Writ Petition No.108 of 1996

4th September, 1997

Petitioner Counsel: Shri R.B. PURANIK, R.M. DARUVALA, Kum.S.K.KHANDEKAR
Respondent Counsel: Shri B.M.KHAN

Cases Cited:
1978 Mh L J 480 [Para 4,9]
1972 II LLJ 259 [Para 5,9]
1971 I LLJ 570 [Para 5,6,9]
AIR 1965 SC 1341 [Para 7,9]
1958 I LLJ 527 [Para 10]

JUDGMENT

JUDGMENT :- The petitioners, on 22.08.1994 put up a Notice informing all the employees, that due to shortage of some necessary material, the Factory would not function on Tuesday the 23rd August 1994, and the employees, for the aforesaid reason, would get their weekly off on Tuesday i.e. 23.08.1994. Wednesday, the 24th August, 1994 was the normal weekly off. There are some other directions pertaining to employees reporting for shifts. At the relevant time and even today, there are three Unions representing the employees of the petitioners. The members of respondent no.2, inspite of the notice dated 22.08.1994, presented themselves at the Factory Gate on 23.08.1994 for work. They were informed of the change of the weekly off. There were some altercations which are not relevant. Suffice to say that they reported for duty on 23.08.1994 and did not report for duty on 24.08.1994, which was the due weekly off. The employees represented by the two other Unions did not report for duty on 23.08.1994, but reported for duty on 24.08.1994.

The respondent no.2, thereafter, moved an application before the 1st respondent, claiming that, they were denied work when they presented themselves and as such, they were entitled to the wages for the said date. Thereafter, the respondent no.2 treated the said representation as application under Section 22-C (1) of the Industrial Disputes Act, 1947. He issued a Certificate, which is purportedly an order on 27.04.1995 and held therein that the petitioners herein had laid off the workers and the said layoff was illegal. Consequently, the 1st respondent held that the employees represented by the respondent no.2 were entitled for the wages for the said date and accordingly directed the Collector, Nagpur to recover the said amount as arrears of land revenue. It is, this order of the 1st respondent, which is challenged by these petitioners under Article 226 and 277 of the Constitution of India.

2. On behalf of the petitioners, two contentions have been raised. Firstly, it is contended that, in fact, there was no lay off and what the employer did was merely a change in weekly off as contemplated by Section 52 (1) (b) of the Factories Act; and secondly it is contended that, at any rate, the authority under Section 33-C (1) of the Industrial Disputes Act, 1947 could not have so decided the issue as he had a limited jurisdiction and on that count the order, being without jurisdiction is liable to be set aside.

On behalf of the respondents, it is contended that the Notice itself shows that the Factory was being closed on 23.08.1994 for the reason, that there was shortage of some material and clearly therefore, this was a case of lay off. It is further contended that the change of weekly off amounted to change in conditions of service and the procedure required by Section 9A of the Industrial Disputes Act had not been followed. The change was illegal and consequently the members of respondent no.2 were entitled to the wages for the day on which they were denied work.

Both the parties have cited authorities which will be discussed at the time of consideration of the arguments on behalf of the parties. Suffice it to say, what emerges from the contentions of the parties is, whether as contended by the employer, the change of weekly off has been done in terms of Section 52(1)(b) of the Factories Act and hence there is no violation of the provisions of Section 9-A of the Industrial Disputes Act and for that matter it was no lay off or as contended by the Union respondent no.2 that the change of weekly off was in breach of Section 9-A of the Industrial Disputes Act and further amounted to a lay off and therefore, they were entitled for the wages of that day.

