judgement:
No. 543 (NT) of 1970.
Appeal by certificate from the Judgment and order dated December 2, 1969 of the Allahabad High Court in Civil Misc.
No. 955 of 1969.
A.K. Sen, Yogeshwar Prasad, section K. Bagga, Shakeel Ahmed and Mrs. section Bagga for the appellant.
section C. Manchanda and O. P. Rana for the respondents.
The Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate is directed against the Full Bench decision of Allahabad High Court whereby that court answered by a majority of two to one the following question referred to it by a Division Bench in the negative against the assessee appellant : "Whether, in order to recover interest under section section (1 A) of the U.P., Sales Tax Act, it is necessary for the Sales Tax Officer to make an assessment order in respect of the interest and to issue a notice of demand in respect of such interest.", The appellant, a partnership firm, is a large scale manufacturer of biris.
The Appellant was assessed to tax under the (U.P. Sales Tax Act, 1948 (U.P. Act No. 15 of 1948) ( hereinafter referred to as the Act) for the assessment years 1957 58 and 1958 59 as per assessment orders dated June 10, 1959 and February 12, 1963 respectively.
On an application sent by the appellant to the Minister of Finance, U.P. Government requesting for compounding of tax, an order was issued on May 6, 1959 staying the recovery of tax due from the appellant.
The stay order was vacated by order dated September 25.
On October 9, 1967 the Sales Tax Officer sent a recovery certificate to the Collector Allahabad for a sum of Rs. 1965,684.43 for the recovery of arrears of sales tax for the year 1957 58.
The recovery certificate also mentioned that interest at the rate 1 of 18 per cent per annum calculated on the amount of tax with effect from February 1, 1964 till the date of final payment should also be recovered as arrears of land revenue in terms of the provisions of section 8(1 A) of the Act.
On October 25, 1967 another recovery certificate for recovering a sum of Rs. 26,238.08 in respect of the year 1958 59 on account of arrears of sales tax was sent by the Sales Tax Officer to the Collector Allahabad.
It was mentioned in the certificate that the aforesaid amount would carry interest at the rate of 18 per cent per annum calculated with effect from February 1, 1965 till the date of final payment and the same too should be recovered as arrears of land revenue in terms of the provisions of section 8(1 A) of the Act.
The case of the appellant firm is that the amount of the sales ' tax mentioned in the two recovery certificates was paid by it.
The appellant, however, contested its liability to pay interest amounting to Rs. 1,36,000 on the amount of sales tax under section 8(1 A) of the Act.
A petition under article 226 of the Constitution was consequently filed fly the appellant in the High Court challenging the recovery of the interest amounting to Rs. 1,38,000.
The main ground which was taken by the appellant in this,connection was that without making an assessment order and without issuing a notice of demand 27 the Sales Tax Officer had no jurisdiction to initiate proceedings for the recovery of interest.
Reliance in this connection was placed on behalf of the appellant upon an earlier Division Bench decision in the case of Beni Ram Mool Chand vs The Sales Tax Officer(1) wherein the Division Bench had held that issuance of a notice of demand was it condition precedent to the recovery of penal interest.
As the correctness of that decision was challenged, the Division Bench hearing, the writ petition of the appellant referred the question reproduced earlier to the Full Bench.
The Full Bench by a majority of two to on, , as already mentioned, answered the question in the negative and against the appellant.
Before dealing with the contentions advanced in this Court, we may refer to the relevant provision of the Act.
Section 3 of the Act creates liability to sales tax.
Under this section every dealer is liable to pay tax on the turnover which shall be determined in such manner as may be prescribed.
Section 7 provides for determination of turnover and assessment of tax.
Section 8 deals with payment and recovery of tax. 'Sub sections (3), (1 A) and 6 of section 8 read as under "8.
Payment and recovery of tax. (1) The tax assessed under this Act shall be paid in such manner and in such instalments, if any.
and within such time, not being less.
than fifteen days from the date of service of the notice of assessment and demand, as may be specified in the notice.
In default of such payment, the whole of the amount then, remaining due shall become recoverable in accordance with sub section (8).
(1 A) If the tax payable under sub section (1) remains unpaid for six months after the expiry of the time, specified.
in the notice of assessment and demand, or the commencement of the Uttar Pradesh BikriKar (Dwitiya Sanshodhan) Adhiniyam, 1963, whichever, is later, then without prejudice to any other liability or penalty which the defaulter may, in consequence of such non payment, incur under this Act, simple interest at the rate of eighteen per cent per annum shall run on the amount then remaining.
due from the date of expiry of the time specified in the said notice, or from the commencement of the said Adhiniyam, as the case may be, and shall be added to the amount of tax and be deemed for all purposes to be part of the tax Provided that where as a result of appeal, revision or reference, or of any other order of a competent court or authority, the amount of tax is varied, the interest shall.
be recalculated accordingly Provided further that the interest on the excess amount of tax payable under an order of enhancement shall run from the date of such order if such excess remains unpaid for six months after the order.
x x x x (1) (1969) 23 S.T.C. 423.
28 (8) Any tax or other dues payable to the State Government under this Act, or any amount of money which a person is required to pay to the assessing authority under sub section (3) or for which he is personally liable to the assessing authority under sub section (6) shall be recoverable as arrears of land revenue.
" It may be mentioned that sub section (1 A) of section 8 reproduced above was added by U.P. Sales Tax (Second Amendment) Act, 1963 (U.P. Act 3 of 1964).
The above provision was apparently added with a view to tighten up the machinery for collection of sales tax and as a deterrent measure so that.
the dealers may not evade or delay the payment of tax, U.P. Act 3 of 1964 also added section 33 to the Act.
The material part of section 33 reads as under "In respect of any sum recoverable under this Act as arrears of land revenue the assessing authority may forward to the Collector a certificate under his signature specifying the sum due.
Such certificate shall be conclusive evidence of the existence of the liability, of its amount, and of the person who is liable, and the Collector on receipt of the certificate shall proceed to recover from such person the amount specified therein as if it were an arrear of land revenue; Mr. Sen on behalf of the appellant has argued that it was essential for the Sales Tax Officer to make an assessment order in respect of the interest before he could issue recovery certificate against the appellant.
In any case, according to Mr. Sen, recovery certificate in respect of the interest could not be issued till such time a notice of demand in respect of the interest had been issued by the Sales Tax Officer to the appellant firm.
These contentions, in our opinion, are not well founded.
There is no provision in the Act which makes it obligatory on the part of the Sales Tax Officer to make an assessment in respect of the interest which the amount of sales tax would carry under section 8(1 A) of the Act.
There is also no provision in the Act which requires the issue of a notice of demand in respect of the interest by the Sales Tax Officer to the assessee before the Sales Tax Officer forwards recovery certificate to the Collector.
Reference has been made by Mr. Sen to sub section (1 A) of section B, according to which interest shall be added to the amount of tax and shall be deemed for all purposes to be part of the tax.
The above deeming provision, in our opinion, has been added only for the purpose of recovery.
The object apparently was that the amount of interest should be recovered in the.same manner as the amount of sales tax.
