Bijli Cotton Mills (P) Ltd. Vs. The
Presiding Officer, Industrial Tribunal Ii & Ors [1972] INSC 86 (20 March
1972)
DUA, I.D.
DUA, I.D.
VAIDYIALINGAM, C.A.
CITATION: 1972 AIR 1903 1972 SCR (3) 910 1972
SCC (1) 840
CITATOR INFO:
R 1973 SC1252 (19)
ACT:
U.P. Industrial Establishments (National)
Holidays Act, 1961--No provision for payment of wages for festival
holidays--Whether payable in the facts and circumstances--of the case.
HEADNOTE:
An industrial dispute arose between the
appellant and its workmen as to 'whether the employers were required to pay
wages for the festival holidays allowed to their workmen in a year. The
appellant contested the workmen's claim mainly on the grounds that neither in
law nor in practice was there any provision for festival holidays with wages,
that the appellant was already paying wages for three holidays allowed to the
workmen under the U.P. Industrial Establishment (National Holidays) Act, 1961
and that in the entire region in which this mill is situated, no textile mill pays
wages for festival holidays. The mill was stated to be an uneconomic unit and,
therefore, not in a position to beer an extra burden. The workmen, on the other
band, in their separate written statements, filed through three Unions. pleaded
that the grant of holidays without wages was illegal and against social
justice. In their rejoinder the appellant pleaded that the holidays mentioned
by the Unions were (,ranted because the workmen had demanded the same and those
holidays were substituted by other days in lieu of holidays and as they were
paid for the days on which they worked on account of those holidays there was
no loss of wages caused to them.
The Tribunal by its award made the appellant
liable to pay to their daily-rated and piece-rated workmen for 17 festival
holidays, besides three national holidays, plus arrears, on the ground that the
Secretary of the appellant mill admitted that the festival holidays were paid
holidays in the sense that workers were allowed to work on their unpaid rest
days in substitution of the said festival holidays. The appellant being
aggrieved by the award presented a writ petition before the High Court which
was dismissed by a single Judge. Special leave to a Divisional Bench of the
High Court was dismissed in Iimine, but the Bench certified the case to be fit
for appeal to this Court. The appellant was held entitled' to certificate
either under cl. (a) or cl. (b) of Art. 133(1) of the Constitution on the
ground that value of the subject matter of dispute or claim The respondent in
the Supreme Court objected to the competence of the certificate on the ground
that though the judgment of the Division Bench wasone of affirmance the
certificate did not disclose on its face the existence 'of any substantial
question of law.
This objection was upheld but as the case was
considered fit for special leave, on oral request special leave was granted on
the condition that the appellant would file a formal application for special
leave accompanied by an application for condoning the delay911 Allowing the
appeal on the merits,
HELD : By reading the statement of the
Secretary of the appellant alongwith the pleadings as disclosed in the
respective statement of cases of the parties, it is not possible to bold that
the appellant had admitted that the 17 festival holidays were being given by
them as paid holidays dispensing with the enquiry into the question referred
for adjustment to the Industrial Tribunal. Even the workmen did not plead that
the festival holidays were treated as paid holidays.
The Secretary's statement that no festival
holidays were paid in the sense that the workers were allowed to work on unpaid
rest days in substitution of the said festival holidays. This statement clearly
explains that sense in which the Secretary meant to say that the festival
holidays were paid. The facts contained in the explanation lead to the only
conclusion that festival holidays are not paid as the festival holidays are.
This statement read with the detailed explanation could not logically serve as
a ground for ignoring the unequivocal denial in the written statement. The
industrial Tribunal, was therefore, wrong in holding that the statement made by
the Secretary was an admission on behalf of the appellant. The learned single
Judge also missed the real point and held that the Secretary's statement
constituted an admission and all 'facts evidence was therefore, excluded. The
Division Bench fell into the, same error in summarily dismissing the appeal in
limine. (920 A-EJ (ii) The U.P. Industrial Establishments (National Holidays)
Act, 1961 and rules provide for paid National Holidays but that Act dotes not
deal with festival holidays. In determining the number of paid festival
holidays per year, certain facts, like custom, practice and uniformity in the
industry without prejudicially affecting efficiency and increased production
are some of the relevant factors to be taken into account. The question affects
national economy and does not remain confined only to the establishment
concerned but has its impact on other concerns as well.
