BIJLI COTTON MILLS (P) LTD. versus THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL II & ORS.

910

BIJLI COTTON MILLS (P) LTD.

v.

THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL . .II &

. ORS.

March 20, 1972

[C. A. VAIDIALINGAM AND I. D. DUA, JJ,]

U.P.

IndustriaA Establishments

(National) · Holidays Act, 1961- No provision for payment of wages for festival holidays-Wherher pco· :c.·ble in the .facts and circumstances o0f the case.

An industrial dispute arose between the appellant and its workmen as to whether the employers were required tC' pay wages for the festival hOlidays allowed to their workmen in a yeJr. The appellant contested the workmen's claim mainly on the ground> that neitmr in law nor in -prac~icc was there any provision for festival holidays with wages, that the appell-ant was already paying wages for three holidays allowed to the workmen undo:T the U.P. Jndustrial Establish~nt (National Holidayll) 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 be-ar an extra burden. The workmen, on the other hand, in their separate written state ments, filed through three Unions, plead~d that the grant of holidays without wages was illegal and against social justice. In their rejoinder the 'lPPellant pleaded that the holidays mentioned by the Unions were granted because the workmen had demanded the same and thosr~ holidays were substituted by other days in lieu of holidays and as they were paid for the days on which tht.!y worked on account .of those holidays there .w~ no loss of wages caused to them.

The Tribunal by its award m'3de 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 too Seci'etary of the appellant mill 'ldmitted that the festival holidays were paid holidays in the sense that workers were allowed to work on their unpaid l'.!st days in substitution of the said festival holidays. The appellant being aggriev- ed by the award presented a writ pr.!tition before the High Court which was dismissed by a single Judge. Special le:1ve to a Divisional Bench of the.'.High Court was di.smissed in limirre, but the Bench cm'tified tm case to be fit for appeal to· this Court. The appellant was held oatitled to c~rrifitate either under cl. (a) or cl. '(b) of Art. 133(1) of the. Consti· tution on the ground that value 9f the subject matter of dispute ·or claim was Rs. 20,000 or more.

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Tbe respondent in the Supreme Court objec.,~ t() the competence of the c'ertiflcate en the ground that .. though ·the judgment of the Di~ision Bench was one of affirmance the certificate did not disclose on. its face the existence of any substantial question . of Jaw.

This objection was upheld but as

the case was considered fit for_ special leave, on oral !'.!quest special le-:1ve was grap.ted on the condition that. the- appellallt :"o~ld file a form~ I application for special leave accom-· pamed ·by an appl!cati,on for condemn g the delay.

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BIJLI COTTON MILLS v. INDUSTRIAL TRfBUNAL (Dua, J.) .·911 /

AllowiJli the: app¢al 'Oil the merits,

. HELD : -By reading the state~m:nt of the Secretary of the appellant along with the pleadings as disclosed in the respective statement of cases of: the parucs, it is JiQt .potsible to hold t~t t~e . appelJ.ant .. ~d .admitted that the 17 festival holidays were hei11g given by them as paid holidays dispensing with the enquiry into the question referred for adjustment to the Industrial Tribunal. Even the workl'llen did not plead that the festi· val holidays were treated as p:1id holidays.

The Secretary'~ statemel)t that . no festival holidays were paid in tl12 sense , that the workers were allowed to work on unpaid rest days in substitution of the said· festival holidays. This staterrunt c!C'lrty ex· plains 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 Jh~t fr:stival holidays are not · paid as the festival holidays are. This statement read with the· detailed explanation could not logically serve as a sround 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 appel· !ant. 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 ~ismissina .. the appeal in limin~. l920 A-El

( ii) The., U .P. Industrial EstabJishmeill s (National Holidays) Act, 1961 and' rules provide for p:1id National ·Holidays bul that Act do~s not deal .with festival hqlidays. In determining the· .number of paid festival holidays per year, · certam facts, like custom; practice and uniformity in .the 'industry without prejudicially affeeting efficiency · and inc~ased pi'oduC:tion are some of the relevant hctors · to be taken into account. The question affects national economy and does not· remain confiR.!d only to the. establishment concerned but has its impact on other concerns as weU. TJ'lis _aspect _has bee)l completely ignored ·by tb~ Industrial Tribunal. Fur· ther the Tribunal proceeded solely on the basis of misreading of the Secre tary's · st~teinent. 'thereby ignoring the plea taken by . ~he appellant. There is, thus the manifest error of Jaw apparent on .the fact of the record which bas. ·resulted. in grave failure of· justice, because evidence on tlr- only ml\tet'ia_l.P.Pint wasillegally s.hut out. [921 AI

·

The Diitlict Board (afterwordr_' Zila · _Paris.had' Allah(.•bad \t : Syed Tcdrir Hu~sain & Ors. C.A. Ne>. 578 ·of 1963 decided on July 23. l ()65, followed.