The amount of sales tax and other dues under sub section (8) of section 8 can be recovered 'beyond any pale of controversy and to obviate any objection that the interest on sales tax cannot be recovered as land revenue that subsection (1 A) provided that the interest shall be added to the amount of tax and be deemed for all purposes to be a part of the tax, 29 According to section 8(1 A), simple interest at the rate of 18 per cent per annum shall run on the amount of arrears of sales tax.
from the date specified in that sub section.
It would thus appear that the liability to pay interest is automatic and arises by operation of law.
The amount of interest on the date of payment of tax is not constant but increases from day to day.
The amount of interest can,.
therefore, be not predicated till such time as the arrears of sales tax are paid and it is consequently not possible to specify a definite figure in respect of the interest in the recovery certificate.
At the time the arrears of sales tax are paid, there can be no difficulty in finding the amount of interest which has.
become due.
The, amount of tax on which interest is to accrue, the rate of interest, the date from which interest is to commence and the date up to which interest is to be counted are all known.
It is, therefore, a matter of more arithmetical calculation to arrive at the figure of interest.
We find nothing in any of the provisions of the Act as may warrant making of another assessment order by the Sales Tax.
Officer regarding the amount of interest or making it obligatory for him to issue a demand notice in respect of the interest before sending the recovery certificate to the Collector.
We are also not impressed by Mr. Sen 's argument that the Sales Tax Officer should specify the amount of interest in the recovery certificate.
As the amount of interest would go on increasing every day fill the recovery of the sales tax, it is plainly not possible to specify the exact amount of interest in the recovery certificate.
The exact amount of interest can only be known on the day the arrears of sales tax are paid.
No elaborate procedure is required for determining the amount of interest because, as mentioned earlier, it is a matter of simple arithmetical calculation.
There was some argument before us on the point as to when U.P. Act 3 of 1964 came into force.
This Act received the assent of the President on January 25, 1964 but was published in the official Gazette on February 1, 1964.
It was submitted on behalf of the appellant that the Act came into force on the date it received the assent of the President.
As against that, Mr. Manchanda on behalf of the respondents stated that the Act came into force on February 1, 1964.
the day it was published in the official Gazette.
The stand taken by Mr. Manchanda in this respect is correct because according to clause (b) of sub section (1) of section 5 of the U.P. General Clauses Act, 1904 (U.P. Act No. 1 of 1904) where any Uttar Pradesh Act is not expressed to come into force on a particular day, then in the case of an Uttar Pradesh Act made after the Commencement of the Constitution, it shall come into operation on the day on which the assent there to of the Governor or the President, as the case may require, is first published in the official Gazette.
It may also be mentioned that in para 33 of the writ petition filed in the High Court the appellant ' too had taken the stand that the U.P. Act 3 of 1964 had come into, force 'on February. 1, 1964.
Argument has also been advanced by Mr. Sen that the interest on arrears of sales tax could not be realised for the period during which 30 the recovery of sales tax was stayed.
We find it difficult to accede to this contention because there is nothing in the language of section 8(1 A) of the Act which prevents the running of interest because of the operation of any stay order.
Indeed, the liability to pay interest is created by the statute and the Sales Tax Officer has no discretion to grant any exemption from the payment of interest.
Mr. Sen has pointed out that the amount of sales tax payable by the appellant was reduced on appeal and the appellant is entitled to a consequential relief on that account.
This is a matter which is outside the ambit of the question which has been dealt with in the judgment under appeal.
In case the appellant is entitled to any relief on account of reduction of the amount of sales tax in appeal, it would be for him to agitate the matter in appropriate proceedings.
The appeal consequently fails and is dismissed with costs.

summary/full:
The appellant firm was assessed to sales tax for the assessment years 1957 58 and 1958 1959.
On an application made by the appellant for the composition of tax the recovery of the tax for 1957 58 was stayed.
The stay order was vacated oh September 25.
Thereafter the sales tax officer issued a certificate to the Collector for the recovery of arrears of sales tax for the said assessment years.
In the certificate it was mentioned that 8% interest per annum on the arrears of tax was also to be recovered as arrears of land revenue in terms of the provisions of section 8(1 A) of the U.P. Sales Tax Act, ' 1948 as amended by Act 3 of 1964.
in a writ petition under article 226 of the Constitution the appellant challenged the recovery of interest mainly on the ground that there was no assessment order in regard to the interest and no notice of demand had been issued.
The High Court dismissed the petition.
Appeal in this Court was filed with certificate.
Dismissing the appeal, HELD : (i) The provision in sub section (1 A) of section 8 according to which interest shall be added ' to the amount of tax and shall be deemed for all purpose to be part of tax has been added only for the purpose of recovery.
The object apparently was that the amount of interest should be recovered in the same manner as the amount of sales tax.
The amount of sales tax and other dues under sub section (8) of section 8 can be recovered as arrears of land revenue.
It was with a view to nut the matter beyond any pale of controversy and to obviate any objection that the interest on sales tax cannot be recovered as land revenue that sub section (1 A) provided that the interest shall be added to the amount of tax and be deemed for all purposes to be a part of the tax.
It is a matter of mere arithmetical calculation to arrive at the figure of interest.
There is nothing in any of the provisions of the Act as may warrant making of another assessment order by the sales tax officer regarding the amount of interest or making it obligatory for him to issue a demand notice in respect of the interest before sending the recovery certificates to the Collector.
[28G 29C] (ii)The argument that the sales tax officer should specify the amount of interest in the recovery certificate could not be@ accepted.
As the amount of interest would go on increasing every day till the recovery of the sales tax it is plainly not possible to specify the exact amount of interest in the recovery certificate.
[29D] (iii)According to clause (b) of subsection (1) of section 5 of the U.P. General Clauses Act, 1904 where any U.P. Act is not expressed to come into force on a particular day than in the case of a U.P. Act made ' after the commence ment of the Constitution it shall come into operation on the date on which the assent thereto of the Governor or the President as the case may require is first published in the official gazette.
In the present case the President 's assent to U.P. Act 3 of 1964 was published in the official Gazette on February 1, 1964 and hence it must be held to have come into force on that day and not on the date on which the President 's assent was given, [29F] (iv)There is nothing in the language of section 8(1 A) of the Act which prevents the running of interest because of, the operation of any stay order.
Indeed the liability to pay interest is created by the statute and the Sales tax Officer has no discretion to grant any exemption from the payment of interest.
[30A] 26


judgement:
Appeal No. 1958 of 1968.
Appeal by special leave from the judgment and order dated August 2, 1966 of the Allahabad High Court in Special Appeal No. 960 of 1964.
G. B. Pai, Bhuvnesh Kumari, O. C. Mathur, J. B. Dadachanji & Co., for the appellant.
Danial Latifii and section Ramachandran, for respondents Nos. 4 and 5.
The Judgment of the Court was delivered by VAIDIALINGAM, J.
The short question that raises for consideration in this appeal, by special leave, is whether the State Government has power under section 6G of the U.P. (hereinafter to be referred to as the Act) to withdraw an order already passed referring a dispute for adjudication.
The facts leading up to the filing of the Writ Petition by the appellant are as follows The appellant, a public limited company, carrying on business of manufacture and sale of sugar from sugarcane, employs about a thousand workmen in its factory at Baitalpur.