This aspect has been completely ignored by
the, Industrial Tribunal. Further the Tribunal proceeded solely on the basis of
misreading of the Secretary's statement. thereby ignoring the plea taken by the
appellant. There is. thus the manifest error of law apparent on the fact of the
record which resulted in grave failure of justice, because evidence on the only
material point was illegally shut out. [921 A] The District Board (afterwards
Zila Parishad Allahabad v.Syed Tahir Hussain & ors C.A. No. 57 8 of 1963
decided oh July 23, 1965, Shiri Durga Prasad & Anr. v. The Banaras Bank
Ltd., [1964] 1 S.C.R.475.preferred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1611 of 1968.
Appeal from the judgment and order dated December
5, 1966 of the Allahabad High Court-in Special Appeal No. 760 of 1966 and
Petition for Special Leave to appeal(civil) No; 676 of 1972, 912 V. M.
Tarkunde, J. P. Goyal; and Sobhag Mal Jain, for the appellant.
E. C. Agarwala and A. T. M. Sampat, for respondent
No. 2.
The Judgment of the Court was delivered by
Dua,J. The following dispute between M/s.Bijli Cotton Mills (P) Ltd., and their
workmen was referred to the Industrial Tribunal 11, U.P. for adjudication :
"Should the employers be required to pay
wages for the festival holidays allowed to their workmen in a year ? If so,
from which date and with what other details ? According to the workmen the
employers had been giving 17 festival holidays to their workmen in a year and
though those holidays should have been paid ones the employers were not making
any payment.
The dispute was originally espoused at the
instance of Hathras Mazdoor Panchayat but later three other unions namely Sooti
Mill Mazdoor Panchayat, Congress Mazdoor Sangh and Suti Mill Karmachari Sangh
were also accorded right of representation on their applications. The employer
mills contested the claim on various grounds. The plea on the merits in
substance was to the effect that neither in law nor in practice was there any
provision for festival holidays with wages. The Mill, it was averred, was
already paying was for three holidays allowed to the workmen under the U.P.
Industrial Establishments (National Holidays) Act (U.P. Act XVIII of 1961) and
in the entire Agra region in which this Mill is situated to textile mill pays
wages for festival holidays. . It was added that the Mill was an uneconomic
unit and was not in a position to bear any extra burden. The Congress Mazdoor
Sangh, the Sooti Mill Karmachari Sangh and the Hathras Mazdoor Panchayat filed
separate written statements on behalf of the workmen and pleaded that the grant
of holidays without wages was illegal and against social Justice.
The employer Mill filed rejoinder statement
to the written statements of all the Unions, pleading that the holidays
mentioned by the Unions were not allowed to the workmen at the employer',
initiative but were _granted because the workmen demanded the same and these
holidays were substituted by other days in lieu of holidays, and as they were
paid for the days on which they worked on account of these holidays there was
no Toss of wages caused to the workmen.
On july 15, 1965 the parties made their
statements under,r. 12 of the U.P. Industrial Disputes Rules, 1957, which
provides 913 for procedure at first. sittings of die Tribunal requiring the
parties to state their respective cases. Shri M. P.
