Full Judgment Text
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PETITIONER:
M/S. TATA IRON & STEEL CO. LTD.
Vs.
RESPONDENT:
THE WORKMEN & ORS.
DATE OF JUDGMENT05/05/1972
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
VAIDYIALINGAM, C.A.
CITATION:
1972 AIR 1917 1973 SCR (1) 594
1972 SCC (1) 383
CITATOR INFO :
RF 1973 SC1156 (11)
RF 1973 SC2155 (11,12)
D 1975 SC1856 (10)
R 1982 SC 854 (9)
ACT:
The Coal Mines Provident Fund and Bonus Scheme Act (46 of
1948), s. 5 and Item 7 of 111 Schedule-Coal Mines Bonus
Scheme providing for a quasi judicial authority to decide on
legality of strikes-If ultra vires Delegated legislation,
limits of.
Industrial Disputes Act (14 of 1947), s. 9A and IV Schedule-
Change of rest days from Sunday to another day-No notice to
workmen-If legal.
HEADNOTE:
The Coal Mines Provident Fund and Bonus Scheme Act, 1948,
was enacted for making provision for the framing of a
provident fund scheme and bonus scheme for persons employed
in coal mines. Section 5 of the Act empowers the Central
Government to frame the Coal Mines Bonus Scheme which may
provide for all or any of the matters-specified in third
schedule to the Act. Item 7 of the schedule extends to
matters which may be necessary or proper for the purpose of
implementing the Scheme.
Paragraph 8 of the Coal Mines Bonus Scheme provides for the
effect of participation in an illegal strike, and, in case a
dispute arises as to whether the strike is illegal or legal
for the purpose of the scheme, which authority and according
to what procedure, is to decide that dispute.
In 1963, due to shortage of power, the appellant decided to
stagger weekly rest days in all its collieries. In one of
them, Wednesday, and in another, Thursday, were introduced
as rest days instead of Sundays. The change was to take
effect from September 22, which was a Sunday. The workmen
failed to turn up for work on that Sunday as well as on the
next Sunday, September 29. When they turned up for work on
Wednesday, September 25, at one colliery and on Thursday
September 26, at the other colliery they were told that
those days were weekly rest days and on that ground they
were not given any work. The appellant filed four
applications before the Regional Labour Commissioner, who
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was the authority under para 8 of the Coal Mines Bonus
Scheme for a declaration that there was an illegal strike by
the workmen on the Sundays on which they failed to turn up
for work. The respondents filed two applications before the
same authority stating that there was an illegal lockout on
September 25 and September 26 at the two collieries
respectively. The Regional Labour Commissioner held in
favour of the workmen that there was no illegal strike. The
order was confirmed in appeal by the Central Industrial
Tribunal and in writ petitions, by the High Court.
In appeal to this Court, it was contended that : (1) para 8
of the Scheme creating a quasi judicial tribunal was ultra
vires and that such a tribunal could only be created by the
Legislature; and (2) that change in the rest days did not
effect any change in the conditions of service of Workmen
in respect of any matter specified in the Fourth Schedule to
the Industrial Disputes Act, 1947 and hence notice of change
of rest days to workmen under s. 9A of that Act was not
necessary.
Dismissing the appeal.
HELD : (1) (a) The increasing complexity of modern
administrations and the need for flexibility capable of
rapid readjustment to meet the changing circumstances, which
cannot always be foreseen, in implementing the socioeconomic
policy, pursuant to the establishment of a welfare state as
contemplated by the Constitution, have rendered it
convenient,, practical and necessary, for the legislatures
to have frequent resort to the practice of delegating
subsidiary or ancillary powers to delegates of their choice.
Parliamentary procedure and discussion in getting through a
legislative measure is time-consuming, and such measures
cannot provide for all possible contingencies since one
cannot visualise the various permutations and combinations
of human conduct and behaviour. But the delegation of
legislative power is permissible only when the legislative
policy and principle is adequately laid down and the
delegate is Only empowered to carry out the subsidiary
policy within the guidelines laid down by the legislature.
The legislature cannot abdicate its authority and’ cannot
pass to some other body the obligation and the
responsibility imposed on it by the Constitution. It can
only utilise other bodies or authorities for the purpose of
working out the details within the essential principles laid
(town by it. Therefore, it has to be seen if there is a
delegation of the essential legislative ’function, or if it
is merely a case in which some authority or body, other than
the legislature, is empowered to work out the subsidiary and
ancilliary details within the essential guidelines, policy
and principles laid down by the legislative wing of the
Government. [603H; 604A-E]
(b)In the present case, the relevant schedule read with s.
