Case: Bhiwani Textile Mills Vs. Their Workmen and Others

Bhargava, J. 1. This appeal, by special leave, has been filed by Bhiwani Textile Mills (hereinafter referred to as the mills) against their workmen challenging the award of an industrial tribunal to which the following two items of dispute were referred :"(1) Whether Sunday holiday working should be allowed in the mills ? If so, what compensation/increase in wages the workmen are entitled to ? (2) Whether forcibly giving substitute leave to workmen on week days in place of Sundays is in order ? If not, what reliefs are the workmen concerned entitled to ?" 2. The circumstances under which this reference came to be made by the State Government are that the mills started functioning at least before the year 1956 and, from its inception, the mills used to observe every Sunday as the weekly offday for all the workmen, except some workmen connected will jobs pertaining to essential services. According to the workmen, in the month of August 1964, the mills decided to work on Sundays also. Prior to that, in February 1964, the management had asked some ten or twelve workmen to report for duty on Sunday even without giving any notice to them of this change of weekly holidays and without pasting any notice on the notice-board of the mills. The workmen disputed the right of the management to call them for work on Sunday. The dispute went on and in August 1964, the management adopted the general practice of working the mills on every Sunday, as a consequence of which only one-seventh of the workmen were allowed Sunday as weekly offday. The remaining six-seventh of the workmen were similarly allowed offday between Monday and Saturday, having been divided into six batches of one-seventh each. The workmen put forward the case that this amounted to a change in the conditions of their service under which they were entitled to have a common holiday on Sunday every week. This change was brought about without complying with the requirements of either S.52 of the Factories Act or S.9A of the Industrial Disputes Act. The workmen resented their being asked to work on Sunday and, in lieu, one-sixth of their number being allowed an offday on each day of the week. Consequently, the Government, on 17 November 1964, referred the two questions reproduced above for decision by the industrial tribunal of Punjab at Chandigrah. The tribunal held that the case of the workmen that the mills had started working on Sundays and had, thus, charged the conditions of service of the workmen without complying with the requirements of S.52 of the Factories Act and S.9A of the Industrial Disputes Act which the mills were not entitled to do, was well-founded. However, in view of the emergency that had been declared in the country in the year 1962 and which was still in force, the tribunal held that increase in production was a pressing need of the country and, consequently, there was justification for permitting the mills to work on Sundays, even though this amounted to charge in conditions of service of the workmen. It further held that giving of a substitute leave to workmen on week days in place of a common holiday on Sunday was not sufficient compensation and, consequently, directed that those workmen who worked on Sundays were to be entitled to wages for those Sundays at an enhanced rate of 20 per cent over and above their consolidated wages. This is the decision of the tribunal which has been challenged in this appeal by the mills.Before the tribunal, the workmen had first contended that Sundays should not be working days at all. That contention was negatived by the tribunal on the ground of national emergency and, consequently, the tribunal added a sentence at the end of the award making it clear that :"When the emergency ends, the workmen will be entitled to raise their present demand afresh and the said demand, if so raised, will then be decided on its own merits." 3. The workmen did not file any appeal, so that the direction made by the tribunal that the mills can work on every Sunday is no longer in dispute in this appeal before us. On behalf of the mills, it was urged that the tribunal was wrong in adding at the end of the award the sentence which envisages the right of the workmen to raise the demand afresh after the end of the emergency. It appears to us that the only effect, if any, at all, of this part of the award by the tribunal can be that the workmen may claim that they are entitled to raise the demand afresh without terminating the award in accordance with S.19(6) of the Industrial Disputes Act; otherwise, there does not appear to be any effect on the rights of the parties of this direction made by the tribunal. Sri G. B. Pai, on behalf of the mills, and Sri M. S. K. Sastri and Y. Kumar for the two unions representing the workmen, stated before us that the parties are agreed that this direction given in the award may be deleted as no party objects to its deletion. Consequently, we need not go into the question whether the tribunal was in law competent to make such a direction in the award or not. We set aside this direction by consent of parties. 