Jaiswal, on behalf of the employers admitted
that the company gives 17 festival holidays to all its employees, 15 of which
are; those mentioned in the written statement of the Congress Mazdoor Sangh and
two others being Sankranti and Baldev Chat observed on Bhadon Sukla Chat. All
these holidays were stated by him to be paid holidays in the sense that the
workers were allowed to work on their unpaid rest days in substitution of the
said festival holidays. The unpaid rest days were the. same as those provided
and observed under S. 52 of the Factories Act as unpaid holidays. It was
admitted that the monthly raters were paid for 365 days in a year whereas
piece-raters were paid according to the quantum of work done by them on working
days in a month. The national holidays given by the employer are not
substituted on any rest day and if any national holiday falls on a rest day the
employer pays single day's wages if no work is done. If a holiday is
substituted on rest day then only one day's wages are paid.
After this statement four representatives of
the contesting unions stated that whenever the management takes work, from the
workers on a rest day only one day's wages are paid and it was emphatically
denied that holidays were substituted on a rest day. Monthly raters, according
to these representatives, get their wages for all 365 days.
After these statements the Presiding Officer
of the Tribunal put the following question to Shri Jaiswal :
Q : Whether the festival holidays observed in
the Mill are paid or unpaid ? A : They are paid holidays and payment is made by
substitution as stated earlier.
Thereafter it appears that the workmen did
not lead any evidence but Shri M. P. Jaiswal, Secretary of the Mills appeared
as a witness on behalf of the employer. He filed two charts showing the
festival holidays observed in ,he Mills in the year 1964 and upto July, 1965.
He proved these charts stating that they bad been prepared from the Mills'
Muster Rolls and that they were true copies correctly prepared from the records
of the Mills. These two charts were marked as Ex. E-1 and Ex. E-2. )When the
witness tried to depose about the holidays in the Kanpur Textile Mills, the
question was disallowed. While cross-examined by Shri B. D. Seth, on behalf of
the workmen, Mr. Jaiswal stated that in Ex-E-1 only two holidays for Holi were
substituted, one on February 23, 1964 and the other on March 1, 1964, the
remaining two not being substituted. In the case of Diwali also. two holidays
were 914 substituted leaving unsubstituted the remaining two holidays. On
being" cross-examined by Shri O.P. Gautam also on behalf of the work-men
the witness stated that in 1965 as well only two holidays on account of Holi
were substituted, the remaining two being un substituted. In the preceding
years also the position was stated to be the same in regard to Holi holidays.
The following :two questions and answers may
also be reproduced Q : When you take work on Sunday which is a weekly holiday
on which date you give the festival holiday ? A : As such we do not give the
weekly rest day on the day on which the festival falls within the limits
allowed under the Factories Act.
0 : Is there any limit for festival holidays
in Factories Act ? A : There is no such limit nor any such direction in the
Factories Act. For substitution there is a restriction in Sections 51 and 52 of
the Factories Act.
Exhibits E-1 and E-2 show festival holiday
for the year 1964 and 1965 and these charts corroborate the answers elicited
from Shri Jaiswal that for Holi and Diwali only two days on which substitution
was allowed were paid for, the remaining two holidays being unpaid.