5 of the, Coal Mines Provident Fund and Bonus Scheme Act
clearly lays down the policy and principle for framing the
scheme. Paragraph 8 of the scheme is a matter of detail
which is subsidiary or ancilliary to the main purpose of the
legislative measure for implementing the scheme. It par-
takes of the character of subordinate legislation on
ancilliary matters within the conditions laid down in the
Act by s. 5 read with the relevant schedule. Paragraph 8 of
the scheme is accordingly valid and cannot be considered to
amount to excessive delegation of legislative power.
[604E-H]
(2)(a) Section 9A of the Industrial Disputes Act, 1947,
provides that noemployer who proposes to effect any
change in the conditions of serviceapplicable to any
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workman in respect of any matter specified in the Fourth
Schedule shall effect such change without giving notice to
the workmen likely to be affected by such change in the
prescribed manner. Items 4. 5 and 8 of the Fourth Schedule
refer to hours of work and rest intervals, leave with wages
and holidays and withdrawal of any customary concession or
privilege or change ’in usage; respectively. The expression
’hours of work and Test interval.,;’ and ’leave’ with wages
and holidays’ are wide enough to cover the case of illegal
strikes and rest days. The expression ’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.
[604H; 605A-C]
(b)The real object and purpose of the section is to afford
an opportunity to the workmen to consider the effect of the
proposed change and. if necessary, to represent their point
of view on the proposal. Such consultation further serves
to stimulate timulate a feeling of common joint interest
of the management and workmen in industrial progress and
increased productivity. This approach on the part of the
industrial employer would reflect his harmonious and
sympathetic cooperation in improving the status and dignity
of the industrial employee in accordance with the
egalitarian and progressive trend of our industrial
jurisprudence which
596
strives to treat capital and labour as co-sharers and to
break away from the tradition of labour’s subservience to
capital. In order to effectively achieve the object
underlying s. 9A, it would be more appropriate to place on
the Fourth Schedule read with s. 9A of the Industrial
Disputes Act a construction liberal enough to include change
of weekly rest days from Sundays to some other week day.
[605F-H]
(c)It is no doubt true that whether the paid day of rest
is Sunday or some other week day would cause no financial
loss to the workmen. But financial benefit cannot be said
to be the sole criterion in considering the question. It
should not be ignored that due to long usage and other
factors Sunday as a holiday may for conceivable reasons have
assumed importance for workmen and it may also have special
significance because, on Sunday, when their school going
children have a holiday, the entire family may be able to
take part in recreational or other social activities. [605
C-F]
(d)Sections 2(f), 52 and 63 of the Factories Act, 1948,
also fortify the view that it is not immaterial or
unimportant whether workmen are given a Sunday or some other
week day as a weekly rest day., [606A-C]
(3)The appellant having thus effected a change in the
weekly days of rest without complying with s. 9A read with
the Fourth Schedule, the change must be held to be
ineffective and the previous schedule of weekly day% of rest
must be held to be still operative. Therefore, the
appellant’s contention that the workmen concerned had
resorted to illegal strike on September 22 and 29, must be
rejected, and the respondents’ contention that the appellant
had illegally declined to give work to them on September 25
and 26 and that the appellant had declared a lock out on
those two days which was illegal, has to be upheld. No
doubt, mere refusal to give work does not by itself amount
to lock-out; but in the present case, when the employers
closed the two collieries respectively on September 25 and
26 they knew that this change in the weekly days of rest was
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not acceptable to a considerable section of the workmen who
had not come to work on Sunday, September 22. The closure
of collieries on the two days in question was thus
deliberate. Coal having been declared a public utility
service and notice of closure at contemplated by S., 22 of
the Industrial Disputes Act not having been given, the lock
out was illegal under s. 24 of the Act. [606F-H; 607 A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 991 and
996 of 1968.
Appeals from the judgment and order dated November 16, 1966
of the Patna High Court in Civil Writ Judicial Cases Nos.
349 of 1965.
G.P. Pai, R. C. Prasad and O. C. Mathur, for the
appellant (in all the appeals).
Janardan Sharma, for respondent No. 1 (in all the appeals).
