CRITICAL SCRUTINY OF ‘NO WORK NO PAY’ DOCTRINE

IN LABOUR LAW

NAME- SHIVANGI
ROLL NO- 1077
SECTION-B
SEM- V
SUBMITTED TO- Mr.Shantanu Braj Choubey
Assistant Professor, Law

National University of Study and Research in Law ,Ranchi

TABLE OF CONTENTS:

1.INTRODUCTION

2.EMERGENCE OR JUDICIAL DEVELOPMENT OF THE PRINCIPLE

3.RIGHT TO STRIKE
 STATUTORY RIGHT
 FUNDAMENTAL AND LEGAL RIGHT

4. DOCTRINE AMID COVID-19

5.Strike and ‘no work no pay’

6.CONCLUSION
RESEARCH METHODOLOGY :
The method of research adopted will be both primary and secondary in nature. Data will be
collected from various sources, both Primary and Secondary. Also, analytical research will be
used in this Researcher has to use facts on information already available and then analysed
them to make a critical evaluation of the present material. Also, Case Study Method:
Researcher has attempted to analyse the topic with the help of case law available. Researcher
has also relied on external desk-based research involving online desk research to the extent
that is based on law- substantial as well as procedural, related article, reports, working papers
and related books and Journals are examined. Some of the materials are taken from internet,
which makes the study reliable on secondary sources. The secondary sources are Books by
eminent authors.

OBJECTIVE:
The objective of this paper is to study and analyse the jurisprudence on the issue of No Work
No Pay' and its applicability to the various different kinds of strikes in light of various
judicial pronouncements.

REVIEW OF LITERATURE:
The literature for the current project comprises of both primary and secondary sources. The
primary sources that have been used are the Industrial Disputes Act and the Payment
of Wages Act. Reference has also been made to secondary sources such as decisions by the
Supreme Court of India and various High Courts. To develop a general understanding of
labour law, the research has consulted Dobia: The Law of Services and Dismissals'which is a
well-regarded commentary on the issue of 'no work no pay'. Further reference has been made
to the works of authors such as C. Krishnamurthi’ and Srikanta Mishra. Online repositories
such a JSTOR and LexisNexis have also been consulted to develop a deep understanding of
the subject.
RESEARCH QUESTIONS:

1.What is Doctrine of NO WORK NO PAY?

2.Whether wages are required to be paid to employees who wilfully absent themselves
from work in pursuance of strike?

3. What are Legal provisions for NO WORK NO PAY?

TENTATIVE CHAPTERISATION:

 CHAPTER 1 – Introduction
This chapter will give an introduction to the topic.
 CHAPTER 2 - EMERGENCE OR JUDICIAL DEVELOPMENT OF THE
PRINCIPLE This chapter deals with the EMERGENCE OR JUDICIAL
DEVELOPMENT OF THE PRINCIPLE
 CHAPTER 3- RIGHT TO STRIKE
This chapter will explain RIGHT TO STRIKE
 CHAPTER 4- DOCTRINE AMID COVID-19
This chapter will explain the essential requirements of Marz-ul-Maut.
 CHAPTER 5 - Strike and ‘no work no pay’
1.INTRODCTION:

1
The employer-employee relationship is based on how a labourer agrees to deliver her
work/labour to the employer as a result of which the employer agrees to repay her with
cash/benefits/other considerations. Wages is a term that refers to money, benefits, or other
ideas. Wages are defined by the Industrial Disputes Act as "any remuneration paid by the
employer to the workman for the work she performs for the employer."2 It contains
advantages and allowances like dearness allowance, the worth of any housing,the supply of
light, water, electricity, and other. Bonuses, gratuities, and contributions to the pension or
provident fund are not included.3
In the relationship between an employer and an employee, the rule of "No Work, No Pay" is
cherished. The employer is not obligated to pay any wages if an employee refuses to work
due to a strike, absence from work, or other reasons.4
5
Absence from duty refers to an employee's absence from the place or places where she is
obligated to work under the terms of her employment for the entire or a portion of the time
she is meant to work. 6However, such a wage deduction must not be excessive in relation to
the period of absence from work.7
The absence from work is not restricted to the employee's physical presence at work. If an
employee refuses to work because of a strike or for any other reason that is deemed
unreasonable, a proportional amount will be deducted from her pay.

