Judgment

VAIDIALINGAM, J. :- In this appeal by special leave, the question that arises for consideration is whether the appellant has contravened Section 9-A of the Industrial Disputes Act, 1947 (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 Sangha). There is no controversy that the Sangha represented the majority of the workmen of their company.

2. 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 company 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 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.

3. After the Company s notice regarding the change of holiday for Diwali was put up on the notice-board, the Association, on the 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.

4. Nearly a year later on December 20, 1967, the respondents in this appeal, 83 in number, filed an application before the Labour Court, Gauhati under Section 36-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 the 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, 1966, 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 33 (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 acc