Dear Veterans,
I would like to inquire about which Act and Section the above-mentioned concept pertains to. If there is no direct link to any specific Act, how should it be interpreted? Could you please advise on the relevant provisions or case laws to refer to?
Thank you for your guidance.
Regards,
Sachin P
ITC Limited [ITD]
Pune
From India, Mumbai
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3I would like to inquire about which Act and Section the above-mentioned concept pertains to. If there is no direct link to any specific Act, how should it be interpreted? Could you please advise on the relevant provisions or case laws to refer to?
Thank you for your guidance.
Regards,
Sachin P
ITC Limited [ITD]
Pune
From India, Mumbai
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The concept of "No Work No Pay"
The concept of "No Work No Pay" is essentially an implied condition of the contract of employment, which may be either express or implied.
If you want to be law-specific, please refer to Section 7(2)(b) read with Section 9 of the Payment of Wages Act, 1936, regarding the deduction of wages for unauthorized absence from duty. In this context, Section 24 of the Industrial Disputes Act, 1947, declares, inter alia, when a strike becomes illegal. Every day of an illegal strike is a day of no work at the instance of the employees and hence no pay/wages for that day.
However, you should remember an important aspect of this concept of "No Work-No Pay". It applies only to the situation of no work at the instance of the employee(s) and not at the volition of the employer(s). An employer can also cause no work for his workmen/employees by resorting to suspension pending an inquiry on disciplinary charges, lock-out, lay-off, retrenchment, or closure. In any of these cases, as per the Standing Orders applicable to the establishment or the relevant provisions of the Industrial Disputes Act, 1947, the affected employees are entitled to legal compensation for the period of no work instead of wages; otherwise, they are entitled to full wages. In the case of employees above the status of "workman", such no work in violation of the contract of employment would entitle them to full pay or damages.
Kind regards
From India, Salem
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The concept of "No Work No Pay" is essentially an implied condition of the contract of employment, which may be either express or implied.
If you want to be law-specific, please refer to Section 7(2)(b) read with Section 9 of the Payment of Wages Act, 1936, regarding the deduction of wages for unauthorized absence from duty. In this context, Section 24 of the Industrial Disputes Act, 1947, declares, inter alia, when a strike becomes illegal. Every day of an illegal strike is a day of no work at the instance of the employees and hence no pay/wages for that day.
However, you should remember an important aspect of this concept of "No Work-No Pay". It applies only to the situation of no work at the instance of the employee(s) and not at the volition of the employer(s). An employer can also cause no work for his workmen/employees by resorting to suspension pending an inquiry on disciplinary charges, lock-out, lay-off, retrenchment, or closure. In any of these cases, as per the Standing Orders applicable to the establishment or the relevant provisions of the Industrial Disputes Act, 1947, the affected employees are entitled to legal compensation for the period of no work instead of wages; otherwise, they are entitled to full wages. In the case of employees above the status of "workman", such no work in violation of the contract of employment would entitle them to full pay or damages.
Kind regards
From India, Salem
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Thank you very much Sir for linking it with various scenarios. However Sir, in case if the strike is legal would those days be treated as "no work no pay"?
From India, Mumbai
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From India, Mumbai
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Dear Sachin, sorry for my belated response; your last question required a lot of contemplation coupled with multiple cross-references, both academic and legal. Therefore, let me be brief with a practical answer to the best of my knowledge and belief.
The Right to Strike in Industrial Employment
In the realm of industrial employment, not in the case of employment in the sovereign functions of the State, the right to strike is recognized as a legal right. When the law or the contract of employment mandates that a strike should be resorted to in a particular fashion, employees cannot violate those conditions. However, it cannot be capriciously exercised. The exercise should be justifiable as well. Therefore, the exemption of the doctrine of no work-no pay would be applicable only in the case of a particular strike that is both legal and justifiable. It would be easy to define a legal strike, but it is not easy to conclude whether a strike is justifiable or not because it is a question of fact. If we come to a hasty conclusion based on some extraneous reasons, the very right to strike as an effective measure of collective bargaining would become meaningless. So, in my opinion, for a strike to be justifiable so as to make a claim for wages for the strike period, the following elements must be present:
(1) It should be a legal strike.
