D S VASAVADA VICE PRESIDENT G R C EMPLOYEES UNION Vs. CHIEF INSPECTOR BOMBAY SHOPS AND ESTABLISHMENTS ACT

JUDGEMENT

(1.) These two petitions involve a common question namely whether an employee or a workman employed in a cinema theatre is entitled to Dearness Allowance (hereinafter referred to as D A for short) for the four weekly holidays in a month which are paid holidays under Section 31 (3) of the Bombay Shops and Establishments Act 1948 (hereinafter referred to as the Act).

(2.) Special Civil Application No 3390 of 1981 is filed on behalf of the members of the Gujarat Rajya Cinema Employees Union. It is stated that the employees employed by 25 cinema houses in Ahmedabad are members of the said Union. The contention of the petitioner Union is that the employees of the five cinema theatres in Ahmedabad whose managers are joined as respondents Nos. 2 to 6 (hereinafter referred to as Managements of Cinema Theatres or Cinema Theatres) were paid D A at the rate of 75 per cent of the D.A. payable to the textile workers at Ahmedabad before January 1 1974 under the settlements arrived at with the managements of cinema theatres. This rate of D.A. was enhanced to 87 1/2 per cent with effect from October 1 1975 The awards in terms of the settlements were passed by the Presiding Officer of the Labour Court at Ahmedabad. There were further settlements between the employees Union and the managements of cinema theatres under which the said rate of D.A. is raised to 91 per cent with effect from January 1 1981 92 1 per cent with effect from January 1 1982 and 95 per cent with effect from January 1 1984 The above percentages are of the D.A. payable to the textile workers at Ahmedabad as already stated above. Petitioners contend that the textile workers at Ahmedabad are paid D.A. for 26 days of a month which are working days for them. It is submitted that the textile workers are not entitled to paid weekly holidays and it is there-fore that D.A. is paid to them for 26 days. However so far as the employees employed in cinema theatres are concerned they are entitled to at least one day in a week as a holiday and no deduction from the wages of such employees can be made on account of any holiday given to them under Section 31 (3) of the Act. Therefore it is submitted the employers are bound to pay D.A. for all the days of a month including the holidays and not only for 26 days of a month at the aforesaid rate agreed upon between the parties. It is submitted that the settlements between the parties merely prescribe the rate at which the D.A. is to be paid. It does not award lumpsum D.A. calculated at certain percentage of D.A. paid to the textile workers. It was therefore incumbent upon the cinema theatres to pay D.A. at the rate agreed upon for all the days of a month including the holidays. The cinema theatres are however calculating the D.A. on the basis that it was payable in lumpsum at the percentage agreed upon of the D.A. paid to the textile workers. Thus in effect and substance the cinema theatres were paying D.A. to its employees for only 26 days of a month and not for all the days of a month. Since the method of calculation adopted by the cinema theatres was not in accordance with the settlements and provisions of Section 31 (3) of the Act the employees union demanded payment of the D.A. for all the days of a month including the holidays at the rate agreed upon between the parties. The managements of the cinema theatres however refused to pay D.A. to their employees as demanded by the employees. The employees union therefore approached respondent No. 1 the Chief Inspector appointed under the Act (respondent No. 1 in Special Civil Application No. 3390 of 1981) for implementation of the provisions of Section 31 (3) of the Act by taking appropriate action against the managements of the cinema theatres. The Chief Inspector however failed to take any action against the managements of the cinema theatres for their failure to pay D.A. for the weekly holidays for which no deduction from the wages is permissible under Section 31 (3) of the Act. It is in the back ground of these facts that Special Civil Application No. 3390 of 1981 has been filed on behalf of the employees of 25 cinema theatres of the city of Ahmedabad. In this petition amongst other reliefs the petitioner union has prayed: (i) that it be held that by deduction of D.A. for the weekly offs or holidays the managements of the cinema theatres have contravened the provisions contained in Section 31 (3) of the Act; (ii) that the Chief Inspector respondent No. 1 in that petition be directed to prosecute the persons concerned for contravention of Section 31 (3) of the Act; and (iii) that the managements of the cinema theatres be directed to pay D.A. for the weekly holidays to the employees employed in their cinema theatres.

(3.) Special Civil Application No. 2615 of 1933 is filed on behalf of Rupali Cinema one of the cinema theatres in Ahmedabad (reference hereafter made to managements of cinema theatres or cinema theatres would include reference to the said Rupali Cinema also) challenging the award passed by the Gujarat Industrial Tribunal (hereinafter referred to as the Tribunal) in Reference (IT) 19/81. An industrial dispute between Rupali Cinema and its workmen arising out of a demand made by the workmen for full wages with D.A. on par with textile workers for weekly holidays was referred for adjudication to the Tribunal under Section 10 (2) of the Industrial Disputes Act 1947 The said demand was also based on the provisions contained in Section 31 (3) of the Act. It appears that when the reference was heard by the Tribunal one witness was examined on behalf of the employees while no oral evidence was led by the employer Rupali Cinema. Witness Waghela examined on behalf of the employees stated that the employees of Rupali Cinema were not being paid D.A. for the weekly holidays. Besides this oral testimony of Waghela no evidence oral or documentary was led before the Tribunal. It further appears that when the arguments were heard by the Tribunal no one remained present on behalf of the employer. The Tribunal after hearing the representative of the employees union held that D.A. would form part and parcel of the wages payable to the employees of Rupali Cinema. The employer that is Rupali Cinema therefore could rot deny the D.A. of weekly off to the employees of this cinema. The Tribunal therefore held that the employees are entitled to basic salary plus D.A. for the weekly holidays. On the question as to from which date the employees were entitled to claim D.A. for weekly holidays the Tribunal held that it would not be proper for it to grant such allowance from any date prior to the date of reference. Since the reference was made on January 8 1981 the Tribunal directed that the employer Rupali Cinema should pay to As employees wages including D.A. payable to them for weekly holidays from January 1 1981 The employer Rupali Cinema has therefore approached this Court under Article 227 of the Constitution of India challenging the validity of the award made by the Tribunal. It may be mentioned here that the affidavits and documents filed in Special Civil Application No. 3390 of 1981 do not form part of the record of the Tribunal. These documents include the settlements arrived at between the employees and managements of various cinema theatres of Ahmedabad on which strong reliance has been placed on behalf of the managements of the cinema theatres. In other words these settlements were not produced before the Tribunal. Ordinarily evidence which was not led before the Tribunal could not be permitted to be referred to or relied upon by any of the parties. However the parties to Special Civil Application No. 2165 of 1983 gave their consent to refer to and rely upon the affidavits and documents filed in Special Civil Application No. 3390 of 1981. In other words by consent of parties the affidavits and documents filed in Special Civil Application No. 3390 of 1981 were treated as evidence led before the Tribunal. This course was adopted by the parties to avoid remand to the Tribunal as one of the grievances of the employer Rupali Cinema was that it was not given sufficient opportunity to lead evidence before the Tribunal. Thus the question involved in Special Civil Application No. 2615 of 1983 is the same as one raised in Special Civil Application No. 3390 of 1981. It is in the background of the aforesaid facts that both these petitions are disposed of by this common judgment on the basis of the affidavits and documents filed in Special Civil Application No. 3390 of 1981.