http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: ASSAM MATCH COMPANY LIMITED

       Vs.

RESPONDENT: BIJOY LAL SEN & OTHERS

DATE OF JUDGMENT27/04/1973

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. GROVER, A.N.

CITATION:  1973 AIR 2155            1974 SCR  (1) 116  1974 SCC  (3) 163  CITATOR INFO :  R          1982 SC 854  (9)

ACT: Industrial   Disputes  Act  1947-S.   9A-Whether   appellant contravened  the  section when it changed  the  holiday  for Kalipuja from 11th November to 12th November at the  request of the majority of workers.

HEADNOTE: The  appellant,  according  to the  usual  practice  of  the company,  at the beginning of 1966, had published a list  of holidays for that year.  According to this list, the holiday for  Kalipuja was stated to be on Friday the  11th  November 1966.   The workmen in this company were represented by  two Unions-The  Amco  Employees Association’  and  Amco  Shramic Sangha’ of which the Sangha represented the majority of  the workmen of this company. On November 8, 1966, the appellant notified that the factory will  remain closed for Kalipuja on 11th November 1966.   On 10th  November  1966, the General Secretary  of  the  Sangha wrote  a  letter  to  the Factory  Manager  of  the  Company requesting  him  to close the factory on Saturday  the  12th November,  1966  on  account of  Kalipuja  instead  of  11th November, 1966.  A further request was made that the factory may be kept working on Friday in accordance with the timings of the company and stated in his letter that if the  request for  change in the holiday is not acceptable a large  number of workmen will not be attending on Saturday and there  will be heavy loss of production.  On receipt of this letter, the appellant  put up a notice the same day that in response  to the request of the Sangha the factory will remain closed  on Saturday the 12th November instead of Friday the 11th. After  the company’s notice regarding the change of  holiday for  Kalipuia, the other Union, the Association on the  same day addressed a letter to the Management that the change of holiday for Kalipuja was not justified and that the original date should be allowed to stand.  The company did not accede to  this  request  and  as a  result  most  of  the  workmen belonging to the Association did not attend work on November 11,  1966.   The  wages for the day were  not  paid  by  the appellant to those workmen who were absent on that day. After  about  a year, the respondent& filed  an  application

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

before  the  Labour  Court under s. 33-A of  the  Act.   The grievance of these workmen was that there was an  industrial dispute  pending  at  the relevant  time  and  that  without complying  with  the  provisions of s. 33 and  s.  9-A,  the employer  had  altered  the  condition  of  the  service  by changing the-date of the holiday for Kalipuja.  According to the respondents, one day holiday for Kalipuja was allowed to them  for  a  number  of years and  that  it  had  become  a condition  of service.  The standing orders of  the  company did  not  give  any power to the appellant  to  change  the, holiday for Kalipuja, and therefore s. 33 (2) (a) of the Act was  violated.   According to them, any change of  date  can only  be affected in accordance with s. 9-A.  Therefore  the employer  in  declaring  12th  November  as  a  holiday  and refusing to pay wages for 11 November 1966 acted  illegally. The management on the other hand, Contested the  application on  the  ground  that  there  had  been  no  change  in  the conditions  of service of the workmen.  The change was  made to suit the convenience of the workmen themselves and it was done for their benefit. The  Labour  Court accepted the plea of the  management  but held that as the holiday has been originally fixed for  11th but later changed to 12th amounted to   a  change   in   the condition  of service and therefore, the procedure under  s. 9-A  had not been followed.  As the said procedure  had  not been followed by    the  appellant,  the Labour  Court  held that there had been it violation of s.  33 read with s.  9-A of the Act and he granted the reliefs accordingly.  Allowing the appeal, 117 HELD : (i) The alteration of the date regarding the  holiday for  Kalipuja  from  11th to 12th November  1966  cannot  be considered to be an alteration in the conditions of service. The workmen may be entailed to have a holiday for’ Kalipuja. But  on what particular date Kalipuja falls or it  is  being observed and a holiday is to be declared, is a matter to  be decided by the management in consultation with the workmen.. If a large body of the workmen require a change in the  date of the holiday on the ground that the festival was not being observed  on  the day originally fixed. and  the  management changed  the  date, it cannot be stated that  there  was  an alteration  in the conditions of service.  The workmen  were no,  being  deprived of a holiday at all for  Kalipuja.   In fact, they had got it on the 12th November 1966. [120D] The Workmen of M/s. Sur Iron & Steel Company Private Ltd. v. M/s. Sur Iron & Steel Co. Private Ltd. [1971] 1 L.L.J.  570, referred to. (ii)Even assuming that alteration of the date of the holiday for Kalipuja will amount to a condition of service there  is no question in the present case of a contravention. of s.  9 when  the majority of the workmen themselves  requested  the employer  to make the alteration.  The employer  was  within its rights under s. 33(2). Further. the evidence on the side of   the  respondents  showed  that  the  workmen   actually celebrated Kalipuja on the 12th November which was  declared to  be a holiday.  Therefore, the application filed  by  the workmen   before  the  Labour  Court  under  s.   33-A   was misconceived. [121E] M/s.  Tata Iron & Steel Co. Ltd. v. Workmen and Ors.  [1972] 11 L.L.J. 259, discussed and distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2433 of 1968.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

