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PETITIONER: PFIZER (P) LTD. BOMBAY

       Vs.

RESPONDENT: THE WORKMEN

DATE OF JUDGMENT: 30/11/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1963 AIR 1103            1963 SCR  Supl. (2) 627  CITATOR INFO :  F          1964 SC 914  (9)  F          1975 SC 534  (8)

ACT: Industrial Dispute-Three shift system-Introduction of-Number of  paid holidays in a year-Reduction of-Effect of  National Emergency  on  industrial  adjudication-Industrial  Disputes Act, 1947 (14 of 1947), ss. 10 (1),(d) 12 (5).

HEADNOTE: The  appellant  company  runs a factory in  which  it  manu- factures  life  saving drugs such as antibiotics  and  anti- tubercular  drugs  and vitamin products.   The  factory  was working a multiplicity of shifts with different timings.  It was  found that the machinery installed in the  factory  was not  fully utilised.  The production was inadequate and  the appellant was not able to meet the demand for its  products. The appellant decided to introduce three shifts in order  to have  extensive production of better quality products.   The preparation of the drug known as P.A.S. required the working of  the relevant sections on three shift basis  because  its production  was  a continuous process.  The quality  of  the product  would  improve  if  the  section  working  in   the production  of  the said drug worked continuously.   If  the chemical  and  pharmaceutical departments were  to  work  in three shifts, other subsidiary sections had also to work  in three shifts in order to cope with increased production. The  appellant  gave  a notice to the  respondents  that  it wanted   to   introduce  three  shifts   in   the   factory. Conciliation  efforts failed and the matter was referred  to the Industrial Tribunal for adjudication. The Tribunal gave its award against the appellant so far  as the introduction of the three shifts was concerned.  It held that the introduction of three shifts would be  inconvenient to  the  bulk of the employees and would  also  involve  the abolition  of  five  days’ week.   The  employees  would  be compelled  to work at night and better quality  of  products will  not  be  produced.  The Tribunal also  held  that  the production  of  the  drug known as P.A.S.  did  not  require

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continuous  working  in  three  shifts.   But  the  Tribunal reduced the number of holidays from 27 to 10. 628 Cross-appeals were filed in this Court against the  decision of the Tribunal.  The company appealed against the order  of the  Tribunal rejecting its demand for the  introduction  of three shifts and workmen appealed against the order reducing the number of holidays. Held,  that  the  appellant be allowed  to  introduce  three shifts  in the factory.  The process of manufacture  of  the drug, P.A.S. was continuous and as- it took 20 hours,  three shifts  were  inevitable.  In order to improve  quality  and avoid rejection of a large percentage of the product, it was necessary  that  three  shifts must  be  introduced  in  the section dealing with it.  By introducing three shifts,  both quality  and quantity will improve.  Three shifts were  also allowed  for pharmaceutical section of the Department  which produced  ointment,  injections  and  other   pharmaceutical products.   As the Department dealing in  packing,  filling, washing, tablet and capsules has to keep pace with the other two   Departments,  three  shifts  were  allowed  for   that Department  also.   The objection of  the  respondents  that three  shifts would involve work at night and hence was  not desirable,   was  rejected.   Another  objection  that   the introduction of three shifts would involve the beginning  of the  work  at 7-20 a.m. which was an unduly early  hour  for work,  was also rejected.  That hour had been selected as  a starting hour having regard to the convenience of  transport available in the locality.  The Court however, rejected. the contention of the appellant that because the Standing Orders contemplated  the  adoption of more than one shift,  it  was entirely and absolutely in the discretion of the  management to  make  the  change without due  scrutiny  by  Industrial’ adjudication.  The Court also rejected the contention of the workmen that because the introduction of three shifts  would make  a  departure  from  the  pattern  prevailing  in   the pharmaceutical industry, the change could not be  permitted. The  question  must be considered in the light  of  relevant facts adduced before the Court.  In doing so, the importance and necessity of more production must be borne in mind. While  allowing the introduction of three shifts, the  Court was influenced by the existance of emergency in the country. As  the  whole economy of the country was being put  on  war basis,  industrial production must be geared up to meet  the requirements  of  nation.  Capital,  labour  and  industrial adjudication  must  be  sensitive  and  responsive  to   the paramount  requirement  of the community  faced  with  grave danger.   All  legitimate efforts made by  the  employer  to produce  more  and  move  of  the  goods  required  for  the community  must receive the cooperation of the employees  on reasonable terms.  629

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 625 &  626 of 1962. Appeals by special leave from the award dated June 9,  1962, of  the Industrial Tribunal, Maharashtra in  Reference  (IT) No.. 16 of 1962. M.   C. Setalvad, Attorney-General for India C. K. Daphtary, Solicitor--General of India J.     B.   Dadachanji,  O.   C. Mathur  and Narain, for the appellant (in C.A. No.  (625/62) and respondent No. (in C. A. No. (626/62).