4. In view of this agreement between the parties, the only question that remains for decision by us in whether the tribunal was right in directing that workmen, who do duty on any Sunday, will be entitled to an extra payment of 20 per cent of their consolidated wages for that Sunday. This direction was made by the tribunal on its view that the workmen who had never previously been called to work on Sundays and were not likely to be deprived of some amenities of social gatherings and union meetings, etc., did deserve some compensation. The tribunal also took into account the fact that, at the time when the management started making efforts to work the mills on Sundays, there was a meeting between the representatives of workmen and the general manager, and the general manager was then willing to allow some compensation to the workmen who are called upon to work on Sundays, though the proposal did not finally mature. It appears to us that, in giving this decision, the tribunal did not follow the principles that should have been applied when deciding such a dispute. Payment of extra amount for work on Sundays affects wages payable to the workmen, and the question of wages, as has been laid down by this Court in a number of cases, must always be decided on the basis of the capacity of the industry to pay and on practice prevailing in the industry in the region. The tribunal has completely ignored both these factors. The mills, in fact, gave evidence to show that, in almost all other similar mills in the region, the practice prevails of working on Sundays, of asking the workmen to do duty for that purpose and of making no additional payment for doing that work. Our attention was drawn to a mill statement compiled and published by the Millowners Association, Bombay, containing names and addresses of all cotton spinning and weaving mills in India, It shows that there were six mills in Punjab., including the appellant-mills. Witnesses were examined on behalf of the mills to show that, in at least four of the mills work is carried on on Sundays and no extra payment is made to the workmen called on duty on those days. These four mills are : Hissar Textile Mills, Jagatjit Cotton Textile Mills, Ltd., Sri Bhawani Cotton Mills, Ltd., Abohar, and Technological Institute of Textiles. Another organization about which evidence has been produced, is East Indian Cotton Manufacturing Company, Faridabad, which does not appear to be included in the statement issued by the millowners association. On behalf of the workmen, the case of these mills was sought to be distinguished on the ground that, in the appellant-mills, Sunday was not a working day form the inception, while, in the other mills sought to be compared, the position was the reverse as the mills had been working on Sundays from the very beginning. It was urged that the two cases were not comparable, because it was only in the case of the appellant-mills that Sunday as an offday had become a condition of service of the workmen. The argument was, however, found to be based on incorrect premises. The evidence given on behalf of the appellant-mills shows that, at least in three cases, viz., Technological Institute of Textiles, Bhiwani, Jagatjit Cotton Textile Mills, Ltd., Phagwara, and Sri Bhawani Cotton Mills Ltd., Abohar, Sunday was not a working day when these mills were started and was made a working day only subsequently. In any case, we do not think that the fact that Sunday was not made a working day from the inception is very material. It is clear from the evidence given on behalf of the appellant-mills, which the tribunal has completely ignored, that, in the cotton textile industry in Punjab, the practice prevails of working on Sundays without giving any extra allowance to the workmen who are asked to do duty on those days. There appears to be no reason at all why the appellant-mills should be picked out for a different treatment and asked to make extra payment to the workmen when it is only falling into line with most other mills. It may be added that evidence was also led to show that in the neighbouring region of Delhi the same practice prevails in the industry of working on Sundays without making any extra payment to the workmen. It is also significant that no attempt has been made by the tribunal to go into the question whether the mill has the capacity to bear the extra burden that will fall upon it as a result of this additional payment of 20 per cent of the consolidated wages to the large number of workmen who will be working on 52 Sundays in a year.In this connexion, it was suggested on behalf of the workmen that there is no evidence to show that the wage-scales and other amenities provided by the appellant-mills are similar to those provided by other mills in the region. We do not think that there was any burden on the appellant-mills to prove such a fact, particularly in view of the circumstance that the minimum wages had been fixed for all the mills under the Minimum Wages Act and are, therefore, common to all. This fixation was made by the Government under the Defense of India Rules. 5. The consideration that weighed with the tribunal that the workmen deserved compensation for being deprived of amenities of social gatherings and union meetings on Sundays cannot provide any justification for granting extra payment. Social gatherings need not taken place during working hours. Union meetings are very frequent. The workmen in the other mills in this very region have been carrying on work on Sundays without receiving any additional payment. We cannot see how additional payment of money can compensate a workman for whatever little deprivation there may be in the matter of social gatherings. The factors which the tribunal took into account in order to award this extra payment to the workmen were of much less importance than considerations which the tribunal ignored and which we have discussed above. 6.