SIM Dur!(ri Prasad & •! ' r ' . Tlrt• Ba . .,aras Bank Ltd., [1964] 1 S.C;R.

475. r:de'rred to.

CIVIL APPELLATE JURISDICTION : Civil. Appeal No. 1611 Qf

1968:

H

Appeal from the judgment and order dat~ Decem\jer 5, 19~6 of~the Allahalta~· ·High.Counin Special Appeal ·No. 760 of .1966 and··Petition for Special t.eave to appe<:d ·(civil) No. 676 of. 1972.

912

S.UPRIME COURT R.EfOi,TS'

(1972] 3 S.C.R.

Y. M. Tarkunde, J, P. Goyal and SDbfla~ Mal Jain, fOr the A

appellant.

E. C. Agarwala and A. T. M. Sampat, for respondent No.2.

· The Ju4i!nen't of the Court was delivered by

Dua, J~ The following dispute between Mls. Bijli Cotton Mills B

(P) Ltd.~ and their workmen was referred ~o. the Industrial Tribu- · nal II, U.P . .fpr adiudication :

"Should the employers be required to pay wages for their workmen in a the festival holidays allowed year ? Jf so, from which date and wi!fu what other details?

to

· Accordin~ to the workmen the employers had been givin~ 17 fe9tival holidays to their workmen in a year and those holi~ays should have been paid ones the employers were not .mak· in~ anv payment..

though

The disput~ was ori.1dnally espoused at the instance of Hathras Mazdoor Panchayat but later three other unions namely Sooti Mi11 Mazdoor Pancbayat, Congress Mazdoor Sangh and Suti MUl Kannachari Sangh were also acconied right of represen1a1ion on their applications. The employer mills coJ.lltested the claim . on various grounds. The olea on the merits in substance was to the effect that neither in law nor in practice was there any provisiou, fot: feslival holidays with wa~es. The Mill, it was averred, was al.r~ady paying wages for three holidays allowed to the workmen u-nder the U.P: Industrial Establishments (National Holjdays) Act (U·,P. Act XVUI of 1961) and in the entire Agra region in which this Mill is situar..d to textile mill pays wages for festival holi ~ys. l't was added that the Mill was an uneconomic unit and was ni;)i in ll. position to bear anv extra burden. The Congress Maz· door Sangh, the Sooti MilL Kaqn.achari . Sl}ngh and the H~thr.as Mazdoor Panchavat filed separate written statements on behalf of tho wqdanen and. pl~ded thaJ.t· tbe grant of holidays without wages was illegal and aJ!,ainst social iustice.

'The employer Mill filed rejoinder statement to 1the written state ments of all the Unions, pleadine: that the holidays mentioned by the Unions were not allowed to the workmen at the employer's initiative but were granted because the workmen demanded the same and these holidays w.e~ su~ituted: bY. o~r ~ays in lie.u of holidays, and as they were paid for the days on which they workec\ on account of these holidays there was no loss of wages caused to~ th~. workmen~

· On, Ju}v. lS, 196.5 the. parties made theit statemontg, under r. 12- of the UP. Industrial Disputes Rules, 1.957, which-l)rovides

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BIJLI COtTON MILLS V. INDUSTRIAL TIUBUMAL (Dua, J.) Sl ~

A· [or proced~e a:t first. sittings of the f'ribunal requiring the· parties · to state the1r resp~hve c~es. Shrt M. P. Jaiswal, on behal~ of the employers adnutted that the company gives 17 feStival holidays to all its employees, 15 of which ar~ those mentioned in the written statement. of the Congress Mazd<?or Sangh and two others being Sankrantt -and Baldev Chat observed on Bhadon Sukla Chnt. - All B - these holioays were stated by him to be paid holidays in 1he 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 tM monthly raters we·re .Qald for 365 days in a year whereas piece-raters were paid accordin2 to the quantum of work done by them on working days in a month. Tile 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 s.in~~ day's wa~es if no work i-> done. If a holiday is substituted on rest day then only one day's wa~cs are paid.

