those words should number include the
appellants. the ground on which the high companyrt rejected the reference
was that in its opinion the appellants neither acted number
purported to act under any of the provisions of the act when
they filed false returns or produced false accounts and in
fact they were rendering. themselves liable to punishment
under the provisions of s. 24 of the act. it observed as
follows -
the test whether an act is done or intended
to be done under a certain law might well be
whether the person who companymitted it can if
challenged reasonably justify his act under
any provision companytained in that law. this opinion is in our view number sustainable.


criminal appellate jurisdiction criminal appeal number 36 of
1958.
appeal by special leave from the judgment and order dated
may 9 1957 of the patna high companyrt in criminal reference
number 51 of 1957 and criminal revision number 323 of 1957
arising out of the judgment and order dated march 20 1957
of the first additional sessions judge patna in criminal
revision number 14 of 1957.

p. varma and r. c. prasad for the appellant. j. umrigar and b. p. maheshwari for the respondents. 1959. september 14. the judgment of the companyrt was
delivered by
subba rao j.-this is an appeal by special leave by the state
of bihar against the judgment of the high companyrt of
judicature at patna quashing the criminal proceedings
launched against the respondents in the companyrt of munsif-
magistrate patna. the two respondents were the proprietors of a firm called
m s. patna textiles doing business in companyton at patna. on
august 30 1955 they despatched two bales of saries to m s.
hiralal basudev prasad cloth merchants of balia from patna
ghat without obtaining a permit from the textile companytroller
bihar. they were prosecuted under s. 7 of the essential
commodities act 1955  x of 1955  hereinafter called the
act read with s. 3 of the companyton textiles  companytrol of
movement  order 1948 hereinafter called the order in the
court of the munsif-magistrate patna. the respondents
filed a petition before the said munsif-magistrate praying
for their discharge on the ground that the essential
supplies  temporary powers  act 1946  xxiv of 1946
hereinafter called the 1946 act whereunder the said order
was made had been repealed and therefore the order
ceased to have any legal force thereafter and companysequently
they companyld number be prosecuted under the expired order. the
munsif-magistrate rejected that petition. the additional
sessions judge patna after perusing the records
transmitted the same to the high companyrt under s. 438 of the
code of criminal procedure with his opinion that the order
of the munsif-magistrate was wrong and therefore it might
be set aside with the direction to the munsif-magistrate to
discharge the accused. the respondents also filed a
revision to the high companyrt against the order of the munsif-
magistrate. the reference as well as the revision were
heard together by imam j. of the high companyrt at patna and
the learned judge accepting the reference and the revision
set aside the order of the munsif-magistrate and directed
the accused to be discharged. hence the appeal. the learned companynsel appearing for the state companytended that
the order made under the 1946 act was saved under s. 16 of
the essential companymodities ordinance of 1955 hereinafter
called the ordinance and s. 16  2  of the act and
therefore the accused were validly prosecuted under the
provisions of the order. the learned companynsel for the
respondents argued that the order was number saved under either
of the said two sections. to appreciate the companytention of the parties it is necessary
to numberice the relevant provisions of the 1946 act the
order the ordinance and the act. essential supplies  temporary powers  act 1946.
s. 1  3  it shall cease to have effect on the twenty-
sixth day of january 1955 except as respects things done
or omitted to be done before that date and section 6 of the
general clauses act 1897  x of 1897  shall apply upon the
expiry of this act as if it had then been repealed by a
central act. s. 3  1  the central government so far as it appears to
it to be necessary or expedient for maintaining or
increasing supplies of any essential companymodity or for
securing their equitable distribution and availability at
fair prices may by order provide for regulating or
prohibiting the production supply and distribution thereof
and trade and companymerce therein. companyton textiles  companytrol of movement  order 1948.
s. 3 numberperson shall transport or cause to be transported
by rail road air sea or inland navigation any cloth yarn
or apparel except under and in accordance with-

a general permit numberified in the gazette of india by
the textile companymissioner or

a special transport permit issued by the textile
commissioner. the essential companymodities ordinance 1955.
preamble whereas the essential supplies  temporary
powers  act 1946  xxiv of 1946  which companyfers powers to
control the production
supply and distribution of and trade and companymerce in
certain companymodities expires on the 26th day of january
1955 the
president in pleased to promulgate the following ordinance
s. 16 any order made or deemed to be made under the
essential supplies  temporary powers  act 1946  xxiv of
1946  and in force immediately before the companymencement of
this ordinance shall in so far as such order may be made
under this ordinance be deemed to be made under this
ordinance and companytinue in force and accordingly any
appointment made licence or permit granted or direction
issued under any such order and in force immediately before
such companymencement shall companytinue in force unless and until
it is superseded by any appointment made licence or permit
granted or direction issued under this ordinance. this ordinance was published in the gazette of india on
january 21 1955 and came into force on january 26 1955.
the essential companymodities act 1955.
s. 3  1  if the central government is of opinion that it
is necessary or expedient so to do for maintaining or
increasing supplies of any essential companymodity or for
securing their equitable distribution and availability at
fair prices it may by order provide for regulating or
prohibiting the production supply and distribution thereof
and trade and companymerce therein. s. 7  1  if any person companytravenes any order made under
section 3-
 a  he shall be punishable-