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K.T. Sule, Madan G. Phadnis, and Sharma, for the  Respondent (in  C.A.  No.  (625/62) and the Appellant  (in  C.  A.  No. 626/62). 1962.  November 30.  The Judgment of the Court was delivered by GAJENDRAGADKAR,   J.-Two  items  of  dispute   between   the appellant  Pfizer  Private Ltd., and  the  respondents,  its employees, were referred for adjudication to the  Industrial Tribunal, Bombay, by the Government of Maharashtra under ss. 1() ((1) (d) and. 12 (5) of the Industrial Disputes Act 1947 on the 22nd of January, 1962.  Both these items arose out of the  proposed changes which the appellant wanted to make  in the  terms  of  employment  governing  the  service  of  the respondents.  The appellant proposed to reduce the  existing paid  holidays to 8 instead of 27 to which  the  respondents were entitled because so long, the appellant has been giving to its employees the benefit of public holidays as  declared under  the Negotiable Instruments Act.  This was  the  first item  of  dispute between the parties.  The second  item  of dispute  was in regard to re-fixation of the hours of  work. The  appellant desired to introduce three shifts in most  of its  departments  and accordingly it had given a  notice  of change under s. 9A of the Industrial 630 Disputes Act.  Both these proposed changes were resisted  by the respondents.  The Tribunal has rejected the  appellant’s case for the introduction of three shifts in its factory and this part of the award is challenged by the appellant by its appeal No. 625 of 1962.  In regard to the appellant’s  claim for   reducing   the  paid  holidays,   the   Tribunal   has substantially accepted the appellant’s case and has directed that,  the holidays should be reduced to 10 every year.  has directed,the appellant to fix these holidays in consultation with the respondents.  It has also added that in view of the fact  that  a substantial reduction was being  made  in  the number  of  paid  holidays, the appellant  should  give  the respondents  an  additional increment in  their  grade  with effect  from the 1st August, 1962.  This increment would  be in addition to the normal increment which may become due  or after the 1st August, 1962.  This part of the award reducing the  number of holidays is challenged by the respondents  by their  appeal No. 626 of 1962.  Both the appeals  have  been brought before this Court by special leave. The appellant is a Company incorporated under the the Indian Companies Act, 1913.  It has its registered office at Bombay and  it runs a factory in which it manufactures life  saving drugs,  such as antibiotics and anti-tubercular  drugs,  and vitamin  products.   The appellant’s factory was  working  a multiplicity  of shifts with different times.  It,  however, found that this working did not fully utilise the  machinery installed  in  the  factory.  The  utilisation  of  the  raw product  received by the appellant’s factory in Bombay  from its factory at Chandigarh was also not satisfactory and as a result of inadequate production, the appellant was riot able to  meet  adequately the demand for its  products  from  the market.   That is why the appellant came to  the  conclusion that  there was need to introduce three shifts in  order  to have extensive production of better  631 quality products.  The appellant felt that if it was able to produce  its  products on a much larger scale, it  would  be able  to undertake export of the said products, and  in  any event, larger production would enable the appellant to  meet its  competitors in the trade.  Besides, the preparation  of the  well-known anti-tubercular drug ’Para  Amino  Salicylic

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Acid’  (P.A.S.)  which the appellant had  developed  in  its research laboratory after carrying out laboratory and  pilot plant  experiments  in 1960-61, needed the  working  of  the relevant   section  on  a  three-shift  basis  because   its production  was  a continuous process and a  result  of  the investigation made by its expert, the appellant came to  the conclusion  that  the quality of the product would  be  very much  improved if the section working in the  production  of the  said  drug  was  to work  continuously.   That  was  an additional  reason why the appellant wanted to  introduce  3 shifts in its factory.  It thought that if the chemical  and pharmaceutical departments were to work in three shifts, the other  subsidiary sections would also have to work in  three shifts  in  order  to cope with the  production.   That,  in brief,  is  the  basis  on which  the  appellant  wanted  to introduce  three  shifts  in its factory; and  so,  it  gave notice   of  change  to  the  respondents,  and  after   the conciliation  efforts  failed,  it  moved  the   Maharashtra Government  to  refer  these  disputes  to  the   Industrial Tribunal for its adjudication. The  demand  for three shifts was stoutly  resisted  by  the respondents.   They urged, that for several years  past,  in the  appellant’s factory the respondents have  received  the benefit  of  5-days week and that has now become a  term  of their  employment : the introduction of three  shifts  would inevitably  convert the 5-days week into a 6-days week,  and that  would be a retrograde step highly prejudicial  to  the interests of the employees.  They conceded that in case  the needs of the factory required, they would be willing 632 to  work  on two Saturdays every month, provided  they  were paid  proper  over-time  wages  for that  work  ;  but  they disputed  the  appellant’s claim that there was a  case  for introducing such a drastic change as three shifts.  Besides, the respondents contended that the inevitable consequence of the  three shifts would be addition to the work-load of  the respondents,  and  according to them, the proposal  made  by the, appellant in that behalf was a complete departure  from the pattern prevailing in the pharmaceutical industry in the region.  The respondents also disputed the appellant’s claim that  the  production of P.A.S. was  a  continuous  process. They   were,  however,  prepared  to  agree  that  all   the manufacturing  departments  should be run  on  a  two-shifts basis,  avoiding  the third shift altogether  with  suitable adjustments in time. The  Tribunal considered the documentary and  oral  evidence adduced  by  the  parties  before it  in  support  of  their respective  contentions and held that the appellant had  not made  out a case for the introduction of three  shifts.   It found  that the effect of the documentary evidence  produced was  to  show that the pharmaceutical factories  in  Greater Bombay worked one, and in some cases, two shifts, though  in a  few  cases, there were three shifts only in  the  section manufacturing chemicals and not pharmaceuticals.  It  agreed that the departments like Watch & Ward and maintenance were, in  some  companies, working three shifts, but that  was  so even  in  the appellant’s factory.  The Tribunal  also  held that  the  working arrangement which would result  from  the introduction of three shifts would not only be  inconvenient to  the  bulk  of  the  employees,  but  would  involve  the abolition of the 5-days week system, an it thought that,  on principle,  compelling the employees to work at night  would be prejudicial to their interests and may not even help  the production  of  better quality product.  In  regard  to  the appellant’s