The Judgment of the Court was delivered by
Dua, J.-These six appeals on certificate granted by the
Patna High Court in two separate judgments disposing of six
civil writ petitions raise common questions of fact and law
and will, therefore, be disposed of by a common judgment.
The appellant owns six collieries, but we are concerned in
the present controversy only with two collieries, namely,
Sijua ’and Bhelatand. Due to shortage of power, the
appellant decid-
597
ed to stagger the weekely rest days in all the collieries.
By a notice dated September 10, 1963 a new schedule of rest
days, was introduced in accordance with which Sijua colliery
was to have every Wednesday as a rest day and Bhelat and
colliery every Friday as a rest day. With respect to Bhelat
and colliery Friday was later changed to Thursday. It is
common ground that previously Sunday was the weekly rest day
in all the six collieries. The change in the weekly days of
rest was to take effect from September 15, 1963 which was a
Sunday. The workers of the collieries did not turn up for
work on Sunday September 15, as a result whereof
negotiations were held between the appellant and some of the
workmen represented by the Colliery Mazdoor Sangh and it was
agreed that the new schedule would take effect from
September 22, 1963. It may here be pointed out that the-
respondents in these appeals, who were also respondents in
the High Court in the six writ petitions, are members of
another union called the Congress Mazdoor Sangh which was
not a party to that agreement. The said agreement was not
given full effect, with the result that on September 22,
1963, again, the workers did not turn up for work in the
collieries. The appellant thereupon filed two applications
under sub-para (1) of para 8 of the Coal Mines Bonus Scheme
(hereinafter referred to as the Scheme) before the Regional
Labour Commissioner for a declaration that there, was an
illegal strike on September 22, 1963. Even after September
22, 1963, the controversy between the appellant and the
workmen continued and on Wednesday, September 25, 1963 the
workmen went to Sijua Colliery for work. The appellant
refused to give them any work on the plea that Wednesday
was a weekly day of rest in that colliery. Similarly, when
the workmen went on Thursday, September 26, 1963 to
Bhelatand Colliery they were told that Thursday was a weekly
rest day and on this ground they were not given any work.
Shri B. N. Sharma, President of the Congress Mazdoor Sangh,
Bihar, Jorapokhar, Dhanbad, on behalf of the workmen of
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Sijua and Bhelatand Collieries, filed two applications
before the Regional Labour Commissioner (C), Dhanbad,
stating that there was illegal lock-out of the workers of
Sijua Colliery on September 25, 1963 and of the workers of
Bhelatand Colliery on September 26, 1963 and that the said
lock-outs should be declared,illegal for the purposes of
the, scheme.
The Regional Labour Commissioner decided the two appli-
cations filed by Shri B. N. Sharma in respect of the alleged
lock-out of workers of Sijua and Bhelatand Collieries by an
order dated November 22, 1963 and held that the non-working
of Sijua Bhelatand Collieries on September 25 and 26, 1963
respectively was due to a lock-out, which was illegal for
pur-
598
poses of the Scheme. It may be pointed out that the
appellant had also filed four more applications relating to
the failure of the workmen to work on September 15 and 29 in
the two collieries which means that there were six
applications before the Regional Labour Commissioner
(Central), Dhanbad filed by the appellant seeking
declaration that the workers of Sijua and Bhelatand
Collieries had resorted to strike on September 15, 22 and
29, 1963 which should be declared as illegal for purposes of
the Scheme. The applications relating to the strike on Sep-
tember 15, 1963 both at Sijua and Bhelatand Collieries being
declared as illegal were later withdrawn in view of the
agreement dated September 18, 1963, with the result that
only four applications by the appellant were ultimately
adjudicated upon by the Regional Labour Commissioner who, by
an order dated November 14, 1964, gave a declaration that
there was no strike, much less an illegal strike, by the
workers on September 22 and 29, 1963. This conclusion was
arrived at on the basis of the finding that change in the
weekly days of rest was not in accordance with law.
The appellant appealed to the Central Industrial Tribunal,
Dhanbad in all the six matters, but without success.
Aggrieved by these decisions, the appellant approached the
Patna High Court by means of six writ petitions which were
disposed of by two separate orders both dated November 16,
1966. In one judgment, the High Court dealt with the four
writ petitions complaining of illegal strike and in the
other with the two writ petitions complaining of illegal
lock-out. The High Court upheld the decision of the
Regional Labour Commissioner as also of the Central
Industrial Tribunal on appeal, and dismissed all the six
writ petitions. It is in these circumstances that the
present six appeals Iron & Steel Company Limited.
