IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.1.2009 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.20077 of 1998 MRF Limited, rep.by its General Manager, Arkonam-Thiruthani Road, Ichiputtur, Arkonam Taluk. .. Petitioner -vs- 1.The Deputy Chief Inspector of Factories, Office of the Deputy Chief Inspector of Factories, 101 & 102, Arni Road, Sankaranpalayam, Vellore-632 001. 2.MRF Cycle Tyre Unit Association, Regd.No.210/NAT, Ichiputhur, Arakonam Taluk. .. Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records relating to Order No.2/9416/98, dated 19.11.1998 passed by the first respondent and quash the same. For petitioner : Mr.Sanjay Mohan for M/s.Ramasubramanian Associates For respondents : Mr.A.Arumugam, Spl.G.P (R1) Mr.T.K.Ramkumar (R2) ***** O R D E R The writ petitioner is a public limited company. In this writ petition, the challenge is to the order made by the first respondent Deputy Chief Inspector of Factories, Vellore, dated 19.11.1998. By the aforesaid order, the first respondent informed the petitioner https://hcservices.ecourts.gov.in/hcservices/ management that by an order dated 21.7.1997, the approval sent by the department in Form III read with Rule 3(1) and (4)(4) of the Tamil Nadu Industrial Establishments (National and Festival Holidays) Rules, 1959 (for short 'NAFH Rules') framed under Section 12 of the Tamil Nadu Industrial Establishments (National and Festival Holidays) Act, 1958 (for short 'NAFH Act') stood cancelled. 2. The writ petition was admitted on 18.12.1998 and an interim- stay was granted on the same day. Due to the default on the part of the respondents, the interim order was also made absolute on 27.12.2002. The obligation of the employer was to send a form of list of holidays year after year for approval by the competent authority. It is stated by the counsel for the petitioner that since the impugned order relates to the year 1997, the writ petition has become infructuous and therefore it may be dismissed as such. But, in the present case, since the petitioner had enjoyed an interim order for over ten years and the issue is likely to crop up year after year, this Court declined to accede to the request made by the counsel for the petitioner. 3. Thereafter, Mr.Sanjay Mohan, learned counsel for the petitioner submitted that the petitioner and the second respondent trade union have entered into a settlement on 17.1.1997 under section 18(1). Para 25 of the said settlement deals with national and festival holidays applicable to the workmen. Paragraphs 25.1 and 25.2 may be extracted below:- 25.1. It has been agreed to by both the parties that the entire factory will work on all the days in a week except the days, which are National Holidays and Deepavali (Festival Holiday) as per the National and Festival Holidays Act, 1958. However, the workmen are allowed to avail four optional Festival Holidays out of the Festival Holidays shown in Annexure IV as required under the National and Festival Holidays Act, 1958, which will be discussed and decided with the union during December every year and for the immediate next year, the optional festival holidays, as well who should avail. 25.2. It is agreed between both the parties that the workmen will however be eligible for Optional Holidays as per the requirement of work and they will not be entitled for any extra wages/allowances, etc. for staggering the holidays." 4. According to the petitioner management, pursuant to the settlement they have informed the first respondent by letters dated 25.3.1997 and 19.4.1997 that there are 16 festival holidays besides four compulsory national holidays and sought for his permission to approve their action and send in turn Form III of the NAFH Rules. The first respondent by letter dated 17.7.1997 granted approval in Form https://hcservices.ecourts.gov.in/hcservices/ III but however added 'Deepavali' also another additional holiday, thereby making the total festival holidays as 17 holidays. Out of these 17 holidays, the workmen have been given the choice to avail five festival holidays. But he has however made Deepavali as a compulsory festival holiday thereby making the choice to four. Therefore, when the same procedure was sought to be followed for the calendar year 1998, the first respondent by the impugned order removed the earlier approval granted under form III, which has become the subject matter of the present writ petition. 5. The learned counsel for the petitioner submitted that the order of the first respondent is arbitrary, illegal and contrary to the provision of NAFH Act. The workmen have no objection in the procedure adopted by the management. In fact, they are bound by a settlement by which they have also agreed to adopt the procedure laid down by the management. The workmen are no way prejudiced because they will be getting the nine holidays as per the NAFH Act (4 compulsory national holidays and 5 optional festival holidays). 6. The learned counsel also relied upon the judgment of the Karnataka High Court reported in 2005-3-LLJ 12 in Bharat Fritz Werner Karmika Sangha -vs- Bharat Fritz Werner Limited and another. In that judgment, when there was a dispute between two rival unions regarding choosing of the festival holidays, the Karnataka High Court held that the majority trade unions' view must prevail with the authority who decides such an issue. 