Decision:
1[ds]It appears to us that the only effect, if any, at all, of this part of the award by the tribunal can be that the workmen may claim that they are entitled to raise the demand afresh without terminating the award in accordance with S.19(6) of the Industrial Disputes Act; otherwise, there does not appear to be any effect on the rights of the parties of this direction made by the tribunalSri G. B. Pai, on behalf of the mills, and Sri M. S. K. Sastri and Y. Kumar for the two unions representing the workmen, stated before us that the parties are agreed that this direction given in the award may be deleted as no party objects to its deletion. Consequently, we need not go into the question whether the tribunal was in law competent to make such a direction in the award or not. We set aside this direction by consent of partiesThis direction was made by the tribunal on its view that the workmen who had never previously been called to work on Sundays and were not likely to be deprived of some amenities of social gatherings and union meetings, etc., did deserve some compensation. The tribunal also took into account the fact that, at the time when the management started making efforts to work the mills on Sundays, there was a meeting between the representatives of workmen and the general manager, and the general manager was then willing to allow some compensation to the workmen who are called upon to work on Sundays, though the proposal did not finally mature. It appears to us that, in giving this decision, the tribunal did not follow the principles that should have been applied when deciding such a dispute. Payment of extra amount for work on Sundays affects wages payable to the workmen, and the question of wages, as has been laid down by this Court in a number of cases, must always be decided on the basis of the capacity of the industry to pay and on practice prevailing in the industry in the region. The tribunal has completely ignored both these factorsThe argument was, however, found to be based on incorrect premises. The evidence given on behalf of the appellant-mills shows that, at least in three cases, viz., Technological Institute of Textiles, Bhiwani, Jagatjit Cotton Textile Mills, Ltd., Phagwara, and Sri Bhawani Cotton Mills Ltd., Abohar, Sunday was not a working day when these mills were started and was made a working day only subsequently. In any case, we do not think that the fact that Sunday was not made a working day from the inception is very material. It is clear from the evidence given on behalf of the appellant-mills, which the tribunal has completely ignored, that, in the cotton textile industry in Punjab, the practice prevails of working on Sundays without giving any extra allowance to the workmen who are asked to do duty on those days. There appears to be no reason at all why the appellant-mills should be picked out for a different treatment and asked to make extra payment to the workmen when it is only falling into line with most other mills. It may be added that evidence was also led to show that in the neighbouring region of Delhi the same practice prevails in the industry of working on Sundays without making any extra payment to the workmen. It is also significant that no attempt has been made by the tribunal to go into the question whether the mill has the capacity to bear the extra burden that will fall upon it as a result of this additional payment of 20 per cent of the consolidated wages to the large number of workmen who will be working on 52 Sundays in a yearThe consideration that weighed with the tribunal that the workmen deserved compensation for being deprived of amenities of social gatherings and union meetings on Sundays cannot provide any justification for granting extra payment. Social gatherings need not taken place during working hours. Union meetings are very frequent. The workmen in the other mills in this very region have been carrying on work on Sundays without receiving any additional payment. We cannot see how additional payment of money can compensate a workman for whatever little deprivation there may be in the matter of social gatherings. The factors which the tribunal took into account in order to award this extra payment to the workmen were of much less importance than considerations which the tribunal ignored and which we have discussed above.