(2) It should have been after raising lawful and reasonable demands and sufficient direct negotiations.
(3) The timing of the strike should also be a determinative factor.
(4) The conduct of the strike should have been peaceful, devoid of any violence or untoward incidents.
(5) The strike should have been against any unfair labor practices on the part of the employer.
(6) Either on the advice of any lawful authority or on their own decision, when the striking employees were prepared to call off the strike and resume their duties, they should not have been prevented from doing so by the employer for some reason or other.
From India, Salem
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The Right to Strike in Industrial Employment
In the realm of industrial employment, not in the case of employment in the sovereign functions of the State, the right to strike is recognized as a legal right. When the law or the contract of employment mandates that a strike should be resorted to in a particular fashion, employees cannot violate those conditions. However, it cannot be capriciously exercised. The exercise should be justifiable as well. Therefore, the exemption of the doctrine of no work-no pay would be applicable only in the case of a particular strike that is both legal and justifiable. It would be easy to define a legal strike, but it is not easy to conclude whether a strike is justifiable or not because it is a question of fact. If we come to a hasty conclusion based on some extraneous reasons, the very right to strike as an effective measure of collective bargaining would become meaningless. So, in my opinion, for a strike to be justifiable so as to make a claim for wages for the strike period, the following elements must be present:
(1) It should be a legal strike.
(2) It should have been after raising lawful and reasonable demands and sufficient direct negotiations.
(3) The timing of the strike should also be a determinative factor.
(4) The conduct of the strike should have been peaceful, devoid of any violence or untoward incidents.
(5) The strike should have been against any unfair labor practices on the part of the employer.
(6) Either on the advice of any lawful authority or on their own decision, when the striking employees were prepared to call off the strike and resume their duties, they should not have been prevented from doing so by the employer for some reason or other.
From India, Salem
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The Principle of 'No Work No Pay'
The Apex Court in Virendra Kumar, General Manager, Northern Railways, New Delhi v. Avinash Chandra Chadha and Ors. (1), dealing with the principle of 'no work no pay,' has observed in Para 16 as follows:
"The respondents have not actually worked in the said posts and, therefore, on the principle of 'no work no pay,' they will not be entitled to the higher salary. Hence, we give no directions in this behalf and leave it to the appellant to give such relief as they may deem fit."
Supreme Court of India
Union of India vs B.M. Jha on 24 October 2007
Bench: A.K. Mathur, Markandey Katju
Case Details
CASE NO.: Appeal (civil) 5128 of 2001
PETITIONER: Union of India
RESPONDENT: B.M. Jha
DATE OF JUDGMENT: 24/10/2007
BENCH: A.K. Mathur & Markandey Katju
Judgment Summary
JUDGMENT ORDER: Heard learned counsel for the parties.
This appeal by special leave is directed against the judgment and order dated 17.5.2000 passed by the learned Division Bench of the High Court of Delhi, whereby the learned Division Bench upheld the order dated 11th January 2000 passed by the Central Administrative Tribunal, Principal Bench. None appears for the appellant.
The Tribunal has taken the view that since the respondent herein has been granted retrospective promotion from 27.8.1984, he must be paid arrears of pay and allowances for the higher post for the period 27th August 1984 till 5th February 1992.
Aggrieved against the order of the Tribunal dated 11th January 2000, the appellant herein filed a writ petition before the High Court, and the High Court dismissed the writ petition affirming the order of the Tribunal. Hence the present appeal.
