National
Jute Manufacturers Corporation Ltd. Vs. Katihar Mazdoor Sangh & Ors [2001] Insc
211 (12 April 2001)
S. Rajendra
Babu & Shivaraj V. Patil Shivaraj V. Patil, J.
L.I.T.J
In
these appeals the validity and correctness of the Award dated 18.10.1993 passed
by the Industrial Tribunal, Patna, as
affirmed by the learned single Judge and confirmed by the Division Bench of the
High Court, is challenged.
By the
impugned award, the tribunal ordered that the workmen shall get one days paid
holiday on the occasion of Deepawali which was available to them prior to 1979.
However
they will not get any arrears on that count.
Rai Bahadur
Hurdut Ray Motilal Jute Mills Pvt. Ltd.
(for
short the Mill) had remained closed from 25.2.1975 to 17.8.1979. On coming into
force of the Jute Companies (Nationalisation) Act, 1980 (for short the `Nationalisation
Act) it stood transferred and vested in the Central Government with effect from
21.12.1980. In turn the Central Government under the provisions of the said Act
transferred the Mill to the National Jute Manufacturers Corporation Limited
(for short the `Corporation). Though the provisions of the Bihar Industrial
Establishment (National and Festival Holidays and Casual Leave) Act, 1976 were not
applicable to this Corporation being under the control of the Central
Government as per Section 12(b) of the Act, the management through a tripartite
settlement dated 27.4.1983 continued to allow the workmen the existing number
of 10 national and festival holidays in addition to seven days casual leave in
a calendar year. Further the said holidays thereafter were to be regulated in
the manner as specified and within the framework of the said Act and Rules made
thereunder.
When
the management reduced one day Deepawali festival paid holiday, the workmen
raised demand that during the period of private management Deepawali was a paid
holiday;
after
the mill was taken over in 1979 it was made unpaid holiday which led to
conciliation proceedings. The Conciliation Officer gave a written advice to the
management to allow the festival holidays as before but the management did not
accept it contending that they were giving one days paid holiday on 2nd of
October since 1979 instead of Deepawali holiday. Consequently the State
Government referred the industrial dispute and the tribunal passed the impugned
award.
The
management in their rejoinder admitted that since 1979 paid holiday of Deepawali
has been substituted by the paid holiday on 2nd October. C.P. Singh, Labour
Welfare Officer (MW-1) stated that under the private management 10 days paid
holidays were given and there was no holiday on 2nd October. He admitted that
before nationalization workmen were getting Deepawali holiday; from the notice
of the management dated 30.9.1979 it is clear that paid Deepawali holiday has
been substituted by the paid holiday on 2nd October. Even the item No. 2 of the
dispute indicated that Deepawali was a paid holiday prior to 1979.
The
tribunal looking to this evidence concluded that on Deepawali workmen were
given a paid holiday prior to 1979.
The
Tribunal, while noticing the contention of the management that the provisions
of Industrial Establishment (National and Festival Holidays and Casual Leave)
Act, 1976 (for short the `Bihar Act) were not applicable to the Mill, it being
under the control of the Central Government, took the view that by virtue of
tripartite settlement dated 27.4.1983 the benefits available under the Bihar
Act were given to the workmen. An employee was protected of his rights and
privileges as is evident from Section 12(1)(b) of the Nationalisation Act,
which, to the extent relevant, reads :
Section
12 - Continuance of employees (1) Every person who has been, immediately before
the appointed day, employed in any undertaking of any of the jute companies
shall become, - (a) ...........................
(b)
where the undertakings of the jute companies are vested in the Jute
Manufacturers Corporation, an employee of the said Corporation, on and from the
date of such vesting, and shall hold office or service under the Central
government or the Jute Manufacturers Corporation, as the case may be, with the
same rights and privileges as to pension, gratuity and other matters as would
have been admissible to him if there had been no such vesting and shall
continue to do so unless and until his employment under the Central Government
or the Jute Manufacturers Corporation, as the case may be, is duly terminated
or until his remuneration and other conditions of service are duly altered by
the Central Government or the Jute Manufacturers Corporation, as the case may
be.
