High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19.1.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No.20077 of 1998MRF Limited, rep.by itsGeneral Manager, Arkonam-Thiruthani Road,Ichiputtur, Arkonam Taluk. .. Petitioner-vs-1.The Deputy Chief Inspector ofFactories, Office of the DeputyChief Inspector of Factories,101 & 102, Arni Road, Sankaranpalayam, Vellore-632 001.2.MRF Cycle Tyre Unit Association,Regd.No.210/NAT, Ichiputhur,Arakonam Taluk. .. RespondentsPRAYER : Petition filed under Article 226 of the Constitution of Indiapraying for the issuance of a writ of certiorari to call for therecords relating to Order No.2/9416/98, dated 19.11.1998 passed by thefirst respondent and quash the same. For petitioner: Mr.Sanjay Mohan for M/s.Ramasubramanian Associates For respondents: Mr.A.Arumugam, Spl.G.P (R1) Mr.T.K.Ramkumar (R2) *****O R D E RThe writ petitioner is a public limited company. In this writpetition, the challenge is to the order made by the first respondentDeputy Chief Inspector of Factories, Vellore, dated 19.11.1998. By theaforesaid order, the first respondent informed the petitioner https://hcservices.ecourts.gov.in/hcservices/ management that by an order dated 21.7.1997, the approval sent by thedepartment in Form III read with Rule 3(1) and (4)(4) of the TamilNadu Industrial Establishments (National and Festival Holidays) Rules,1959 (for short 'NAFH Rules') framed under Section 12 of the TamilNadu Industrial Establishments (National and Festival Holidays) Act,1958 (for short 'NAFH Act') stood cancelled.2. The writ petition was admitted on 18.12.1998 and an interim-stay was granted on the same day. Due to the default on the part ofthe respondents, the interim order was also made absolute on27.12.2002. The obligation of the employer was to send a form of listof holidays year after year for approval by the competent authority.It is stated by the counsel for the petitioner that since the impugnedorder relates to the year 1997, the writ petition has becomeinfructuous and therefore it may be dismissed as such. But, in thepresent case, since the petitioner had enjoyed an interim order forover ten years and the issue is likely to crop up year after year,this Court declined to accede to the request made by the counsel forthe petitioner. 3. Thereafter, Mr.Sanjay Mohan, learned counsel for thepetitioner submitted that the petitioner and the second respondenttrade union have entered into a settlement on 17.1.1997 under section18(1). Para 25 of the said settlement deals with national andfestival holidays applicable to the workmen. Paragraphs 25.1 and 25.2may be extracted below:-25.1. It has been agreed to by both the parties that theentire factory will work on all the days in a week exceptthe days, which are National Holidays and Deepavali(Festival Holiday) as per the National and Festival HolidaysAct, 1958. However, the workmen are allowed to avail fouroptional Festival Holidays out of the Festival Holidaysshown in Annexure IV as required under the National andFestival Holidays Act, 1958, which will be discussed anddecided with the union during December every year and forthe immediate next year, the optional festival holidays, aswell who should avail.25.2. It is agreed between both the parties that the workmenwill however be eligible for Optional Holidays as per therequirement of work and they will not be entitled for anyextra wages/allowances, etc. for staggering the holidays."4. According to the petitioner management, pursuant to thesettlement they have informed the first respondent by letters dated25.3.1997 and 19.4.1997 that there are 16 festival holidays besidesfour compulsory national holidays and sought for his permission toapprove their action and send in turn Form III of the NAFH Rules. Thefirst respondent by letter dated 17.7.1997 granted approval in Form https://hcservices.ecourts.gov.in/hcservices/ III but however added 'Deepavali' also another additional holiday,thereby making the total festival holidays as 17 holidays. Out ofthese 17 holidays, the workmen have been given the choice to availfive festival holidays. But he has however made Deepavali as acompulsory festival holiday thereby making the choice to four.Therefore, when the same procedure was sought to be followed for thecalendar year 1998, the first respondent by the impugned order removedthe earlier approval granted under form III, which has become thesubject matter of the present writ petition.5. The learned counsel for the petitioner submitted that theorder of the first respondent is arbitrary, illegal and contrary tothe provision of NAFH Act. The workmen have no objection in theprocedure adopted by the management. In fact, they are bound by