The principal question which requires consideration though
Its importance, as pointed out by both sides, lies in the
fact that the Bonus provided under the Scheme depends on
attendance and if it is held that the workers had resorted
to illegal strike, then they would be deprived of bonus for
a quarter of the year. The main argument raised on behalf
of the appellant centres round the construction to be placed
on s. 9A of the Industrial Disputes Act, No. XIV of 1947
(hereinafter called the Act), which deals with the notice of
change in the conditions of service ’applicable to a workman
in respect of matters specified in the Fourth Schedule to
the Act. If notice contemplated by this section was
necessary, which admittedly was not given, then the change
in the new schedule of rest days was not according to law
and the workers
599
were, justified in ignoring the change. Sections 9A and 9B
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alone constitute Chapter II-A which was introduced in the
Act by means of Act no. 36, of 1955 which came into effect
on March 10, 1957. These two sections read as under :-
9A. "Notice of change: No employer, who proposes to effect
any chance in the conditions of service applicable to any
workman in respect of any matter specified in the Fourth
Schedule, shall effect such change-
(a) without giving to the workmen likely to be affected by
such change a notice in the prescribed manner of the nature
of the change proposed to be effected; or
(b) within twenty one days of giving such notice Provided
that no notice shall be required for effecting
any such change-
(a) where the change is effected in pursuance of and
settlement, award or decision of the Appellate Tribunal
constituted under the Industrial
Disputes (Appellate Tribunal) Act, 1950; or
(b) where the workmen likely to be affected by the change
are persons to whom the Fundamental and Supplementary Rules,
Civil Services (Classification, Control and Appeal) Rules,
Civil Services (Temporary Service) Rules, Revised Leave
Rules, Civil Service Regulations, Civilians in Defence
Services (Classification, Control and Appeal) Rules or the
Indian Railway Establishment Code or any other rules or
regulations that may be notified in this behalf by the
appropriate Government in the Official Gazette, apply.
9B. Power of Government to exempt: Where the appropriate
Government is of opinion that the application of the
provisions of section 9A to any class of industrial
establishments or to any class of workmen employed in any
industrial establishment affect the employers in relation
thereto so prejudicially that such application may cause
serious repercussion on the industry concerned and
Government may, by notification in the Official Gazette,
direct that the provisions of the said section shall not
apply or shall apply, subject to such conditions as may be
specified in the notification, to that class of industrial
establishments or to that class of workmen employed in any
industrial establishment."
600
According to the appellant, there was no change in the con-
ditions of service applicable to the workmen in respect of
any item falling in the Fourth Schedule. Here, we may
reproduce only three items out of eleven contained in the
Fourth Schedule because according to the arguments ’
addressed at the bar, these were the only three entries
considered to be relevant. These entries are nos. 4, 5 and
8 and they read as under
4. Hours of work and rest intervals;
5. Leave-with wages and holidays; and
8. Withdrawal of any customary concession or privilege or
change in usage".
The arguments forcibly pressed by Shri Pai in this Court
broadly speaking, proceeded thus :
The change in the schedule of rest days did not effect any
change in the conditions of service applicable to any
workman in respect of any matter specified in the Fourth
Schedule. It was due to an emergency created by unforeseen
circumstances beyond the appellant’s control resulting in
power shortage that the appellant was compelled to stagger
the weekly days of rest in the six collieries, including the
two collieries concerned in these appeals. The basic cause
as disclosed in ’annexure A’ to the writ petition was that
on account of heavy percolation of water, power off take to
the colleries had reached its peak and the power-house was
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no more able to cope with the additional requirements.
Further running of the power-house in the overloaded
condition was also likely to result in break-down at the
power station, thereby totally cutting off the power supply.