The appellant retired three workmen, namely, Chhatradheri Lal Chandrika Prasad Srivastava and Bal Karan.
This led to an industrial dispute.
The State Government by Notification No. 785/LC/XVIII/LA 97(GR)/1959 dated October 25, 1960, referred the said dispute to the Labour Court, Gorakhpur, for adjudication.
This reference (hereinafter to be referred to as Reference, No. 1) was registered by the Labour Court as Adjudication Case No. 93 of 1960.
The parties filed their written statements and proceedings went on resulting in the Labour Court passing an award dated February 26, 1961, holding) that the retirement of the three workmen was neither legal nor justified.
This award was published in the U.P. Gazette dated May 6, 1961, by the State Government 's Notification dated April 4, 1961, No. 1176(EIO)36/ A/46(ST) 59.
There were similar disputes regarding the retirement of several other workmen and accordingly that dispute was referred by the State Government to the same Labour Court for adjudication by Notification No. 322(LC)XVIII LA 115,(GS)/1959 dated October 31, 1960.
This reference (hereinafter to be, referred to as Reference No. 11) was registered by the Labour Court as Adjudication Case No. 98 of 1960.
At this stage it must be mentioned that Reference No. 11 related to several workmen numbering about thirty or forty which included also the three Workmen covered by Reference No. 1.
The three workmen covered by Reference No. 1 made an application to the Labour Court for deleting their names from Reference No. 11 on the ground that their grievance is the subject of adjudication in Case No. 93 of 1960.
Though the appellant opposed this application, the Labour Court by its order dated February 21, 1961, accepted the prayer of the three workmen and as such they ceased to have anything to do further in Reference No. 11.
Adjudication Case No. 98 of 1960, arising out of Reference No. 11, also resulted in an award being passed by the Labour Court on February 27, 1961.
In this award, the Labour Court had decided the dispute on merits.
But it has specifically stated that it is not record ' any finding with 'regard to the ing 69 three workmen covered by Reference No. 1, as their names have been excluded from Adjudication Case No. 98 of 1960, arising out of Reference No. 11.
This award dated February 27, 1961, was published in the State Gazette on April 4, 196f.
We have earlier mentioned that the award dated February 26, 1961, in Adjudication Case No. 93 of 1960, arising out of Reference No. 1, was published in the State Gazette on May 6, 1961.
After the award was made on February 26, 1961, the State Government issued a Notification on February 28, 1961, withdrawing the Notification dated October 25, 1960, making Reference No. 1.
The order of withdrawal runs as follows "GOVERNMENT OF UTTAR PRADESH LABOUR (A) DEPARTMENT No. 167(LG)/XVIII LA 97(GR)/1959 Dated Kanpur, February 28, 1961 ORDER Whereas an industrial dispute between the employers and the workmen of the concern known as Shree Sitaram Sugar Co. Ltd., Baitalpur, Distt.
Deoria relating to retirement of the workmen, was referred for adjudication to the Labour Court at Gorakhpur in G.O. No. ' 785(LC)/XVIILLA 97 (GR)/1959, dated October 25, 1960.
And whereas the same dispute is also covered by G.O. No. 822 (LC)/XVIII LA 115(GR)/1959, dated October 31, 1960, as amended by G.O. No. 912(LC)/XVIII LA115(GR)/1959, dated November 21, 1960, referring the same question of retirement of workmen to Labour Court at Gorakhpur; Now, therefore, in exercise of the powers conferred by sub section (1) of section 6 G of the U.P. (U.P. Act No. XXVIII of 1947), the Governor is pleased to order that G.O. No. 785(LC)/ XVIII LA 97(GR)/1959, dated October 25 1960, referring the said dispute for adjudication, shall be and is hereby withdrawn." Sd/ J. Prasad Under Secretary.
" It will be noted from the above Notification that the State Government had withdrawn its previous order referring the dispute by Virtue of powers stated to be conferred under subsection (1) of section 6 G of the Act.
We have also referred to the fact that the award in Reference No. 1 was published in the State Gazette on May 6, 1961.
It will be noted that the material dates to be considered with regard to Reference No.1 are as follows : (a) The dispute was referred for adjudication by Notification dated October 25, 1960.
(b) The award was made on February 26, 1961.
70 (c) The Notification dated October25, 1960, referring the dispute was withdrawn by Notification dated February 28, 1961.
(d) The award was published in the State Gazette dated May 6, 1961.
It will be noted from these dates that the order withdrawing the original reference was made two days after the Tribunal had passed the award.
The publication of the award was after the State Government had withdrawn its original order making the reference.
The appellant filed the Writ Petition in the High Court under Article 226 for the issue of writ of certiorari quashing the award dated February 26, 1961 and also for a mandaus directing the State Government to withdraw its Notification dated May 6, 1961, publishing the award.
The proceedings before the High Court related to the matters arising out of Reference No. 1.
According to the appellant, the, award dated February 28, 1961, had become ineffectual and useless in view of the State Government having withdrawn the Notification dated October 25, 1960, referring the dispute for adjudication.
Its further contention was that having withdrawn on February 28, 1961, its previous order referring the dispute, the State Government had no power to publish the award, as it had done on May 6, 1961 and that the said order publishing the award had to be revoked.
The union contested the Writ Petition on the ground that the State Government has no power under section 6 G to withdraw an order already passed referring a dispute for adjudication and that, in any event, it has no such power after an award has been made by a Labour Court or Tribunal.
According to the union, the order of withdrawal dated February 28, 1961, is of no effect and that the publication of the award on May 6, 1961, was valid and that the State Government cannot be called upon to revoke the same.
The learned single Judge posed two questions for consideration (1) whether the power to withdraw under section 6 G of the Act is confined to withdrawal for purposes of transferring the proceedings to another Court or Tribunal; and (2) whether the power under section 6 G can be exercised at any stage until the award of the Labour Court or Tribunal has become enforceable under section 6 A of the Act.
The learned single Judge did not consider the first question and proceeded on the assumption that under section 6 G the State Government has power to Withdraw a reference already made.
But, after considering the second question, he came to the conclusion that the power of Withdrawal cannot be exercised after in award had been made by the Tribunal concerned.
In this view, the learned single Judge held that the order of withdrawal dated February 28, 1961, was of no effect and that tie publication of the award on May 6, 1961, was according to law.
In this view, the Court declined to grant any relief to the appellant.
71 The appellant challenged the decision of the learned single Judge in Special Appeal No. 960 of 1964.
The Division Bench of the Allahabad High Court has held that the State Government has power under section 6 G to withdraw any proceedings pending before a. Labour Court or Tribunal.
But it held that as the award had been made on February 26, 1961, there were no proceedings pending before the Labour Court on February 28, 1961, when the order of withdrawal was passed by the State Government.
In this view the Division Bench held that it was not open to the State Government to withdraw the proceedings after the award had been made by the Tribunal and, therefore, the Notification dated February 28, 1961, is of no effect.
By judgment and order dated August 2, 1966, the learned Judges confirmed the order of the single Judge and dismissed the Special Appeal.
The management has come to this Court in this appeal.