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633 claim  that the production of P.A. S. involved a  continuous process, the Tribunal observed that the evidence produced by the  appellant  did not show that in the  present  state  of manufacture by it of P. A. S. it would be convenient to have three  shifts so that the product can be produced  according to specifications without too many rejections.  In fact, the Tribunal was not satisfied that the production of this  drug required continuous working in 3 shifts.  On these findings, the   Tribunal  rejected  the  appellant’s  case   for   the introduction  of  3 shifts.  In rejecting  this  claim,  the Tribunal  observed that in order to give some relief to  the appellant and to enable it to produce its product in  larger quantity,  it was reducing the number of holidays; and  that being  so,  there  was hardly any case  for  increasing  the working hours. It,  however,  appears that while the  dispute  was  pending before  the Tribunal, an interim arrangement was allowed  by it  in  regard  to three shifts in  the  P.A.S.  department. Under  this  arrangement, the appellant  was  authorised  to introduce a third shift in that department and rotate up  to two  employees now engaged in the other shifts in the  night shift.   In  its award the Tribunal has  ordered  that  this interim  arrangement  should continue for a year  after  the award  becomes  enforceable  and then the  question  may  be considered.   It has also ordered that the two  workers  who will work in the night shift by rotation should be paid @ 10 % over their basic wages and dearness allowance for the days on which they are required to work in the third shift. Then as to the holidays, the Tribunal took the view that the number  of  holidays under the  Negotiable  Instruments  Act which  the  appellant  was allowing  to  its  employees  was unreasonably  high.  It compared holidays allowed  by  other concerns  and came to the conclusion that 10 days’  holidays in a 634 year  would  be  reasonable and just.  In  the  result,  the appellant’s claim for reduction of holidays succeeded, while its claim in regard to the introduction of 3 shifts failed. Before  dealing  with the points raised by  the  parties  in these  appeals,  it  would be  convenient  to  indicate  the present working arrangements in the factory of the appellant and  the  changes  which would be  introduced  in  the  said working  arrangements  if  three shifts  are  allowed.   The factory  of the appellant employs 821. workmen, 235 of  whom are  girl employees; and since s. 66(1)(b) of the  Factories Act prohibits the employment of women in any factory, except between the hours of 6 A.M. and 7 P.M., the problem posed by the proposal to introduce three shifts involves the rotation in  the 3 shifts only of male workmen and that is  a  factor which  has to be borne in mind in dealing with  the  present dispute. The  statement filed by the appellant (Exb.C-1)  shows  that there are four departments in the appellant’s factory.   The first  department  which Works 6-day week on a  three  shift basis  deals  with P.A.S. Watch and  Ward,  Maintenance  and Hydrazine.   Each  of  the three shifts  is  spread  over  8 hours,,  there is a lunch break for half an hour  and  there are  two tea breaks of ten minutes each.  These  breaks  are common  in all the departments of the factory.   The  actual working  time in the first department is 7 hrs. 10 mts.  per day  which  means  43 hrs. per week.  The  total  number  of employees  in this department is 125.  The P. A. S.  section of  this department, for instance, works in 3 shifts:  0700- 1500,  1500-2300,  2300-0700,  and in these  3  shifts,  the