It may be pointed out that ;the Tribunal,
after the statements of the parties under r. 12, framed the following issue :
"Whether the festival holidays are given
to the work-. men in the form of substituted holidays on weekly rest days ? If
so are the workmen other than the monthly raters entitled to only one day's wages
or two days' wages i.e., one day's wages for the work done on the weekly rest
day and one day's wages for the substituted holiday ?" It appears that the
language of this issue was not objected to by either party and this appears to
be the real crux of the controversy which emerged after the statements of the
parties requiring decision by the Tribunal. It was not disputed before the
Tribunal that the employers had been giving 17 festival holidays to all the
workmen besides three national holidays. The plea taken by the employers in
their pleadings that the holidays are not paid holidays was in the opinion of
the Tribunal given the go-by in the 915 statement of Shri Jaiswal recorded
under r 12 on. July 15, 1965. The Tribunal then dealt with that statement and
observed that after that statement it was for the, employers to show how
payment for the festival holidays Was made by them. To reproduce the words of
the award :
"In the written statement without
stating whether the festival holidays were paid or unpaid they pleaded that
neither in law nor in practice there was any provision for festival holidays
with wages and that in the entire Agra Region no textile mill was paying wages
for the festival holidays. Originally it appeared that the employers wanted to
set up that the festival holidays were unpaid but at the time of the statement
under rule 12, Shri Jaiswal took a contrary position and stated that all the
festival holidays were paid holidays and the payment was made in the sense that
they were substituted on rest days. I have already shown how this statement is
incorrect and no impartial mind will be wrong in drawing a legitimate inference
that the purpose of the employers in setting up inconsistent pleas or in giving
in-consistent statements was only to conceal the truth or it may be that the
purpose was to confuse the issue." A little lower down, after observing
that Shri Jaiswal was not the kind of witness who would give straight answers
to straight questions and that the witness had to be warned for this attitude
observed :
"From the employers own pleadings the
statement of Shri Jaiswal recorded under rule 12 and his deposition, it is
evident that 17 festival holidays besides three National Holidays are all paid
holidays but the employers had been wrongfully depriving their workmen of their
dues in this behalf." The Tribunal, while dealing with the case of monthly
raters observed that they were not entitled to the relief because they were
paid for all the 365 days in a year. The case of daily raters or piece raters
being different (they were paid according to the number of days on which they
worked or the quantum of work they turned out) they were held entitled to
festival holidays with wages. Daily raters were accordingly held entitled to
payment on the basis of their daily wage whereas piece raters were held
entitled to get the average earning to be calculated on the basis of the
average of the last one month immediately preceding the holiday. The relief
granted. by the award was stated thus "My award, therefore is that the
employers shall pay wages to their daily rated and piece rated Workmen 946 for
17: festival holidays besides, three National Holidays, i.e., to each or their
workmen who: are daily raters and piece raters with effect, from, the 1st January,
1965. For the holidays which have accrued, from the 1st January 1965 fill the
date of enforcement of the award and' which are. given in the list Ex. E-2 the
employers shall pay the arrears and in future all the. festival' holidays and
National Holidays shall be paid for. If the employers substitute festival
holidays on a rest day, for that day they shall. pay double the wages."
The appellant, feeling aggrieved by this award, presented a writ petition in
the Allahabad High Court under Art. 226 of the Constitution complaining that
the Industrial Tribunal had misread' and misinterpreted the statement of the
parties recorded under r. 12 particularly the statement ofShri Jaiswal. It was
also averred that the question of festival holidays depends on so many other
factors particularly custom and usage and the Industrial Tribunal had committed
a serious error in shutting out evidence in regardto the practice prevalent at
Kanpur in respect of the custom and usage regarding festival holidays in the
textile industry there. The main textile industry in the State of Uttar Pradesh
according to the appellant's averment is concentrated at Kanpur. The alleged
admission by Shri Jaiswal contrary to the appellant's pleading and contrary to
the case set up by both parties could: not be conclusive and the Industrial
Tribunal illegally based its finding on such alleged admission.
The High Court dismissed the writ petition
holding that it was open to the Industrial Tribunal to allow or disallow any
question which it considered relevant or irrelevant and the High Court, in
exercising its jurisdiction under Art. 226 of the Constitution, could not go
into the correctness or otherwise of the order disallowing a particular
question to be put to a witness such function being vested only in an appellate
court. The grounds that the Industrial Tribunal, had misread the statement of
Shri Jaiswal in holding that, he had made an admission that 17 paid festival
holidays were being allowed to the workmen was also considered to be impermissible
in the High Court in writ jurisdiction because that pertains to the
appreciation of evidence. The statement made by Shri Jaiswal under r. 12,
according to the High: Court, was capable of the interpretation that it
contained an admission that the employers were giving 17 paid festival holidays
to their workmen. Not being satisfied that three impugned award suffered from
any error of jurisdiction or from any manifest, error of law the writ petition
was dismissed.