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After this statemen1 four representatives of

the contesting unions stated that v.henever the management takes work from the workers on a test day only one day's wages are paid and it was .zmphaticallv denied that holidays were substituted on a rest day. Monthly raters, accordin~ to these representatives, f/;Ct their wages for all 365 days.

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After these statements the Presidio~ Officer ~f '!he Tribunll

put the (ollowin~ question to Shri Jai$wal :

Q : Whether the festival holidays observed in the Mill

are paid or unpaid ?

A : They are paid holid~ys and payment is made by

substitution ns ~1ated earlier.

Thereafter it appears that the workmen did not kad any evi~~nc_e but Shri M.P. Jaiswat, Secretary of the Mil!.s appeare~ a,; a w•~nc~s on behalf of 1M employer. He fikd two charts sbowtn~ the ~e~tl· ~al holidays observed in ~he Mills in the year 19~ and upto 0 lJ 1965. He proved these cb:uts stating that they had ~en ptepar~r­ from the Mills' Muster Rolls and that they were true coptes c f th M.ills These two charts J rectly prepared from the Jccor s 0 •2 ~When~ 'the wi~ss tried to were m.-uked ai Ex. ~-1 an~ Ex. E, · til Mills the ,ques· · B. D. Sethi, \ d_(puse 21bo"( the hohdayi_.Jn. lh¢ Kanp~!-f_ E~-£-1 tlon_ was qisa1Jowed, o-n behalf of t~ work:motr. 'Mr. Jrusw!lt st.!:ted -~ F ~ ·· cy'-23 only two bolkil..ys for Ho~ ~u• substituted. onc.0!' ~ ~w~~ot be~ ~ ~~ and the other on Mar4· L, ~ 9~ .. tb_c ~~olida~ v.-crc m~ substilR~ • . lAthe ca.sc (lf_ Otwali eho ·two

'Yt'h!le, cross-~.n1nt~~ by .S n

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SUPREME COURT REPORTS

[1972]'3 s.t.R.

substituted leaving unsubStituted the remaining. two holidays. 0~ being··cr<JSs-examined·by Shri 0. P. Gautam also on behalf of the. workn1ert· the. witness. stated that in 1965 as well only two holidays on. account of Holi were substituted, the remaining two being lin In the preceding years also the position was stated to substituted. be 1he same· in regard to Holf holidays.

The followin)!; two auestions and answers may also · be

re

produced :

Q -: When you .take work on Sunday which is ~ festival

weekly holiday on which date you ' give · hQliday?

the

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A: As such we do not give the weekly ·rest day on limits

the day on which the· festival falls within

the

. allowed under the Factories Act.

Q : 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.

Exhibi'ts E-1 and E-2 show festival holidays for ~h·.;l years 1964 and 1965 and these charts corroborate the answers elicited from Shri Jaiswal that for Holi and Diwali only two days on which substitution was allowed were paid for, the remaining two holidays bein,g unpaid.

It may b.~ 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 'lhe workmen other than the m~>nthly · raters entitled to only om~ day's wages or two days' wages . i.e., one day's wages for the work done on the week\Y . rest day and one day's wages for the substituted holi day?"

. It appears that the language of ~his Issue was not objected to by either party and this appears to be the real crux of the contro versy which emer~d after the statements of rthe 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 holi days Was in the·· opinion of. the Tribunal ~ven the· )tO-by fu ~he-

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BI,JLI COTTON MILLS V, INDUSTRIAL TRIBUN

' AL

(0

ua, I.) 9 15

A - ~tatement of Shri Jaiswal recorded under r 12 0 1 1 lS

The Tribunal t~en dealt with that statement. and o~c~:d th~t1:· ththat&sta!em1ehnt1~dt was f~r the ~mployers to show how payment fo~ e 1esuva o 1 ay~ was made by thenr. To reproduce the of the award ·

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that

."In 'the. written statement without statin_g whether the fcs.uval .holidays w.ere pai~ or unpaid they pleaded that nett.her m l~w nor J? pracUce there was any provision for festtyal ·.holiday~ wtt~t wages an? that in the eniire · Agra Re,IUon no textile mtll was paymg wa,ges for the festival holidays. Originally it appeared 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 po6ruon and stated that all the festival holidays wer;: paid holidays R11d tho payment was made in the sense that they were substituted on r~t days. I have already shown how this statement is in- correct and no impanial mind will be wrong in drawing a legitimate inference that the purpose. ~f tb.e empl?yers in settin~ up inconsistent pleas or in glVIDl! m-consJStent statem·~ms was only to conceal the truth or it may be thlt the purpose was to confuse. the issue."