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number of workmen employed is 10, 8 and 2 respectively. The second department works 5 days in a week on a one  shift basis.  The actual working time in  635 this department is 8.25 hrs. per day which means 42.5  hrs. per week.  This department is concerned with the  production of  ointment, mixing injection, orals, INA,  INAH,  protinex and  protin Hydrolisate.  The last two departments  of  this department  work  5  days in a week.  The  total  number  of employees in this department is 75 out of whom 18 are  girls and 57 are boys. The  third  department which works 5 days in a week on  a  2 shift basis, deals with packing ’filling washing, tablet and capsules.   The actual working, time in this  department  is 8.25  hrs.  per day which totals up to 42.5 hrs.  per  week. The  two  shifts are between 0800-1715 and  2145-0700.   The total  number  of employees in this department  in  the  day shift  is 339, out of whom 134 are boys and 205  are  girls, whereas the total number of employees in the night shift  is 1 1 7 boys. The  fourth department which works 5 days in a week  on  one shift  basis  consists of research  &  development,  quality control,  factory office, stores and despatch  godown.   Its actual  working time is 8.25 hrs. per day which means  42.05 hrs.  per  week.   The total number  of  employees  in  this department is 165., 14 of whom are girls and 151 are boys. Now,  as  a  result of’ the 3  shifts  which  the  appellant proposes  to introduce by its notice of change, there  would be substantial change in the working arrangements in  Groups II &, III.  There would be no change in shift working  hours or work spread over in the first department.  It may be that the  number of its employees may increase.  After  3  shifts are  introduced,  the second & third  departments  would  be combined for the purpose of rotating the male workmen in the night  shift.   The timings for the three shifts  which  are proposed for these two departments combined are 7.20 A.M. to 636 3.20P.M.,  3.20 P. M. to 11.20 P.M. and 11.20 P.M. to  7.20 A.M.  The  break for lunch and the break for two  teas  will continue.   The result of the introduction of the  3  shifts would be,, the working hours will increase by 1-1/4, the net increase  in the working timings being 55 minutes per  week. As  soon  as  the 3 shifts  are  introduced,  the  appellant expects that those working in the existing first shift would be  placed  in  the new first shift  and  those  working  at present  on  the night shift will be placed  on  the  second shift.  The appellant proposes to increase the number of its employees  in  the  second shift which it could  not  do  at present  because of difficulties in rotation.  In the  night shift  about 30 to 50 employees would be engaged  and  night shift  work would be rotated among the male  employees  with greater   frequency.   This,  of  course,  will   mean   the employment  of  some additional hands  which  the  appellant proposes  to  do.  In regard to the fourth  department,  the present timings of 8.00 A.M. to 5.15 P. M. would be  changed to  9.00  A.M.  to 5.00 P.M. 6 days per  week.   This  would result in increase in working hours by If, the net  increase in  working  timings being 55 mts. per week.   That  is  the nature of the working arrangements which would evolve on the introduction  of  the  3 shift  system  in  the  appellant’s factory.   The  week will cease to be 5-day  week  but  will become 6-day week, and the working hours will increase by 1- 1/4,  the net increase in working timings being 55 mts.  per week. In  dealing  with the merits of the dispute in  the  present

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appeals, it is essential to bear in mind that in the face of the  present  national  emergency,  the  complexion  of  the problem  has completely changed.  The whole economy  of  the country  is  now being put on a war  basis  and  inevitably, industrial production must be geared up to meet the require- ments of the nation.  There can be no doubt that at present, capital, labour and industrial adjudication  637 alike  must be sensitive, and responsive, to  the  paramount requirement  of  the community which is faced with  a  grave danger, and so, all legitimate efforts made by the  employer to  produce  more  and more of the goods  required  for  the community  must receive the cooperation of the  employees-of course,  on  reasonable terms.  Both the  learned  Attorney- General  and  Mr. Sule conceded that at the time  when  this Court  is dealing with the problem raised by these  appeals, it  would be necessary to decide the issues in the light  of the  peremptory and paramount requirement of the  Nation  at this  hour.  There can be little doubt that if the  Tribunal had  been dealing with the present dispute at this time,  it would have adopted an entirely different approach. The main argument on which Mr. Sule has relied and which has found  favour with the Tribunal is based on the  pattern  of industrial  employment  in pharmaceutical  industry  in  the region of Bombay.  We would, therefore, very briefly,  refer to  this pattern.  It is well-known that under s. 51 of  the Factories Act, no adult worker shall be required or  allowed to work in a factory for more than 48 hours in any week, and under s. 59, where a worker works in a factory for more than 9 hours in any day or for more than 48 hours in any week, he shall  be entitled to overtime payment as prescribed by  the said section.  Mr. Sule made a grievance of the fact that by introducing  3 shifts, the appellant would be  substantially denying  the  respondents the overtime wages to  which  they would  be  entitled  if they were called  upon  to  work  on Saturdays  under the present arrangements.   This  grievance is,  however, not well-founded because it appears  from  the record that the appellant was willing to pay for night  work and was prepared to consider extra payment for third  shift, but the respondents were not agreeable to consider that pro- posal because they were, on principle, opposed to 638 the  introduction  of  three shifts.   Indeed,  the  learned Attorney-General has stated before us that in case we  allow the  appellant to introduce three shifts, the  appellant  is willing to go before the Tribunal and obtain its decision on the  question as to the additional payment which  should  be made to the employees consequent upon the introduction of  3 shifts.  Therefore, the grievance that the respondents would be  wholly denied the overtime wages to which they would  be entitled  under the present arrangements loses much  of  its validity.  We have already noticed that the maximum  working hours  under  the  present  system in  the  factory  of  the appellant  is 43 per week and it ranges between 42.05 to  43 hrs.  and  in no case, can the working  hours  be  increased beyond  48.  In fact, as we have already set out,  according to  the plan which the appellant wants to  introduce,  there would  be an additional load of 1-1/4 working hour, the  net additional  working load being of the order of 55  mts.  per week.   In  considering the question about  the  pattern  of working  arrangements in the pharmaceutical industry in  the region, these facts cannot be ignored. The  statement (Ext.  C-10) filed by the appellant  to  show that  in  certain pharmaceutical concerns three  shifts  are working,  refers  to 15 industries.   The  respondents  made

