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CASE NO.: Appeal (civil) 6443  of  1997

PETITIONER: NATIONAL JUTE MANUFACTURERS CORPORATION LTD .

       Vs.

RESPONDENT: KATIHAR MAZDOOR SANGH & OTHERS

DATE OF JUDGMENT:       12/04/2001

BENCH: S. Rajendra Babu & Shivaraj V. Patil

JUDGMENT:

Shivaraj V. Patil, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   In  these  appeals the validity and correctness  of  the Award  dated  18.10.1993 passed by the Industrial  Tribunal, Patna, as affirmed by the learned single Judge and confirmed by the Division Bench of the High Court, is challenged.

   By  the  impugned award, the tribunal ordered  that  the workmen  shall get one days paid holiday on the occasion of Deepawali  which  was  available  to  them  prior  to  1979. However they will not get any arrears on that count.

   Rai  Bahadur  Hurdut Ray Motilal Jute Mills  Pvt.   Ltd. (for short the Mill) had remained closed from 25.2.1975 to 17.8.1979.   On  coming  into force of  the  Jute  Companies (Nationalisation)  Act, 1980 (for short the ‘Nationalisation Act)  it  stood  transferred  and  vested  in  the  Central Government with effect from 21.12.1980.  In turn the Central Government  under the provisions of the said Act transferred the  Mill  to  the National Jute  Manufacturers  Corporation Limited   (for  short  the   ‘Corporation).    Though   the provisions  of the Bihar Industrial Establishment  (National and  Festival Holidays and Casual Leave) Act, 1976 were  not applicable  to  this Corporation being under the control  of the  Central Government as per Section 12(b) of the Act, the management  through a tripartite settlement dated  27.4.1983 continued  to  allow the workmen the existing number  of  10 national  and  festival holidays in addition to  seven  days casual  leave in a calendar year.  Further the said holidays thereafter  were to be regulated in the manner as  specified and  within  the  framework of the said Act and  Rules  made thereunder.

   When  the management reduced one day Deepawali  festival paid  holiday,  the  workmen raised demand that  during  the period  of private management Deepawali was a paid  holiday; after  the  mill was taken over in 1979 it was  made  unpaid holiday   which  led  to   conciliation  proceedings.    The Conciliation Officer gave a written advice to the management to  allow the festival holidays as before but the management

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did not accept it contending that they were giving one days paid  holiday  on  2nd  of October  since  1979  instead  of Deepawali   holiday.   Consequently   the  State  Government referred  the industrial dispute and the tribunal passed the impugned award.

   The  management  in their rejoinder admitted that  since 1979  paid holiday of Deepawali has been substituted by  the paid  holiday  on 2nd October.  C.P.  Singh, Labour  Welfare Officer  (MW-1) stated that under the private management  10 days  paid  holidays were given and there was no holiday  on 2nd  October.   He  admitted   that  before  nationalization workmen  were getting Deepawali holiday;  from the notice of the  management  dated  30.9.1979  it  is  clear  that  paid Deepawali  holiday has been substituted by the paid  holiday on  2nd  October.   Even  the item No.   2  of  the  dispute indicated  that Deepawali was a paid holiday prior to  1979. The  tribunal  looking  to this evidence concluded  that  on Deepawali workmen were given a paid holiday prior to 1979.

   The  Tribunal,  while  noticing the  contention  of  the management  that the provisions of Industrial  Establishment (National  and Festival Holidays and Casual Leave) Act, 1976 (for short the ‘Bihar Act) were not applicable to the Mill, it  being under the control of the Central Government,  took the  view  that  by virtue of  tripartite  settlement  dated 27.4.1983  the  benefits available under the Bihar Act  were given  to  the  workmen.  An employee was protected  of  his rights and privileges as is evident from Section 12(1)(b) of the  Nationalisation  Act,  which, to the  extent  relevant, reads :

   Section 12 - Continuance of employees

   (1)  Every  person who has been, immediately before  the appointed  day,  employed in any undertaking of any  of  the jute companies shall become, -

   (a)     ...........................

   (b)  where  the undertakings of the jute  companies  are vested in the Jute Manufacturers Corporation, an employee of the said Corporation, on and from the date of such vesting,

   and  shall  hold  office or service  under  the  Central government  or  the Jute Manufacturers Corporation,  as  the case  may  be,  with the same rights and  privileges  as  to pension,  gratuity  and  other matters as  would  have  been admissible  to  him  if there had been no such  vesting  and shall  continue  to  do so unless and until  his  employment under  the  Central  Government or  the  Jute  Manufacturers Corporation, as the case may be, is duly terminated or until his  remuneration  and other conditions of service are  duly altered  by the Central Government or the Jute Manufacturers Corporation, as the case may be.