Special appeal form the judgment of the learned
single Judge to a Bench of two Judges was summarilly dismissed, on, December
917 5, 1966, However, leave to appeal to this Court was granted by the
Divisional Bench on February, 16,1968, the petitioner having been held, to.
quote the words of the High Court "entitled to a certificate. either under
cl. (a) or, (b), of Art. 13 3 ( 1) of the Constitution". The High Court
also, certified "that the value of the subject matter of dispute before
the High Court and in appeal is not less than Rs.
20,000/-; alternatively, it is certified that
the judgment of this Court involves directly or indirectly a claim respecting
wages amounting to more than Rs. 20,000/-.", Before, us the respondents
raised, an objection that the certificate granted' by the High Court was
incompetent and, therefore, should be cancelled. Our attention was drawn to
Art. 133(1),(a) and (b) of the Constitution and it was pointed out that the
High Court missed that part of sub-Art.
133(1) where it is stated that " where
the judgment, decree or final order appealed from affirms the decision of the
court immediately below in any case other than a case referred to in sub-clause
(c), if the High Court further certifies that the appeal involves some
substantial question of law." Merely because the value of the subject
matter in dispute is more than Rs. 20,000/-, the respondent contended, it does
not by itself justify the grant of a certificate under cl. (a) or cl. (b). In
the application for the requisite certificate the prayer included cl. (c) of Art.
133(1) as well, but apparently at the time of
arguments the submission was confined to cls. (a) and (b) alone.
The appellant, when faced with this
difficulty, submitted that this Court should, on its oral request, grant
special leave to appeal after condoning delay and it also filed a formal
written application for special leave to appeal accompanied with an application
for condonation of delay.
For adopting such a course the appellant
relied on an unreported decision of this Court in The District Board
(afterwards Zila Parishad), Allahabad v. Syed Tahir Hussain & ors.(1) There
the appellant had come to this Court on a certificate purporting to have been
granted under Art. 133 of the Constitution. At the time of hearing it was
objected on behalf of one of the respondents there that the certificate could
only be granted if there was a substantial question of law and since the
certificate did not disclose on its face the existence of any such question,
the appeal was incompetent. This Court, in view of its earlier decision in Shri
Durga Prasad & anr. vs. The BanarasBank Ltd.(2), sustained this objection
and in the absence of a certificate of the High Court showing the existence of
some substantial question of law held the appeal to be incompetent. The appellant
in, that case when faced with a similar situation, had made an oral request
praying for special leave, undertaking to. file a written (1) C.A. No; 578 of
1963 decided on July 23,1965.
(2) [1964] 1 S.C.R. 475.
918 petition for that purpose supported by an
affidavit and accompanied by an application for condonation of delay.
This Court considered the case to be fit and
proper for granting special leave which granted on oral prayer but the
appellant there Ws directed to file special leave petition in this Court within
a week. The appellant in the present case also filed during the course of
hearing special leave petition no. 676 of 1972 duly supported by an affidavit
and Civil Miscellaneous Petition no. 1319 of 1972 with a supporting affidavit
praying for (i) condo nation of delay, (ii) treating court fee paid on C.A. No.
1611 of 1968 as court fee on special leave to appeal and (iii) the security
deposit. in the earlier appeal being treated as security in the special leave
appeal. We heard all the matters together.
We consider the case to be covered by the
precedent cited and accordingly held the certificate granted by the High Court
to be incompetent and, therefore, liable to be cancelled. With the cancellation
of the certificate C.A. no. 1611 of 1968 must be dismissed; but in the
circumstances there would be no order as to costs.