A little lower down, after observin~ that Shri Jaiswal w~ not the kind of witness who would ~rive straight answers to . stra1~M quc!S tions and that the witness had to be warned for this altitude ob served :

"From the employers own ple3dings th~ st~!e':~~~ Shri Jaiswal recorded unda ruh: 1~ and~ 'd P th~ 51 es lo ·ers it is evident that 17 National Holiday~ ore nil P.ai.d holhld~ys ~~~~~ne~r their had been wrongfully depnVJng t ctr w dues in this behalf."

fe51ivul h?hdays

b- f monthly raters o . 1be Tribunal, while denlin,g wsth the cas 1~ f because they \\·ere served that they' were not entitled to the re tese of daily rate~ or P&ld for all the 36.5 days in 8 year. Th: ~~cording to ihe nom pice¢ raters beinst different (they were p~td uantum of worlc theY ber of days on which they WC!rked orf 1 t Ql holidays with wa,~:e~. turned out) they were held entttlcd to. es 1~ 0 ~yment on the basts DaUy r111e~ were accordinRIY beld entitled 0 P held entitled to llet or tht:i,(. d:.ily waj!e whereas piece mterst~e~ts of the 8\'"erJge of 'Ibe re the avcra)!C c:aroinl% to be calculated ond. the la't one month immediately preceh 1 ~1! • • the award was st.:~ ted 1 u · · li<'( f'r:.sJted h .

• h· t the c:mployeri

ihe holiday.

e

sball ieee raied workffic:G

"My award, therefore, u t ad pay wun to their dJily ra1ed an P

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SVPIENB Cf>VRT R:&POllTS

·[1972].3 S.C.R.

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-~icles 1hr.ae Nationa1 Holid~ l'da for. 17 fesnval hO 1 • ys ibnen who arc daily raters ancl· ~~et~a~!~: :J:::eo~'!fl'Oln ·the 1st · January., 1965~ For the holidays which -have accrued _from the .1st Janu 1965 till the date of. enforcement of the award aiWl :%ich .are gj\'."!n in .the list Ex. E-2 th~ employers shall .pay the arrears and in future a~ the fe$ti~al holidays and National Holidays shall ·be .patd for. If the employers ,ub9litute festival holidays on a rest day, for that day they .iball :pay double 'the wages.'' The irppellant, f~ling aggrieved by Uris award, presented a . writ ~tion in the A1lail.abad High Court under Art. 226 of the Constitution complaining that the Industrial Tribunal had mis- C read and ,misinterpreted Zhe statement of the parties recorded under r. 12 particularly the statement of Shri Jaiswal. It wu also averred that the QU.estian of festiv.al holidays depends on so many other factors particularly custom and usap;e and the Industrial Tribunal had -com.mitted a serious ·error in shutting ·out evidence in re_~tard to the practice prevalent at Kanpur · in l'e!pect of the cus- tom and usage r~ltt'di~ 'festival holidays in the te-xtile industry there. The maiB te~tile industry m 'the State of Uttar Pra~sh ac cording to the appellant's averme!it is concentrated at Kanpur. The ~lle_ged admission by Shri Jaiswal contrary to the appellant•s pleadmg al}d contrary to 'the case set np 'by bot'h -parties ccm'ld not ~ wnclustve .and tlle Industrial Tribunal ntegatly based its find- m_g; on such alle£ed admission.

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Jbe High Court. dismi.ssed the writ petition holding that it was ~ tc:> the l~dustnal Tribunal to allow or disanow any question whtc~ ?t c~m~de;r~ r~evant -or irrelevant and the High Court, in ex~rcJst~£ tts rarudiction tmder Art. !26 of the Constitution, could 0 . tnto the c~rrectness or otherwise of the order disallowing no 11: !eft:!i1~iar· question to be Pot to- a witness such function being Tribunal .;.:- 3? appellate court. The ~~;rounds that the Industrial he bad made ::read. ~· statement of Shri Jaiswal in hOlditlg tliit iaR .allowed to tb adnns~on that 17 paid festival holidays were be· sible in tbe ~h e~or ~n ~as also considered (O bo impennis- to Clte "Pil~ioltion ott ~ wnt iurisdiction because tbat l)e~ins o J~w.U \l:nder r l 2 ~v' :U:e. · The statement made by Sbri the in'-rpret.~l~ tkat . or 10&,to tlle High Court, was capable of pJ.oya-s. Were ~V~ l7Jt ~~~o:d ~n ~roiision that · the . tnt- Not be1nR ~isf~ed that tt-r! . esuv.u holidays to their work.Jn.oo. enor of iud.sdictioa oc £ • unp~aed award su.tre.red from anY t>elition was dismissed.. ~om auy manife~t error of law