3. Section 52 of the Factories Act provides for weekly holidays. Sub-section (i) of Section 52 sets out that, no adult worker shall be required or allowed to work in a factory on the 1st day of the week. The 1st day of the week is Sunday. There are exceptions carved out to this, that apart from Sunday, some other day could also be declared as a weekly off. If such worker has a holiday for whole day on one of the three immediately preceding before or after the said day. The said day is the 1st day of the week. Sub-clause (b) of sub-section (1) of Section 52 thereafter contemplates that, such weekly off can be substituted where the Manager of the Factory has, before the said date or the substituted date under Clause (a) whichever is earlier, delivered a notice at the office of the Inspector of his intention to require the worker to work on the said day and of the day which is to be substituted and display the notice to that effect in the Factory. At this stage, it may be mentioned that, it is the contention of the petitioners, that they have complied with both the requirements of Clause (b)(1) of Section 52. There is some dispute raised by the respondent no.2 in that behalf. However, that will not be of much relevance for the purpose of deciding the issue. Suffice it to say that there has been substantial compliance as can be seen from the record by the petitioners with the requirements of Clause (b)(1) of Section 52.

The next provisions to be considered are the provisions of Industrial Disputes Act, 1947. Section 2(kkk) defines what is "lay off". The lay off has been defined as, failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the break down of machineries for natural calamity or for any other connected reasons to give employment to a workman whose name is borne on the muster-rolls of his industrial establishment and who has not been retrenched. There is an explanation to the said sub-section which sets out that, every workman whose name is borne on the muster roll of the industrial establishment and who present himself for the work at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself, shall be deemed to have been laid off for the day within the meaning of this Clause. There are some provisos which need not be referred to. Thereafter Section 25-C is the Section which sets out the right of a workman laid off for compensation. Section 25-E sets out, when compensation is not to be paid. This Section also would not be relevant for the purpose of discussion of the issues involved in the matter. In so far as the present case is concerned, Chapter V B is also relevant as the provisions of Chapter V B are applicable to the facts of this case. Section 25-M is the Section pertaining to prohibition of lay off. The said Section contemplates that, no worker to whom the provisions of Chapter V B applies shall be laid of by his employer except with the prior permission of the appropriate Government or such authority as may be specified by that Government. Unless, the permission has been so obtained, the only exceptions carved out are that, such a lay off is not occasioned due to shortage of power or to natural calamity. There are some other situations which are covered by Section 25(M). The other sub-sections of 25-M prescribe the procedure, which the employee has to follow while applying for permission to lay off. Sub-section (8) is important in the context, as it sets out, that the application for permission under sub-section (1) is made, or where no application for permission under sub-section (3) is made within the period specified therein, or where the permission for any lay-off has been refused, such lay-off shall be deemed to be illegal from the date on which the workmen had been laid-off and the workmen shall be entitled to all the benefits under any law for the time being in force as if they had not been laid-off. In short, what Section 25-M contemplates is that, there can be no lay-off in respect of a workman to whom the provisions of Chapter V B are directed, unless permission is obtained and if no permission is obtained, then, in that event, the lay-off would be deemed to be illegal and the workman would be entitled to the benefits which are available to him in the law for the time being in force. The next Section which has to be considered for discussion of this matter and for answering the issues raised, is Section 33-C (1). Section 33-C(1) sets out that, where any money is due to a workman from an employer under a settlement or an award under the provisions of Chapter V A, or Chapter V B, the workman himself or any other person authorised by him in writing in this behalf, or in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrears of land revenue. The Section also provides for the period of limitation within which such application can be made. This will not be relevant, as the application in the instant case was moved within the prescribed period of limitation. It is, therefore, clear that, if the respondent no.2 is able to make out a case that the lay-off was in breach of the provisions of Chapter V B, then application under Section 33(C) would be maintainable.