1
Vaishanavi Krupakaran, Critical scrutiny of 'no work no pay' doctrine in labour law Lexlife India (2021),
https://lexlife.in/2021/03/02/critical-scrutiny-of-no-work-no-pay-doctrine-in-labour-law/ (last visited Oct 2,
2021).

2
s. 2(rr), Industrial Disputes Act, 1947.
3
Ibid.
4
C. Krishnamurthi, Dies Non (no Work No Pay) in Banking Industry, Serial Publications, 01 Jan 2009.
5
s. 7(2)(b), Payment of Wages Act, 1936.
6
s. 9(1), Payment of Wages Act, 1936.
7
s. 9(2), Payment of Wages Act, 1936.
2.EMERGENCE OR JUDICIAL DEVELOPMENT OF THE
PRINCIPLE:
‘Algemene Bank Nederland vs Central Government Labour Court,' 8a Calcutta high
court judgement, was the first case to recognise the idea of NWNP. Mr.Shyamapada Das, the
respondent, was a Calcutta-based employee of the petitioner's bank. On the 10th of Sept.
1975, the respondent and other bank workers decided to leave their workstations and hold a
demonstration meeting within the bank premises during working hours. This ‘illegal
demonstration' lasted until 5:45 p.m., and included squatting and sloganeering without any
work. The Bank issued a statement , stating that the workers won't be entitled to any salary
for their period of absence from their duties on the principle of 'No work, No pay.'The bank
subsequently paid salaries based on this statement, with the amount for the absence deducted.
The respondent then filed an application with the Calcutta Central Government for the
recovery of Rs.11.41 under Section 33C(2) IDA, 1947.
The Hon'ble Court held that a contract of employment entails reciprocal promises based on
the time of performance, and that a pro-rata wage deduction in the event of failure to satisfy
such consideration is legal and doesn't constitute a penalty. In favour of the petitioner's rights
to deduct wages, Justice Mukherjee states as follows:

'The fact that the petitioner, may have proceeded against the respondent no. 2 as a form of
punishment doesn't, in my opinion, diminish the petitioner's right to refuse to pay the wages if
the petitioner is entitled to deduct it.The fact that the unauthorised absence was a misconduct
of minor does not prohibit the petitioner from refusing to pay the wage if the respondent No.
2 has not earned the salary for failing to do the task under the terms of the contract. There is
no question of providing respondent No. 2 any opportunity in such a circumstance, and hence
no question of a violation of natural justice principles'.
This decision marked the beginning of judicial acceptance of the NWNP principle as a
natural justice principle. It simply acknowledged the principle in spirit, not in letter form.

The genesis of the doctrine of "No work – No Pay" has been attributed to the founding of the
judiciary. Dhirendra Chamoli v. Anr. vs. the State of Uttar Pradesh9 ‘There is a
submission from the Central Government that these people have taken up job with the Nehru
Yuva Kendra, knowing full well that they will only be paid daily salaries and hence, they
cannot claim more,' the Supreme Court of India stated. This argument causes a negative
impression on the central government since it is an all-too-familiar argument with the
exploitative class and a welfare state devoted to a socialist pattern of society that cannot be
allowed to pursue such an argument.' With this backdrop, the notion of "no work, no pay"
eventually emerged.

8
1978 I LLN 101
9
Dhirendra Chamoli and Anr. Vs. State Of U.P, 1986 (52) FLR 147, (1986) ILLJ 134 SC, (1986) 1 SCC 637.
An employee relinquishes remuneration not only when he is absent from duty, but also when
he doesn't discharge his obligation at will, according to the law. Because the petitioners were
in breach of contract, they were not entitled to compensation for such periods if they made
purposeful and concrete steps while only participating and not working on the site or place of
work.