Appeal by special leave from the Award dated August 9,  1968 of the Labour Court Gauhati in Case No. 6 of 1968  published in the Assam Gazette dated the 4th September 1968. B.   Sen, G. Mukhuty and D. N. Gupta, for the Appellant. D.   L. Sen Gupta and S. K. Nandy, for the respondents. The Judgment of the, Court was delivered by VAIDIALINGAM,  J.  In  this appeal, by  special  leave,  the question  that  arises  for  consideration  is  whether  the appellant  has  contravened section 9-D  of  the  Industrial Disputes  Act, 1947 (hereinafter referred to as the  Act), when  at  the  request of the majority of  the  workmen  the holiday  for Diwali was changed from 11th November, 1966  to the  ,next  day.  According to the usual  practice,  at  the commencement of the year 1966, the appellant had published a list of holidays for that year.  According to this list, the holiday  for Kali Puja was stated to be on Friday, the  11th November, 1966.  On November 5, 1966, the appellant notified that the factory will remain closed for Kali Puja on Friday, the 11th November,’1966.  This notification was only on  the basis  of  the list of holidays referred  to  earlier.   The workmen  in this company were represented by two unions  (1) Amco  Employees Association (hereinafter referred to as  the Association)   and  (2)  Amco  Sramik  Sangha   (hereinafter referred to as the Sangh ). There is no controversy that the Sangha  represented  the  majority of the  workmen  of  this company. On  November 10, 1966, the General Secretary of  the  Sangha wrote  a  letter  to the factory Manager  of  the  appellant requesting  him to close the factory on Saturday,  the  12th November, 1966, on account of Kali Puja instead of the  11th instant as already notified by the com- 118 pany  on  November 5, 1966.  A further request was  made  in this letter that the factory may be kept working on  Friday, the 11th November, in accordance with the timings  mentioned therein.   The  General  Secretary further  stated  in  this letter  that if the request of change in the holiday is  not accepted, a large number of workmen will not be attending on Saturday, the 12th November, which will result in heavy loss of production.  On receipt of this letter, the appellant put up a notice the same ’day that in response to the request of the Sangha, the factory will remain- closed for Kali Puja on Saturday, the 12th November, instead of Friday, the 11th, as previously  notified.  This notice further stated  that  the factory will remain open on Friday, the 11th November during the  hours mentioned therein.  Quite naturally, this  notice cancelled the previous notice dated November 5, 1966. After  the company’s notice regarding the change of  holiday for Diwali was put up on the notice-board, the  Association, on  the same day (November 10, 1966), addressed a letter  to the management that the change of holiday for Diwali was not justified  and  that  the  date  originally  declared  as  a holiday,  namely,  the 11th November, should be  allowed  to stand.  The company obviously did not accede to this request of the Association with the result that most of the  workmen attached  to  the  association did not  attend  to  work  on November 11, 1966.  The wages for that day were not paid  by the appellant to those workmen on the ground that they  were absent from duty. Nearly a year later on December 30, 1967, the respondents in this  appeal, 83 in number, filed an application before  the Labour  Court, Gauhati, under section 33-A of the Act.   The grievance  of these workmen appears to be that there was  an industrial  dispute  pending at the relevant time  and  that without  complying  with the provisions of section  33,  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

