Case: Alembic Chemical Works Co., Ltd Vs. The Workmen

welfare legislation.11. The history of the amendments made in the relevant provisions of the Act also indicates that the Act has been gradually making more liberal provisions in the interest of workmen to whom it applies. In the original Act as it was passed (25 of 1934) S. 34 provided for weekly holiday but no provision was made for holidays with pay. When the said Act was amended by Act 3 of 1945, S. 49A which is equivalent to present S. 78 (1) without the proviso was inserted; and S. 49B provided, inter alia, that every worker who has completed a period of twelve months continuous service in a factory shall be allowed during the subsequent period of twelve months holidays for a period of ten days. That is how provision for holiday came to be made. By the amending Act 63 of 1948, S. 78 with the present proviso enacted; and S. 79 made a provision for annual leave with wages. While making provision for annual leave with wage the section then prescribed a minimum of ten days; subsequently, by amending Act 25 of 1954, S. 79 as it stand at present was enacted; and in S. 78 the word "annual" has been added to qualify leave in the proviso. We have thus briefly referred to some charges made in the Act from time to time in order to show that subsequent amendments have sought to make the provisions more liberal.12. There is one more point which may incidentally be mentioned whilst we are considering the amendments made in the Act from time to time. Section 49 A which broadly corresponds to S. 78 of the present Act saved other laws and terms of any award, agreement or contract of service just as S. 78(1) does. Now, if the said section is construed on the lines which the appellant wants us to construe S. 78(1) it would only be arrangements existing at the date when the said amending Act came into force on January 1, 1946, that would be protected and saved, and nothing that happened either by way of legislation or by way of awards or contracts subsequent to the said date would attract the provisions of the said S. 49A or S. 78 which subsequently took its place. This obviously is not intended by the Legislature which incidentally shows that S. 78(1) cannot be confined to existing arrangements or laws but takes within arrangements within its sweep future laws, agreements, contracts or awards. Therefore, the challenge to the validity of the award based on the assumption that S. 79 (1) provides for standardised award of annual leave with wages fails.13. Then it is urged that the provision made by the award for privilege leave introduces discrimination between the clerical staff covered by the present reference and operatives covered by the earlier awards made by the same Tribunal. We are told that operative had made a similar claim for privilege leave before the same Tribunal, and the said claim had been rejected. The argument is that the provision for privilege leave made by the present award would create discontent amongst the operatives to whom similar leave has been denied, and that would disturb industrial peace. We are not impressed by this argument. It is not seriously disputed that a distinction has generally been made between operatives who do manual work and clerical and other staff; in fact the appellants standing orders themselves make different relevant provisions for the two categories of its employees. It is also not disputed that in practice such distinction is made by comparable concerns, and awards based on the same distinction are generally made in respect of the two separate categories of employees. We are, therefore, unable to appreciate the argument that in granting privilege leave to the present staff the Tribunal had either overlooked its earlier award or has made a decision which suffers from the vice of discrimination. The practice prevailing in comparable concerns and the trend of awards both seem to show that a distinction is generally made between the two categories of employees, and since the said distinction is perfectly justifiable no question of discrimination can arise.14. It is then argued that making liberal provisions for privilege leave and sick leave are really opposed to the modern trend in industrial thought, and so such liberal awards should be discouraged and corrected. There is no doubt that when industrial adjudication seeks to do social justice it cannot ignore the needs of national economy; and so in considering matters of leave, either in the form of privilege leave or sick leave, the Tribunals should not ignore the consideration that unduly generous or liberal leave provisions would affect production and obviously production of essential commodities is in the interest of not only the employers and the employees but also of the general community; but it is difficult for us to accept the argument that we should make suitable modifications in the provisions made by the award in regard to privilege leave or sick leave. These are matters primarily for the Industrial Tribunal to consider and decide. The Tribunal is more familiar with the trend prevailing in comparable concerns, and unless it appears that the impugned provisions cannot be sustained on any reasonable ground or that they mark a violent departure from the prevailing practice or trend, we would be reluctant to interfere with the decision of the Tribunal. After all, in deciding what would be a reasonable provision for privilege leave or sick leave, the Tribunal has to take into account all relevant factors and come to its own decision. As we have already indicated, in making the present award the Tribunal has considered previous decisions which were relevant and prevailing agreements in comparable concerns. We have carefully considered the criticism made by the learned Attorney-General against the provisions contained in the award, but we are not satisfied that a case has been made out for interference in an appeal under Art. 136.

