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1982 Supreme(All) 188
IN THE HIGH COURT OF ALLAHABAD
V. K. Mehrotra, J.
I.E.L.EMPLOYEES UNION - Appellant
Versus
INDIAN EXPLOSIVES LIMITED - Respondents
. . Of .
Decided On : 02/23/1982
A change in the conditions of service must be brought about by the employer, albeit with a view to conform to a provision of law, which adversely affects the workmen in relation to a pre-existing condition of service which was being enjoyed by them, inter alia, by way of usage or customary privilege. Further, where such a change is made in a condition of service without complying with the statutory provision necessary to follow, a justiciable issue arises between the parties which can be gone into by an appropriate forum envisaged for disposal of such disputes.
Headnote:
INDUSTRIAL DISPUTES - CHANGE IN CONDITIONS OF SERVICE - COMPENSATORY OFF - NOTICE UNDER SECTION 4-I OF U. P. INDUSTRIAL DISPUTES ACT - NECESSITY - WITHDRAWAL OF CUSTOMARY CONCESSION OR PRIVILEGE - JURISDICTION OF INDUSTRIAL TRIBUNAL.
Fact of the Case:
Petitioners, workmen of M/s. Indian Explosives Limited, Kanpur and M/s. Camphor and Allied Products Ltd., Bareilly, sought a writ of mandamus to compel the respondent companies to grant compensatory off as before and not to deprive them of it in view of the amendment made in Rule 86 of the U. P. Factories Rules 1950. The companies contended that the compensatory off was being given in terms of the law and not by way of customary right, and that the amended rules did not contemplate it.
Finding of the Court:
The court held that a change in the conditions of service must be brought about by the employer, albeit with a view to conform to a provision of law, which adversely affects the workmen in relation to a pre-existing condition of service which was being enjoyed by them, inter alia, by way of usage or customary privilege. Further, where such a change is made in a condition of service without complying with the statutory provision necessary to follow, a justiciable issue arises between the parties which can be gone into by an appropriate forum envisaged for disposal of such disputes.
Issues: 1. Whether the withdrawal of compensatory off by the companies constituted a change in the conditions of service requiring notice under Section 4-I of the U. P. Industrial Disputes Act? 2. Whether the grant of compensatory off was a customary concession or privilege or by way of usage? 3. Whether the Industrial Tribunal had jurisdiction to adjudicate the dispute?
Ratio Decidendi: 1. The court held that a change in the conditions of service must be brought about by the employer, albeit with a view to conform to a provision of law, which adversely affects the workmen in relation to a pre-existing condition of service which was being enjoyed by them, inter alia, by way of usage or customary privilege. Further, where such a change is made in a condition of service without complying with the statutory provision necessary to follow, a justiciable issue arises between the parties which can be gone into by an appropriate forum envisaged for disposal of such disputes. 2. The court found that the grant of compensatory off by the employers was not volitional nor in its withdrawal. The action of the employers in extending the facility of compensatory off day was not proved to be in the nature of a customary concession or privilege or by way of usage in these proceedings. 3. The court held that the Industrial Tribunal had jurisdiction to adjudicate the dispute since the withdrawal of compensatory off without complying with the statutory provision constituted a change in the conditions of service adversely affecting the workmen.
Final Decision: Both the petitions were dismissed without any order as to costs.
( 1 ) THESE two petitions under Article 226 of the Constitution are by workmen of M/s. Indian explosives Limited, Kanpur and M/s. Camphor and Allied Products Ltd. , Bareilly which are companies registered under the Companies Act. The primary relief sought by the petitioners is for a writ, order or direction in the nature of mandamus or any other suitable direction commanding the respondent companies to grant to its workers what has been described as compensatory off as before and not to deprive them of it in view of the amendment made in Rule 86 of the U. P. Factories Rules 1950. The State of Uttar Pradesh as well as the Chief Inspector of factories (Inspector of Factories, in charge Bareilly Region in writ petition No. 3988 of 1976)have also been impleacted as respondents and it has been prayed that the latter be restrained from giving approval to the respondent companies for the mode in which they were implementing the aforesaid amended rule. First, the facts:
( 2 ) THE Government of the State of Uttar Pradesh, framed the Uttar Pradesh Factorjes Rules 1950 (briefly, the Rules), in exercise of powers under Ss. 64 and 112 of the Factories Act, 1948, (briefly the Act ). The condition under section exempting from applicability of some of the provisions of the Act was granted to continuous process factories and wood products factories, are mentioned in Rules 86 and 87 respectively. Condition No. (iii) of Rule 86 and condition No. (i) of Rule 87 prior to the amendment of the rules by the U. P. Factories (First Amendment)Rules, 1976 (hereinafter the amended Rules), inter alia, provided that where it became necessary to employ a shift worker for both more than eight hours in any day to work whole or part of the subsequent shift, a compensatory period of rest with wages would be given in addition to over-time payment in accordance with the provisions of Section 59 but it would not be given on a festival or weekly holiday to which the worker was otherwise entitled. The case of the petitioners is that whenever a workman was asked in emergency to work for another shift in continuation of the shift in which he was working the employer was liable (a) to pay him for overtime work at double the rate of normal wages in accordance with Section 59 of the Act (b) to give compensatory off to the workman for the eight hours work done which meant that the workman was to get one days rest in lieu of eight hours additional work and being a monthly paid worker this off day for him used to be holiday with pay and in case the additional eight hours work was to be done by the workman on a holiday or on his weekly off day, the compensatory off day was not to be given to him on the subsequent holiday or weekly off day but in addition thereto so that the compensatory off was with wages.
( 3 ) UNDER the amended Rules, the aforesaid condition No. (iii) of Rule 86 and No. (i) of Rule 87 the necessity to provide compensatory period of rest became confined to a case where the subsequent shift or any part thereof during which a shift worker was employed for more than eight hours in any day to enable him to work whole or part of the subsequent shift, fell on a weekly holiday. The result of the amendment according to the petitioners is that the workmen are being deprived of compensatory off in case they are required to do additional work on those days which are neither the weekly off day nor a holiday and they are being deprived of their wages in case they are required to do additional work on holidays or on weekly off days. They are thus being deprived of the compensatory off day with wages as was being enjoyed by them prior to the enforcement of the Amended Rules. The companies are taking additional work from them in addition to eight hours work but making payment to them only for overtime work. The legal stand:
( 4 ) THE grant of compensatory off in the terms aforesaid had become the customary right of the workmen, as a condition of their serv