without  conforming  to the provisions of section  9-A,  the employer  had altered the condition of service  by  changing the date of the holiday for Diwali.  According to them,  one day holiday for Kali Puja was being allowed for a number  of years  and that it has become a condition of  service.   The notice  issued on November 5, 19766, declaring November  11, 1966,  as  a holiday for Diwali was in conformity  with  the right of the workmen under the conditions of their  service. The Standing Orders of the company did not give any power to the  appellant  to  change  the  holiday  for  Diwali   and, therefore,  section  3 3 (2) (a) of the Act  does  not  give power to the appellant to alter the, said date.  Any  change of date can only be effected in accordance with section 9-A. As  that  has not been done, the action of the  employer  in declaring 12th November, 1966, as a holiday and refusing  to pay  wages  for  11th November,  1966,  were  both  illegal. Accordingly  they proved for directing the appellant to  pay them ’Wages for November 11, 1966, which has been denied  to them, as their absence on that day was perfectly legal. The management contested the application on the ground  that there  has  been  no change effected in  the  conditions  of service  of  the workmen by altering the holiday  of  Diwali from  November 11, to the next day.  As the holiday  is  for Diwali  and  as  the majority of  the  workmen  specifically desired the holiday on the 12th November the 119 change  was  made to suit the convenience  of  the  workmen. Even if the fixation of a holiday is a condition of service, the  change  has been made for the benefit of  the  workmen. The  management  further  pleaded that  under  the  Standing Orders  they were entitled to fix the holidays and  also  to effect  any changes therein and, therefore, section  33  (2) (a) of the Act gives power to them to effect such a  change, although  an  industrial  dispute  was  then  pending.   The management  also cited certain previous instances  when  the holiday  for  Holiday  or for Diwali  once  fixed  had  been altered at the request of the workmen. The  Labour  Court has accepted the plea of  the  management that  the Sangha represented the majority of the workmen  of the  appellant.   It has further found  that  the  appellant altered  the date from 11th to 12th at the specific  request of  the  Sangha.   But the Labour Court held  that,  as  the holiday  has been originally fixed for the 11th November  by the notice dated November 5, 1966, on the basis of the  list of holidays announced by the company, the alteration of  the holiday from 11th to 12th November, though at the request of the  majority  of the workmen, amounted to a change  in  the condition  (if  service  and as such,  the  procedure  under section  9-A  should  have  been  followed.   As  the   said procedure had not been followed by the appellant, the Labour Court  held  that there has been a violation of  section  33 read with section 9-A of the Act.  In this view, it  granted the reliefs asked for by the 33 workmen. Mr. B. Sen, on behalf of the appellant company supported the stand  taken by it before the Labour Court.. He  urged  that there  is no question of any cancellation of a holiday  that the workmen were entitled to, in which case it may be stated that  the  condition of service is effected.  On  the  other hand, the workmen did have a holiday for Diwali on the  12th November.   The counsel also referred us to the evidence  on record  to show that on previous occasions such changes  had been effected in the holidays when a request was made by the workmen  concerned.  Mr. Sen Gupta, learned counsel for  the respondents,  has  adopted the reasons given by  the  Labour Court for holding that a change in the condition of  service

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

has been effected by the appellant.  In particular, Mr.  Sen Gupta  pointed out +hat if the employer wanted to  effect  a change in the date of the holiday, it should have been  done by  the appellant entering into a settlement with the  work- men, as contemplated by clause (a) of the proviso to section 9-A.   The  sum and substance of the arguments  of  Mr.  Sen Gupta  was that the appellant, having fixed the holiday  for Diwali as per its previous circular". had no power to change the  same oven though a majority of the workmen had  desired the appellant to do so. Section 9-A no doubt provides that the conditions of service of  any  workmen in respect of any matter specified  in  the Fourth  Schedule  cannot be changed  without  following  the procedure indicated therein.  If the alteration of the  date of a holiday amount to a change in the Condition of service. it  is  needless  to state that the appellant  is  bound  to follow  the Procedure laid down in section 9-A.  Item  5  of the  Fourth  Schedule  deals  with  "leave  with  wages  and holiday".  There- 120 fore,  prima-facie,  if  a  holiday  has  been  fixed,   the management may not have power to totally cancel the same  or deprive the workmen of such a holiday without conforming  to provisions  of section 9-A.  In the notice published at  the beginning  of the year 1966 regarding the holidays  for  the said  year, the appellant has no doubt stated  that  Friday, the  11th  November, will be a holiday for Kali  Puja.   But there is a statement in this notice to the effect that  this list  is  subject to modification,  if  thought  necessary". Under paragraph 6 of the company’s certified Sanding Orders, it is provided that "Notice specifying (a) the days observed by the Factory as holidays and (b) pay days, shall be posted as required by the Factory Act and the payment of wages  Act respectively".   There  is no controversy that the  list  of holidays published at the beginning of the year 1966 as well as  the  circular dated November 5, 1966 are  in  conformity with  this provision.  Similarly the notice  dated  November 10,  1966,  by the management regarding  the  12th  November being  a holiday for Diwali, acceding to the request of  the workmen,  must also be considered to satisfy the  provisions of this clause in the Standing Orders. In  our  opinion, the alteration of the date  regarding  the holiday for Diwali, from 1 1 the to the next day, cannot  be considered to be an alteration in the conditions of service. The  workmen may be entitled to have a holiday  for  Diwali. But  on  what  particular day Diwali Calls or  it  is  being observed and a holiday is to be declared, is a matter to  be decided by the management in consultation with the  workmen. If  a  large body I of the workmen require a change  in  the date  of the holiday on the ground that the festival is  not being   observed  on  the  day  originally  fixed  and   the management changes the date,, it cannot be stated that there is an alteration in the conditions of service.  The  workmen are  not being deprived of a holiday at all for Diwali.   In fact they have got it on the 12th November, 1966. In  The Workmen of M/S.  Sur Iron & Steel Co. Pvt.  Ltd.  v. M/S.  Sur Iron & Steel Co. Pvt.  Ltd., and  another(1),  the workmen  contended  that the change in the  weekly  off-day, from   Sunday  to  Saturday,  without  complying  with   the provisions of section 9-A, was illegal.  This Court rejected that  contention  on  two  grounds that  (1)  there  was  no specific  entry in the Fourth Schedule covering a  condition of  service  relating  to  a weekly  off-day  and  (2)  even assuming that the grant of a weekly off-day falls under item 4 of the Fourth Schedule, the State Government had issued  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