the writ u

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S~] ~ from th ·

to a ~ of~ J~ 0 tad~~t Ol the learned ~le Judge ~ ~ltti!y ~We" 4l't• DooftnbeC -

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BIJLI: OOTTON MlLLS'i\1; INDllSTklAL Tl\l'IUNAL (Dua, /,) 917

A 5, 1966. ·However, leave tto appeal to thi!i Court was granted by the Division Bench on February ·16, 1968, the petition~r having been held, to gpote the words of t.he High Court "entitled to a certificate either under cl. (a) or . (b) of Art. 13 3 ( 1 ) · of the • The Hi~ Court also certified "that the. value of Con9titution11 the subiect matter of dispute before the High Court and in appeal is not less than Rs. 20,000/ -; alternatively, it is certified that the iud~ent.of 1tbis Court involves directly or indirectly a claim res· pectin~ wages amo1,1nting to more than Rs. 20,000/ -."

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cate ~anted by the High Court was incompetent and,

Before us the respondents raised an objection that the certifi therefore, c should be cancelled. Out attention was drawn to Art. 133(l)(a) . and (b) of the Constitution and it was pointed out that the High Court misse~ that part of sut>.Art. 133 (1) where it is stated: that ''where the iud~ment, decree or final order appealed from affinns the decision of the court immediately below in any ca~ other than a case referred 'to in sub-clause (c), if the High Court nirtber • certifies that the appeal involves some substantial question of law." 0 Merely because the value of the sub;ect matter in dispute is more than Rs. 20,000/-, the respondent contended, it does not by itself justify the I!Tant 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, bUll: apparently at the time of arguments the submission was confined to cis. (a) and (b) alone.

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The appellant, when faced with this. difficulty, submitted that this Court should, on its oral request, ~rant s~cialleave to appeal after eondonin~ 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 lila Parishad), Allahabad v. Syed Tahir Hussain & ors. ('1 ) There 1he appellant had come to this Court on a certificate purportin~~: to have been granted under Art. 133 of the Constitution. At the time of hearin~ it was objected on behalf of one of the respondents 1here that the certificate could only be G granted if thue was a substantial question of law and ~ince the certificate did not disclose on its face the existence of any such qu~stion, the appeal was incon1petent. This Court, in view of i1s earlier decision in Shri Durga Prasad & anr. vs. The Banaras Bank Ltd.(2), su&itained this objection and in the absence of a certifi cate of the High Court showing the existence of some substantial H question c:if law held the appeal to be incompetent. The appellant in that case when faced with a similar situation, had made an ornl to file a written r~uest prayin,g for special leave, undertaking .(l~ £,-A, No. 57S ofi963 ~eel on lu\y 23,1965.

· (2) {1964) 1 S.C.R, 475.

918

SUPREME COURT .REPORTS

[1972] ·3 S:C.R.

petition for that purpose supported by an affidavit and accompa:nieCI A by an application for condonation of delay: This Court considered the CJ!.Se to' be firt and. proper fOr granting spe~iaJJeave whic)li wits granted on oral prayer but the appellant th~'re ws directed tb :tile special leave petition in this. Court within a week. The appellant in the present cas•; also filed during lthe ·c6urse of hearing special leave petition no. 676 of 1972 duly supported by an affidavit and B Civil Misc·eUaneous Petition . no.· 1319 of 1972 with a supportin,g 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· t& appe~ ·and (iii) the security deposit in the earlier appeal being treated ·as security in the s~cialleave apoeal .• We heard all the matters· ·together.

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We consider the case to be covered by the precedent cHed and accordin.gly held the certificate granted by the High Court to be incompetent and, therefore, liable to be cancelled. With the can cellation of the certificate C.A. no. 1611 of 1968 must be dismis. Sed; but in the circumstances there would be no order as to costs.

