Full Judgment Text
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PETITIONER:
BIJLI COTTON MILLS (P) LTD.
Vs.
RESPONDENT:
THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL II & ORS
DATE OF JUDGMENT20/03/1972
BENCH:
DUA, I.D.
BENCH:
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 b@r 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
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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 was- one 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 delay-
911
Allowing the appeal on the merits,
HELD : By reading the statement of the Secretary of the
appellant along- with 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 state-
ment. 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.
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JUDGMENT:
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
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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 re-
produced
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
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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 in-
correct 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
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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 thev 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 of- Shri
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 regard- to 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.
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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 res-
pecting 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. Out 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 Banaras- Bank
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
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Civil Miscellaneous Petition no. 1319 of 1972 with a
supporting affidavit praying for (i) condonation 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
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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.
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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. Enployers, 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
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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.
S.C. Appeal allowed
922