We have heard learned counsel for the parties. It was argued by learned counsel for the respondent that when a retrospective promotion is given to an incumbent, normally he is entitled to all benefits flowing therefrom. However, this Court in the case of State of Haryana & Ors. v. D.P. Gupta & Ors., [1996] 7 SCC 533 and followed in the case of A.K. Soumini v. State Bank of Travancore JT (2003) 8 SC 35 has taken the view that even in the case of a notional promotion from a retrospective date, it cannot entitle the employee to arrears of salary as the incumbent has not worked in the promotional post. These decisions relied on the principle of no work no pay. The learned Division Bench in the impugned judgment has placed reliance on the case of State of Andhra Pradesh v. K.V.L. Narasimha Rao & Ors., (1999) 3 SC 205. In our view, the High Court did not examine that case in detail. In fact, in the said judgment, the view taken by the High Court of the grant of salary was set aside by this Court. Therefore, we are of the view that in the light of the consistent view taken by this Court in the abovementioned cases, arrears of salary cannot be granted to the respondent in view of the principle of no work no pay in the case of retrospective promotion. Consequently, we allow this appeal and set aside the impugned order of the High Court dated 17.5.2000 passed by the Division Bench of the High Court as also the order dated 11.1.2000 passed by the Central Administrative Tribunal, Principal Bench.
The appeal is allowed. No order as to costs.
From India, Thane
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The Apex Court in Virendra Kumar, General Manager, Northern Railways, New Delhi v. Avinash Chandra Chadha and Ors. (1), dealing with the principle of 'no work no pay,' has observed in Para 16 as follows:
"The respondents have not actually worked in the said posts and, therefore, on the principle of 'no work no pay,' they will not be entitled to the higher salary. Hence, we give no directions in this behalf and leave it to the appellant to give such relief as they may deem fit."
Supreme Court of India
Union of India vs B.M. Jha on 24 October 2007
Bench: A.K. Mathur, Markandey Katju
Case Details
CASE NO.: Appeal (civil) 5128 of 2001
PETITIONER: Union of India
RESPONDENT: B.M. Jha
DATE OF JUDGMENT: 24/10/2007
BENCH: A.K. Mathur & Markandey Katju
Judgment Summary
JUDGMENT ORDER: Heard learned counsel for the parties.
This appeal by special leave is directed against the judgment and order dated 17.5.2000 passed by the learned Division Bench of the High Court of Delhi, whereby the learned Division Bench upheld the order dated 11th January 2000 passed by the Central Administrative Tribunal, Principal Bench. None appears for the appellant.
The Tribunal has taken the view that since the respondent herein has been granted retrospective promotion from 27.8.1984, he must be paid arrears of pay and allowances for the higher post for the period 27th August 1984 till 5th February 1992.
Aggrieved against the order of the Tribunal dated 11th January 2000, the appellant herein filed a writ petition before the High Court, and the High Court dismissed the writ petition affirming the order of the Tribunal. Hence the present appeal.
We have heard learned counsel for the parties. It was argued by learned counsel for the respondent that when a retrospective promotion is given to an incumbent, normally he is entitled to all benefits flowing therefrom. However, this Court in the case of State of Haryana & Ors. v. D.P. Gupta & Ors., [1996] 7 SCC 533 and followed in the case of A.K. Soumini v. State Bank of Travancore JT (2003) 8 SC 35 has taken the view that even in the case of a notional promotion from a retrospective date, it cannot entitle the employee to arrears of salary as the incumbent has not worked in the promotional post. These decisions relied on the principle of no work no pay. The learned Division Bench in the impugned judgment has placed reliance on the case of State of Andhra Pradesh v. K.V.L. Narasimha Rao & Ors., (1999) 3 SC 205. In our view, the High Court did not examine that case in detail. In fact, in the said judgment, the view taken by the High Court of the grant of salary was set aside by this Court. Therefore, we are of the view that in the light of the consistent view taken by this Court in the abovementioned cases, arrears of salary cannot be granted to the respondent in view of the principle of no work no pay in the case of retrospective promotion. Consequently, we allow this appeal and set aside the impugned order of the High Court dated 17.5.2000 passed by the Division Bench of the High Court as also the order dated 11.1.2000 passed by the Central Administrative Tribunal, Principal Bench.
The appeal is allowed. No order as to costs.
From India, Thane
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