4. With this background, the questions, as raised in this petition, can now be dealt with. In the instant case, can it be said that, there is no lay-off and in fact what the petitioner has done is merely a change in the weekly off from the date 'X' to 'Y', as provided in Section 52 of the Factories Act and without violating the mandate of sub-section(1) of Section 52 of the said Act. The Counsel contends that, under sub-section (1) Clause (b) of Section 52, it is permissible for the employer to change the weekly off after complying with the requirement of sub-clause (i) and (ii) of Clause (b) of Sub-Section(1) of Section 52, and in the present case, they have complied with the requirement. In that event, it is pointed out, this is not a case, where there is a change in the conditions of service, as contemplated by Section 9A or for that matter, it is not a case of lay-off. It is pointed out that, lay-off would contemplate refusal to give work on a working day. In the instant case, the petitioners have changed the weekly off and as such, it is not a case of refusal of employer on a working day and that being the question, the question of the day being working day would not arise. It is further pointed out, that this was a mere substitution and one time occasion and not a change in the weekly off and in these circumstances also, it could not be said that the petitioners have violated Section 9(A) of the Industrial Disputes Act. The provisions of Section 9A would be attracted if the weekly off was substituted by a new weekly off. In the present case, it was done solely in the exigencies and in the circumstances of the case. It is, therefore, contended that, there has been no violation on the part of the petitioners. The Counsel has relied for this purpose on a Judgment of Single Judge of this Court, in the case of, Mistry Lallubhoy and Co. Vs. Engineering and Metal Workers' Union, reported in 1978 Mh.L.J. 480. It is pointed out that the said Judgment covers a similar situation as has arisen in the present case, and the ratio of the said case should be applied to this case. In the case of Mistry Lallubhoy & Co. (Supra), the weekly off was changed from 22.11.1970 to 24.11.1970 as on 24.11.1970 a call for 'Bandh' had been given in the State of Maharashtra. After considering several Judgments of the Apex Court, the learned Single Judge came to the conclusion that, there was no violation of Section 9A of the Industrial Disputes Act and that neither entry no.4, 5 or 8 of Schedule IV of the Industrial Disputes Act was applicable. A mere isolated incidence could not amount to change in service condition and accordingly held that the workmen in the said case were not entitled for wages for the said period. It is this Judgment that has been pressed by the Counsel for the petitioners to buttress its claim, that an isolated incident of change of weekly off and that too after complying with the requirements of Section 52 (1)(b) would not bring the said change of weekly off within the ambit of Section 9(A) of the Industrial Disputes Act.

5. The learned Single Judge, while so holding distinguished the Judgment of the Apex Court in the case of M/s Tata Iron and Steel Co. Ltd. Vs. The workmen and others, reported in 1972 II L.L.J. 259, on the ground that, an earlier Judgment of the Apex Court, in the case of, The Workmen of M/s Sur Iron & Steel Co.Pvt.Ltd. Vs. M/s.Sur Iron & Steel Co.Pvt.Ltd., and another, reported in 1971 I LLJ 570 had not been considered. The learned Single Judge himself noted that, in so far as the Judgment of the Apex Court in the case of the Workmen of M/s Sur Iron & Steel Co.Pvt.Ltd. (Supra), was a case, where the Apex Court itself has noted that the State of West Bengal had issued a Notification in respect of the weekly off on account of power shortage. In that Judgment, the learned Judge also noted that, the Apex Court had came to the conclusion that, none of the items in Schedule IV were attracted in case of change in weekly off and in the alternative had taken note of Notification issued by the State Government. The Judgment of M/s.Tata Iron and Steel Co.Ltd. was distinguished on the ground that the Judgment in the case of The Workmen of Sur Iron & Steel Co. had not been taken in consideration while deciding the said case. The learned Judge then without taking into consideration these two Judgments proceeded on the footing that there was a conflict of law and the matter could be independently considered as set out by him in para 17 of his Judgment. The learned Judge, thereafter, proceeded to hold that, an isolated incident would not attract entry 5 and consequently held Section 9(A) was not attracted.