For this reason it became absolutely necessary to stagger
the weekly days of rest in the six collieries and also in
the Coal Washery at Jamadoba. By staggering the weekly days
of rest, according to the argument, the daily load of power
was intended to be reduced on the power station. There was
no financial loss to the workers because it was only a
change of weekly rest day from Sunday to Wednesday in one
colliery and from Sunday to Thursday in the other. This
change in the weekly rest days remained subject to the same
conditions of service. The workers were under the changed
schedule entitled to one and half time the wages, where
applicable, only it called to work on the newly fixed days
of rest. As it was an emergency measure which was to be
short-lived, it was physically impossible to give notice of
21 days as contemplated by cl. (b) of s. 9A. In this
connection emphasis was laid on the fact that on September
27, 1963 a "General Notice" was issued by the appellant’s
Chief Mining Inspector, Shri R. N. Sharma, notifying that
the defects at the Power House had been successfully
attended to with the result that old schedule of working was
601
restored. In any event, the staggering of weekly days of
rest, Contended Shri Pai, did not fall under any item of the
Fourth Schedule to the Act. The counsel explained that it
could not fall under item 4 because the expression "rest
intervals" contemplates intervals during the working hours
in the course of a single day and not the weekly rest days :
it could also not fall under item 5 because the change in
question has nothing to do with either holidays or leave
with wages : item 8 would also be inapplicable because it
did not amount to withdrawal of any customary concession or
privilege or to change in usage.
The appellant, as a subsidiary point, also challenged the
vires of para 8 of- the Scheme contending that this para
creates a quasi-judicial Tribunal and such a Tribunal can
only be created by the legislature and not by an executive
flat and that s. 5 of the Coal Mines Provident Fund and
Bonus Schemes Act (No. 46 of 1948), which authorises the
Central Government to frame the Scheme, does not empower the
Central Government, either expressly or by necessary
implication, to create such a Tribunal. This challenge was
pressed with some force and wag also elaborated though it is
interesting to note that it was the appellant company itself
which approched the regional Labour Commissioner under this
very paragraph for relief by means of four applications and
on feeling aggrieved by the adverse orders of the
Commissioner in these four matters and in the two matters in
which the appellant had unsuccessfully contested the
workmen’s applications seeking declaration of ill.-,gal
lock-outs on September 25 and 26, 1963, took these matters
on appeal to the Central Industrial Tribunal. Instead of
ignoring these Tribunals or questioning the legality of the
appointment of the Regional Labour Commissioner and of the
Central Industrial Tribunal, the appellant, it is
noteworthy, preferred to take the chance of obtaining
favourable orders from them.
All these arguments were countered on behalf of the respon-
dents and it was contended that the appellant had from the
very inception visualized the difficulties created by the
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heavy percolation of water to last for a period of six weeks
as would be clear from the appellant’s notice. If that be
so, then, it is futile to contend that the emergency being
short-lived, 21 days’ notice could not be given by the
appellant. But assuming that the emergency was short lived
and there was ’a difficulty in giving the requisite notice,
the appellant, which is a prosperous concern, could have
paid wages to the workers and laid them off for one day in a
week in order to avoid over-loading of the power station.
This would have in any event served to promote the goodwill
and harmonious co-operation between the management and the
labour, ultimately leading to more helpful understanding of
the common difficulties
-Ll52SuppCI/73
602
facing the industry, in the prosperity of which both of them
as co-sharers should feel equally interested. This would
accord with the industrial jurisprudence as it has developed
in our country since 1950 under inspiration from the broad
guidelines afforded by the industrial relations policy as
envisaged in our Constitution. In so far as the items of
the Fourth Schedule to the Act are concerned, according to
the respondents, Sunday as a weekly rest day, was being
granted to the workers of these two collieries as indeed it
was being granted to the workers of all the collieries owned
by the appellant, on the basis of old usage within the
contemplation of item no. 8. This matter also falls within
the expression "rest interval"’ used in item no. 4,
proceeded the contention, because the subject of "hours of
work and rest intervals" contemplated by this entry can
reasonably be construed to include both "daily hours of work
and rest intervals" and "weekly hours of work and rest
intervals". Besides, the question of weekly rest days can
also fall within item no. 5 because it is inextricably
connected with the question of holidays and leave with
wages, the weekly rest day being a holiday with wages.
Paragraph 8 of the Scheme, according to the respondents, is
also intra vires because item no. 7 of the third schedule
read with S. 5 of the Coal Mines Provident Fund and Bonus
Schemes Act, 1948 contemplates that the Scheme can also
provide for any matter which may be necessary or pro-. per
for the purpose of implementing the Scheme. Now if any
dispute arises about the payment of bonus depending on the
attendance of an employee in accordance with the terms of
the Scheme, then, according to item 7 of the Third Schedule,
settlement of such a dispute may legitimately be considered
to be necessary or proper for the purpose of implementing
the Scheme. Constitution of a Tribunal and laying down
procedure for the proceedings before such a Tribunal for
adjudicating upon such a dispute would, according to the
respondents, contention, fall within item no. 7 and would,
therefore, be intra vires.