Mr. G. B. Pai, learned counsel for the appellant, placed considerable stress on the language of section 6 G of the Act and pointed out that in addition to the power of transferring a proceeding from one Labour Court or Tribunal to another, the said section, has conferred an absolute right on the State Government to withdraw an order already passed referring a dispute for adjudication.
There is only an obligation on the State Government to make the order in writing and also give reasons for the action taken by it.
The counsel very heavily relied on section 6 D of the Act and urged that this power of withdrawing a reference can be exercised till the date when the award becomes enforceable.
Therefore, the mere fact that an award has been made does not take away the power of the State Government to, withdraw a reference.
In the case before us, the counsel pointed out that the award had been made only on February 26, 1961 and the reference had been withdrawn by the State Government on February 25, 1961, long before the award had become enforceable.
The counsel urged that, in view of the circumstances pointed out above, the view of the High Court that the State Government has no power to withdraw the reference, as the award has been made, is erroneous.
Mr. Daniel Latifi, learned counsel for the workmen concerned, on_ the other hand, urged that the view of the High Court that there is a power under section 6 G in the State Government to withdraw a reference is erroneous.
The counsel pointed out that section 6 G confers on the State Government only a power to transfer a proceeding from one Labour Court or Tribunal to another.
The counsel also pointed out that section 6 D has no bearing in the construction of section 6 G of the Act.
When there is no power in the State Government to Withdraw a reference, the counsel pointed out, the question at what stage the proceedings can be withdrawn is purely academic.
Even assuming that there is a power under section 6 G an the State Government to withdraw an order of reference already made, that section, the counsel pointed out, does not give power to order such withdrawal after an award has been passed.
According to him once an award has been made by a Labour Court or Tribun proceedings before it come to a close and there is nothing for being withdrawn by the State Government.
The counsel supported the reasoning of the High Court that section 6 G does not confer any Power on the State Government to 72 withdraw an order of reference after an award had been made by the Labour Court or Tribunal concerned. ' In our opinion, the first and foremost question that should have been considered by the High Court is whither section 6 G confers a power on the State Government to withdraw an order earlier passed referring a dispute for adjudication.
It is only when this point is answered in the affirmative the, further question is upto what stage can the power of withdrawal be exercised by the State.
The, State of Uttar Pradesh was a party before the learned single Judge as well as the High Court and is 2nd respondent in the appeal before us.
We have already referred to the fact that the relief that was asked for by the appellant was by way of writ of mandamus directing the State Government to withdraw the publication, made in the Gazette of May 6, 1961, of the award by its order dated April 4, 1961.
This relief was asked for by the appellant on the ground that the order dated February 28, 1961, of the State, Government withdrawing the reference was well within its power.
In the Writ Petition the powers and functions of the State Government under the Act came squarely for consideration.
Under those circumstances one would have expected the State Government to appear before this Court and place its point of view regarding the points under consideration.
Unfortunately, the State Government has chosen to remain exparte in this appeal.
Hence we have to decide the points in controversy only on the basis of the contentions advanced on behalf of the employer and the workmen.
It is now necessary to refer to certain relevant provisions of the Act.
According to the preamble, the Act has been enacted to provide for powers to prevent strikes and lock outs and for the settlement of industrial disputes and other incidental matters.
Section 2(c) states : " ' Award ' means an interim or final determination of any industrial dispute or of any question relating thereto by, any Labour Court or Tribunal and includes an arbitration award made under Section 5 B." The above definition takes in both interim and final awards. 'Section 4 K gives power to the State Government to refer for adjudication an industrial dispute to the Labour Court or an Industrial Tribunal under the circumstances mentioned therein.
Section 5 gives power to the State Government to include other undertakings in any adjudication.
Section 6 dealing with the proceedings before a Tribunal, Submission of the award and its publication runs as follows : "6.
Awards and action to be taken thereon (1)Where an industrial dispute, has been referred to a Labour Court or Tribunal for adjudication, it shall hold its proceedings expeditiously 'and shall as soon as it is practicable on the conclusion thereof.
submit its award to the State Government.
(2)The award of a Court or Tribunal shall be in writing and shall be signed by its Presiding Officer.
73 (3)Subject to the provisions of sub section (4) every arbitration award and the award of a Labour Court or Tribunal, shall within a period of thirty days from the date of its receipt by the State Government, be published in such manner as the State Government thinks fit.
(4)The State Government may before publication of an award of a Labour Court or Tribunal under sub section (3), remit the award for reconsideration of the adjudicating authority , and that authority shall, after reconsideration submit its award to the State Government, and the State Government shall publish the award in the manner provided in sub section (3).
(5)Subject to the provisions of section 6 A, an award published under sub section (3) shall be final and shall not be called in question in any court in any manner whatso ever.
(6)A Labour Court, Tribunal or Arbitrator any "either of its own motion or on the application of any party to the dispute, correct any clerical or arithmetical mistake in the award, or errors arising therein from I any accidental.
slip or omission; whenever any correction is made as aforesaid, a copy of the order shall be sent to the State Government and the provision of this Act, relating to the publication of an award shall mutatis mutandis apply thereto.
" The above section clearly indicates that when once an industrial dispute has been referred for adjudication, the Labour Court or Tribunal has to conduct its proceedings expeditiously and it has to submit its award to the State Government.
The award has to be published within thirty days of its receipt by the State Government.
Power has no doubt been given to the State Government, before publication of an award, to remit the same for reconsideration.
When the same is received after reconsideration, the State Government is bound to publish the same, as provided under sub section (3).
An award published under sub section (3) is final subject to the provisions of section 6 A.
The Labour Court or Tribunal has power to correct any clerical or arithmetical mistake in the award.
But if any such correction is made, a copy of the order making the correction will have to be sent to the State Government.
The provisions relating to Publication of an award apply to the order making a correction in the award.
Section 6 A deals with the commencement of the award.
The general rule, as provided under sub section (1) is that an award becomes enforceable on the expiry of thirty days from the date of its publication under section 6.
Sub ,section (3) provides for a slightly different period depending upon the circumstances mentioned, therein.
Sections 6 D and 6 G are as follows "6 D. Commencement and conclusion of proceedings, Proceedings before a Labour Court or Tribunal shall be deemed to have commenced on the date of reference of a 74 dispute, to adjudication, and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable under section 6 A." "6 G. Power to transfer certain proceedings (1)The State Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act, pending before a Labour Court or Tribunal or transfer a proceeding from one Labour Court or Tribunal to another Labour Court or Tribunal, as the case may be, for the disposal of the proceeding and the Labour Court or Tribunal to which the proceeding is so transferred may, subject to any special directions in the order of transfer, proceed either de novo or from the stage at which it was so transferred; Provided that where a proceeding under section 6 E or section 6 F is pending before a Tribunal, the proceeding may also be transferred to a Labour Court.
(2) Without prejudice to the provisions of sub section (1) any Tribunal, if so authorized by the State Government, may transfer any proceeding under section 6 E or section 6 F pending before it to any one of the Labour Courts specified for the disposal of such proceedings by the State Government by notification in the Official Gazette and the Labour Court to which the proceeding is so transferred shall dispose of the same." Sections 6 D and 6 G substantially correspond to sub section (3) of section 20 and section 33 B respectively of the (Central Act XIV of 1947).