6. In the case of Workmen of M/s Sur Iron & Steel Co.Pvt.Ltd., the issue was also in respect of change of seekly off. In that case, the Apex Court noted that the said change was brought about at the request of a substantial number of workers. It was further brought on record that the change had to be effected on account of shortage of power supply and the Government of West Bengal itself has brought out the Notification. It was, under those circumstances, it is true, the Apex Court also held that the case of change in weekly off would not be considered under items 4 and 5 of the IVth Schedule. Thereafter, in the later Judgment in the case of M/s Tata Iron and Steel Co.Ltd. Vs. The Workmen and Others, the question again directly in issue was, the change of weekly off. True the Apex Court did not consider its earlier Judgment in the case of The Workmen of M/s Sur Iron & Steel Co.Pvt.Ltd. while pronouncing the Judgment. The Apex Court, however, clearly in that case, held that in the case of change of weekly off Section 9(A) would be clearly attracted. The Apex Court held that the entries dealing with "hours of work and rest intervals" and "leave with wages and holidays" are wide enough to cover the case of illegal strikes and rest days. It further proceed to set out that, entry No.8 dealing with withdrawal of customary concession or privilege or change in usage is also wide enough to take within its fold the change of weekly holidays from Sunday to some other day of the week. In so far as, Section 9A is concerned, the Apex Court was pleased to observe as under :

"Further the real object and purpose of enacting S.9A seems to be to afford an opportunity to the workmen to consider the effect of the proposed change and, if necessary, to present their point of view on the proposal. Such Consultation further serves to stimulate a feeling of common joint interest of the management and workmen in the industrial progress and increased productivity. This approach on the part of the industrial employer would reflect his harmonious and sympathetic co-operation in improving the status and dignity of the industrial employee in accordance with the egalitarian and progressive trend of our industrial jurisprudence, which strivers to treat the capital and labour as co-sharers and to break away from the tradition of labour's subservience to capital."

This Judgment, has therefore, clearly pronounced the law in so far as Section 9A is concerned, though, as pointed out by learned Single Judge, there is some conflict with the Judgment of the Apex Court in the case of, the Workmen of M/s Sur Iron & Steel Co.Pvt.Ltd.,

7. The attention of the learned Single Judge, however, was not drawn to the Judgment of the Apex Court in the case of, John Douglas Koith Brown Vs. The State of West Bengal, reported in AIR 1965 SC 1341. This was a case under Section 52 and some other provisions of the Factories Act. Of Course, there was a issue, whether, apart from the Manager, the Occupier of the Factory could be prosecuted for non complying with certain provisions of the Act and the Rules. While holding that the Occupier was also liable, the Apex Court proceeded to answer the scope of Section 52 (1)(a) and (b), as under:

"We may further point out that what the provisions of Section 52(1)(a) and (b) permit is to grant exemptions to specified workmen from the operation of the prohibition enacted in Section 52 from working in factories on weekly holidays. No general permission can be granted under clauses (a) and (b) of sub-section (1) of Section 52 for altering the day of the weekly holiday so as to cover all the workmen. Therefore, upon the proper construction of the provisions it is clear that whenever workers are required (or are permitted) to work on a weekly holiday the specific permission of the Chief inspector of Factories in respect of each and every worker who is required to work on such a day should be obtained."

The Apex Court, by these observations, has set out that the change of weekly day as contemplated by the aforesaid sub-section would be in respect of some employees and not the change of weekly off in respect of all the employees. These are the observations of the Apex Court to which attention is invited by the Counsel for the respondent no.2.

8. However, what is more relevant in this cases, would be the provisions of Chapter V B. of course, on behalf of the petitioners, it is contended that, change of weekly off is covered by Section 52 and as they have fulfilled the requirement, the question of lay off does not arises. In the instant case, the reason for changing the weekly off is in terms of Notice dated 22.08.1994. The Notice clearly contemplates that the weekly off is being changed on account of shortage of material. If the employees were refused work, in such event, on any other day, the provisions pertaining to lay off would be attracted. Can, therefore the argument be sustained that because the employer has chosen to shift the weekly off, then in that event, it will cease to be a lay-off. As pointed out earlier, the definition of lay-off itself is as set out under Section 2(kkk) of the Industrial Disputes Act. The reasons given in the notice dated 22.08.1994 would by itself indicate that the weekly off was changed on account of shortage of material. In case, where the provisions of Chapter V B are attracted, contemplates that, permission is required. Can the employer contend that because in law under Section 52(1)(b) as it sought to be argued, he can change the weekly off by giving notice to the Inspector and put a Notice on Display Board he can dispense with the requirement of Chapter V B. The answer must be clearly in the negative. It is not possible for an employer to change the weekly off solely on the ground that there was no material available for work to be provided on a particular date. Such exercise would be clearly a colourable exercise to defeat the very object of the weekly off. If in law there are statutory requirements under Chapter V B in seeking permission before a lay-off is effected, ingenuity cannot be allowed to defeat the requirement of law. In the instant case, clearly the sole reason for change in the weekly off was shortage of material. In such a case, if the employer had to lay-off, he was bound to pay compensation. This he cannot avoid by resorting to change in the weekly off itself bearing in mind the law laid down by the apex Court in the case of John Douglas (Supra).