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With reg,ard to the prayer for ~ranting special leave to appeal there can be no dispute that this Court is fplly competent to enter- tain this prayeJ:" and if the cause of justice so demands, to grant the same and consider the special leave to appeal on the m~rits. Article 13 6 is couched in very wide terms and it vests this Court with discretionary power for setting right grave ln Shri Du~:ga Prasad's case (supra), this Court, having cases. regard to all the circumstances, did not consider that to be a fit case for gran~ing special leave to appeal whereaS i.ti the· later case of the· District Board (afterwards Zila Parisha4) Allahabad (supra), it m;1y be recalled, this Court granted speCial leave tq appeal on oral request, din~ctin~ that a fonnal sp~ialleavc appli- cation be filed within a week. After considering all the circum-. stances we· consider the present case to ·be fit for granting s~ial leave to appeal and for condoning the delay. We order:acoord~ ingly .. : ·The appellant, however, must pay full court fee payable within 'two weeks but the security already deposited inCA:~· l 611 of 1968 m~y .~e treate~ as security in the special leave appeal. The result, therefore, is that now we have the fresh. appeal G by sPe¢hll1e.ave before us for decision.

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The a~pellant's learned counsel drew.~ur attention to'tbe' slate~. ml;lnts ·of t~~ respective cases of the parties before· the lndu5ldal Tribunal and also to the statement of Shri Jaiswal under r . .t2~ lit ouf ''Vie~' .the statement of'.Shri J aiswal had~ as a matter of Iaw/~o H be t~d as. a whole and alSo in the background and along .with tf)e pleadinJ!;s· as disclosed in the respective statements of cases. of: file parties- .fn ·order to: understand whether Shri Jatswal's .statement

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. BWLI.COTtON MILLS y. lNDUSTaiAL TanmNAL (Dua, J.) 919'

amounted to a clear and. oonscious admission eliminating a cruciat p~rrt' of the controversial issue. Re~dtn~ them ·as a Whble we doo not 'consider it pOssible to bold tha( Jtl1e 'apPellant . had admitted 1hat the 17 feStival holidays were beirik·'given. by' tnem as paid holidays dispensing with the enquiry into the question referred fo1 adjudication to the· Industrial Tribunal ·

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It may in this connection be pointed out that the real p.urpose <:ind object of r. 12 is only to pinpoint ~he precise comroversy by requiring the Qarties to state their respective cases at the .very .fi~l sittirt~ of the Tribunal. This sta'tement is not like ilie testimony of a witness, part of which can be accepted and the rest rejoc;te.d. . It c was only in th.e nature of a supplementary pleading designed mai.nly 1o remove vagueness and to clear ambiguities or indefinite ness in the pl~adings. This statement had, theref~re, to be reao and considered .as a whole. If it was considered unsati5factory in some respects this factor could be taken into account in. appreciat:- ing the pleadings and evid•;!nce led in the case while coming i.O the 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 festi· val holidays were treated as paid holidays but no payment was as. a matter of fact being made.

o final decision but it could not debar the appeUant from

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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 festi val holidays wi!th 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 and was not in a position to take any extra bur~en. The statement made by Shri Jaiswal under r.- 12 could on no reasonable hypothesis be co~idered to have replaced this ur.equ~voca1 and clear' ,lea; It is true that Shri Jaiswal tried to be sorriewh~t clever by stati11~ that the festival holidays were paid in the sense tbat the workers were G . allowed to work on unpaid test days in substitution of the sajd' festival holidays. But this statement clearly explains in Linainbi guous termLti!e sense in which Shri Jaiswal meant to say that the festival holidays were paid. The facts contained in the explaua~ion lead to the only conclusion that festival.holidays are not paid ~s the National Holidays are. ·This statement read with the. deta.iled' H explualiOn which constitutes its real core .could not logically serv~ the . written· as a ~nd for ignorin~ tlie unequivocal> denial in stattment uarticularly when even tbc workmen did not set up this case. ~ Industrial tribunal hJI.d,· in. ·0\11:- 0pinicin,- erroneo'usly

I

920

SUPIU!'NI! COU.IlT REPORTS

[1972) 3 :&C:R.

