Assam Match Company Limited v. Bijoy Lal Sen & Others

V AIDIALINGAM, J. In this appeal, by special leave, the question that arises for consideration is whether the appellant has contravened section 9-D of the Industrial Disputeif Act, 194 7 (hereinafter referred to as the Act), when at the request of the majority of the workmen the holiday for Diwali was changed from 11th November, 1966 to the next day. According to the usual practice, at the commencement of the year 1966, the appellant had published a list of holidays for that year. According to this list, the holiday for Kali Puja was stated to be on Friday, the 11th November, 1966. On November 5, 1966, the appellant notified that the factory will remain closed for Kali Puja on Friday, the' 11th November, 1966. This notification was only on the basis of the list of holidays referred to earlier.. The workmen in this company were represented py two unions ( I) Am co Employees' Association (hereinafter referred to as the Association) and (2) Amco Sramik Sangha (hereinafter referred to as the Sangha). There is no controversy that the Sangha represented the majority of the workmen ..of this company. On November 10, 1966, the General Secretary of the Sangha wrote a letter to the factory Manager of the appellant req_uesting him to close the factory on Sa•urday, the 12th November, 1966, on account of Kali Puja instea4 c:if the 11th instant as already notified by tbe com- 118 SUPREME COURT REPORTS [ 197 4] 1 S.C.R. pany on November 5, 1966. A further request was made in this Jetter that the factory may be kept working on Friday, the 11th November, in accordance with the timings mentioned therein. The General Sec- retary further stated in this letter that if the request of change in the holiday is not accepted, a large number of workmen will not be attend- ing on Saturday, the 12th November, which will result in heavy loss of production. On receipt of this letter, the appellant put up a notice the same day l'fiat in response to the request of the Sangha, the factory will remain closed for Kali Puja on Saturday, the 12th November, instead of Friday, the 11th, as previously notified. This notice further stated that the factory will remain open on Friday, the 11th November during the hours mentioned therein. Quite naturally, this notice can- celled the_ previous notice dated November 5, 1966. After the company's notice regarding the change of holiday for ,Piwali was put up on the notic~board, the Association, on the sam~ day (November 10, 1966), addressed a letter to the management that the change of holiday for Diwali was not justified and that the date originally declared as a holiday, namely, the 11th November, should be allowed to stand. The company obviously did not accede to this request of the Association with the result that most of the workmen attached to the association did not attend to work on November 11, 1966. The wages for that day were not paid by the appellant to those workmen on the ground that they were absent from duty. Nearly a year later on December 30, 1967, the respondents in this appeal, 83 in number, filed an application before the Labour Court, Gauhati, under section 33-A of the Act. The grievance of these work· men appears to be that there was an industrial dispute pending at the relevant time and that without complying with the provisions of sec- tion 33, and without conforming to the provisions of section 9-A, tbe employer had altered the condition of service by changing the date of the holiday for Diwali. According to them, one day holiday for Kali Puja was being allowed for a number of years and that it has become a condition of service. The notice issued on November 5, 1%6, dec- laring November 11, 1966, as a holiday for Diwali was in conformity with the right of the workmen under the conditions of their service. The Standing Orders of the company did not give any power to the appellant to change the holiday for Diwali and, therefore, section' 33(2)(a) of the Act does not give power to the appellant to alter the said date. Any change of date can only be effected in accordance _with section 9-A· As that has not been done, the action of the employer in declaring 12th November, 1966, as a holidav and refusing to· pay wages for 1 lth November, 1966, were both illegal. Accordingly they praverl for directing the apoellant to. pav them woges for Novemher 11, 1966, which has been iJenied to them, as their absence on that day was perfectly legal. The management contested the application on the ground that there has been no change effected in the conditions of service of the H , workmen by alterinf! the holidav of Diwali from November 11, to the next day. ·As the holiday is for Diwali and as the majoritv of the workmen specifically desired the holiday on the 12th November, the ASSAM MATCH co. v. B. L. SEN (Vaidialingam, !.) 