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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