i~no~ the real plea and had on the basis of this manifest blatant A error. whicla is clear on the face of the record, disallowed the .evi dence on the question of the practice and custom in the textile industry in Kanpur. In Shri Iaiswal's statement we find a clear·dis tinction drawn that three National Holidays were paid holidays and the other festival holidays were such for which the workers 1Vere allowed to work on substituted rest days. It was also clearly B mentioned in iha't statement that if a holiday is substituted on a rest day then the workmen gets only one day's wages. This im portant p~ut of the statement was virtually h~nored by tt).e Tribunal. 'The facts bein~ clearly stated, in our view, ~he Industrial Tribuna I was wron~ in law in holdin~ that the appellant's written plea was modified by reason of the sta~ement under r. 12 or that there was C .a clear admission supetsedimz the earlier plea. The learned single · Jud~e of the Hi~h Courtt, in our opinion, also missed real point; and if the real plea was ignored and it was erroneously held 1hat Shri Jaiswal's statement under r. 12 cortstituted an admission 1 <>verrldiQi the earlier olea 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 D which wa• manifest on the face of the record and the same having resulted in failure of justice by excludin~ evidence on 1he most vital point. The Division Bench on special appeal from the judg ment of the learned single Judge fell into the same error in sum marily dismissing the appeal in limine without even recording a ·speaking order on the crucial point of substance arising in the case E which went to the root of ,the matter.

the

.

In the Report of F

The question of fes'tival holidays requires consideration from -several aspects. Employers and workers have always differed in t~t SUJ~;Jilestions about the level at which unifonnity in the num- ber of holidays should g;enerally be achieved. the National Commission on Labour prepared in August, 1969 we find .at p. 105 ·that the workers' organisallions generally favour a minimUill of 7 to 12 paid holidays in a year without makin,l! any diffel'.entiation as between: different categories of employees. Em -ployer~; on the other hand, feel that the number of paid holidays enjoyed by workers in India is already on the high side, al').d, G there(ore, uniformity should be achieved ~t a much lower level. The opiniqn of the Commission contained in its Report supported. the. view of its Study Gro9u· on Labour Legislation which re~m­ JOOn~_ed three paid National Holidays viz. 26th 1anuary (Republic · Day), l~th Au~ust (Independence Day.) and 2nd Q~tober

(Mahatma Gandhi's Birth Day) and five paid festival holidays as H may be fixed by 'the appropriate Government in consu1tatio11 with the representatives ol employer• and employees. The Report also satRelti ·that ·there is a trend towards industry·wiae uniformity in

BIJLI COTTON MILLS V, INDUSTRIAL TRIBUNAL (Dua, J.) 921

A

the matter of holidays, as in the case of jute and coaL lnciden·· tally it may be mentioned that in U.P., the U.P. Industrial Estab-· lishments (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.

~

C

to

D cerns as well. This aspect has been completely ignored by

·In the case before us, according to the appellant, the 17 festi- B val holidays as directed by the award would impOSe on the appel· !ant industry an additional burden the · extent of about Rs. 1,49,600 as was stated in 'the order of the Allahabad High Cou1't while granting leave. Custom, practice and uniformity in in the industry without prejt,tdicially affecting efficiency and ·creased production are some of the relevant factors' which have to be taken in't9 account in determining the number of paid festi· val holidays. per year. The question affects national economy and the present instance may well be cited in future in deciding similar questiops in other allied cqncerns in the region. The effect of such instances, therefore, does not remain confined only to the establishment concerned but has its impact on other con• the Industrial Trib_unal which has proceeded solely on the basis of the statement of Shri Jais~al as interpreted by it. This statement being the sole .basis of the Tribunal's conclusion if it is not. possibl~ to read in this statemem any admission having the effect of giving up the only crucial plea that the workmen have no r.ight that to 17 paid holidays than this is clearly a misreading of statement and the Tribunal's order mu&t be held to be tainted by a manifest error of law on the face of the record which has re sulted in gr!!ve 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 er.ror and did not apply its mind •to the real point which .arose for decision in the case. We accordingly aUow this appeal, set aside •the orders of the High Court aud of the Industdal Tribunal and remit the case back to the Tribunal for a fresh decision on the merits after permitting the parties to lead releva~ evidence in accordance with law and in 'the light of the observations made above. As the whole trouble arose 00caus~ statement made by Shri of the un.s~tisf~ctory nature of the G Jaiswal, who was also found by 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 respon dents' costs both in th.is Court and in the High Court. The coul't fee, as already directed, must be paid by the appelJant within· two weeks.

E

F

H

S.C.

Ap,wl aUowM.