3.RIGHT TO STRIKE:
The presence of a right to strike has posed an extraordinary question. Huge jurisprudence has
been accumulated on the issue, culminating in the risky judgment in the T.K. Rangarajan
case.
STATUTORY RIGHT:
10
In India, under Section 22(1)(a) of the Industrial Disputes Act, 1957, the right to strike is a
statutory right. The clause states that in the event of a breach of contract in the public utility
sector, workers may go on strike with six weeks' prior notice to the employer. Workers have
a powerful tool in the form of the right to strike. It aids workers in negotiating for a better
working environment, proper wages, and other benefits. Collective bargaining is based on the
right to strike.
In India, under Section 22(1)(a) of the Industrial Disputes Act, 1957, the right to strike is a
statutory right. The clause states that in the event of a breach of contract in the public utility
sector, workers may go on strike with six weeks' prior notice to the employer. Workers have
a powerful tool in the form of the right to strike. It aids workers in negotiating for a better
working environment, proper wages, and other benefits. Collective bargaining is based on the
right to strike.

Section 22(1)(a) lays out a number of conditions that must be met before a strike can be
carried out. Workers have the right to strike in a peaceful manner, as said by Hon'ble
Supreme Court. However, the demands they make should be legitimate. In a case, Justice
Krishna Iyer and PN Bhagwati held that a strike can be illegal or legal, and that even illegal
strikes can be justified on occasion.11 It is the principle of social justice and well recognised
by industrial jurisprudence. It is also available to employees as a legal right, and they can
engage in a peaceful strike to bargain with their employers about their demands. Collective
bargaining and the right to strike are interconnected. 12
Legal and illegal strikes are distinguished under the Industrial Disputes Act. As a result, if all
of the requirements listed in sub section 22 and 23 are met, a strike can be considered legal
and justifiable.

10
Rai, D. (2020, January 2). Right to strike: Proposed amendment in the indian constitution. iPleaders.
Retrieved October 8, 2021, from https://blog.ipleaders.in/right-to-strike-proposed-amendment-in-the-
indian-constitution/.

11
Gujarat Steel Tubes Ltd. v Gujarat Steel Tubes Majdoor AIR 1980 SC 1896 (India).
12
Despite the fact that it is valued by other countries and international laws, India has yet to
grant this right fundamental status. The judiciary has failed to take into account the right to
strike's dynamic structure and evolution.
Fundamental and Legal Right:
After a long and difficult fight, the working class has earned the right to strike.13 Strikes are
an important part of the negotiation process in every business. A worker's only other option
for defending her wage is to request an increase in money wage. If a capitalist refuses to grant
the requested increase, workers can force them to negotiate by going on strike. The same is
true for public servants, but it is not only the authorities who suffer, but also the general
public. This puts a lot of pressure on the competent authority to negotiate.
Collective bargaining and the right to strike are closely linked. 14The Supreme Court has held
that trade unions' ability to deal with employers will be significantly affected if they are
unable to demonstrate through strike, go-slow, or sit-down strikes. 15In terms of whether or
not the right to strike is a fundamental right, the Supreme Court has held that even a liberal
interpretation of Article 19(1)(c) cannot lead to that result.16
In its judgement in the T.K Rangarajan Case, the Supreme Court finally resolved these
issues. The Court responded to the claim made in the All India Bank Employees'
Association case17that the right to form an association under Article 19(1)(c) of the
Constitution included the right to strike by stating that interpreting the constitution in this
way would lead to a never-ending circle in which rights concomitant to concomitant rights
would have to be recognised as well.
While it is acceptable that the right to strike cannot be considered a fundamental right, the
Court's handling of the issue of whether or not there is a legal right to strike was surprising.
Government employees have no "legal, moral, or equitable right" to strike, according to the
Court. This conclusion appears to be in violation of both statutory provisions and precedent.
In addition, the bench in this case was smaller than the three-judge bench in the Gujarat Steel
Tubes case, and it was unable to reverse that decision.