notification on April 10, 1962 under section 9,B laying down that  no notice under section 9-A was required to be  served in  respect of the matters covered by items 4, 6 and  11  of the said Schedule for a period of three months.   Therefore, it  will  be  seen that this decision did  not  express  any opinion on the question whether the alteration of the weekly off-day from Sunday to Saturday, amounts to a change in  the conditions  of service coming within section 9-A.   In  fact the indications in the judgment are that such an  alteration will not attract section 9-A. The  decision in M/s Tata Iron and Steel Co. Ltd.  vs.   The Workmen  and  others(2)  does not advance the  case  of  the respondents.  From (1) [1971] (1) LLJ 570. (2) [1972]  11 LLJ. 259. 121 the  facts  of that case it is seen that Sunday had  been  a holiday in the factory concerned for a long number of years. The  company,  for  the  reasons  stated  in  the  judgment, cancelled  this  holiday and in turn gave a holiday  in  the mid-week without following the procedure under section  9-A. It  was  held in the particular circumstances of  that  case that the alteration amounts to a change in the conditions of service.  It must be noted that the workmen have been having for a long number of years Sunday as a holiday and that  may have  become a condition or their service.  A holiday  on  a Sunday can only be on that day and no other day of the  week can be Sunday.  On this basis the decision has been rendered holding  that  canceling,  the  holiday  enjoyed  on  Sunday amounts, in the circumstances, to a change in the conditions of service. The  position in the case before. us is entirely  different. The  fact  is that the workmen have not been deprived  of  a holiday for Diwali.  Even assuming that the workmen have got a right to get a holiday for Diwali and that it has become a condition  of service, in this case the workmen did  have  a holiday for Diwali.  The holiday for the said festival is to be given on the date when the majority of the workmen  claim that they are celebrating Diwali.  It has been emphasised in M/s.   Tata  Iron  and Steel Co. Ltd.  v.  The  workmen  and others(1) that the real object and purpose of section 9-A is to  afford  an opportunity to the workmen  to  consider  the effect of a proposed change and. if necessary, to  represent their  view  on  the  proposal.   Even  assuming  that   the alteration of the date of the holiday for Diwali will amount to  a  condition of service, there is no question,  in  this case,  of a contravention of section 9-A, when the  majority of  the  workmen themselves requested the employer  to  make the’  alteration.  The employer was within its rights  under section  3  3  (2) (a).  The evidence on  the  side  of  the respondents  shows  that  the  workmen  actually  celebrated Diwali  ,on  the 12th November, which was declared to  be  a holiday. For the reasons stated above, we are of the opinion that the application  filed  by the workmen before the  Labour  Court under   section 33-A was misconceived.  In the  result,  the order  of the Labour Court is set aside and this  appeal  is allowed.  There will be no order as to ,costs. S.C.                        Appeal allowed. (1) 1972 (11) L.L.J. 259. 122