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

Explanation:
0[ds]7. Even on the basis that S. 79(1) is capable of the construction sought to be placed on it by the appellant, the question would still remain whether the said construction should be preferred to the alternative construction which, as we have just indicated is reasonably possible. The answer to this question must be in the negative for two reasons; first, having regard to the obvious policy and object of the Act, if S. 79(1) is capable of two constructions that construction should be preferred which furthers the policy of the Act and is more beneficial to the employees in whose interest the Act has been passed. It is well settled that in construing the provisions of a welfare legislation courts should adopt what is sometimes described as a beneficent rule of construction; but apart from this general consideration about the policy and object of the Act, Ss. 78 and 84 occurring in the same Chapter as S. 79 clearly indicate that S. 79(1) is not intended to standardise leave provisions as contended by the appellant, and that is the second reason why the appellants argument cannot be accepted.Besides, the scope and extent of the exceptions recognised by S. 78(1) are decisively against the appellants construction of S. 79(1). The learned Attorney-General has strenuously contended that the saving provision of S. 78(1) applies only to existing law and existing awards, agreements or contract of service; in other words his argument is that the Legislature has deliberately decided to except pre-existing arrangements and in that sense it is a departure from the usual concept of standardisation. In our opinion the assumption that S. 78(1) is confined to existing arrangements is plainly inconsistent with a fair and reasonable construction of the said provisions. When S. 78(1) refers to any other law it could not have been intended that it is only to existing laws that the reference is made and that the idea underlying the provision was that no law can be passed in future which would grant more generous leave to the employees. Such a restriction on the legislative activities of the appropriate Legislatures cannot obviously have been intended. If the reference to law is not confined only to existing law there is no reason why reference to any award, agreement or contract of service should be similarly circumscribed or limited. We feel no difficulty in holding that what S. 78(1) protects are law, awards, agreements or contracts of service which were then existing or which would come into existence later; that is to say S. 78(1) does not affect pre-existing arrangements and does not also prohibit future arrangements which would be more generous than S. 79(1). A law may be passed making more generous provisions, or agreements or contracts may be entered into or awards made with the same result. If that be the true position S. 78 (1) clearly negatives the theory that S. 79 (1) provides for standardisation of annual leave with wages.10. The provisions of S. 84 would also lead to the same result. Section 84 provides that where the State Government is satisfied that the leave rules applicable to workers in a factory provide benefits which in its opinion are not less favourable than those for which Chapter VIII makes provision it may be written order exempt the factory from all or any of the provisions of Chapter VIII subject to such conditions as may be specified in the order. Now, the power to exempt factories has to be exercised having regard to the effect of the totality of the benefits which may be afforded to the workers by their respective factories. This power to exempt also necessarily postulates the existence of better amenities than those guaranteed by Chapter VIII, and that means that if a factory provides better leave amenities to its employees, the State Government may in the interest of the employees exempt the factory from the operation of this Chapter. The scope of S. 84, like the scope of S. 78, cannot be limited only to the more favourable benefits which may be existing at the date when the Act was passed. What is true about the existing benefits would be equally true about the benefits which may be granted by an employer to the employees in future. Let us illustrate what the consequence would be if the appellants argument is accepted. Take the case of an employer who has been exempted under S. 84 on the ground that the benefits of leave conferred by him on his employees are more favourable to them. In such a case, the employer may make his benefits still more favourable after exemption is accorded to him; but an employer who has already not provided more favourable benefits would be effectively precluded from making any such provisions in future. It is difficult to imagine that such a consequence could have been intended by the provisions of this welfare legislation.It is then argued that making liberal provisions for privilege leave and sick leave are really opposed to the modern trend in industrial thought, and so such liberal awards should be discouraged and corrected. There is no doubt that when industrial adjudication seeks to do social justice it cannot ignore the needs of national economy; and so in considering matters of leave, either in the form of privilege leave or sick leave, the Tribunals should not ignore the consideration that unduly generous or liberal leave provisions would affect production and obviously production of essential commodities is in the interest of not only the employers and the employees but also of the general community; but it is difficult for us to accept the argument that we should make suitable modifications in the provisions made by the award in regard to privilege leave or sick leave. These are matters primarily for the Industrial Tribunal to consider and decide. The Tribunal is more familiar with the trend prevailing in comparable concerns, and unless it appears that the impugned provisions cannot be sustained on any reasonable ground or that they mark a violent departure from the prevailing practice or trend, we would be reluctant to interfere with the decision of the Tribunal. After all, in deciding what would be a reasonable provision for privilege leave or sick leave, the Tribunal has to take into account all relevant factors and come to its own decision. As we have already indicated, in making the present award the Tribunal has considered previous decisions which were relevant and prevailing agreements in comparable concerns. We have carefully considered the criticism made by the learned Attorney-General against the provisions contained in the award, but we are not satisfied that a case has been made out for interference in an appeal under Art. 136.