Full Judgment Text
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CASE NO.:
Appeal (civil) 6443 of 1997
PETITIONER:
NATIONAL JUTE MANUFACTURERS CORPORATION LTD .
Vs.
RESPONDENT:
KATIHAR MAZDOOR SANGH & OTHERS
DATE OF JUDGMENT: 12/04/2001
BENCH:
S. Rajendra Babu & Shivaraj V. Patil
JUDGMENT:
Shivaraj V. Patil, J.
L...I...T.......T.......T.......T.......T.......T.......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
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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
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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
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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.
[Shivaraj V. Patil]
April 12, 2001