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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