119 change was made to suit the convenience of the workmen. Even if the fixation of a holiday is a condition of service, the change has been made for the benefit of the workmen. The management further pleaded that under the Standing Orders they were entitled to fix the holidays and also to effect any changes therein and, therefore, section 33(2)(a) of the Act gives power to them to effect such a change, although an industrial dispute was then pending. The management also cited certain previous instances when the holiday for Holiday or for Diwali once fixed had been altered at the request of the work­ men. The Labour Court has accepted the plea of the management that the Sangha represented the majority of the workmen of the appellant. It has further found that the appellant altered the date from 11th to 12th at the specific request of the Sangha. But the Labour Court held that, as the holiday has been originally fixed for the 11th November by the notice dated November 5, 1966, on the basis of the list of holi­ days announced by the company, the alteration of the holiday frow 1 lth to 12th November, though at the request of the majority of th' workmen, amounted to a change in the condition of service and :is such, the procedure under section 9-A should have been followed. As the said procedure had not been followed by the appellant, the Labour Court held that there has been a violation of section 33 read with section 9-A of the Act. In this view, it granted the reliefs asked for by the 33 workmen. Mr. B. Sen, on behalf of the appellant company, supported the stand taken by it before the Labour Court. He urged that there is no question of any cancellation of a holiday that the workmen were en­ titled to, in which case it may be stated that the condition of service is effected. On the other hand, the workmen did have a holiday for, Diwali on the 12th November. The counsel also referred us to th~ evidence on record to show that on previous occasions such changes had been effected in the holidays when a request was made by the workmen concerned. Mr. Sen Gupta, learned counsel for the. respon­ dents, has adopted the reasons given by the Labour Cour• for holding that a 'change in the condition of service has been effected by the apnel­ lant. In particular, Mr. Sen Gupta pointed out •hat if the employer wanted to effect a chan~e in the date of the holiday, it should have been done by the appellant entering in•o a settlement wit'1 the work­ men, as contemolated by clause (a) of the proviso to section 9-A. The sum ~nd substance of the arguments of Mr. Sen Gunta was that the a.ooellant, having fixed the holiday for Diwa'i as per its previons ciI"<:U-> Jars. had no power to change the same even thongh a majority of the workmen had desired the appellant lo do so. Section 9-A no doubt provides that the conditions of service of any workmen in resnect of anv matter soec;fied in the Fonrtli S0 1i 0 dule cannot be changed without following the oroce<lure indicated therein. If tJie alteration of the d1te of a .holidav amounts to a change in the · con<liti,.,ris of service. i• is needless to state tliat the apoella"' is b"und to follow the orocedure laid down in section 9-A. Item 5 of the Fourth Schedule deals with "leave with wages and holiday". There- 120 SUPREME COURT REPORTS [ 1974 j 1 S.C.R. fore, prima·facie, if a ho1iday has been fixed, the management may not ha·1e power to totally cancel the same or deprive the workmen· of such a holiday without conforming to provisions of s~ction 9-A. In the notice published at the beginning of the year 1966 regarding the holidays for the said year, the appellant has no doubt .stated that -Fri­ day, tile 11th November, will be a holiday for Kali Puja. But there is a statement in this notice to the effect that this list is subject to modification, if thought necessary". .Under paragraph 6 of the com­ pany's certified S.anding Orders, it is provided that "Notice specifying (a) the days observed by the Factory as holidays and (b) pay days, shall be posted as required by the Factory Act and the payment of \'!ages Act respectively". There is no controversy that the list of holidays published at the beginning of the year 1966 as well as the circular dated November 5, 1966 are in conformity with this provision. Similarly the notice dated November 10, 1966, by the management regarding the 12th November being a holiday for Diwali, acceding to the