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 DuaJ
The following dispute between Ms
Bijli Cotton Mills P Ltd and their workmen was referred to the Industrial Tribunal 11 UP 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 UP Industrial Establishments National Holidays Act UP 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 underr 12 of the UP 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 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 section 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 exhibit E 1 and exhibit 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 OP 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 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 ie 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 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 ie 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 exhibit 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 article 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 article 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
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 161968 the petitioner having been held to
quote the words of the High Court entitled to a certificate
either under cl
a or b of article 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 20000  alternatively it is certified that the judgment of this Court involves directly or indirectly a claim res pecting wages amounting to more than Rs 20000 
 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 article 1331a and b of the Constitution and it was pointed out that the High Court missed that part of sub article
1331 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 20000  the respondent contended it does not by itself justify the grant of a certificate under cl
a or cl
In the application for the requisite certificate the prayer included cl
c of article 1331 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 vs Syed Tahir Hussain  ors1 There the appellant had come to this Court on a certificate purporting to have been granted under article 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 Ltd2 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 CA No 578 of 1963 decided on July 231965
2 1964 1 SCR 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 Civil Miscellaneous Petition No 1319 of 1972 with a supporting affidavit praying for i condonation of delay ii treating court fee paid on CA 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 CA 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 CA 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 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 article 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
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 UP the UP Industrial Establishments National Holidays Act No XVIII of 1961 and rules made under section 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 149600 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 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


Summary:
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 UP 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 br 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 ofthe 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 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 article 1331 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 UP 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 vs Syed Tahir Hussain  ors CA No 57 8 of 1963 decided oh July 23 1965 Shiri Durga Prasad  Anr
vs The Banaras Bank Ltd 1964 1 SCR475preferred to