INSTRUCTIONS REGARDING NO WORK – NO PAY

Department of personnel & Training

F. No. 41016(S)/90/Estt.B Dated 1^stmay, 1991

Subject: Treatment of period of strike by Central Government Employees

Attention of the Ministry of Finance, etc., is invited to the Department of personnel& Administrative Reforms OM No. 33011/1/77-Estt.B dated the 25^thApril, 1978 in which the ministries/Departments were requested to ensure compliance of the following directions of the Cabinet, namely:-

i) all ministries/Departments must observe the principle of “no work-no pay” and this should not be circumvented in any way including by grant of leave for the period of a strike: and

ii) on all important service matters which re likely to have repercussions on other services (e.g. action taken against Government employees participating in strikes, all ministries/Departments, including the Ministry off Railways, should, with a view to ensuring the maximum possible uniformity in the general approach, consult the Department of personnel & A.R. ( now Department of personnel & Training) before taking/announcing any decision so that embarrassment to the Government in dealing with the generality of civil services is avoided.

2. notwithstanding he above directions, the Department of personnel & Training has been receiving several references from Central Government offices that in the case of employees who had participated in a strike, the period of absence may be treated as duty or leave instead of applying the principle of “no work-no pay”. It has also come to notice that in some cases, the Ministries/Departments and taken decisions on important service matters likely to have repercussions on the services without consulting this Department and in contravention of the said directions.

3. The principle of “no work-no pay”, is laid down in proviso to Fundamental Rule 17 (I) which provides that any officer who is absent without any authority shall not be entitled to any pay and allowances during the period of such absence. The principle was examined in depth by the Supreme Court and upheld in the Civil Appeal No. 2581 of 1986 –bank of India Vs T.S. kelawala & others (1990 (3) SLJ). Though the issue did not pertain directly to applicability of the principle to Government servants, the Court has analyzed the principle in all its facets and its observations are relevant. Some relevant extracts of the Supreme Court judgment delivered on 4^th May, 1990 are as under:-

Where the contract, Standing Orders or the service rules /regulations are silent on the subject, the management has the power to deduct wages for he absence from duty when the absence is a concerted action on the part of the employees and the absence is not 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 there 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 not enough that the employees attend the place of work. They must put in the work allotted to them. It is for the work and not for the mere attendance that the wages/salaries are paid.

It is clear that wages are payable only if the contract of employment is fulfilled and not otherwise. Hence, when the workers do not put in the allotted work or refuse to do it, they would not be entitled to the wages proportionately.

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 not either make the strike illegal as a weapon or deprive the workers of it. When workers resort to it, they do so knowing fully well its consequences. During the period of strike, the workers withhold their labour. Consequently, they cannot expect to be paid.

4. in the light of the above, the Cabinet has now reviewed the general policy in this regard and directed that all ministries/Departments must observe the instructions contained in Department off personnel & Administrative Reforms O.M. of 25^th April, 1978 (reproduced in para 1 of this OM) scrupulously.

5. ministry of Finance etc., re accordingly requested to bring the directions f the Cabinet to the notice of all concerned for strict compliance in future.

Sd/-

(M.S.Bali)

Dy. Secretary to the GOI

XVIII. INSTRUCTIONS REGARDING BANDH

DOP&T’s OM No. 27/6/71-Estt.(B) Cabinet Sectt. Dated 1^st Nov, 1971

The absence of Central Government employees on a day or days of bandh may fall under one of the following categories.

i) Where a Government servant had applied or applies for leave for the day or days of the Bandh for genuine reasons, e.g. medial grounds, of which the competent authority is satisfied:

ii) Where the competent authority is satisfied that the absence of individual concerned was entirely due to reasons beyond his control i.e. due to failure of transport or disturbances or picketing or imposition of curfew, etc.,

iii) Unauthorized absence, i.e. where conditions mentioned in (i) or (ii) above are not satisfied.

2. As regards the first category, leave of the kind due and admissible, including casual leave, may be granted to the Government servants concerned. As regards the second category, if the competent authority is satisfied that the absence was due to failure of transport facilities, special casual leave may be granted to such Government servants who had to come from a distance of more than three miles to their place of duty. If the absence was due to picketing or disturbances or curfew, then too special casual levee could be granted to regularize the absence, without insisting on the condition that the distance between their place of duty and their residence should be more than three miles. Special casual leave in either of the cases mentioned above may be granted with the concurrence of the Ministry/department concerned.

3. As regards the third category mentioned above, under the proviso to Fundamental Rule 17(I), an officer who is absent from duty without any authority, shall not be entitled to any pay and allowances during the period of such absence. Unauthorized absence of this kind, apart from resulting in loss of pay and allowances for the period of such absence, would also constitute break in service, entailing forfeiture of past service for all purposes, unless the break itself is condoned and treated as dies-non. If the break is condoned and treated as dies-non by the competent authority, the service rendered prior to the break will be counted for all purpose, but the period f the break itself will not count for any purpose.

4. There might, however be a case in which a number off Government employee acting in combination or in a concerted manner may absent themselves from duty for a part of a day only. The provisions of ministry of home Affairs OM No. 60/17/64-Estt.(A0 dated the 4^thAugust, 1965 shall not apply to such a case. Their absence even for a part of a day in the above circumstances shall be deemed to be unauthorized absence for a whole day, and action may be taken in regard to the unauthorized absence as outlined in paragraph 2 and 3 above.

(D kishan Rao)

General Secretary