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comments  on the said statement and challenged some  of  the assumptions made by the appellant in that behalf.  Mr.  Sule has  placed before us a typed statement showing  the  actual position in respect of these 15 factories.  It appears  that in   most  of  these  factories,  security  and  maintenance departments work three shifts.  In Sandoz India Ltd.,Thana, the  pharma  plant works 3 shifts.  Similarly,  in  Raptakos Brott & Co. Pvt.  Ltd.., the Dextrone Maltose section  works 3  shifts.  In Merck Sharp & Dohme of India  Ltd.,  Chemical manufacturing process goes on under 3 shifts.  Similarly, in  639 Parke  Davis  India Ltd., Chemical  Product  Operators  work &,shifts  besides boiler serang, watchmen and  electricians. Sarabhai Chemicals, Baroda, have, some departments working 3 shifts.   Alembic, Baroda, have some departments working   3 shifts.  Hindusthan Anti-biotic Poona have some  departments working  3 shifts.  Glaxo, Thana works 3  shifts.   Lederlo, Bulsar, works 3shifts.  It is true that the Tribunal was not prepared  to consider any concerns situated outside  Greater Bombay,  but in dealing with the larger issue as to  whether it  would be permissible to introduce 3 shifts at  least  in respect  of  the  chemical sections  of  the  Pharmaceutical industry,  the Tribunal should not have adopted  this  rigid attitude.   Therefore, on the material placed before us,  it is  clear that the chemical sections of  the  pharmaceutical factories  do,  work 3 shifts and this would have  a  direct bearing  on  the appellant’s case in regard  to  the  P.A.S. section  of  its  factory.   Besides,  as  we  have  already observed, in dealing with the question about 3 shifts  which would inevitably lead to more production, the background  of the imperative necessity of today cannot at all be ignored. Let  us  then  consider whether the Tribunal  was  right  in holding  that  the production of P.A.S. does not  involve  a continuous  process.  On this point, the appellant  led  the evidence  of  Dr.  Joshi  who  is  M.Sc.  Ph.D.  in  Organic Chemistry   of  the  Bombay  University.   He   joined   the appellant’s  service as a Research Chemist in 1957  and  has been placed in charge of the appellant’s Research Laboratory since 1956.  In his affidavit he stated that the P.A.S.  was put on commercial production basis in January, 1962, and  be found by experience that out of the total January production of 2770 Kg. as much as 1795. g., i.e. 65%, was rejected.  by the  Quality Control Laboratory.  The rejection  was  mainly due  to higher M.A.P. ’ (Meta Amino Phenol)  content.   This large percentage of rejection raised a problem for the 640 appellant,  and  so, Dr. Joshi, was deputed  to  investigate into  the  cause of bad quality of P.A.S.  Having  conducted several  test runs in the laboratory, Dr. joshi came to  the conclusion  that the M.A.P. content could be lowered  within tolerable  limits to pass U.S.P. XVI specifications only  if the  operations  after  the  purification  stage  were  made continuous  and carried out in shortest possible time.   Dr. joshi  stated that he confirmed his conclusion  by  actually implementing his findings on the main plant itself. According  to  Dr.  joshi,  the  operation  leading  to  the production of P.A.S. consists of eleven items.  The 6th item is  purification.  After the purification process  is  over, begins precipitation which takes one hour; it is followed by centrifuging  & washing, digging of centrifuge  which  takes 6.30 hrs.  Then follows wet milling which accounts for  1.30 hrs.   That  brings in vacuum dryer including  charging  and discharging  and this lengthy process takes 9 hrs.; and  the last process is dry milling and packing which means 2 hours. Dr. Joshi is of the opinion that the six processes beginning

