-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.5655 OF 1997 Maharashtra State Power Generation Company Ltd. (Mahagenco) : Petitioner V/s. Maharashtra Vij Mandal Kamgar Sangh (affiliated to Bharatiya Mazdoor Sangh) Branch Nashik Thermal Power Station & Anr. : Respondents ... Ms A.R.S.Baxi for the petitioner. Mrs.Anjali Helekar i/b. Mr.S.M.Dharap for respondent no.1. ... CORAM : S.A. BOBDE, J. DATE : FEBRUARY 11, 2009. ORAL ORDER 1. The petitioner has challenged the order of the Industrial Court, Nasik, allowing the respondent no.1’s complaint under Item 9 and 10 of Schedule IV of the MRTU & PULP Act, 1971. 2. The respondent no.1’s members are employees of the petitioner working as medical staff in the Medical Dispensary of the Thermal Power Station at Eklahare. In the complaint to the Industrial Court, they alleged that the petitioner wrongly brought about change in the working -: 2 :- hours of the medical staff from six-and-a-half to eight hours without giving a notice of change as required under section 9A of the Industrial Disputes Act, 1947, hereinafter referred to as the "Act". Section 9A of the Act reads as follows:- "9A. Notice of change.-- No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change,-- (b) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or (b) within twenty-one days of giving such notice: Provided that no notice shall be required for effecting any such change-- (a) where the change is effected in pursuance of any settlement or award; or (b) where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply." Items 9 and 10 of Schedule IV of the MRTU & PULP Act read as follows:- -: 3 :- SCHEDULE IV General Unfair Labour Practices on the part of employers 9. Failure to implement award, settlement or agreement. 10. To indulge in act of force or violence." 3. There is no dispute that the working hours constitute conditions of work and any change has to be preceded by a notice under section 9A of the Act. The petitioner filed a Written Statement in which they claimed that they increased the working hours from six-and-a-half hours to eight. According to the petitioner, though this may be a change in the working hours, it did not amount to a change within the meaning of section 9A of the Act because, in fact, they merely restored the earlier working hours i.e. eight hours per day. The petitioner’s case in the Written Statement was that from 1970, the working hours of the staff attached to the dispensary were eight hours per day. However, the local Chief Engineer consented to a change of six-and-a-half hours of working. This local Chief Engineer did not have any authority from the petitioner to effect such a change. Since the authority to change the working hours only rested in the Board, the head office of the petitioner at Mumbai decided to restore the working hours to the original duration i.e. eight hours. According to -: 4 :- the petitioner, the circular dated 31.8.1991 by which the working hours were increased to eight hours amounted to re-implementation of the correct working hours which are provided under the Factories Act and, therefore, it was not necessary to give any notice under section 9A of the Act. Thus, the effect of the pleading was that the petitioner clearly admitted that the circular dated 31.8.1991 was issued to increase the working hours from six-and-a-half hours to eight hours, thus clearly ordering a change in the timings. Apparently, in view of the Written Statement in which relevant facts were admitted, the respondent did not enter the witness-box. The petitioner tendered the evidence of one Shrikant Vishwanath Palve, Administrative Officer, who deposed that the Thermal plant worked for 24 hours a day and, therefore, the working hours were changed from six-and-a-half hours to eight hours so that the work can be done in three shifts of eight hours each. This witness, however, stated that he was not in a position to produce any document to show that the working hours between 1970 and 1979 were eight, thus creating a serious doubt as to the petitioner’s story that by the present change from six-and-a-half hours to eight, the working hours were merely restored to the original duration. Having regard to the evidence and the requirement of section 9A of the Act, the Labour Court observed that the -: 5 :- workmen have been working at the dispensary of Nasik Thermal Power Station for six-and-a-half hours right from the inception of the Thermal plant and the management was duty bound to give notice under section 9A of the Act. No such notice having been given, the Court concluded that the petitioner has committed an unfair labour practice and directed them to desist. Ms Baxi, the learned counsel for the petitioner, strongly reiterated the contentions before this Court. However, it is clear that there is no evidence on record that the working hours of the dispensary at Nasik Thermal Power Plant were eight hours from the inception and they were wrongly changed to six-and-a-half hours by an officer who had no authority to do so and, therefore, there was no change involved in restoring the working hours to the original duration of eight hours. As observed, the petitioner’s witness was not in a position to prove by any means that originally the working hours were eight. Assuming for a moment that the working hours were indeed eight, it makes no difference to the present case because admittedly when the circular was issued on 31.8.1991, the working hours were six-and-a-half from 1979. Even if this position was to be changed, I am of view that the change attracted section 9A of the Act and, therefore, the change without complying with the provisions of the Act is illegal. It is not possible to accept the contention on behalf of the -: 6 :- petitioner that the Factories Act provides that working hours shall be eight, it must be assumed that the working hours in this case have always been eight. Ms Baxi, the learned counsel for the petitioner, then relied on a decision pertaining to Koradi Thermal Power Station. However, that case was decided on its own facts and the decision had no application to the present case. 4. In the result, there is no merit in the Writ Petition which is hereby dismissed. Rule stands discharged. S.A. BOBDE, J.