With regard to the prayer for granting
special leave to appeal there can be no dispute that this Court is fully
competent to entertain this prayer and if the cause of justice so demands, to
grant the same and consider the special leave to, appeal on the merits. Article
136 is couched in very wide terms and it vests this Court with discretionary
power for setting right grave injustice in fit cases. In Shri Durga Prasad's
case (supra), this Court, having regard to all the circumstances, did not
consider that to be a fit case for granting special leave to appeal whereas in
the later case of the District Board (afterwards Zila Parishad) Allahabad
(supra), it may be recalled, this Court granted special leave to appeal on oral
request, directing, that a formal special leave application be filed within a
week. After considering all the circumstances we consider the present case to
be fit for granting special leave to appeal and for condoning the delay. We
order accordingly. The appellant, however, must pay full court fee payable
within two weeks but the security already deposited in C.A. No. 1611 of 1968
may be treated as security in the special leave appeal. The result, therefore,
is that now we have the fresh appeal by special leave before us for decision.
The appellant's learned counsel drew our
attention to the statements of the respective cases of the parties before the
Industrial Tribunal and also to the statement of Shri Jaiswal under r. 12. In
our view the statement of Shri Jaiswal had, as a matter of law, to be read as a
whole and also in the back ground and along with the pleadings as disclosed in
the respective statements of cases of the parties in order to understand
whether Shri Jaiswal's statement 919 amounted to, a clear and conscious
admission eliminating a crucial, part of the controversial issue. Reading them
as' a whole we do not consider it possible to hold that the appellant had
admitted ,that the 17 festival holidays were being given by. them as paid'
holidays dispensing with the enquiry into the question referred for
adjudication to the industrial Tribunal.
It may in this connection be pointed out that
the real purposes and object of r. 12 is only to pinpoint the precise. controversy
by requiring the, parties to state their respective cases at the very first
sitting of the Tribunal. This statement is not like the testimony of a witness,
part Of which can be accepted and thereat rejected.
11 was only in the nature of a supplementary
pleading designed mainly to remove vagueness and to clear ambiguities or
indefiniteness in the pleadings. This statement had, therefore, to be read and
considered as a whole. If it was considered unsatisfactory in some respects
this factor could be taken into account in appreciating the pleadings and
evidence led in the case while coming to the final decision but it could not
debar the appellant from leading evidence on the controversial issue as if such
issue did not arise.
It is noteworthy that even the workmen did
not plead that the festival holidays were (treated as paid holidays but no
payment was as. a matter of fact being made.
The holidays were of course allowed to the
workmen but the written statement on behalf of the appellant unequivocally
denied that there was any provision in law or practice for allowing festival
holidays with wages and it also denied that in the Agra region where the
appellant's mill is situated any textile mill was paying wages for festival
holidays. The appellant Mill it was emphasised could not be treated on a
different footing. It was further pointed out that the appellant Mill was a
highly uneconomic mill an,-, was not in a position to take any extra burden.
The statement made by Shri Jaiswal under r. 12 could on no reasonable
hypothesis be considered to have replaced this unequivocal and clear plea. It
is true that Shri Jaiswal tried to be somewhat clever by stating that the
festival holidays were paid in the sense that the workers were allowed to work
on unpaid rest days in substitution of the said festival holidays. But this
statement clearly explains in unambiguous terms the sense in which Shri Jaiswal
meant to say that the festival holidays were paid. The facts contained in the
explanation lead to the only conclusion that festival holidays are not paid as
'the National Holidays are. This statement read with the detailed explanation
which constitutes its real core could not logically serve as a ground for
ignoring the unequivocal denial in the written statement particularly when even
the workmen did not set up this case. The Industrial Tribunal had, in our
opinion, erroneously 92O ignored the real plea and had on the basis of this
manifest blatant error, which is clear on the face of the record, disallowed
the evidence on the question of the practice and custom. in the textile
'industry in Kanpur. In Shri Jaiswal's statement we find a clear distinction
drawn that three National Holidays were paid holidays and the other festival
holidays were such for which the workers were allowed to work on substituted
rest days. It was also clearly mentioned in that statement that if a holiday is
substituted on a rest day then the workmen gets only one day's wages. This
important part of the statement was virtually ignored by the Tribunal. The
facts being clearly stated, in our view, the Industrial Tribunal was wrong in
law in holding that the appellant's written plea was modified by reason of the
statement under r. 12 or that there was a clear admission superseding the
earlier plea.