2)
......................
The
Tribunal further observed that the holidays would be regulated in the manner
specified in the Bihar Act as per the tripartite settlement aforementioned. The
Tribunal in para 8 of the award stated that:
As per
the provision of the Section 13 of the Act, the benefits which the workmen were
getting are protected and cannot be denied by the Management and that they were
enjoying 11 days paid holiday and the said benefit is protected by section 12
of the Nationalisation Act also.
The
learned single Judge dismissed the writ petition filed by the appellant holding
that the Award passed by the Tribunal, on consideration of the totality of
facts and circumstances of the case was justified. The Division Bench of the
High Court in the impugned order has stated that it is an admitted position
that 2nd October came to be declared as a paid holiday of the workmen of the
Mill in lieu of Deepawali, which was always granted to them as a holiday prior
to 1979. The Division bench referring to Section 13 of the Bihar Act held that
the privilege, which was already available to the workmen, could not be taken
away. Finding no good reason to interfere with the Award of the Tribunal and
the order of the learned single Judge, the Division Bench dismissed the Letters
Patent Appeal.
Before
us the learned counsel for the appellant urged that the workmen were given
seven days casual leave in addition to 10 days paid holidays after taking over
the Mill; 10 days holidays are maintained; in other words, there was no
reduction in the paid holidays; there was only substitution of 2nd October as
paid holiday in place of Deepawali paid holiday; thus neither rights nor
privileges of the workmen were affected. The workmen were bound by the terms of
tripartite settlement dated 27.4.1983 and it was open to the management to
adjust 2nd October holiday in place of Deepawali holiday. In support of his
submissions he cited a decision of this Court in Indian Oxygen Ltd. vs. State
of Bihar [(1990) 2 SCC 254]. In opposition the learned counsel for the
respondents made submissions supporting the impugned Award. It was added that
on the facts and circumstances found in the case on hand the Award passed by
the Tribunal as confirmed by the High Court is unassailable.
We
have considered the submissions made by the learned counsel for the parties. Deepawali
was a paid holiday to the workmen prior to 1979, is a finding of fact recorded
by the Tribunal based on the evidence as stated above and rightly so. Although
the management contended that the provisions of Bihar Act were not applicable
to the appellant herein, the Tribunal and the High Court have found that by
virtue of settlement dated 24.7.1983 and in view of Section 12 of the Nationalisation
Act and Section 13 of the Bihar Act, rights and privileges more favourable to
the workmen could not be taken away or affected. The said settlement itself
indicates that the holidays were to be regulated in the manner specified and
within the framework of the Bihar Act and Rules made thereunder. The stand of
the management appears to be inconsistent. They say that the provisions of the
Bihar Act do not apply to the appellant being under the control of the Central
Government and that they were oblized to declare 2nd October as a paid holiday
under the same Act.
Section
13 reads:
Where
any employee of an industrial establishment is entitled to such rights and
privileges under any other law for the time being in force or under any
contract or custom or usage applying to the said establishment, which are more favourable
to him, then any right and privileges conferred by this Act, nothing contained
in this Act shall affect such rights or privilege.
The
decision of this Court cited by the learned counsel for the appellant in Indian
Oxygen Ltd. (supra), in our view, does not help the appellant. That said
decision was rendered in civil appeal filed against the judgment of the High
Court passed in the writ petition under Article 226 of the Constitution of
India and did not arise from an industrial adjudication made by industrial
tribunal.
Further
the situation in that case was different as noticed by the High Court. On the
facts and circumstances of the present case, as found by the Tribunal as well
as by the High Court, the said decision cannot be applied.
Considering
all these aspects, in our view, it is not a case for interference with the
impugned Award. Therefore, finding no merit in the appeal it is dismissed but
with no order as to costs.
..................J.
[S. Rajendra
Babu] ..................J.
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