Section 5(1) of the Tamil Nadu Industrial Establishments (National & Festival Holidays) Act, 1958, is absolute and unconditional, and the employer's right to call upon employees to work on national and festival holidays under Section 5(2) does not override the employees' right to receive wages for those holidays.

Ramanujam, J.

An interesting question that arises for consideration in this writ petition is whether an employer is bound to pay wages to his employees for national and festival holidays which fall within a period during which the employees were on strike. Koshal, J. (as he then was) has, in an earlier case in Vasudevan v. Lotus Mills Ltd., 1977 (52) FJR 127 held that the employer cannot escape his obligation to pay wages to his workmen for national and festival holidays even if those holidays occurred during a period when the workmen were on strike. When the said judgment was relied on by the respondent herein before Natarajan, J., when this case came up before him, the learned Judge was unable to share the view expressed by Koshal, J., and, therefore, referred the case to a Division Bench. That is how the matter has come before us.

2. The facts of the case may briefly be set out. The petitioner is a well-known company, hereinafter referred to as the management, engaged in the manufacture of textile goods at Madurai, Ambasamudram and Tuticorin. A dispute arose between the management and its employees regarding the payment of bonus for the year 1974-75 and that led to the workmen going on strike from 22nd January, 1976. The strike was, however, terminated on 6th February, 1976, on the intervention of the Commissioner of Labour, Madras. At that stage an agreement was reached between the company and its workmen and one of the terms of the agreement was that the management was not bound to pay any wages for the period of the strike. In pursuance of the said agreement, the workmen resumed duty on 6th February, 1976. On 13th February, 1976, one of the unions of workmen wrote to the management stating that the management was statutorily obliged to pay wages to the workmen for the Republic Day, 26th January, 1976, which is a national holiday, and as such the management should distribute wages to the workmen for that day. The management refuted the claim and pointed out that as the workmen were on illegal strike at the relevant time, it was not obliged to pay wages for the national holiday. The claim of the workmen was subsequently taken up by the respondent, and by the impugned communication he informed the management that it was bound to pay the wages for the national holiday as claimed by the workmen in view of S. 5(1) of the Tamil Nadu Industrial Establishments (National & Festival Holidays) Act, 1958, hereinafter referred to as the Act. It is to quash that order the management has come up before this Court.

3. When this matter was originally, heard by Natarajan, J., he directed notice to the workmen though their union inasmuch as they will be really affected by quashing of the respondent's order, and accordingly notice was given to the union on behalf of the workmen. Thus, the workmen also were given an opportunity to sustain the impugned order of the respondent which is in their favour. According to the respondent as well as the union, irrespective of the workmen being on strike or not, the management is bound to pay wages to its employees for the national and festival holidays in view of S.5(1) of the Act.

4. Thus, the controversy between the parties is as to the true interpretation of S.5 of the Act. For interpreting S. 5 it is necessary to determine the scope and object of the Act. The Act has been enacted to provide for the grant of national and festival holidays to the workmen in the State of Tamil Nadu. Section3 of the Act provides for the grant of national and festival holidays to the workmen and it is as follows :

"Every employee shall be allowed in each calendar year a holiday of one whole day on the 26th January, the 1st May, the 15th August, and the 2nd October and five other holidays each of one whole day for such festivals as the Inspector may, in consultation with the employer and the employees, specify in respect of any industrial establishment." *

Section 4 directs every employer to send to the Inspector c