Case: Assam Match Company Limited Vs. Bijoy Lal Sen &amp; Others

service, it is needless to state that the appellant is bound to follow the procedure laid down in Section 9-A. Item 5 of the fourth Schedule deals with "leave with wages and holiday". Therefore, prima facie, if a holiday has been fixed the management may not have power to totally cancel the same or deprive the workmen of such a holiday without conformity to provisions of Section 9-A. In the notice published at the beginning of the year 1966 regarding the holidays for the said year, the appellant has no doubt stated that Friday, the 11th November, will be a holiday for Kali Puja. But there is a statement in this notice to the effect that "this list is subject to modification, if thought necessary" Under paragraph 6, of the companys certified Standing Orders, it is provided that "Notice specifying (a) the days observed by the Factory as holidays and (b) pay days, shall be posted as required by the Factory Act and the Payment of Wages Act respectively."There is no controversy that the list of holidays published at the beginning of the year 1966 as well as the circular dated November 5, 1966 are in conformity with this provision. Similarly the notice dated November 10, 1966, by the management regarding the 12th November being a holiday for Diwali acceding to the request of the workmen, must also be considered to satisfy the provisions of this clause in the Standing Order.9. In our opinion, the alteration of the date regarding the holiday for Diwali from 11th to the next day, cannot be considered to be an alteration in the conditions of service. The workmen may be entitled to have a holiday for Diwali. But on what particular day Diwali falls or it is being, observed and a holiday is to be declared, is a matter to be decided by the management in consultation with the workmen. If a large body of the workmen require a change in the date of the holiday on the ground that the festival is not being observed on the day originally fixed and the management changes the date, it cannot be stated that there is an alteration in the conditions of service. The workmen are not being deprived of a holiday at all for Diwali. In fact they have got it on the 12th November, 1966.10. In the Workmen of Ms. Sur Iron and Steel Co. Pvt. Ltd. v. M/s. Sur Iron and Steel Co. Pvt. Ltd. (1971) 1 Lab LJ 570 (SC), the workmen contended that the change in weekly off-day, from Sunday to Saturday, without complying with the provisions of Section 9-A, was illegal. This Court rejected that contention on two grounds that (1) there was no specific entry in the Fourth Schedule covering a condition of service relating to a weekly off-day and (2) even assuming that the grant of a weekly off-day falls under item 4 of the Fourth Schedule, the State Government had issued a notification on April 10, 1962 under Section 9-B laying down that the notice under Section 9-A was required to be served in respect of the matters covered by items 4, 6 and l l of the said Schedule for a period of three months. Therefore, it will be seen that this decision did not express any opinion on the question whether the alteration of the weekly off-day from Sunday to Saturday, amounts to a change in the conditions of service coming within Section 9-A. In fact the indications in the judgment are that such an alteration will not attract section 9-A.11. The decision in M/s. Tata Iron and Steel Co. Ltd. v. The Workmen, (1972) 2 Lab LJ 259=(AIR 1972 SC 1917 ) does not advance the case of the respondents. From the facts of that case it is seen that Sunday had been a holiday in the factory concerned for a long number. of years. The company, for the reasons stated in the judgment, cancelled this holiday and in turn gave a holiday in the mid-week without following the procedure under S. 9-A It was held in the particular circumstances of that case that the alteration amounts to a change in the conditions of service. It must be noted that the workmen have been having for a long number of years Sunday as a holiday and that may have become a condition of their service. A holiday on a Sunday can only be on that day and no other day of the week can be Sunday. On this basis the decision has been rendered holding that cancelling the holiday enjoyed on Sunday amounts, in the circumstances, to a change in the conditions of service.12. The position in the case before us is entirely different. The fact is that the workmen have not been deprived of a holiday for Diwali. Even assuming that the workmen have got a right to get a holiday for Diwali and that it has become a condition of service, in this case the workmen did have a holiday for Diwali. The holiday for the said festival is to be given on the date when the majority of the workmen claim that they are celebrating Diwali. It has been emphasised in (1972) 2 Lab LJ 259 = (AIR 1972 SC 1917 ) that the real object and purpose of Section 9-A is to afford an opportunity to the workmen to consider the effect of a proposed change and, if necessary, to represent their view on the proposal. Even assuming that the alteration of the date of the holiday for Diwali will amount to a condition of service (sic), there is no question, in this case, of a contravention of Section 9-A, when the majority of the workmen themselves requested the employer to make the alteration. The employer was within its rights under Section 33 (2) (a).The evidence on the side of the respondents shows that the workmen actually celebrated Diwali on the 12th November, which was declared to be a holiday.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. In our opinion, the alteration of the date regarding the holiday for Diwali from 11th to the next day, cannot be considered to be an alteration in the conditions of service. The workmen may be entitled to have a holiday for Diwali. But on what particular day Diwali falls or it is being, observed and a holiday is to be declared, is a matter to be decided by the management in consultation with the workmen. If a large body of the workmen require a change in the date of the holiday on the ground that the festival is not being observed on the day originally fixed and the management changes the date, it cannot be stated that there is an alteration in the conditions of service. The workmen are not being deprived of a holiday at all for Diwali. In fact they have got it on the 12th November, 1966.The position in the case before us is entirely different. The fact is that the workmen have not been deprived of a holiday for Diwali. Even assuming that the workmen have got a right to get a holiday for Diwali and that it has become a condition of service, in this case the workmen did have a holiday for Diwali. The holiday for the said festival is to be given on the date when the majority of the workmen claim that they are celebrating Diwali. It has been emphasised in (1972) 2 Lab LJ 259 = (AIR 1972 SC 1917  ) that the real object and purpose of Section 9-A is to afford an opportunity to the workmen to consider the effect of a proposed change and, if necessary, to represent their view on the proposal. Even assuming that the alteration of the date of the holiday for Diwali will amount to a condition of service (sic), there is no question, in this case, of a contravention of Section 9-A, when the majority of the workmen themselves requested the employer to make the alteration. The employer was within its rights under Section 33 (2) (a).The evidence on the side of the respondents shows that the workmen actually celebrated Diwali on the 12th November, which was declared to be a holiday.