   2)      ......................

   The Tribunal further observed that the holidays would be regulated  in  the manner specified in the Bihar Act as  per the  tripartite settlement aforementioned.  The Tribunal  in para 8 of the award stated that:

   As  per the provision of the Section 13 of the Act, the benefits  which  the workmen were getting are protected  and

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cannot  be  denied  by  the Management and  that  they  were enjoying  11  days  paid holiday and the  said  benefit  is protected by section 12 of the Nationalisation Act also.

   The  learned  single Judge dismissed the  writ  petition filed  by the appellant holding that the Award passed by the Tribunal,  on  consideration  of the totality of  facts  and circumstances of the case was justified.  The Division Bench of  the High Court in the impugned order has stated that it is an admitted position that 2nd October came to be declared as  a  paid  holiday of the workmen of the Mill in  lieu  of Deepawali,  which  was always granted to them as  a  holiday prior  to 1979.  The Division bench referring to Section 13 of  the Bihar Act held that the privilege, which was already available  to the workmen, could not be taken away.  Finding no  good reason to interfere with the Award of the  Tribunal and  the  order  of the learned single Judge,  the  Division Bench dismissed the Letters Patent Appeal.

   Before  us  the learned counsel for the appellant  urged that  the  workmen  were given seven days  casual  leave  in addition  to  10  days paid holidays after taking  over  the Mill;   10  days holidays are maintained;  in  other  words, there was no reduction in the paid holidays;  there was only substitution  of  2nd  October as paid holiday in  place  of Deepawali  paid holiday;  thus neither rights nor privileges of the workmen were affected.  The workmen were bound by the terms  of  tripartite settlement dated 27.4.1983 and it  was open  to  the  management to adjust 2nd October  holiday  in place  of Deepawali holiday.  In support of his  submissions he cited a decision of this Court in Indian Oxygen Ltd.  vs. State  of  Bihar  [(1990)  2 SCC 254].   In  opposition  the learned  counsel  for  the   respondents  made   submissions supporting  the  impugned Award.  It was added that  on  the facts  and circumstances found in the case on hand the Award passed  by  the Tribunal as confirmed by the High  Court  is unassailable.

   We  have considered the submissions made by the  learned counsel  for  the parties.  Deepawali was a paid holiday  to the  workmen prior to 1979, is a finding of fact recorded by the  Tribunal  based  on the evidence as  stated  above  and rightly  so.   Although  the management contended  that  the provisions of Bihar Act were not applicable to the appellant herein,  the Tribunal and the High Court have found that  by virtue  of settlement dated 24.7.1983 and in view of Section 12  of  the Nationalisation Act and Section 13 of the  Bihar Act,  rights  and privileges more favourable to the  workmen could  not  be taken away or affected.  The said  settlement itself  indicates that the holidays were to be regulated  in the  manner specified and within the framework of the  Bihar Act  and Rules made thereunder.  The stand of the management appears to be inconsistent.  They say that the provisions of the  Bihar Act do not apply to the appellant being under the control of the Central Government and that they were oblized to declare 2nd October as a paid holiday under the same Act. Section 13 reads:

   Where  any  employee of an industrial establishment  is entitled  to such rights and privileges under any other  law for  the time being in force or under any contract or custom or  usage applying to the said establishment, which are more favourable  to him, then any right and privileges  conferred by this Act, nothing contained in this Act shall affect such

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rights or privilege.

   The  decision of this Court cited by the learned counsel for  the  appellant in Indian Oxygen Ltd.  (supra),  in  our view,  does not help the appellant.  That said decision  was rendered  in civil appeal filed against the judgment of  the High  Court passed in the writ petition under Article 226 of the  Constitution  of  India  and  did  not  arise  from  an industrial   adjudication  made  by   industrial   tribunal. Further  the situation in that case was different as noticed by  the  High Court.  On the facts and circumstances of  the present  case,  as found by the Tribunal as well as  by  the High Court, the said decision cannot be applied.

   Considering  all these aspects, in our view, it is not a case  for interference with the impugned Award.   Therefore, finding  no merit in the appeal it is dismissed but with  no order as to costs.

..................J. [S. Rajendra Babu]

..................J. [Shivaraj V. Patil]

April 12, 2001