It must be stated that a superficial reading of sub section (1) of section 6 G in isolation will give the impression that the State Government has got two distinct and separate powers, namely (a) to withdraw any proceedings under the Act pending before a Labour Court or Tribunal,; or (b) to transfer the proceedings from one Labour Court or Tribunal to another Labour Court or Tribunal for disposal of the same.
It is on the basis of such a reading of the section that Mr. Pai, the learned counsel, urged that there is an absolute power in the State Government to withdraw an order already passed referring a dispute for adjudication.
This power ' according to the learned counsel, is distinct and separate front the power given under the same section to the State Government to transfer a proceeding from one Labour Court or Tribunal to another.
If we do not accept the contention of Mr. Pai that section 6 G confers two such distinct and separate powers, section 6 D will not assist the appellant.
It is only if we hold that the Government has a power to withdraw simpliciter, the further question regarding the stage upto which the power could be exercised.
will arise for consideration.
75 We have already pointed out that section 6 casts a duty on the Tribunal, when a dispute has been referred to it, to deal with it expeditiously and to submit its award to the State Government.
The State Government has also an obligation to publish the award within thirty days of its receipt.
No doubt sub section (4) of section 6 gives power to the State Government, before publishing the award, to remit the same for reconsideration.
But still a duty is cast upon the State Government to publish the award as reconsidered by the Tribunal within thirty days of its receipt.
Section 6 A also gives certain powers toy the State Government regarding the award, which normally becomes enforceable under sub section (1) on the expiry of thirty days from the date of its publication.
Section 6 G, in our opinion, deals only with the power of the State Government to transfer a proceeding from one Labour Court or Tribunal to another and for purposes of such transfer to withdraw the proceedings from the Labour Court or Tribunal from whom it is being transferred.
We are free to admit that the wording of sub section (1) is capable of being construed as conferring on the State Government a power to withdraw any proceedings or to transfer a proceeding from one Labour Court or Tribunal to another.
But having regard to the scheme of section 6 G, read in the light of the other provisions referred to earlier, the section will have to be interpreted as giving to the ,State Government only a power to transfer a proceeding from one Labour Court to another.
When section 6 makes it obligatory that an award has to be made by the Tribunal concerned, and that it has to, be published by the State Government within thirty days of its receipt and declare that the award on publication becomes final, it is idle to expect that the legislature intended to nullify the entire proceedings.
by conferring an absolute power of withdrawal on the State Government under section 6 G.
The proper way of reading section 6 G is to limit the power of withdrawal, referred to therein, only for the purpose of transferring the proceedings from one Labour Court or Tribunal to another.
That the expression 'or ' in section 6 G(1) interposed between 'withdraw any proceedings '.
. or 'transfer a proceeding ' will have tar be understood as 'and '.
So read, the power conferred under section 6 G on the State Government is that of withdrawing any proceedings from one Labour Court or Tribunal and transferring the same to another.
Mr. Pai drew our attention to section 33 B of the Central Act and emphasised that the said section is words differently from section 6 G of the Act.
According to him, the wording of section 33 B clearly shows that the withdrawal of any proceedings is only for transferring the same to another Labour Court or Tribunal.
On the other hand, the counsel pointed out that a different phraseology has been used in section 6 G indicating the conferment of two distinct powers.
We have already referred to this aspect and expressed the view that a superficial reading of section 6 G will support the contention of Mr. Pai.
If the expression 'or ', as mentioned earlier, is read as 'and ', the section does not present any difficulty.
That having due regard to the scheme of the statute and the purpose sought to be served the expression 'or ' can be read under certain circumstances as 'and ' as has been laid down 76 by this Court in Mazagaon Dock Ltd. vs The Commissioner of Income Tax and Excess Profits Tax.(1) Adopting the same principle and having due regard to the object of section 6 G, which essentially is only to confer in the State Government a power to transfer a proceeding from one Labour Court or Tribunal to another, the expression 'or ' has to be read in section 6 G as 'and ', If so read, sub section (1) of section 6 G confers on the State Government only a power to withdraw a proceeding from one Labour Court or Tribunal and transfer the same to another.
It is needless to state that transfer of a proceeding can only be when it is pending before A Labour Court or Tribunal.
Section 6 D, in our opinion, has no relevancy in construing section 6 G. Section 6 D is enacted for a totally different purpose.
For instance section 6 E provides for conditions of service etc.
to remain unchanged in certain circumstances during the pendency of proceedings.
Similarly under section 6 F a question may arise whether an employer has contr avened the provisions of section 6 E during the pendency of proceeding before a Labour Court or Tribunal.
It may be quite essential to consider whether any proceedings were pending before a Labour Court or Tribunal.
For the purpose of considering the question whether ,any proceedings were pending, the Act has created a fiction under section 6 D by indicating the starting point of a proceeding before a Labour Court as well as its conclusion.
The starting point of the proceedings has been fixed from the date of the reference and its termination has been fixed as the date on which the award becomes enforceable under section 6 A.
During this period broadly it has to be considered that proceedings are pending before a Labour Court or Tribunal.
We need not refer to the other provisions of the Act where the duration of the pendency of proceedings may assume importance.
Section 6 D can be invoked only in those cases.
But it does not come into the picture, as mentioned earlier, in construing section 6 G. Mr. Pai referred us to the decision of this Court in The Sirsilk Ltd., and Others vs Government of Andhra Pradesh & Another(2), where the provisions of section 17 and 18 of the Central Act were read in harmony and the State Government was directed not to publish the award though its publication was mandatory.
We are not faced with ,such a situation in the case before us.
We have already referred to the fact that in Adjudication Case No. 98 of 1960, arising out of Reference No. 11, respondents 4 to 6 herein had requested the Labour Court to exclude them from the said adjudication on the ground that they are already covered by Adjudication Case No. 93 of 1960, arising out of Reference No. 1.
The Labour Court passed an order on February 21, 1961, excluding the said three workmen from Adjudication Case 'No. 98 of 1960.
That means the said three workmen had no further interest in the said Adjudication Case.
If that is so, the award passed on February 26, 1961, in the case arising out of Reference No. 1 was perfectly correct and the publication of the said award on May 6, 1961, was also in pursuance of the mandatory provisions of the Act. 'There is no question of any conflict between the two awards.
Hence the appellant cannot seek any assistance from the decision of this (1) (2) 77 Court in The Sirsilk Ltd., and Others vs Government of Andhra Pradesh& Another(1) and it cannot ask for a writ of mandamus directing the State Government to cancel the publication of the award.
We are in agreement with the view of the High Court that the appellant is not entitled to any relief, though for different reasons.
The appeal fails and is dismissed with costs.
G.C Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant company retired three of its workmen and the industrial dispute thus arising was referred to the Labour Court, Gorakhpur, for adjudication The reference was registered by the Labour Court as Adjudication Case No. 93 of 1960.
The parties filed their written statement and proceedings went on resulting in the Labour Court passing an order dated February 26, 1961 holding that the retirement of the three workmen was neither legal nor justified.