asettlement by which they have also agreed to adopt the procedure laiddown by the management. The workmen are no way prejudiced because theywill be getting the nine holidays as per the NAFH Act (4 compulsorynational holidays and 5 optional festival holidays).6. The learned counsel also relied upon the judgment of theKarnataka High Court reported in 2005-3-LLJ 12 in Bharat Fritz WernerKarmika Sangha -vs- Bharat Fritz Werner Limited and another. In thatjudgment, when there was a dispute between two rival unions regardingchoosing of the festival holidays, the Karnataka High Court held thatthe majority trade unions' view must prevail with the authority whodecides such an issue.7. It is not clear as to how this judgment will have anyrelevance to the case on hand. The question here is not choosing theuniform festival holidays that the workmen must opt for. On thecontrary, the management wants the workmen to choose any of the fivedays out of the 16 days circulated by them (together with Deepavalibeing added by the authority as one more option). In this process, theworkmen will not have uniform holidays but each worker will have anoption of choosing any of the five holidays out of 17 holidaysnotified by the first respondent. That is not the intent and purposeof the Act. 8. Therefore, it is necessary to refer to sections 3 and 4 of theNAFH Act 1958 which read as follows:-''3. Grant of National and Festival Holidays. - Everyemployee shall be allowed in each calendar year a holiday ofone whole day on (the 26th January, the first May, the 15thAugust and the 2nd October) and five other holidays each ofone whole day for such festivals as the Inspector may, inconsultation with the employer and the employees, specify inrespect of any industrial establishment." https://hcservices.ecourts.gov.in/hcservices/ ''4. Employer to send statement to Inspector.- Everyemployer shall send to the Inspector having jurisdictionover the area in which the industrial establishment issituated, and display in the premises of the industrialestablishment, a statement showing the holidays allowed ineach calendar year under section 3, in such form, withinsuch time and in such manner as may be prescribed." (Emphasis Added)9. Further, for violation of the provisions of the Act, penaltieshave been prescribed under section 8. The power of exemption by theGovernment has been provided under section 10(2) of the NAFH Act.Section 11 of the Act saves the higher benefit provided by theemployer.10. The NAFH Rules have been framed under section 12 of the Act.Rule 3(1) obliges the employer to send notice in Form I giving thedescription of the festivals to be availed by the workman. Rule 3(4)obliges the Inspector to consider the proposals of the employer withthe objections and suggestions received from the employees. Rule 3(5)directs the Inspector to communicate the list of holidays approvedunder Form III. Therefore, when that is the scheme of the Act, thereis no scope for the employer to have his own list of 16 or 17festival holidays and making each individual employee to choose any ofthe five holidays out of those notified holidays. Such a procedure isnever contemplated and it goes against the letter and spirit of theAct.11. In the present context, the first respondent having noticedthe obvious error committed by the earlier grant of approval contraryto the provision of the Act rightly cancelled the order dated19.7.1997. 12. This is not a case where the employer has agreed to grantmore number of holidays. If such is the case, the benefit arising outof such generosity cannot be defeated by section 3 of NAFH Act inview of section 11 of the Act. 13. The Supreme Court dealt with such a case vide its decisionin Tata Oil Mills Co. Ltd. v. K.V. Gopalan, reported in AIR 1966 SC1859. The following passage found in para 8 may be extracted below:-8. That takes us to Section 11 of the Act, because thissection has to be read along with Section 3 in determiningthe validity of the conclusion recorded by the Tribunal onthe main point of dispute between the parties. Section 11reads thus:“Rights and privileges under other laws, etc., notaffected—Nothing contained in this Act shall adversely https://hcservices.ecourts.gov.in/hcservices/ affect any rights or privileges which any employee isentitled to with respect to national and festivalholidays on the date on which this Act comes intoforce under any other law, contract, custom or usage,if such rights or privileges are more favourable tohim than those to which he would be entitled underthis Act.”This section gives an option to the employees, they canchoose to have the paid holidays either as prescribed bySection 3 or as are available to them under any other