4.DOCTRINE AMID COVID-19:

13
Bank of India v. T.S. Kelawala, 1990 (4) SCC 744.
14
Gujarat Steel Tubes v. Its Mazdoor Sabha, AIR 1980 SC 1896
15
B.R. Singh v. Union of India,[1990] Lab I.C. 389 (396) (S.C.)
16
Kameshwar Prasad v. State of Bihar, (1962) Supp 3 SCR 369
17
All India Bank Employees ‘Association v. National Industrial Tribunal, AIR 1962 SC 171.
18
The COVID-19 outbreak was initially discovered in Wuhan, China's Hubei city, in
December 2019 and has since expanded throughout the world, prompting the World Health
Organization (WHO) to designate it an epidemic on March 11, 2020. Because India has the
world's largest population density, the government, at both the union and state levels, has
taken appropriate wartime measures to prevent the spread of the pandemic. The coronavirus
had an influence on the sector as a whole, as seen by compensation reductions and employee
layoffs. The nationwide lockdown, which began on March 25, has had a significant impact on
the workers' socioeconomic situation.
Because India's economy is in a low growth phase (GDP), employers have begun to apply the
No work – No pay policy, which states that if an employee is absent from work without
providing justification, the person is not entitled to a salary or compensation.
The Ministry of Labor and Employment of the Government of India has issued two orders
regarding the employer-employee relationship in this situation:
1.Employers should work more with their employees to increase rather than dismissing them
or reducing their pay.
2.Until the lockdown time is all over, all employers (industry/shops and business
establishments) will pay their employees' salaries at their individual workplaces on the
specified date, without deduction or cut-off.

A company from Karnataka filed a petition in the Supreme Court challenging the
constitutional validity of the MHA's notification, claiming that both the order and the
notification were arbitrary, illegal, irrational, and unfair, and that they were in violation of the
law, including Article 14 and Article 19(1) (g) of the Indian Constitution. The company's writ
petition was rejected, and the company's no-work-no-pay policy was likewise repealed.
Following this,it was held by hon'ble Bombay HC's Bench of aurangabad that during this
time of COVID19, employers can't apply the principle of "No-work – No pay" because these
are exceptional circumstances, and the courts can't be insensitive to such workers.
Unfortunately, they must deal with the COVID-19 epidemic, and no work-no pay can't be
retained because the employees' welfare must be considered.
The Hon'ble Supreme Court ruled on the 4th of June, 2020, that no severe action should be
taken against employers in response to the MHA notification requiring the payment of salary
to employees during the COVID-19 lockdown.
The High Court of Bombay in Rashtriya Shramik Aghadi. V.State of Maharashtra And
Others19 refuses to apply the principle of "no work, no pay," noting the financial hardship
that COVID-19 had caused employees. The Hon'ble Court held that because of the COVID19

18
Ishani Sinha et al., Reminiscence of no work - no pay principle during COVID 19 Simpliance.in (2020),
https://www.simpliance.in/blog/reminiscence-of-no-work-no-pay-principle/ (last visited Oct 2, 2021).

19
Rashtriya Shramik Aghadi vs The State of Maharashtra and Ors., Writ Petition No. 4013 of 2020, decided on
May 12, 2020 by Bombay High Court (Aurangabad Bench)
pandemic, it cannot turn a Nelson's eye to an exceptional situation and hence, prima facie,
this concept of no- work- no -pay can't be applied in such extraordinary circumstances.
The Court held in case of Ficus Pax Private Limited & Ors vs Union of India 20that a
balance must be established between these two competing claims. As a result, the Court
issued interim measures allowing willing private establishments, employers, and industries to
negotiate and settle unpaid wage claims with their employees. Furthermore, private
establishments, industries, and factories must allow willing workers/employees to work in
their facilities without prejudice to the workers'/employees' rights to unpaid wages.