There were similar disputes regarding the retirement of several other workmen and the dispute relating to them was referred to the same Labour Court and this reference was registered as Adjudication Case No. 98 of 1960.
The three workmen whose cases were the subject matter of the first reference were also included in the second reference.
They applied to the Labour Court to have their names deleted from the second reference, and they were accordingly deleted.
The Labour Court gave its award in the second reference on February 27, 1961.
In this award the Labour Court specifically stated that it was not recording any finding with regard to the three workmen covered by the first reference.
On a representation made by the appellant the State Government issued a notification on February 28. 1961 withdrawing the first reference relating to the three aforesaid workmen.
This was purported to be done under sub section (1) of section 6 G of the U.P.
Even so the State Government published the award in the first reference on May 6, 1961.
The appellant filed a writ petition in the High Court under article 226 of the Constitution for the issue of a writ of certiorari quashing the award dated February 26, 1961 and also for a mandamus directing the State Government to withdraw its Notification dated May 6. 1961.
The single Judge as well as the Division Bench decided against the appellant.
In appeal before this Court, HELD : (i) The wording of sub section (1) of section 6 G is capable of being construed as conferring on the State Government a power to withdraw any proceedings or to transfer a proceeding from one Labour Court or Tribunal to another.
But having regard to the scheme of section 6 G read in the light of the other provisions of the Act the section will have to be interpreted as giving to the State Government only a power to transfer a proceeding from one Labour Court to another.
When section 6 makes it obligatory that an award has to be made by the tribunal concerned and that It has to be published by the State Government within 30 days of its receipt and declares that the award on is idle to expect that the legislature intended to by conferring an absolute power of withdrawal on Government State section 6 G.
The proper way of reading section 6 G is to limit the power of withdrawal referred to therein only for the purpose of transferring proceedings from one Labour Court or Tribunal to another.
[75D] The provisions of section 33B and section 6 D of the Act did not support a contrary conclusion.
Sirsilk Ltd. and Others vs Government of Andhra Pradesh & Another ; , distinguished.
(ii) The expression 'or ' in section 6 G (1) interposed between 'withdraw any proceedings ' or 'transfer a proceeding ' will have to be understood as 'and '.
[75H] Mazagaon Dock Ltd. vs The Commissioner of income tax and Excess Profits Tax; , relied on.


judgement:
Appeal No. 1907 of 1970, Appeal by certificate from the order dated October 30, 1969, of the Madhya Pradesh High Court (Gwalior Bench) in Civil Misc.
Petition No. 16 of 1968.
C. K. Daphtary, P. C. Bhartari and C. Mathur, for the appellant Ram Panjwani and I. N. Shroff, for respondent No. 1.
M. C. Setalvad and Rameshwar Nath, for respondent No. 2. 88 The Judgment of the Court was delivered by GROVER, J.
This is an appeal by certificate from an order of the Madhya Pradesh High Court.
The facts may be shortly stated.
Prior to April 1, 1963, three undertakings namely, Gwalior Engineering Works, (2) Gwalior Potteries, and ' (3) Gwalior Leather Factory and Gwalior Tannery, Morar, were owned and managed by the Madhaya Pradesh State.
The employees in these undertakings were in the service of the Madhya Pradesh State Government.
These undertakings were transferred to the Madhya Pradesh Industries Corporation Ltd., hereinafter called the "Corporation".
The employees of these undertakings thus ceased to be in the service of the State Government and became employees of the Corporation.
On February 16, 1963 the Government of Madhya Pradesh had made an offer to the employees ,of the.
three undertakings which was as follows "WHEREAS the State Government have decided to transfer the management of the (1) Gwalior Potteries, (2) Gwalior Engineering Works, (3) Gwalior Leather Factory and Tannery and Tent Factory (hereinafter referred to as the said undertakings) to the Madhya Pradesh State Industries Corporation (hereinafter referred to as the said Corporation) with effect from 1st day of April, 1963.
AND WHREAS from and after the aforesaid date the said undertaking will cease to exist.
Now, therefore, it is proposed to transfer your services to the said Corporation on the conditions detailed below (1) Your present pay and scale, and other conditions of service and benefits to which you are at present entitled will not be affected by transfer.
(2) The transfer of your services will not be treated as an interruption in your service.
In other words you win be entitled to leave and other benefits on the same basis as if your services under the State Corporation was a continuation of your total uninterrupted services under the said undertakings",, The person to whom the letter was addressed was required to let the General Manager of each of the Undertakings know 'by the 20th day of March 1963 whether he agreed to the transfer of service to the Corporation on the conditions mentioned above.
It is not necessary to refer to the other terms of the offer.
This offer had been accepted by the employees of the three undertakings.
However Gwalior Shasakiya Audogik Karamehari Sangh, Lashkar, Gwalior, filed an application under s 33C(2) of the , on August 28, 1968 claiming that the dearness allowance should be paid by the Corporation at the same rate and on the same basis on which the Madhya Pradesh State Government, was paying this allowance to its employees.
It was alleged that the Corporation had paid the same rates as were being paid by the Madhya Pradesh State Government for about two years but later on 89 the.
Corporation declined to pay the same rates of Dearness Allowance to its employees.
The Labour Court did not accede to the contention of the Union of the employees that they were entitled to dearness allowance at the same rates and on the same basis on which it was being paid to the employees of the State Government.
A petition was filed under article 226 of the Constitution by R. C. Sharma the Secretary of the Union mentioned before.
The High Court dismissed that petition.
The short.
question involved in this appeal is whether under the terms of the offer made and accepted by the employees, they are entitled to the same dearness allowance as is being paid by the State Government to its employees.
The first term made it quite clear that when the employees of the erstwhile undertakings of the State would join the service of the Corporation their subsisting pay and scale and other conditions of service and benefits to which they were entitled at that time would not be affected by the transfer.
The case of the Union was that the second term or condition entitled them to the same dearness allowance which the employees of the Madhya Pradesh State Government were getting.
Now this term or condition was confined only to the question of the effect of the transfer on the service of an employee.
It was made clear that the transfer of service would not be treated as an interruption in his service.
This was amplified by saying, "you will be entitled to leave and other benefits on the same basis as if your services under the State Corporation was a continuation of your total uninterrupted services under the said undertakings".
The High Court relied on an earlier decision given by it in Misc.
Petition No, 237 of 1968 decided on March 26, 1969.
According to that decision leave and other benefits that were secured under condition No. 2 were leave and such benefits which depended upon the length of service, e.g., gratuity, pension etc.
The object of creating a fiction of continuity of service was not to make the Corporation employees Government employees and to make applicable to them any change effected in the conditions of service of government employees; but what was intended was to secure to the transferred employees leave and benefits depending upon the length of service by making their service fictionally uninterrupted.
Ordinarily the change of employers would have the effect of interrupting service.
Condition No. 2 was, therefore, meant to overcome that situation.
That condition dealt solely with the effect of the transfer of service on the benefits to which an employee would be entitled if there was no interruption in his service.
The second sentence therein, namely " in other words" etc.
was merely explanatory of the first sentence that the transfer of service will not be treated as an interruption in the service.