The learned Single Judge of the High Court,
in our opinion, also missed the real point; and if the real plea was ignored
and it was erroneously held that Shri Jaiswal's statement under r. 12
constituted an admission overriding the earlier plea and as a result evidence
on that plea was excluded, then it was an eminently fit case for interference
under Art. 226 of the Constitution, the error being gross and palpable which
was manifest on the face of the record and the same having resulted in failure
of justice by excluding evidence on the mos vital point. The Division Bench on
special appeal from the judgment of the learned single Judge fell into the same
error in summarily dismissing the appeal in limine without even recording a
speaking order on the crucial point of substance arising in the case which went
to the root of the matter.
The question of festival holidays requires
consideration from several aspects. Employers and workers have always differed
in their suggestions about the level at which uniformity in the number of
holidays should generally be achieved. In the Report of ,the National
Commission on Labour prepared in August, 1969 we find at p. 105 that the
workers' organisaitions generally favour a minimum of 7 to 12 paid holidays in
a year without mainly any differentiation as between different categories of
employees. Employers, on the other hand, feel that the number of paid holidays
enjoyed by workers in India is already on the high side, and, 'therefore,
uniformity should be achieved at a much lower level. The opinion of the
Commission contained, in its Report supported the view of its Study Group on
Labour Legislation which recomended three paid National Holidays viz. 26th
January (Republic Day, 15th August (Independence Day) and 2nd October (Mahatma
Gandhi's Birth Day) and five paid festival holidays as may be fixed by the
appropriate Government in consultation with the representatives, of employers
and employees. The Report also suggests that there is a trend towards
industry-wise uniformity in 921 the matter of holidays, as in the case of jute
and coal.
Incidentally it may be mentioned that in
U.P., the U.P.
Industrial Establishments (National Holidays)
Act No. XVIII of 1961 and rules made under s. 9 thereof provide for paid
National Holidays but that Act does not deal with festival holidays.
In the case before us, according to the
appellant, the 17 festival holidays as directed by the award would impose on
the appellant industry an additional burden to the extent of about Rs. 1,49,600
as was stated in the order of the Allahabad High Court while granting leave.
Custom, practice and uniformity in the industry without prejudicially affecting
efficiency and increased production are some of the relevant factors which have
to be taken into account in determining the number of paid festival holidays
per year.
The question affects national economy and the
present instance may well be cited in future in deciding similar questions in
other allied concerns in the region. The effect of such instances, therefore,
does not remain confined only to the establishment concerned but has its impact
on other concerns as well. This aspect has been completely ignored by the
Industrial Tribunal which has proceeded solely on the basis of the statement of
Shri Jaiswal as interpreted by it. This statement being the sole basis of the
Tribunal's conclusion if it is not possible to read in this statement any
admission having the effect of giving up the only crucial plea that the workmen
have no right to 17 paid holidays than this is clearly a misreading of that
statement and the Tribunal's order must be held to be tailed by a manifest
error of law on the face of the record which has resulte in grave failure of
justice as evidence on the only material point in issue was illegally shut out.
In our view, the High Court also fell into the same error and did not apply its
mind to the real point which arose for decision in the case. We accordingly
allow this appeal, set aside the orders of the High Court and of the Industrial
Tribunal and remit the case back to the Tribunal for a fresh decision on the
merits after permitting the parties to lead relevant evidence in accordance
with law and in the light of the observations made above. As the whole trouble
arose because of the unsatisfactory nature of the statement made by Shri
Jaiswal, who was also found by the Tribunal as a person who was not inclined to
give straight answers to straight questions, it is only just and proper that
the appellant should pay the respondents' costs both in this Court and in the
High Court. The court fee, as already directed, must be paid by the appellant
within two weeks.
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