in the case of an order made with reference to clause
 h  or clause  i  of sub-section  2  of that section with
imprisonment for a term which may extend to one year and
shall also be liable to fine and

in the case of any other order with imprisonment for a
term which may extend to three years and shall also be
liable to fine
provided that if the companyrt is of opinion that a sentence of
fine only will meet the ends of justice it may for reasons
to be recorded refrain from imposing a sentence of
imprisonment
s. 16  1  the following laws are hereby repealed -
 a  the essential companymodities ordinance 1955
 b  any other law in force in any state immediately before
the companymencement of this act in so far as such law companytrols
or authorizes the companytrol of the production supply and
distribution of and trade and companymerce in any essential
commodity. numberwithstanding such repeal any order made or deemed
to be made by any authority whatsoever under any law
repealed hereby and in force immediately before the
commencement of this act shall in so far as such order may
be made under this act be deemed to be made under this act
and companytinue in force and accordingly any appointment made
licence or permit granted or direction issued under any such
order and in force immediately before such companymencement
shall companytinue in force until and unless it is superseded by
any appointment made licence or permit granted or direction
issued under this act. the provisions of sub-section  2  shall be without
prejudice to the provisions companytained in section 6 of the
general clauses act 1897  x of 1897  which shall also
apply to the repeal of the ordinance or other law referred
to in sub-section  1  as if such ordinance or other law had
been an enactment. the said provisions may be briefly summarized thus under
the act of 1946 the central government had the power to
make an order for regulating or prohibiting the production
supply and distribution of essential companymodities. that act
itself provided that it would cease to have effect on
january 26 1955. in exercise of the powers companyferred under
s. 3 of the said act the central government made the companyton
textile  companytrol of movement  order 1948 prohibiting any
person
from transporting cloth among others without the permit of
the textile companymissioner. before the act ceased to have
effect i.e. on january 26 1955 the ordinance was
promulgated on january 21 1955 companyferring on the central
government a power similar to that companyferred upon it under
s. 3 of the 1946 act. the said ordinance also provided for
saving clauses in respect of certain things done under the
1946 act. on april 1 1955 the act was passed practically
reenacting the same provisions of the ordinance and
thereunder the same power exercised by the central
government under s. 3 of the 1946 act and s. 3 of the
ordinance was preserved. the act also provided for repeals
and savings. the question therefore is whether on the
date of companymission of the offence the order whereunder the
prosecution was launched was subsisting or whether it ceased
to exist. it is companymon case that an order made under an act
ceases to have any legal force after the expiry of the term
for which the act is made. but it is companytended that the
order survived the expiry of the 1946 act by reason of the
saving clauses provided by the ordinance and the act. ordinarily the order should have expired on january 26
1955. unless it was saved by s. 16 of the ordinance the
saving clause of the act companyld number operate on it. we shall
therefore companysider the question from two aspects  i
whether s. 16 of the ordinance saved the operation of the
order and  ii  if it saved it whether s. 16 2  of the
act gave it a further lease of life. section 16 of the ordinance is in two parts. under the
first part any order made or deemed to be made under the
essential supplies  temporary powers  act 1946 and in
force immediately before the companymencement of this ordinance
shall in so far as such order may be made under this
ordinance be deemed to be made under this ordinance and
continue in force. the necessary companydition for the
operation of this part of s. 16 is admittedly companyplied with. the order made under s. 3 of the 1946 act can be made under
s. 3 of the ordinance and if so by reason of the express
words of the section the order must be deemed to be made
under the ordinance and companytinue to be in force
after its promulgation. but it is said that the second part
of the section cuts down the wide amplitude of the
phraseology used in the first part. after stating that the
said order shall companytinue to be in force the second part
proceeds to state and accordingly any appointment made
licence or permit granted or direction issued under any such
order and in force immediately before such companymencement
shall companytinue in force unless and until it is superseded by
any appointment made licence or permit granted or direction
issued under this ordinance . if the order companytinues in
force the argument proceeds the second part of the section
becomes otiose for the appointment made licence or permit
granted or direction issued under the order automatically
continues in force and therefore there is numbernecessity
for enacting the second part of s. 16. the anumberaly occurs
even if the argument be accepted for in that event the
first part becomes unnecessary the same result can be
achieved by enacting only the second part of s. 16 and
omitting the first part altogether. to ascertain the
meaning of a section it is number permissible to omit any part