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with precipitation must be treated continuously in order  to improve the quality of P.A.S. and since they take 20  hours, three shifts are inevitable. Dr.   Joshi   was  cross-examined  by  Mr.  Sule   for   the respondents,  and  Mr.  Sule very  strongly  relied  on  Dr. Joshi’s statement that if acquaeous solutions of P.A.S.  arc kept   below   30   degrees   centigrade,   it   will   stop deterioration.   We  do  not  see  how  this  statement  can materially affect the main point made by Mr. Joshi that  the relevant processes beginning with precipitation which  takes 20 hours must be continuously attended to.  It is true  that the   respondents  attempted  to  contradict   Dr.   joshi’s Statement by examining Mr. Pillai who was working in the  P. A.  S.  department  under Mr. Moeller.  But  Mr.  Pillai  is obviously not a technical man and it  641 would  be futile to suggest that the statements made by  him should be preferred to those made by Dr. joshi.  Besides, it is significant that when he was cross-examined, he virtually conceded  that  the six important processes  would  take  at least  18-1/2 hours and that itself would make it  necessary to introduce three shifts.  In this connection, we ought  to add  that the statements made by Dr. Joshi in regard to  the time occupied by each process are supported by the contempo- raneous record kept by the laboratory workers.  This  record was produced by Dr. joshi and it was shown to Mr. Pillai who virtually refused to look at it.  Therefore, in our opinion, the  Tribunal  was in error in holding  that  Dr.,’  Joshi’s evidence  did  not establish the appellant’s case  that  the process  of producing P.A.S. is a continuous process and  in order  to  improve its quality and to avoid rejection  of  a large  percentage of the product it is necessary that  three shifts  must be introduced in the section dealing  with  it. In  fact,  the finding made by the Tribunal in  this  behalf shows  that the Tribunal did not really  consider  seriously the value of Dr. joshi’s evidence and was prepared to accept Mr.  Pillai’s  statements though they are  plainly  partisan statements made by a person without any technical knowledge. Therefore, there can be no doubt Whatever that the appellant is  entitled  to start 3 shifts in the  P.A.S.  section  and produce P.A.S. in larger quantities and of a better quality. That  takes  up  to the question as  to  whether  the  other departments in the factory should also be allowed to work  3 shifts.   Now the pharmaceutical section of  the  department which    produces    ointments,   injections    and    other pharmaceutical  products is at present working on a 1  shift basis.   But the evidence given by Mr. Treharne, who is  the Director of the appellant Coy., makes out a strong case  for working this department in 3 shifts.  He has stated that the appellant  has  a  factory  at  Chandigarh,  and  the  total production of that factory is available for processing 643 would  be  assisted  if the subsidiary  department  is  also allowed  to  work 3 shifts.  Therefore, we are  inclined  to take the view that the claim of the appellant to introduce 3 shifts cannot today, be rejected. There are, however, some other considerations which have  to be  taken into account before we reach a final  decision  in the  matter.  Mr. Sule has strenuously urged that the  5-day week  and  rest  at  night  which  are  guaranteed  to   the respondents under the present service conditions  prevailing in   the  appellant’s  factory,  are  benefits   which   the respondents  value very much, and he contends that it  would be a retrograde step to allow the appellant to make it 6-day week and to compel some of the respondents to work at night.

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There can be no doubt that industrial employees are entitled to  look forward to a 5-day week and work only by day.   Two days’  rest at the end of every week would  afford  adequate opportunities to the employees to take part in cultural  and recreational  activities and would tend to make  their  work for  the remaining 5-days more satisfactory  and  efficient. Similarly, working at night may, on theoratical grounds, not be  desirable.   But these are goals which  may  be  reached after  we attain an adequately high ’level in  our  national economy  and  industrial  development.  In  the  context  of today, it would be unreasonable to approach this problem  in a purely doctrinaire spirit.  If, today, an employer desires to  produce more goods which would meet-the requirements  of the  community and is prepared to compensate  the  employees for the additional work involved in the process,  industrial adjudication  would be reluctant to discourage the  employer and would assist, both capital and labour to devise ways  to cooperate with each other and produce more.  Therefore,  the academic  arguments urged by Mr. Sule cannot be  treated  as effective for the purpose of deciding the present appeals. 645 equipment before obsolescence of product or of fcilities; national emergency, as the urgent needs of war;   a    force not yet. actual but emerging, the belief that     the social burden of labour can be alleviated by continuous utilisation of equipment accompanied by a distribution of the  attendant labour  among workers organised in shifts.  The  authors  no doubt  recognised that the assumption created by  industrial and social customs is that the group working during the day- light  hours  is  the normal one and  that  the  others  are abnormal.   A  better intelligence and still in  labour  and supervision   gravitate  towards  the  day  shift  and   are accompanied by a better emotional attitude towards goals and methods.   Furthermore, studies of night work indicate  that usually a worker produces less in a night than a day  shift, although  it  is not yet clear whether this  is  because  of inherent physiological and psychological factors, or because the worker who labours at night yields to the temptation  of activities  during  the day which preclude the  securing  of normal rest.  It is then stated that the principal method of achieving   equivalence   of  shifts  is   by   establishing conditions  of night work fully equivalent to those  of  day work and by such a thoroughgoing establishment of  standards of   skill,  materials,  facilities,   processes,   methods, qualities   and  quantities  as  to   permit   measurements, specifications and comparisons of performance.   Considering the  question  ’as to the direction in  which  the  progress would  be  made  in this matter, the writers  say  that  the direction of progress is not entirely clear.  It is probable that  night work will decrease in those industries in  which it  is not compelled by inherent technical  conditions,  for recognition   of  a  problem  of  economic   balance   among industries as well as of the relatively lesser  productivity of   night  work  is  causing  the  economic  advantage   of continuous  operating to be questioned.  On the other  hand, it is conceivable that industry may discover how to organise night  work  more  effectively  and  eliminate  factors  now unfavourable to workers 646 and  management,  and  society may decide  that  the  social disutility of such work is less than the social advantage of shorter  and shorter work periods made possible  by  working machinery  continuously  with the application of  labour  in short time shifts. We  do not propose to express any definite opinion  on  this