5.Strike and ‘No Work No Pay’:

20
W.P. Diary No.10983 of 2020
21
A worker's pay or salary is determined by how well he or she does work in accordance with
the terms of the employment contract. In a situation where the contract provides for payment
upon completion of a period of service or a piece of work, no part of the remuneration can be
claimed unless the service is totally done. If a worker is missing for even a few hours, the
employer may deduct the full day's wage.22
If an employee fails to turn up for work without good reason, she is in break of the conditions
of the agreement. When an employee refuses to discharge her obligation, such as during a
strike, the legitimate position is that she forfeits compensation.23

During a strike, workers are expected to stop working or operate in a limited capacity in order
to reduce production. The question that will be addressed is whether or not labourers' salaries
can be deducted for hours spent on strike. In this context, it's important to understand that
strikes might be legal or illegal, justified or unjustified.24
The question of whether labourers' salaries could be deducted for strike time was first raised
in the Churakulam Tea Estate case25. The case was a fight over the non-payment of a reward
over a long period of time. Following the failure of assuagement processes, about 27
employees went on strike. From that point forward, the administration refused to pay wages
for the duration of the strike. The dispute was referred to the Industrial Tribunal, which ruled
that the strike was both legal and justified, and directed the administration to pay salaries for
the strike day.
The Supreme Court recognised the necessity to find a balance between the interests of
workers and employers in case of Ficus Pax Private Limited & Others versus Union of
India26, stating that industry and labour are inextricably linked and that one cannot exist
without the other. While some businesses and establishments may shoulder the financial
burden of paying wages during the lockdown time, the Court recognised that other
establishments or industries may not be able to bear the entire burden. Similarly, even if
employees and workers were eager to work, they were unable to do so due to industry
closures.

21
Krupakaran , CRITICAL SCRUTINY OF 'NO WORK NO PAY' DOCTRINE IN LABOUR LAW LEXLIFE INDIA
(2021), https://lexlife.in/2021/03/02/critical-scrutiny-of-no-work-no-pay-doctrine-in-labour-law/#_ftn19
(last visited Oct 3, 2021).

22
Dharam Singh Rajput v. Bank of India, [1979]12 LIC 1079.
23
Vikram Thamskar v. Steel Authority of India. 1982 II LLN 319 (M.P.)
24
Panyam Cements & Minerals Industries v. Deccan Wire Employees Association, 1998 II CLR 923
(Karn.H.C.).
25
Management of Churakulam Tea Estate v. Its Workmen and Anr, AIR 1969 SC 998
26
W.P. Diary No.10983 of 2020
6.CONCLUSION:
Overall, it must be said that labourers' rights have not been upheld by the courts as they
should have been.
Initially, the right to strike is regarded as a universal right. Article 8 of the Global agreement
on Economic, Social and Cultural Rights (ICESCR) recognises the right to strike. India, as a
individual to the Pledge, will definitely grant such a right to its workers. While statutory
provisions such as those included in the ID Demonstration or the Worker's Guilds
Demonstration acknowledge the right, ongoing judicial decisions have dealt a sledge blow to
the right. Previous decisions, such as Gujarat Steels27, had been made in accordance with the
existence of the right. The Supreme Court's ruling in T.K. Rangarajan,28 on the other hand,
has effectively ruled out the existence of an employee right. In this sense, it is urged that the
choice in the Rangarajan case be considered in terms of the right to strike. An enactment or
reform of existing Acts that explicitly recognise the right to strike would go a long way
toward safeguarding labourers' interests. Given the Administration's level of influence, it's
critical to have weapons in hand, such as a strike, that the labourer may use to get her
requests addressed and followed up on.

In the case of the no-work-no-pay rule, it is argued that the T.S. Kelawala29 decision is
incorrect because it ignores the judgements in Crompton Greaves30 and Churakulam Tea
Estate31. Strikes that are justified and legitimate must qualify workers for salaries. Legitimacy
entails adhering to the procedures outlined in various agreements, whereas support requires
the absence of unreasonable reasons. Both must be learned on a case by case basis.

BIBLIOGRAPHY:

27
Supra, note 20.
28
Supra, note 11.
29
Supra, note 17.
30
Supra, note 33.
31
Supra, note 28.
BOOKS:
Srikanta Mishra , labour laws and industrial relations : New Horizons Deep
And Deep publications,1995.
C.Krishnamurthi, DIES NON(NO WORK NO PAY) IN BANKING
INDUSTRY, Serial Publications,01 Jan 2009.
WEBSITES:
 www.legalserviceIndia.com
 www.manupatrafast.com
 www.lawyersclubIndia.com
DATA BASES:
 SCC ONLINE
 MANUPATRA.JSTOR