request of the workmen, must also be considered to satisfy the provisions of this clause in the Standing Orders. :!II our opinion, the alteration of the date regarding the holiday for Diwali, from 11th to the next day, cannot he considered to be an alter­ ation in the conditions of service. The workmen may be entitled to have a holiday for Diwali. But on what particular day Diwali falls or it is being observed and a holiday is to be declared, is a matter to be decided by the management in consultation with the workmen. If a large body of the workmen require a change in the cjate of the holi­ day on the ground that the festival is not being observed on the day originally fixed and the management changes the date, it cannot be stated that there is an alteration in the conditions of service. The workmen are not being deprived of a holiday at all for Diwali. Jn fact they have got it on the 12th November, 1966, In The Workmen of M/s. Sur lro11 & Steel Co. Pvt. Ltd. v. Mis. Sur Iron & Steel Co. Pvt. Ltd., and another(I), the workmen con­ tended that the change in the weekly off-day, from Sunday to Satur· day, without complying with the provisions of section 9-A, was illegal. This Court rejected that contention on two grounds that (1) there was no specific entry in the Fourth Schedule covering a condition of service relating to a weekly off-day and (2) even assµming that the grant of a weekly off-day falls under item 4 of the Fourth Schedule, the State Government bad issued a notification on April 10, 1962 under section 9-B laying down that no notice under section 9-A was required to be served in respect of the matters covered by items 4, 6 and 11 of the said Schedule for a period of three months. Therefore, it will be seen ihat this decision did riot express any opinion on the question whether the alteration of the weekly off-day from Sunday to Saturday, amounts to a change in the conditions of service coming within section 9-A. In fact the indications in the jndgment are that snch an alteration will not attract section 9-A. The decision in M/s Tata Iron and Steel Co. Ltd. vs. The Work­ men and others(") does not advance the case of the respondents. From (I) [1971] (I) LU 570, (2) [1972]II LLJ. 259. n J) II ASSAM MATCH co. v. B. L. SEN (Vaidialingam, J.) 121 the facts of that case it is seen that Sunday had been a holiday in the factory concerned for a Jong number of years. The company, for the reasons stated in the judgment, cancelled this holiday and in turn gave a holiday in the mid-week without following the procedure under section 9-A. It was held in the particular circumstances of that case th ' •lie alteratioo amounts to a change in the conditions of service. It must be noted that the workmen have been having for a long num­ ber o! years Sunday as a hohday and that may have become a condi­ tion 01 weir service. A holiday on a Sunday can only be on that day and no other day of the week can be Sunday. On this basis the deci­ sion has been rendered holding that cancdling the holiday enjoyed on Sunday amounts, in the circumstances, to a change in the conditions of service. J:be position in the case before us is entirely different. The fact is that the workmen have not been deprived of a holiday for DiWaJi. Even assuming that the workmen have got a right to get a holiday for Diwali and that it has become a condition of service, in this case the workmen did have a holiday for Diwali. The holiday for the said festival is to be given on the date when the majority of the workmen claim that they are celebrating Diwali. It has been emphasised in Mfs. Tata Iron and Steel Co. Ltd. v. The workmen and others(') that the real object and purpose of section 9-A is to afford an oppor­ tunity to the workmen to consider the effect of a proposed change and. if necessary, to represent their view on the proposal. Even assuming that the alteration of the date of the holiday for Diwali will amount to a condition of service, there is no question, in this case, of a contra­ vention of section 9-A, when the majority of the workmen themselves requested the employer to make the alteration. The employer wa~ within its rights under section 33(2)(a). The evideuce on the side of the respondents shows that the workmen ac•ually celebrated Diwali on the 12th November, which was declared to be a holiday. For the reasons stated above, we are of the O{linion that the appli­ cation filed by the workmen before the Labour Court iinder section 33-A was misconceived. In the result, the order of the Labour Court is set aside and this appeal is allowed. There will be no order as to costs. s.c. (1) 1972 (II) L.L.J. 259.