1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.547 of 2008 M/s.Gammon India Ltd. Petitioner Vs. Engineering Mazdoor Sabha Respondent Mr.S.M.Naik for petitioner. Mr.Arshad Shaikh with Mr.Mahesh Londhe for respondents. CORAM: B.H.MARLAPALLE, J. February 13, 2008. ORAL ORDER: 1. Heard Mr.Naik, the learned counsel for the petitioner-company. Mr.Arshad Shaikh appears with Mr.Mahesh Londhe for the respondent - Union. The petitioner - company is aggrieved by the judgment and order rendered by the Industrial Court at Mumbai on 14/11/2007 thereby allowing Complaint (ULP) No.737 of 1999. The Industrial Court declared that the company had engaged in unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act, 1971 ("the Act" for short) by issuing notice dated 15/7/1999 and, therefore, the said notice was set aside. The workmen were held to be entitled to withdraw the amount deposited with the Court. 2 2. By the notice dated 15/7/1999 displayed on the notice board the company wanted to bring in uniformity in the number of public holidays and working hours between the managerial staff and the unionised staff working in the Head Office and the store at Byculla in order to in order to meet the company’s business demands for the year 1999-2000 and for better coordination. Consequently the second and fourth Saturdays were declared to be full working days and the paid holidays were reduced by half. This notice implied that the weekly hours were raised from 45 to 48 to the unionised staff. The Union made representation to withdraw the said notice and ultimately had approached the Industrial Court by filing Complaint (ULP) No.737 of 1999 alleging the illegal change. The company opposed the complaint by filing its Written Statement. However, by taking into consideration the averments of the respective parties as well as the evidence adduced by them the Industrial Court held that before effecting the change as per the impugned notice, the Company had not given notice of change as required under Section 9A of the Industrial Disputes Act, 1947 ("the I.D. Act" for short) and, therefore, it was an illegal change. As per the Industrial Court the notice fell 3 within the ambit of Items 4, 5 and 8 of the Fourth Schedule to the I.D. Act. These items read as under: 4. Hours of work and rest intervals 5. Leave with wages and holidays 8. Withdrawal of any customary concession or privilege or change in usage. 3. There is no doubt that by the impugned notice the weekly working hours were increased from 45 to 48 and paid holidays were reduced to half i.e. from 20 they were brought down to 10 or from 24 they were brought down to 12 in a calendar year. The only issue that is required to be considered is whether the notice of change as envisaged under Section 9A of the I.D. Act was required to be issued by the company before the change was brought into force by the impugned notice. 4. Mr.Naik, the learned counsel for the petitioner - company relied upon a decision of the 4 Division bench of this Court in the case of India Security Press Mazdoor Sangh v. Currency Note Press, Nasik Rd. & ors. [1987 II CLR 310] [1987 II CLR 310] [1987 II CLR 310] and submitted that the Industrial Court was in manifest errors by holding that the impugned notice fell within the ambit of Section 9A of the I.D. Act. In the said case the working hours were 66 per week i.e. in excess of the regular hours of work under the Factories Act which are 48 hours. For the working hours beyond 48 the workmen were being paid over time allowance. This Court held that on 10th January and 29th January 1983 the management had issued notice under Section 9A of the I.D. Act reducing the number of weekly hours of work from 66 to 54 and, therefore, there was necessarily a change of shift hours. It is thus clear that notice of change was issued by the management in the case of Currency Note Press (Supra) and Mr.Naik’s reliance on the said decision is misplaced. If the notice of change is required to be given under Section 9A of the I.D. Act and if change is brought out without giving such a notice, undoubtedly the employer will be held guilty of unfair labour practice within the meaning of Item 9 of Schedule IV of the Act as has been held by the Apex Court in the case of M/s. Lokmat Newspapers 5 Pvt. Ltd. Vs. Shankarprasad [AIR 1999 SC 2423] [AIR 1999 SC 2423] [AIR 1999 SC 2423]. As per Mr.Naik it is the management’s right to reorganize the working hours as well as the paid holidays. There can be no two opinions about the propositions canvassed by Mr.Naik. But at the same time the right of the management is conditioned by certain procedural requirements and one such requirement is to issue notice of change under Section 9A of the Act. Mr.Naik admitted that for more than ten years the weekly working hours were 45 and same thing was regarding the number of paid holidays / festival holidays in a calendar year. In fact the issue raised by Mr.Naik is no more res integra in view of the decision in the case of M/s. Tata Iron and Steel Co. Ltd. Vs. Workmen of M/s. Tata Iron & Steel Co. Ltd. & ors. [AIR 1972 SC [AIR 1972 SC [AIR 1972 SC 1917] 1917] 1917]. By notice dated 10/9/1963 a new schedule of rest days was introduced in accordance with which weekly holidays in all the six collieries of the company were sought to be changed. For example in Sijua colliery the new weekly holiday would fall on Wednesday whereas in Bhelatan colliery new rest day would be Thursday. As against the earlier weekly holiday being Sunday in all the six collieries. The Union contended that it was an illegal change as the 6 employer had not given notice under Section 9A of the I.D. Act. The Supreme Court replied the same in the following words: "... It appears to us that entries dealing with "hours of work and rest intervals" and "leave with wages and holidays" are wide enough to cover the case of illegal strikes and rest days. Indeed, entry no.8 dealing with "withdrawal of customary concession or privilege or change in usage" is also wide enough to take within its fold the change of weekly holidays from Sunday to some other day of the week, because it seems to us to be a plausible argument to urge that fixation of Sundays as weekly rest days is founded on usage and/or is treated as a customary privilege and any change in such weekly holidays wold fall within the expressions "change in usage" or "customary privilege"." . The same view has been reiterated by the Apex Court subsequently in the case of The Oil and Natural Gas Commission V. The Workmen [AIR 1973 SC 968] [AIR 1973 SC 968] [AIR 1973 SC 968] and in the case of Hindustan Lever Ltd. v. Ram Mohan 7 Ray & ors. [AIR 1973 SC 1156] [AIR 1973 SC 1156] [AIR 1973 SC 1156]. 5. It is, therefore, clear that the view taken by the Industrial Court in holding that the company was guilty of unfair labour practice by not issuing the notice of change under Section 9A of the I.D. Act cannot be termed as perverse or manifestly erroneous so as to call for interference under Article 227 of the Constitution and, therefore, the petition must fail at the threshold. The same is hereby rejected summarily. (B.H.MARL 13/2/2008. 13/2/2008. 13/2/2008. . Oral application made now for continuing the stay is hereby rejected. (B.H.MARLAPALLE,J.)