The second sentence was not intended and could not be read as meaning that whatever benefits an employee of the State Government were to get in future the employees of the Corporation would automatically become entitled to them.
As pointed out by the High Court in the earlier I judgment if condition No. 2 was to be read as securing to a transferred employee benefits which the Government might in future confer upon its employees that would contradict condition No. 1 which secured only such benefits to which a transferred employee was entitled at the time of 90 transfer.
We are in entire agreement with this view of the High Court.
Mr. C. K. Daphtary who appeared for the appellant tried to persuade us that condition No. 2 should be so interpreted as to confer on the employees of the Corporation the same benefits to which the employees of the State became entitled in the course of subsequent years.
We are unable to construe condition No. 2 in the manner suggested.
All that that condition secured was that the employees should not suffer in the length of their service and in the enjoyment of the benefits which an uninterrupted service confers on them because of the transfer of their service from the State Government to the Corporation.
We find no ground on which we can interfere in the order, of the High Court.
The appeal fails and it is dismissed but in the circumstances we make no order as to costs.
G. C. Appeal dismissed.

summary/full:
Three industrial undertakings owned and managed by the Madhya Pradesh Government were transferred to the Madhya Pradesh State Industries Corporation with effect from April 1, 1963.
By letter dated February 16, 1963 the State Government offered to transfer the services of the employees of the three undertakings to the Corporation on two conditions.
The first one was that their existing pay and scale and other conditions of service and benefits to which they were entitled would not be affected by the transfer.
The second was that the transfer of services would not be treated as an interruption in service.
In other words, it was said.
the employees would be entitled to leave and other benefits on the same basis as if their services under the State Corporation were a continuation of their total uninterrupted services under the said undertakings.
This offer was accepted by the employees.
However, relying on the second condition mentioned In the aforesaid letter the employees raised an industrial dispute in 1968, claiming from the Corporation, dearness allowance on the same scale and on the same basis as it was subsequently being paid by the State Government to its employees.
The Labour Court rejected the contention.
The present appellant as Secretary of the employees Union filed a writ petition under Article 2 the Constitution.
The High Court dismissed the petition.
By certificate appeal was filed in this Court.
Dismissing the appeal.
HELD : Ordinarily the change of employers would have the effect of interrupting service.
Condition 2 was, therefore.
meant to overcome that situation.
That condition dealt solely with effect of the transfer of service on the benefits to which an employee would be entitled if there was no interruption in his service.
The second sentence therein, namely 'in other words ' etc.
was merely ex planatory.
of the first sentence that the transfer of service will not be treated as an interruption in his service.
The second sentence was not intended and could not be read as meaning that whatever benefits an employee of the State Government were to get in future the employees of the Corporation would automatically become entitled to them.
If condition No. 2 was to be read as securing to a transferred employee benefits which the Government might in future confer upon its employees that would contradict condition No. 1 which secured only such benefits to which a transferred employee Was entitled at the time of transfer.
[89F].


judgement:
Appeal No. 2433 of 1968.
Appeal by special leave from the Award dated August 9, 1968 of the Labour Court Gauhati in Case No. 6 of 1968 published in the Assam Gazette dated the 4th September 1968.
B. Sen, G. Mukhuty and D. N. Gupta, for the Appellant.
D. L. Sen Gupta and section K. Nandy, for the respondents.
The Judgment of the, Court was delivered by VAIDIALINGAM, J.
In this appeal, by special leave, the question that arises for consideration is whether the appellant has contravened section 9 D of the (hereinafter referred to as the Act), when at the request of the majority of the workmen the holiday for Diwali was changed from 11th November, 1966 to the ,next day.
According to the usual practice, at the commencement of the year 1966, the appellant had published a list of holidays for that year.
According to this list, the holiday for Kali Puja was stated to be on Friday, the 11th November, 1966.
On November 5, 1966, the appellant notified that the factory will remain closed for Kali Puja on Friday, the 11th November, '1966.
This notification was only on the basis of the list of holidays referred to earlier.
The workmen in this company were represented by two unions (1) Amco Employees Association (hereinafter referred to as the Association) and (2) Amco Sramik Sangha (hereinafter referred to as the Sangh ).
There is no controversy that the Sangha represented the majority of the workmen of this company.
On November 10, 1966, the General Secretary of the Sangha wrote a letter to the factory Manager of the appellant requesting him to close the factory on Saturday, the 12th November, 1966, on account of Kali Puja instead of the 11th instant as already notified by the com 118 pany on November 5, 1966.
A further request was made in this letter that the factory may be kept working on Friday, the 11th November, in accordance with the timings mentioned therein.
The General Secretary further stated in this letter that if the request of change in the holiday is not accepted, a large number of workmen will not be attending on Saturday, the 12th November, which will result in heavy loss of production.
On receipt of this letter, the appellant put up a notice the same 'day that in response to the request of the Sangha, the factory will remain closed for Kali Puja on Saturday, the 12th November, instead of Friday, the 11th, as previously notified.
This notice further stated that the factory will remain open on Friday, the 11th November during the hours mentioned therein.
Quite naturally, this notice cancelled the previous notice dated November 5, 1966.
After the company 's notice regarding the change of holiday for Diwali was put up on the notice board, the Association, on the same day (November 10, 1966), addressed a letter to the management that the change of holiday for Diwali was not justified and that the date originally declared as a holiday, namely, the 11th November, should be allowed to stand.
The company obviously did not accede to this request of the Association with the result that most of the workmen attached to the association did not attend to work on November 11, 1966.
The wages for that day were not paid by the appellant to those workmen on the ground that they were absent from duty.
Nearly a year later on December 30, 1967, the respondents in this appeal, 83 in number, filed an application before the Labour Court, Gauhati, under section 33 A of the Act.
The grievance of these workmen appears to be that there was an industrial dispute pending at the relevant time and that without complying with the provisions of section 33, and without conforming to the provisions of section 9 A, the employer had altered the condition of service by changing the date of the holiday for Diwali.
According to them, one day holiday for Kali Puja was being allowed for a number of years and that it has become a condition of service.
The notice issued on November 5, 19766, declaring November 11, 1966, as a holiday for Diwali was in conformity with the right of the workmen under the conditions of their service.
The Standing Orders of the company did not give any power to the appellant to change the holiday for Diwali and, therefore, section 3 3 (2) (a) of the Act does not give power to the appellant to alter the, said date.
Any change of date can only be effected in accordance with section 9 A. As that has not been done, the action of the employer in declaring 12th November, 1966, as a holiday and refusing to pay wages for 11th November, 1966, were both illegal.
Accordingly they proved for directing the appellant to pay them 'Wages for November 11, 1966, which has been denied to them, as their absence on that day was perfectly legal.
The management contested the application on the ground that there has been no change effected in the conditions of service of the workmen by altering the holiday of Diwali from November 11, to the next day.
As the holiday is for Diwali and as the majority of the workmen specifically desired the holiday on the 12th November the 119 change was made to suit the convenience of the workmen.
Even if the fixation of a holiday is a condition of service, the change has been made for the benefit of the workmen.