Dealing with the last point first, the Coal Mines Provident
Fund and Bonus Scheme Act, 46 of 1948, was originally
enacted for making provision for the framing of a Provident
Fund Scheme and Bonus Scheme for persons employed in coal
mines. in 1971 the Purpose of this Act was extended to the
framing of a family bonus Scheme but that amendment does not
concern us.
603
Section 5 of this Act empowers the Central Government to
frame the Coal Mines Bonus Scheme which may provide for all
or any of the matters specified in the Third Schedule.
(Prior to the amendment of 1971 this Schedule was numbered
as Second Schedule). This Schedule reads :
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" THE THIRD SCHEDULE
(See Section 5)
Matters to be provided for in the Coal Mines
Bonus Scheme
1. The payment of bonus dependent on the
attendance of an employee during any period.
2. The employees or class of employees who
shall be eligible for the bonus and the
conditions of eligibility.
3. The rate at which the bonus shall be
payable to an employee and the manner in which
the bonus shall be calculated.
4. The conditions under which an employee
may be debarred from getting the bonus in
whole or in part.
5. The rate at which sums shall be set
apart by the employer for payment of bonus,
and the time and manner of such payment.
6. The registers and records to be
maintained by the employer or contractor and
the returns to be furnished by him.
6A. The transfer, by an employer to the Fund
or any other fund specified by the Central
Government, of the amount of bonus remaining
unpaid or unclaimed for a period of six months
from the end of the quarter to which the bonus
relates and the extinguishment of the
employer’s liability to his employee to the
extent of the amount so transferred.
7. Any other matter which is to be provided
for in the Coal Mines Bonus Scheme or which
may be necessary or proper for the purpose of
implementing that Scheme."
Item no. 7, it may be noticed, extends to matters which may
be necessary or proper for the purpose of implementing the
Scheme.
Now, the increasing complexity of modern administration and
the need for flexibility capable of rapid readjustment to
meet changing circumstances, which cannot always be
foreseen, in implementing our socioeconomic policy, pursuant
to the establishment of a welfare State as contemplated by
our Constitution,
604
have rendered it convenient and practical, nay, necessary,
for the legislatures to have frequent resort to the practice
of delegating subsidiary or ancillary powers to delegates of
their choice,. The parliamentary procedure and discussion
in getting through a legislative measure in the legislatures
is usually time-consuming. Again, such measures cannot-
provide for all possible contingencies because one cannot
visualize various permutations and combinations of human
conduct and behaviour. This explains the necessity for
delegated or conditional legislation. Due to the challenge
of the complex socioeconomic problems requiring speedy
solution the power of delegation has by now, as per in
necessity, become a constituent element of legislative power
as a whole. The legal position as regards the limitations
on this power is, however, no longer in doubt. The
delegation of legislative power, is permissible only when
the legislative policy and principle is adequately laid down
and the delegate is only empowered to carry out the
subsidiary policy within the guidelines laid down by the
legislature. The legislature, it must be borne in mind,
cannot abdicate its authority and cannot pass on to some
other body the obligation and the responsibility imposed on
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it by the Constitution. It can only utilise other bodies or
authorities for the, purpose of working out the details
within the essential principles laid down by it. In each
case, therefore, it has to be seen it there is delegation of
the essential legislative function or if it is merely a Case
in which some authority or body other than the legislature
is empowered to work out the subsidiary and ancillary
details within the essential guidelines, policy-and
principles, laid down by the legislative wing of the
Government. In the present case the relevant schedule read
with s. 5 of Act No. 46 of 1948 clearly lays down the policy
and the principle for framing the Scheme. Para 8 of the
Coal Mines Bonus Scheme provides for the effect of
participation in illegal strike and, in case a dispute
arises as to whether a strike is legal or illegal for the
purposes of the scheme, which authority, and according to
what procedure, is to decide that dispute. This, in our
view, is a matter of detail which is subsidiary or ancillary
to the main purpose of the legislative measure for
implementing the Scheme. It partakes of the character of
subordinate legislation on ancillary matters falling within
the conditions laid down in the aforesaid Act by s. 5 read
with the relevant Schedule. Para 8 of the Scheme is
accordingly valid and it cannot be considered to amount to
excessive delegation of legislative power. The challenge on
this score is, therefore, devoid of merit.