law,contract, custom or usage. In exercising this choice, itmust, however, be borne in mind by the employees that 26thJanuary, 15th August and 1st May have to be taken as threeholidays. That is the direction of Section 3. In regard tothe remaining 4, the Inspector decides which days should bepaid holidays. In other words, the statutory requirement is7 paid holidays. If under the existing arrangement theemployees are entitled to have more than 7 paid holidays,that right will not be defeated by Section 3 because Section11 expressly provides that if the rights or privileges inrespect of paid holidays enjoyed by the employees are morefavourable than are prescribed by Section 3, their existingrights and privileges as to the total number of holidayswill not be prejudiced by Section 3. The scheme of Section11 thus clearly shows that Section 3 is not intended toprescribe a minimum number of paid holidays in addition tothe existing ones, so that the respondents should beentitled to claim the seven holidays prescribed by Section 3plus the six holidays to which they are entitled under theexisting arrangement. If in addition to the three holidayswhich are compulsory under Section 3, the employees aregetting, say 3 other paid holidays, then Section 3 wouldstep in and would require the employer to give his employeesone more paid holiday, so as to make the number of paidholidays 7. In our opinion, if Sections 3 and 11 are readtogether, there can be no doubt that the respondents’ claimthat they should have 7 holidays as prescribed by Section 3plus 6 holidays as are available to them under the presentarrangement is clearly untenable. In the present case, therespondents were having 6 paid holidays. The statute hasfixed the minimum number at 7 paid holidays, and so, sincethe existing arrangement was less favourable to theemployees, the statutory provision will come to their helpand they will be entitled to claim 7 paid holidays in ayear, and that means that Section 3 will be operative. Ifthat be so, the procedure followed by the employer inconsulting the Inspector and in fixing the list of 4 paidholidays for 1962 in addition to the three holidays fixed bythe statute is perfectly consistent with the provisions of https://hcservices.ecourts.gov.in/hcservices/ Section 3 of the Act. ......"14. By the present arrangement, in effect the employer wants tocontract out of the statute which is not permissible. In a legislationwhere there is an obligation on an employer to do a particular thingin a particular manner, it has to be done only in that manner and notin any other manner. Further, an obligation coupled with a penaltymakes the provision mandatory and any contra action will deemed to bevoid ab-initio.15. It may be useful to the judgment of the Supreme Court inJaipur Zila Sahakari Bhoomi Vikas Bank Limited -vs- Ram Gopal Sharmareported in (2002) 2 SCC 244. The following passage found in para 13makes the position of law clear.:-13. The proviso to Section 33(2)(b), as can be seen from itsvery unambiguous and clear language, is mandatory. Thisapart, from the object of Section 33 and in the context ofthe proviso to Section 33(2)(b), it is obvious that theconditions contained in the said proviso are to beessentially complied with. Further, any employer whocontravenes the provisions of Section 33 invites apunishment under Section 31(1) with imprisonment for a termwhich may extend to six months or with fine which may extendto Rs 1000 or with both. This penal provision is again apointer of the mandatory nature of the proviso to complywith the conditions stated therein. To put it in anotherway, the said conditions being mandatory, are to besatisfied if an order of discharge or dismissal passed underSection 33(2)(b) is to be operative. If an employer desiresto take benefit of the said provision for passing an orderof discharge or dismissal of an employee, he has also totake the burden of discharging the statutory obligationplaced on him in the said proviso. Taking a contrary viewthat an order of discharge or dismissal passed by anemployer in contravention of the mandatory conditionscontained in the proviso does not render such an orderinoperative or void, defeats the very purpose of the provisoand it becomes meaningless. It is well-settled rule ofinterpretation that no part of statute shall be construed asunnecessary or superfluous. The proviso cannot be diluted ordisobeyed by an employer. He cannot disobey the mandatoryprovision and then say that the order of discharge ordismissal made in contravention of Section 33(2)(b) is notvoid or inoperative. He cannot be permitted to takeadvantage of his own wrong. The interpretation of statutemust be such that it should advance the