7. It is not clear as to how this judgment will have any relevance to the case on hand. The question here is not choosing the uniform festival holidays that the workmen must opt for. On the contrary, the management wants the workmen to choose any of the five days out of the 16 days circulated by them (together with Deepavali being added by the authority as one more option). In this process, the workmen will not have uniform holidays but each worker will have an option of choosing any of the five holidays out of 17 holidays notified by the first respondent. That is not the intent and purpose of the Act. 8. Therefore, it is necessary to refer to sections 3 and 4 of the NAFH Act 1958 which read as follows:- ''3. Grant of National and Festival Holidays. - Every employee shall be allowed in each calendar year a holiday of one whole day on (the 26th January, the first May, the 15th August and the 2nd October) and five other holidays each of one whole day for such festivals as the Inspector may, in consultation with the employer and the employees, specify in respect of any industrial establishment." https://hcservices.ecourts.gov.in/hcservices/ ''4. Employer to send statement to Inspector.- Every employer shall send to the Inspector having jurisdiction over the area in which the industrial establishment is situated, and display in the premises of the industrial establishment, a statement showing the holidays allowed in each calendar year under section 3, in such form, within such time and in such manner as may be prescribed." (Emphasis Added) 9. Further, for violation of the provisions of the Act, penalties have been prescribed under section 8. The power of exemption by the Government has been provided under section 10(2) of the NAFH Act. Section 11 of the Act saves the higher benefit provided by the employer. 10. The NAFH Rules have been framed under section 12 of the Act. Rule 3(1) obliges the employer to send notice in Form I giving the description of the festivals to be availed by the workman. Rule 3(4) obliges the Inspector to consider the proposals of the employer with the objections and suggestions received from the employees. Rule 3(5) directs the Inspector to communicate the list of holidays approved under Form III. Therefore, when that is the scheme of the Act, there is no scope for the employer to have his own list of 16 or 17 festival holidays and making each individual employee to choose any of the five holidays out of those notified holidays. Such a procedure is never contemplated and it goes against the letter and spirit of the Act. 11. In the present context, the first respondent having noticed the obvious error committed by the earlier grant of approval contrary to the provision of the Act rightly cancelled the order dated 19.7.1997. 12. This is not a case where the employer has agreed to grant more number of holidays. If such is the case, the benefit arising out of such generosity cannot be defeated by section 3 of NAFH Act in view of section 11 of the Act. 13. The Supreme Court dealt with such a case vide its decision in Tata Oil Mills Co. Ltd. v. K.V. Gopalan, reported in AIR 1966 SC 1859. The following passage found in para 8 may be extracted below:- 8. That takes us to Section 11 of the Act, because this section has to be read along with Section 3 in determining the validity of the conclusion recorded by the Tribunal on the main point of dispute between the parties. Section 11 reads thus: “Rights and privileges under other laws, etc., not affected—Nothing contained in this Act shall adversely https://hcservices.ecourts.gov.in/hcservices/ affect any rights or privileges which any employee is entitled to with respect to national and festival holidays on the date on which this Act comes into force under any other law, contract, custom or usage, if such rights or privileges are more favourable to him than those to which he would be entitled under this Act.” This section gives an option to the employees, they can choose to have the paid holidays either as prescribed by Section 3 or as are available to them under any other law, contract, custom or usage. In exercising this choice, it must, however, be borne in mind by the employees that 26th January, 15th August and 1st May have to be taken as three holidays. That is the direction of Section 3. In regard to the remaining 4, the Inspector decides which days should be paid holidays. In other words, the statutory requirement is 7 paid holidays. If under the existing arrangement the employees are entitled to have more than 7 paid holidays, that right will not be defeated by Section 3 because Section 11 expressly provides that if the rights or privileges in respect of paid holidays enjoyed by the employees are more favourable than are prescribed by Section 3, their existing rights and privileges as to the total number of holidays will not be prejudiced by Section 3. The scheme of Section 11 thus clearly shows that Section 3 is not intended to prescribe a minimum number of paid holidays in addition to the existing ones, so that the respondents should be entitled to claim the seven holidays prescribed by Section 3 plus the six holidays to which they are entitled under the existing arrangement. If in addition to the three holidays which are compulsory under Section 3, the employees are getting, say 3 other paid holidays, then Section 3 would step in and would require the employer to give his employees one more paid holiday, so as to make the number of paid holidays 7. In our opinion, if Sections 3 and 11 are read together, there can be no doubt that the respondents’ claim that they should have 7 holidays as prescribed by Section 3 plus 6 holidays as are available to them under the present arrangement is clearly untenable. In the present case, the respondents were having 6 paid holidays. The statute has fixed the minimum number at 7 paid holidays, and so, since the existing arrangement was less favourable to the employees, the statutory provision will come to their help and they will be entitled to claim 7 paid holidays in a year, and that means that Section 3 will be operative. If that be so, the procedure followed by the employer in consulting the Inspector and in fixing the list of 4 paid holidays for 1962 in addition to the three holidays fixed by the statute is perfectly consistent with the provisions of https://hcservices.ecourts.gov.in/hcservices/ Section 3 of the Act. ......" 