The management further pleaded that under the Standing Orders they were entitled to fix the holidays and also to effect any changes therein and, therefore, section 33 (2) (a) of the Act gives power to them to effect such a change, although an industrial dispute was then pending.
The management also cited certain previous instances when the holiday for Holiday or for Diwali once fixed had been altered at the request of the workmen.
The Labour Court has accepted the plea of the management that the Sangha represented the majority of the workmen of the appellant.
It has further found that the appellant altered the date from 11th to 12th at the specific request of the Sangha.
But the Labour Court held that, as the holiday has been originally fixed for the 11th November by the notice dated November 5, 1966, on the basis of the list of holidays announced by the company, the alteration of the holiday from 11th to 12th November, though at the request of the majority of the workmen, amounted to a change in the condition (if service and as such, the procedure under section 9 A should have been followed.
As the said procedure had not been followed by the appellant, the Labour Court held that there has been a violation of section 33 read with section 9 A of the Act.
In this view, it granted the reliefs asked for by the 33 workmen.
Mr. B. Sen, on behalf of the appellant company supported the stand taken by it before the Labour Court.
He urged that there is no question of any cancellation of a holiday that the workmen were entitled to, in which case it may be stated that the condition of service is effected.
On the other hand, the workmen did have a holiday for Diwali on the 12th November.
The counsel also referred us to the evidence on record to show that on previous occasions such changes had been effected in the holidays when a request was made by the workmen concerned.
Mr. Sen Gupta, learned counsel for the respondents, has adopted the reasons given by the Labour Court for holding that a change in the condition of service has been effected by the appellant.
In particular, Mr. Sen Gupta pointed out +hat if the employer wanted to effect a change in the date of the holiday, it should have been done by the appellant entering into a settlement with the work men, as contemplated by clause (a) of the proviso to section 9 A.
The sum and substance of the arguments of Mr. Sen Gupta was that the appellant, having fixed the holiday for Diwali as per its previous circular".
had no power to change the same oven though a majority of the workmen had desired the appellant to do so.
Section 9 A no doubt provides that the conditions of service of any workmen in respect of any matter specified in the Fourth Schedule cannot be changed without following the procedure indicated therein.
If the alteration of the date of a holiday amount to a change in the Condition of 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".
There 120 fore, 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 conforming 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 company 's certified Sanding 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 Orders.
In our opinion, the alteration of the date regarding the holiday for Diwali, from 1 1 the 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 Calls 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 I 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.
In The Workmen of M/S. Sur Iron & Steel Co. Pvt. Ltd. vs M/S. Sur Iron & Steel Co. Pvt. Ltd., and another(1), the workmen contended that the change in the 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 no notice under section 9 A was required to be served in respect of the matters covered by items 4, 6 and 11 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.
The decision in M/s Tata Iron and Steel Co. Ltd. vs The Workmen and others(2) does not advance the case of the respondents.
From (1) (2) 121 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 section 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 or 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 canceling, the holiday enjoyed on Sunday amounts, in the circumstances, to a change in the conditions of service.
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 M/s. Tata Iron and Steel Co. Ltd. vs The workmen and others(1) 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, 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 3 3 (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.
For the reasons stated above, we are of the opinion that the application filed by the workmen before the Labour Court under section 33 A was misconceived.
In the result, the order of the Labour Court is set aside and this appeal is allowed.
There will be no order as to ,costs.
S.C. Appeal allowed.

summary/full:
The appellant, according to the usual practice of the company, at the beginning of 1966, had published a list of holidays for that year.
According to this list, the holiday for Kalipuja was stated to be on Friday the 11th November 1966.
The workmen in this company were represented by two Unions The Amco Employees Association ' and Amco Shramic Sangha ' of which the Sangha represented the majority of the workmen of this company.
On November 8, 1966, the appellant notified that the factory will remain closed for Kalipuja on 11th November 1966.
On 10th November 1966, the General Secretary of the Sangha wrote a letter to the Factory Manager of the Company requesting him to close the factory on Saturday the 12th November, 1966 on account of Kalipuja instead of 11th November, 1966.
A further request was made that the factory may be kept working on Friday in accordance with the timings of the company and stated in his letter that if the request for change in the holiday is not acceptable a large number of workmen will not be attending on Saturday and there will be heavy loss of production.
On receipt of this letter, the appellant put up a notice the same day that in response to the request of the Sangha the factory will remain closed on Saturday the 12th November instead of Friday the 11th.
After the company 's notice regarding the change of holiday for Kalipuia, the other Union, the Association on the same day addressed a letter to the Management that the change of holiday for Kalipuja was not justified and that the original date should be allowed to stand.
The company did not accede to this request and as a result most of the workmen belonging to the Association did not attend work on November 11, 1966.
The wages for the day were not paid by the appellant to those workmen who were absent on that day.
After about a year, the respondent& filed an application before the Labour Court under section 33 A of the Act.
The grievance of these workmen was that there was an industrial dispute pending at the relevant time and that without complying with the provisions of section 33 and section 9 A, the employer had altered the condition of the service by changing the date of the holiday for Kalipuja.
According to the respondents, one day holiday for Kalipuja was allowed to them for a number of years and that it had become a condition of service.
The standing orders of the company did not give any power to the appellant to change the, holiday for Kalipuja, and therefore section 33 (2) (a) of the Act was violated.
According to them, any change of date can only be affected in accordance with section 9 A.
Therefore the employer in declaring 12th November as a holiday and refusing to pay wages for 11 November 1966 acted illegally.
The management on the other hand, Contested the application on the ground that there had been no change in the conditions of service of the workmen.
The change was made to suit the convenience of the workmen themselves and it was done for their benefit.
The Labour Court accepted the plea of the management but held that as the holiday has been originally fixed for 11th but later changed to 12th amounted to a change in the condition of service and therefore, the procedure under section 9 A had not been followed.
As the said procedure had not been followed by the appellant, the Labour Court held that there had been it violation of section 33 read with section 9 A of the Act and he granted the reliefs accordingly.
Allowing the appeal, 117 HELD : (i) The alteration of the date regarding the holiday for Kalipuja from 11th to 12th November 1966 cannot be considered to be an alteration in the conditions of service.
The workmen may be entailed to have a holiday for ' Kalipuja.
But on what particular date Kalipuja 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 was not being observed on the day originally fixed.
and the management changed the date, it cannot be stated that there was an alteration in the conditions of service.
The workmen were no, being deprived of a holiday at all for Kalipuja.
In fact, they had got it on the 12th November 1966.
[120D] The Workmen of M/s. Sur Iron & Steel Company Private Ltd. vs M/s. Sur Iron & Steel Co. Private Ltd. , referred to.
(ii)Even assuming that alteration of the date of the holiday for Kalipuja will amount to a condition of service there is no question in the present case of a contravention.
of section 9 when the majority of the workmen themselves requested the employer to make the alteration.
The employer was within its rights under section 33(2).
Further.
the evidence on the side of the respondents showed that the workmen actually celebrated Kalipuja on the 12th November which was declared to be a holiday.
Therefore, the application filed by the workmen before the Labour Court under section 33 A was misconceived.
[121E] M/s. Tata Iron & Steel Co. Ltd. vs Workmen and Ors. , discussed and distinguished.