MOHMADMIYA KASAMMIYA Vs. INDUSTRIAL COURT GUJARAT

JUDGEMENT

(1.) The two petitioners have been working in the Drawing in Department of the second respondent company as reaches in the second shift and have filed this petition challenging the order passed by the Third Labour Court in Application No. 234 of 1959 dated December 1 1959 and confirmed by the Industrial Court by its order in Appeal (IC.) No. 11 of 1960 dated July 28 1960

(2.) Prior to 1947. there was no system of changeover in the different shifts in the textile mills in Ahmedabad. In 1946 however a Submission bearing No.6 of 1946 between the Ahmedabad Mill owners Association Ahmedabad and The Textile Labour Association. Ahmedabad was made before the Industrial Court at Bombay wherein the Industrial Court by an interim award passed inter alia and the following order:-- We therefore hold that mills should be allowed to work three shifts if they want to with a system of changeover. Ordinarily the period of the three shifts should be as follows- 1 Shift ......... 7 a.m. to3 p.m. 2 Shift ......... 3 p.m. to 11 p.m. 3 Shift ......... 11 p.m. to7 a.m. There should be a recess of half an hour during each of the three shifts. In winter the work may begin at 1-30 a m. instead of 7 with consequent changes in the other shifts. This will be for a period of one year from the 15th of February 1947 at the end of which this matter will be placed again for hearing as to whether the system should be continued or not In the case of mills working two shifts the working period should be as follows:-- 1 7 a.m. to 3-30 p.m. and With half an hours 2 3 p.m. to 12 mid-night. recess in each shift. In both cases of two shifts as well as three shifts working there will be a system of changeover at the end of each month by which the workers of the first shift will go over to the second and those of the second to the third and those of the third to the first in rotation. If the case of the two Shifts working the day shift and the night shift workers will change in rotation at the end of every month. Thereafter the Ahmedabad Mill owners Association made an application being Application No. 29 of 1947 under rule 64 of the Bombay Industrial Disputes Rules for the interpretation and clarification of the award made on February 7 1947 in the said Submission No. 9 of 9946 and the clarification that was asked for was as to whether that part of the award pertaining to change-over in the three shifts applied to the mills which worked the third shift partially on some of the machines in a department. In clarification of its award the Industrial Court in its order dated April 30 1947 stated that:-- At the time when that matter ( Submission No. 9 of 1948 ) was argued there were no arguments as to what should take place when the 3rd shift worked partially and the dispute was argued on the basis of three shifts being worked wholly and not partially. It was in such a case of complete working of three shifts that changeover directed in the award was to be applied. The case of partial working of third shift is not covered by the award. The result therefore is this. The change-over in three shifts is to be effected where full number of machines in a department are worked Where the third shift is working partially the change-over is to be effected between the first and the second shifts only. In the case of full working of three shifts the hours of work will be 7 1/2 hours in each shift with half an hour recess. In the case of partial working the hours of work will be 8 8 and 6 1/2 with half an hours recess. But in the latter case the change-over shall be restricted to first two shifts only. Since the award as clarified was only intended to operate for one year another application being Miscellaneous Application No. 2 of 1948 was brought before the Industrial Court. In that Application the Industrial Court in partial modification of the original award dated February 71947 directed that:--.... there shall be a change-over between the first and the second shift only and there shall be no change-over in the case of the third shift.

(3.) The two petitioners who have been working as aforesaid as reaches in the second respondent company alleged that prior to November 1 1958 they had been working in the first shift that they had been assigned work in the second shift as from November 1 1958 that they had not been given the benefit of the change-over by rotation in accordance with the aforesaid award and that contrary to the said award they had been permanently assigned work in the second shift. They alleged that the second respondent company had thus committed an illegal change as also a breach of the said award and consequently filed the aforesaid application No. 234 of 1959 for a declaration that the second respondent company had committed an illegal change and for a direction for the withdrawal by the second respondent company of the said alleged illegal change. In defence the second respondent company relied upon an award dated February 24 1958 made by two private arbitrators under a Submission made to them by the Textile Labour Association of the one part and the second respondent company of the other part in which the said arbitrators in para 3 of their award had declared as follows:-- As the second shift is to work partially there shall be no change-over between the first and the second shift workers. The second respondent company's case was that as the second shift in its mills was working partially it was not bound to carry out the changeover between the first and the second shift workers as provided in the said award given by the Industrial Court by reason of the arbitrators award dated February 24 1958 The contention of the petitioners before the Labour Court was that the arbitrators award dated February 241958 was illegal and void as the said arbitrators had no jurisdiction to modify the award passed by the Industrial Court and that it would be the Industrial Court only under section 116A of the Bombay Industrial Relations Act 1946 which had the jurisdiction to effect any change or modification therein. The Labour Court was of the view that as section 116 (2) of the Act applied only to an award, which was in terms of an agreement and not to an award by the Industrial Court the award passed by the Industrial Court could not be modified by private arbitration. The Labour Court however held that the award passed by the arbitrators had not in any way modified the award passed by the Industrial Court but only clarified the same and dismissed on that basis the application of the petitioners. Aggrieved by that order the petitioners filed an appeal before the Industrial Court. The Industrial Court held that the said award by the arbitrators dated February 24 1958 being an award given under a Submission to which a representative union was a party was valid and binding upon the petitioners. The Industrial Court was of the view that after the award was passed by the Industrial Court a dispute as to its interpretation and effect arose between the second respondent company and the representative union and such a dispute could be referred to arbitration under the provisions of section 66 of the Act and an award made under such reference was valid and binding on the parties. The Industrial Court was also of the view that even if the arbitrators award was not valid and binding the petitioners were not entitled to a change-over as the award passed by the Industrial Court never contemplated a change-over in shifts which were not fully worked but only partially worked. The petitioners have challenged these orders on the ground inter alia that they are inconsistent with and opposed to the provisions of secs. 116 and 116A of the Act.