14. By the present arrangement, in effect the employer wants to contract out of the statute which is not permissible. In a legislation where there is an obligation on an employer to do a particular thing in a particular manner, it has to be done only in that manner and not in any other manner. Further, an obligation coupled with a penalty makes the provision mandatory and any contra action will deemed to be void ab-initio. 15. It may be useful to the judgment of the Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Limited -vs- Ram Gopal Sharma reported in (2002) 2 SCC 244. The following passage found in para 13 makes the position of law clear.:- 13. The proviso to Section 33(2)(b), as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33(2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further, any employer who contravenes the provisions of Section 33 invites a punishment under Section 31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs 1000 or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in another way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Section 33(2)(b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to https://hcservices.ecourts.gov.in/hcservices/ frustrate it." 16. It may be that the employer like the petitioner may want to maximise their profit by adopting the ingenious method of granting optional holidays to their workmen and that the observance of Sections 3 and 4 of the NAFH Act will reduce their profit margin. That cannot be a criteria in interpreting the provisions of any Labour Law. When the State of Kerala increased the number of compulsory national holidays under a similar Act enacted by the Kerala Government from 3 to 4, the very same petitioner company challenged it before the High Court of Kerala and having lost in the same moved the Supreme Court. The Supreme Court dismissed their appeal which has since been reported in (1998) 8 SCC 227 in M.R.F.Ltd. -vs- Inspector, Kerala Government and others. 17. The Supreme Court in the aforesaid decision repelled the contention of the employer in challenging the provisions of the Act as violative of Article 19(1)(g) of the Constitution. The following passages found in paragraphs 21 to 23 may be usefully reproduced below:- ''20. It may be pointed out that the State of Kerala in its counter-affidavit pleaded that in order to introduce the amendments in the Parent Act by which the number of the national and festival holidays was increased, the Government took into consideration the change in social conditions, the developments in the State and the number of holidays enjoyed by other sectors. It was pleaded that the outlook towards labour has undergone a drastic change since the enactment of the Parent Act in 1958. The contention of the appellants that the increase in holidays would result in the loss of production was refuted by the State on the ground that the power to increase production required healthy labour force. Some recreation and rest would make the labour more fit and capable of doing their work more efficiently and satisfactorily which would result in more production. The Kerala Institute of Labour and Employment had already made a study of paid holidays available to industrial workers in Kerala State in 1982 and after studying the conditions prevailing in about one hundred and eighty public and private industrial establishments as to the national and festival holidays available to their workers had published a report. As per the analysis made in that report, it was noticed that the number of paid holidays available to industrial workers in the public sector in Kerala ranged from seven to twenty-one days and in the private sector, from seven to seventeen days. It was also noticed that the Government of India had declared sixteen holidays while the Government of Kerala had declared eighteen holidays for the https://hcservices.ecourts.gov.in/hcservices/ year 1990 which were repeated in 1991. 21. Having regard to the factors enumerated in the counter- affidavit as also to the Directive Principles of State Policy contained in Article 43, we are of the opinion that the Act by which the national and festival holidays have been increased is fully constitutional and does not, in any way, infringe the right of the appellants to carry on their trade or business under Article 19(1)(g). The compulsory closure of the industrial concern on national and festival holidays cannot be treated as unreasonable. It is protected by clause (6) of Article 19 and, therefore, cannot be treated to be violative of the Fundamental Right under Article 19(1)(g). 22. The plea under Article 14 also cannot be entertained. The decision by legislative amendment to raise the national and festival holidays is based upon relevant material considered by the Government, including the fact that the holidays allowed by the Central Government and other public sector undertakings were far greater in number than those prescribed under the Act. As pointed out earlier, the Act is a social legislation to give effect to the Directive Principles of State Policy contained in Article 43 of the Constitution. The law so made cannot be said to be arbitrary nor can it be struck down for being violative of Article 14 of the Constitution. " 18. In the light of the above, the impugned order of the first respondent does not suffer from any infirmities or illegalities and it is only in consonance with the NAFH Act and Rules. Hence, the writ petition stands dismissed. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar js https://hcservices.ecourts.gov.in/hcservices/ To 1.The Deputy Chief Inspector of Factories, Office of the Deputy Chief Inspector of Factories, 101 & 102, Arni Road, Sankaranpalayam, Vellore-632 001. +1cc to M/s. S.Ramasubramaniam & Associates Sr 1695 MG (CO) km/23.1. W.P.No.20077 of 1998 https://hcservices.ecourts.gov.in/hcservices/