We now come to the main contention. Section 9A which has
already been reproduced, lays down that change in the
conditions of service in respect of any matter specified in
the Fourth Schedule shall not have effect unless a notice is
given to the workmen
605
likely to be affected by such change. The relevant entries
of the Fourth Schedule have already been reproduced. It
appears to us that 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. Indeed, 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,
because it seems to us to be a plausible argument to urge
that fixation of Sundays as weekly rest days is founded on
usage and/or is treated as a customary privilege and any
change in such weekly holidays would fall within the
expressions "change in. usage" or "customary privilege".
We are not unmindful of the force of the argument pressed on
behalf of the appellant that if a holiday is changed from
Sun-. day to some other week day it would not affect the
material gain or financial benefit available to the workmen
because the workmen would nontheless get one day off with
pay in a week. Whether the paid day of rest is a Sunday or
some other week day would no doubt cause no financial loss
to the workmen. But the financial benefit cannot be the
sole criterion in considering this question. in this
connection it must not be ignored that due to long usage and
other factors Sunday as a holiday may for conceivable
reasons have assumed importance for workmen. For certain
classes of workmen Sunday as a weekly rest day may also have
special significance. Workmen may, for example, also
generally like to have weekly rest day on a Sunday when
their school going children have a holiday so that the
entire family may be able to take part in recreational or
other social activities. This consideration has its own
importance. If that be so, then, notice for effecting such
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a change would be within the contemplation of s. 9A. 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 represent
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 strives to treat the capital and labour
as co-sharers and to break away from the tradition of
labour’s subservience to capital.
Shri Pai referred us to the Factories Act, 63 of 1948 and
submitted that s. 52 read with s. 2(f) of that Act indicates
that adult workers are not required to work on Sundays
except under
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certain conditions. It was argued that when Sundays as rest
days are considered of importance, the law in terms so
provides. In the present case, according to the submission,
no importance is intended to be attached to Sundays as
weekly days of rest. A change from Sundays to some other
week days as days of rest should be considered as a matter
of little or no importance for the workmen. We are unable
to agree with this submission. In, our opinion, the
Factories Act fortifies our view by suggesting that it is
not immaterial or unimportant whether workmen are given a
Sunday or some other week day as a weekly rest day. Though
reference was also made by Shri Pai to the Mines Act, 35 of
1952, in our opinion, each statutory provision has to be
construed on its own language, though the general scheme of
legislation on a given subject may, if necessary, be kept in
view, if it throws helpful light on the construction to be
placed on an ambiguous provision. No such consideration
arises in the present case.
In our opinion, in order to effectively achieve the object
underlying s. 9A, it would be more appropriate to place on
the Fourth Schedule read with S. 9A a construction liberal
enough-to include change of weekly rest days from Sunday to
some other week day. The appellant having thus effected a
change in the weekly days of rest without complying with S.
9A read with the Fourth Schedule this change must be held to
be ineffective and the previous schedule of weekly days of
rest must be held to be still operative. Reference was made
at the bar to certain decisions but they are of little
assistance in construing the statutory provisions with which
we are concerned and which, as already observed, have to be
construed on their own language and scheme. We, therefore,
do not consider it necessary to refer to those decisions.
The result then is that the appellant’s contention that the
workmen concerned had resorted to illegal strike on
September 22 and 29, 1963 must be rejected. On this view
the respondents’ contention that the appellant had illegally
declined to give work to the respondents on September 25 and
26, 1963 and that the appellant had declared lock-out on
those two days which was illegal has also to be upheld. No
doubt, mere refusal to give work does not by itself amount
to lock-out but in the present case it cannot be disputed
that when the employers closed the Sijua and Bhelatand
collieries respectively on September 25 and 26, 1963 they
knew that this change in the weekly days of rest was, not
acceptable to a considerable section of the workmen who had
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not come to work on Sunday September 22, 1963. The closure
of the place of work in the two aforesaid collieries on the
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two days in question was thus deliberate. Coal having been
declared a public utility service, as observed by the
Regional Labour Commissioner in his order, notice as
contemplated by s. 22 of the Act was necessary. Such a
notice having not been given, the lock-out was clearly
illegal under s. 24 of the Act. The High Court was in our
opinion right in the orders made by it in the writ
petitions.
All the six appeals thus fail and are dismissed with costs.
Only one set of costs.
V.P.S. Appeals dismissed.
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