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theoretica  controversy.   As  this,  Court  has  repeatedly observed, in dealing with industrial adjudication, it  would be undesirable to reach conclusions purely on doctrinaire or theoretical  considerations.   Besides, as we  have  already emphasised,   the   adoption  of  such  a   theoretical   or doctrinaire approach has, in the context of today, lost some of  its validity.  Therefore, we do not think  the  Tribunal was  right in coming to the conclusion that the  appellant’s claim for the introduction of 3 shifts should be rejected on the ground that it would involve the respondents working  at night. Incidentally,  we may add that from the record,  it  appears that  the appellant is an enlightened employer and that  the terms  and  conditions  of  service offered  by  it  to  the respondents  are, on the whole, very fair.  It also  appears that  in the factory itself, the appellant makes efforts  to create conditions which would be conducive to the  efficient working  of  the  respondents.   Miss  Kolpe  who  has  been examined   by  the  respondents  has  stated  that   aseptic conditions are maintained in sterile areas and the room  has to  be kept in sterile condition.  The workmen  assigned  to the  job  spray the rooms with certain chemicals.   They  do swabbing of machines, walls, windows, and some other workmen have  to apply denatured spirit to machine parts before  the said machines are used.  Cleaning of the cabinet and machine parts has also to be done.  It is true that a grievance  was made on behalf of the respondents that there are no  exhaust fans working in the night shift and  647 that  as  a result, body itch may be caused  if  M.A.P.  and potassium carbonate are handled barehanded.  The appellant’s explanation  was that the workers are given and  gloves  and when  complaints  were  made about body  itch,  the  medical survey  pointed out that they were not justified.  We  trust that  when the appellant starts 3 shifts, it will  take  all reasonable  precautions to make the conditions of  work  for the  respondents  healthy  and conducive  to  the  efficient discharge of their duties. There  is  one more minor point which still  remains  to  be considered.   It was urged before the Tribunal on behalf  of the respondents that the timetable of factory working  hours which  the  appellant proposes to introduce  after  bringing into  force the three-shift system, would begin at  7.20  in the  morning and,that would cause inconvenience to the  girl employees,  and in support of this plea, two girl  employees were  examined.  Miss Desai stated that she stays  at  Thana and if she had to join duty at 7.20 A. M., she would have to start  earlier  than 5 A. M. from her house.   According  to her, there is another girl employee of the factory who stays at  Thana, Miss Rodriguies, who also supported the  plea  of inconvenience, stated that if the work were to begin at 7.20 A.M.,  she would not be able to get sleep because after  she returns  home, she has to do tuitions in order to  help  her family.,  and  that  means  she  cannot  go  to  bed  before midnight.   Evidence  was  also  led to  show  that  in  the locality  where the factory is situated,. if the girls  were to  go  early in the morning, they stood the risk  of  being molested  by bad characters.  We are not impressed  by  this evidence.  In considering the  plea of inconvenience  raised by  the  respondents, it would be reasonable  to  rely  upon stray cases of girl employees who stay away from Bombay,  as far  instance,  at  Thana  or  whose  unfortunate   economic condition compels them to work after factory hours.  On  the whole, 648

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it  can be stated without any hesitation that 7.20  A.M.  is not an unduly early hour for work in Bombay.  Besides, it is relevant  to  remember that this hour has been  taken  as  a starting hour having regard to the convenience of  transport available in the locality.  The Factory Manager, Mr.  Pillai whom the appellant examined, has stated that ’he prepared  a summary  of  the  bus. and train timings  and  came  to  the conclusion  that  7.20 A.M. would be convenient to  all  the workmen.    Therefore  we  do  not  think  the   ground   of inconvenience on which the Tribunal has relied in  rejecting the appellant’s case for 3 shifts, can be sustained. In  this connection, we may incidentally refer to  the  fact that  the Standing Order 10 (1) (a) of the  Standing  Orders framed by the appellant clearly provides that more than  one shift  may  be worked in any department or a  section  of  a department  at  the discretion of the Manager; and  it  adds that   in  such  cases,  workmen  shall  be  liable  to   be transferred  from  one shift to another’ There is  no  doubt that  the  Standing  Orders  sanctioned  by  the  Industrial Employment  (Standing  Orders)  Act 1946 (No.  20  of  1946) constitute statutory terms and conditions of service between the  employer and his employees, and so, it is open  to  the appellant to suggest that when the respondents took up their employment with it, they knew that more shifts than one  can be started by the management in its discretion.  It is quite true  that  though the relevant Standing Order  enables  the appellant to introduce more shift than one, if a dispute  is raised  by the employees in that behalf and is referred  for industrial adjudication, the Industrial Tribunal may have to consider  the  reasonableness of the change proposed  to  be made  by  the management,.  It is  obvious  that  additional shifts  may result in additional work load being imposed  on the employees, and in that sense, may constitute a change in the  conditions of service.  Therefore, it would be open  to the Industrial Tribunal  649 to examine the reasonableness- of the change proposed to  be made.   But in dealing with this question, it would  not  be irrelevant to bear in mind the fact that more than one shift was contemplated by the Standing Order.  In this connection, we  would not be prepared to uphold the extreme stand  taken by  both  the  parties.  We cannot  hold  that  because  the Standing  Order contemplates the adoption of more  than  one shift,  it is entirely and absolutely in the  discretion  of the  management to make the change without due  scrutiny  by industrial adjudication, and so, the extreme stand taken  by the appellant cannot be upheld; similarly, we cannot  accept the  contention  that because the introduction of  3  shifts would  mark a departure from the pattern prevailing  in  the pharmaceutical  industry,  the change cannot  be  permitted. After  all, the question must be considered in the light  of relevant  facts adduced before the Court, and in  doing  so, the importance and the necessity for more production must be borne  in  mind.   We  are  therefore,  satisfied  that  the Tribunal was in error in rejecting the appellant’s case  for the introduction of 3 shifts. As  we  have already pointed out, the appellant  was  always willing  to  consider  the  question  of  paying  additional amounts  to  the respondents either by way  of  increase  in wages or by way of compensation in consequence of the change proposed to be made in the working structure of the factory. In  fact, we were told that though the Tribunal has  ordered that the appellant should pay to the night workers 10%  over their  basic  wages and dearness allowance for the  days  on which  they  are required to work in the  third  shift,  the