9. Dealing with the Judgment of the learned Single Judge of this Court in the case of, Mistry Lallubhoy and Co. (Supra), I am unable to subscribe to the view taken by the learned Single Judge. First and foremost the said Judgment was delivered on 01.08.1977. The Judgment does not disclose, whether the provisions of Chapter V B which had come into effect were attracted to the Industry in question. Secondly, the learned Single Judge did not consider the Judgment of the Apex Court in the matter of interpretation of weekly off and change thereof, as has been held by the Apex Court in the case of John Douglas (Supra), and finally in the case of M/s Tata Iron and Steel Co.Ltd., which is a later Judgment than the Judgment in the case of The Workmen of M/s. Sur Iron & Steel Co.Pvt.Ltd., the Apex Court had clearly held that, Section 9A would be attracted in the case of weekly off. I am, therefore, unable to subscribe to a view taken by the learned Single Judge in the case of Mistry Lallubhoy & Co. The View I am taking is also not in conflict with the said Judgment, as I have already pointed out that the Judgment of the Apex Court in the case of John Douglas (Supra) and the provisions of Chapter V B did not come up for consideration before the learned Single Judge. In view of the above, I am clearly of the opinion that action of the petitioners in changing the weekly off was in violation of the requirements of Section 9A and Chapter V B of the Industrial Disputes Act.

10. The last question to be answered is the question of the applicability of Section 33-C (1). The learned Counsel for that purpose relied on the Judgment of the Apex Court in the case of Kasturi & Sons (Pvt.)Ltd., Vs. Salivateeswaran and another, reported in 1958 I L.L.J. 527. This Judgment was pointed out for the purpose of showing that, Section 33-C came up for consideration before the Apex Court while considering the provisions of Section 17 of the Working Journalists Act. The Apex Court held that, under Section 33-C the nature of the inquiry was restricted and as such the appropriate Government or its delegate under Section 33-C (1) can not embark on the inquiry as contemplated. I am unable to subscribe to the plea of the Petitioners. Section 33-C itself contemplates that, if claim is due amongst others under Chapter V B of the Industrial Disputes Act, the workman himself or any other person authorised by him in writing in this behalf, or in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of money due to him, and if the appropriate Government is satisfied that any money is so due to him, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrears of land revenue. It cannot be said that the Labour Court had no jurisdiction to try the incidental issue whether the lay off was in violation of Chapter V B. The Labour Court would have jurisdiction to decide the said issue to do justice to the parties who come before it claiming that there is violation of the provisions of Chapter V B of the Industrial Disputes Act.

In the present case, once it is held that infact the action of the petitioners amounted to lay-off the authority had jurisdiction to recover the amounts claimed under Chapter V B. In view of the aforesaid, the second argument, on behalf of the petitioners, is also rejected.

10. For the aforesaid reasons, rule is discharged, In the facts and circumstances of this case, there shall be no order as to costs. The amount deposited, on application being moved by the respondent no.2 to the Additional Registrar of this Court, be paid to the respondent no.2, alongwith accrued interest.

11. At this stage, Counsel for the petitioners seeks four weeks' time for stay of the operation of the order. Operation of the order is stayed for four weeks.

Rule discharged