legislative intentand serve the purpose for which it is made rather than to https://hcservices.ecourts.gov.in/hcservices/ frustrate it."16. It may be that the employer like the petitioner may want tomaximise their profit by adopting the ingenious method of grantingoptional holidays to their workmen and that the observance of Sections3 and 4 of the NAFH Act will reduce their profit margin. That cannotbe a criteria in interpreting the provisions of any Labour Law. Whenthe State of Kerala increased the number of compulsory nationalholidays under a similar Act enacted by the Kerala Government from 3to 4, the very same petitioner company challenged it before the HighCourt of Kerala and having lost in the same moved the Supreme Court.The Supreme Court dismissed their appeal which has since been reportedin (1998) 8 SCC 227 in M.R.F.Ltd. -vs- Inspector, Kerala Governmentand others. 17. The Supreme Court in the aforesaid decision repelled thecontention of the employer in challenging the provisions of the Act asviolative of Article 19(1)(g) of the Constitution. The followingpassages found in paragraphs 21 to 23 may be usefully reproducedbelow:-''20. It may be pointed out that the State of Kerala in itscounter-affidavit pleaded that in order to introduce theamendments in the Parent Act by which the number of thenational and festival holidays was increased, the Governmenttook into consideration the change in social conditions, thedevelopments in the State and the number of holidays enjoyedby other sectors. It was pleaded that the outlook towardslabour has undergone a drastic change since the enactment ofthe Parent Act in 1958. The contention of the appellantsthat the increase in holidays would result in the loss ofproduction was refuted by the State on the ground that thepower to increase production required healthy labour force.Some recreation and rest would make the labour more fit andcapable of doing their work more efficiently andsatisfactorily which would result in more production. TheKerala Institute of Labour and Employment had already made astudy of paid holidays available to industrial workers inKerala State in 1982 and after studying the conditionsprevailing in about one hundred and eighty public andprivate industrial establishments as to the national andfestival holidays available to their workers had published areport. As per the analysis made in that report, it wasnoticed that the number of paid holidays available toindustrial workers in the public sector in Kerala rangedfrom seven to twenty-one days and in the private sector,from seven to seventeen days. It was also noticed that theGovernment of India had declared sixteen holidays while theGovernment of Kerala had declared eighteen holidays for the https://hcservices.ecourts.gov.in/hcservices/ year 1990 which were repeated in 1991.21. Having regard to the factors enumerated in the counter-affidavit as also to the Directive Principles of StatePolicy contained in Article 43, we are of the opinion thatthe Act by which the national and festival holidays havebeen increased is fully constitutional and does not, in anyway, infringe the right of the appellants to carry on theirtrade or business under Article 19(1)(g). The compulsoryclosure of the industrial concern on national and festivalholidays cannot be treated as unreasonable. It is protectedby clause (6) of Article 19 and, therefore, cannot betreated to be violative of the Fundamental Right underArticle 19(1)(g).22. The plea under Article 14 also cannot be entertained.The decision by legislative amendment to raise the nationaland festival holidays is based upon relevant materialconsidered by the Government, including the fact that theholidays allowed by the Central Government and other publicsector undertakings were far greater in number than thoseprescribed under the Act. As pointed out earlier, the Act isa social legislation to give effect to the DirectivePrinciples of State Policy contained in Article 43 of theConstitution. The law so made cannot be said to be arbitrarynor can it be struck down for being violative of Article 14of the Constitution. "18. In the light of the above, the impugned order of the firstrespondent does not suffer from any infirmities or illegalities and itis only in consonance with the NAFH Act and Rules. Hence, the writpetition stands dismissed. However, there will be no order as tocosts.Sd/Asst.Registrar/true copy/Sub Asst.Registrarjs https://hcservices.ecourts.gov.in/hcservices/ To1.The Deputy Chief Inspector ofFactories, Office of the DeputyChief Inspector of Factories,101 & 102, Arni Road, Sankaranpalayam, Vellore-632 001.+1cc to M/s. S.Ramasubramaniam & Associates Sr 1695MG (CO)km/23.1.W.P.No.20077 of 1998