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appellant  is  paying 12% and it is similarly paying  8%  to those who work in the second shift.  Therefore, it cannot be said  that  the appellant was not prepared to submit  to  an order  in  regard to the additional adequate  payment  which should  be  made  to  the  employees  consequent  upon   the introduction 650 of the third shift.  Since this matter cannot be decided  by us in appeal, we direct that the case should be sent back to the Tribunal which dealt with this dispute for its  decision on this question.  The Tribunal should allow the parties to, lead evidence if they so desire, should hear them and should decide  what  additional  payment  should  be  made  to  the employees either by way of increase in the wages or, by  way of  compensation, or otherwise in consequence of the  change in the working time table of the factory resulting from  the introduction  of the third shift The 3shifts will come  into operation  after this issue has been finally decided by  the Tribunal.  Until then, the interim arrangement sanctioned by the  award will continue.  We trust the Tribunal  will  deal with the issue remitted to it as expeditiously as possible. That takes us to the appeal preferred by the respondents  in respect of the reduction of holidays made by the award.   We have already seen that the appellant gives to its  employees all  the  public holidays under the  Negotiable  Instruments Act.   In  the  relevant year, the  number  of  such  public holidays  was 27.  The Tribunal has taken the view that  the number of public holidays thus allowed is unreasonably  high and has ordered that they should be reduced to 10.  Mr. Sule for the respondents contends that there is no  justification for  this  reduction.   He urges  that  the  employees  have enjoyed this benefit as their term of service condition  and no case has been made out for the reduction in that  behalf. He has also relied on the fact that the Tribunal reduced the number of holidays substantially because he was not prepared to  allow the appellant’s case for the introduction  of  the 3rd shift or for the addition in working hours and he argues that  if we allow the introduction of the 3rd  shift,  there would  be no justification for confirming the award made  by the Tribunal in respect of holidays.  There is some 651 force  in  this  latter contention.  It  is  true  that  the Tribunal made a drastic reduction in the number of  holidays partly because he refused the appellant permission to add to the working hours. In  dealing  with the question of paid holidays, it  may  be relevant  to remember that the holidays declared  under  the Negotiable   Instruments  Act  are  usually  applicable   to Government institutions only and they have certain financial and statutory implications envisaged by the Act itself.  The commercial     establishments  and factories do not  usually adoptthese holidays and so, it would not be  reasonable toinsist that the appellant is bound to grant holidays as sanctioned  by the Negotiable Instruments Act.  Besides’  it is  now  generally accepted that there are too  many  public holidays  in  our  country  and  that  when  the  need   for industrial  production is. urgent and paramount, it  may  be advisable   to  reduce  the  number  of  such  holidays   in industrial  concerns.  In dealing with the present  appeals, the need for more production which has weighed in our  minds in considering the question of 3 shifts, cannot be  ignored. It  is  true that the Maharashtra Government seems  to  have adopted  a  very  liberal policy in  the  matter  of  public holidays.   In 1961, for instance, the said  Government  had declared 28 public holidays out of which 3 happened to  fall

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on Sundays.  It may be noticed that other State  Governments have  shown a tendency to reduce these holidays.  U.P.,  for instance,  had  18 public holidays, Andhra Pradesh  had  17, Mysore  15 and Madras 14 in 1961.  According to the  Govern- ment  of India, the number of public holidays  is  generally limited  to 16.  It is obvious that this question  does  not admit of a categorical answer one way or the other.  It  has to  be  decide on an ad hoc basis, bearing in mind  all  the relevant facts.  Having considered all the relevant facts in the  present case, we are disposed to think that the  number of public 52 holidays   which  are  granted  by  the  appellant  to   the respondents  should be reduced from those  sanctioned  under the Negotiable Instruments Act to 16 every year. The result is, both the appeals are allowed.  Appeal No. 625 of  1962 succeeds and the change proposed to be made by  the appellant according to the notice of change served by it  on the  respondents  is  allowed to be  made,  subject  to  the decision  of  the Tribunal on the question remitted  to  it. Appeal No.626 of 1962 is also substantially allowed and  the number  of paid holidays in a year is raised from 10 to  16. in  the circumstances of this case, there would be no  order as to costs. Appeals allowed.