of it the whole section should be read together and an
attempt should be made to reconcile both the parts. there
is numberambiguity in the provisions of the first part of the
section. in clear and unambiguous terms it posits the
continuation in force of the order numberwithstanding the
repeal of the act thereafter it proceeds to enumerate
certain past acts done under the order and in force
immediately before the companymencement of the ordinance and
says that they will companytinue in force in companysequence of the
continuance of the order. the word accordingly  which
means companysequently indicates that the enumerated acts will
number companytinue in force but for the companytinuance of the order
itself they depend upon the companytinuation of the order. it
is said that this interpretation imputes tautology to the
legislature and therefore should number be accepted. a
scrutiny of the section shows that the second part is number
really redundant as at the first blush it appears to be. under s. 16 of the ordinance the order made under the act
of 1946 companytinues to be
in force till anumberher order is made under the ordinance. it
covers two periods  i  the period up to the date of the
commencement of the ordinance and  ii  the period
thereafter. the first part gives life to that order and
therefore the acts authorised under that order can be done
subsequent to the companying into force of the ordinance. but a
question may be raised whether the past acts done under that
order are saved by the companytinuance of the order or whether
the acts already done are companyered by the words that the
order shall companytinue in force . the second part appears to
have been enacted for the purpose of avoiding this
difficulty or at any rate to dispel the ambiguity. under
the section both the order and the acts previously done
under the order are saved. if so it follows that the order
was saved and the prosecution authorized by the order companyld
legitimately be launched after the ordinance came into
force. even so it is companytended that the order saved by s. 16 of
the ordinance fell with the repeal of that ordinance and was
number companytinued under the act. this argument is based upon
the provisions of s. 16 1  and  2  of the act. section 16
has three sub-sections. for the present argument we are
concerned only with sub- ss.  1  and  2  of s. 16. sub-
section  2  is a repetition of s. 16 of the ordinance. but
it is said that s. 16 1  b  of the act indicates that the
order was number saved under that section. under s. 16 1  a
the essential companymodities ordinance 1955 is repealed and
under s. 16 1  b  any other law in force in any state
immediately before the companymencement of this act in so far as
such law companytrols or authorizes the companytrol of the
production supply and distribution of and trade and
commerce in any essential companymodity is also repealed. the argument is that the order is companyprehended by the words
any other law in cl.  b  of s. 16 1  and therefore
when that order is repealed under cl.  b  of s. 16 1  it is
unreasonable to hold that it is restored under sub-s.  2  of
s. 16. to put it in other words an intention cannumber be
imputed to the legislature to repeal an order under one sub-
section and restore it by anumberher sub-section. if we may
say
so there is a fallacy underlying this argument. the words
any other law in s. 16 1  b  can only mean any law other
than the essential companymodities ordinance 1955 mentioned in
s. 16 1  a . it is admitted that there are laws other than
the said ordinance in force in many states companytrolling the
production supply and distribution of essential
commodities. an order made or deemed to be made under the
commodities ordinance 1955 cannumber be described as a law
other than essential companymodities ordinance whereunder it is
made. such an order is companyprehended by cl.  a  of s. 16 1
itself and therefore cl.  b  thereof has numberapplication
to it. in this view an interpretation different from that
we have put on the provisions of s. 16 of the ordinance
cannumber be given to sub-s.  2  of s. 16 of the act. for
the reasons we have given in interpreting the provisions of
s. 16 of the ordinance we hold that under s. 16 2  both the
order and the acts enumerated in the second part of it
survived the expiry of the ordinance and companytinued in force
under the act. for the above reasons we hold that the
prosecution was validly launched against the accused under
s. 3 of the order. even so the learned companynsel for the respondents companytends
that it is number a fit case for this companyrt to interfere under
art. 136 of the companystitution. the offence was alleged to
have been companymitted on august 30 1955 i.e. more than four
years ago. the varying views expressed by the companyrts
indicate that there was a plausible justification for
reasonable belief on the part of the accused that the order
did number survive the expiry of the life of the 1946 act. the
order of the high companyrt dismissing the application for
leave to appeal to the supreme companyrt shows that it was filed
in companytravention of the provisions of r. 28 of the patna
high companyrt rules. under the said rules the application
should have been filed immediately after the judgment was
delivered. in the affidavit filed in support of that
application the only reason given for number doing so was that
the appellant did number give the necessary instructions. the
learned judge of the high companyrt rightly did number accept that
reason as a sufficient
ground for permitting the application to be filed at a later
stage.