C.S.NATARAJAN Vs. INSPECTOR OF FACTORIES, COIMBATORE

JUDGEMENT

(1.) THIRU C. S. Natarajan, the Petitioner herein, is the Manager of the A. C. C. Cements, Madukkarai, a factory registered under the Factories Act, 1948. For non -payment of wages for the national and festival holidays to as many as 300 workers, in the year 1968, he as the Manager and employer of this concern, was prosecuted by the Inspector of Factories, for an offence under Section 8 read with Sections 3 and 5 of the Madras Industrial Establishments (National and Festival Holidays) Act, 1958 (herein after called the Act). The Petitioner's defence was that casual workers are not entitled to any of the above holidays and that as such they are not entitled to the wages for those days. Not accepting his contentions, the Additional First Class Magistrate, Coimbatore, convicted and sentenced him to pay a fine of Rs. 25. The correctness of this conviction is now canvassed in this revision.

(2.) UNDER S. 3 of the Act, every worker should be granted three national holidays, on the 26th January, 15th August and 2nd October, and also a minimum of five festival holidays with wages. S. 5 of the Act states that for each of the holidays allowed under Section 3, the employee should be paid wages. There is only one condition which an employee should satisfy, in order that he may be eligible for the five festival holidays and that is, he should have worked for a total period or thirty days within a period of 90 days prior to the festival holiday. Ex. P -1 list shows the five festival holidays declared by this Management for (1) the Malayalee Hindus. (2) the Non Malayalee Hindus, (3) the Christians and (4) the Muslims. P. W. 1, the Superintending Inspector of Factories, inspected this factory on 7th August, 1969. Verification of the records disclosed non -payment of wages for the national and festival holidays to more than 300 casual workers. Those workers were eligible for these holidays with wages, because every one of them had worked for more than 30 days during a period of 90 days before a particular holiday. Ex. P -7, show cause notice, was issued. By Ex. P -9 he contended as below:

(3.) THE admitted case of the accused is that the names of all these labourers are found in the registers maintained by them. The defence contention is that they get work for the particular shift if there is work and if there is no work, they are asked to leave the place. It is urged that during the period when they are not on work, they cannot be said to be in the employment of the firm and that during that period they will be at liberty to get themselves employed in any other concern during those hours. This applies to the permanent employees also. Persons who are engaged in one shift are out of employment in the next shift. On that score, it cannot be said that they are not under the employment of this firm. P.W. 2 is one of the casual workers employed in this factory for the last over seven years. He states that casual labourers would be taken for work in all the three shifts every day and that they do work along with the permanent workers as directed by the Management. These workers also get the benefit of the E.S.I. Scheme. Ex. P. 11 is the E.S.I. Card issued to P.W. 2. He further says that they also get bonus like the permanent workers in the month of Panguni every year. They also get the same dearness allowance as the permanent workers. D.W. 1, the Engineer, in this factory, deposes that casual workers are engaged daily for loading and unloading of wagons, cleaning etc., They are classified as unskilled workers. Their names are entered in the Register. Permanent workers are given cards and these workers are given tokens. He admits that some of them are doing work in this factory for over seven years in this manner and that they are paid once in a week. He further admits that in the year 1968 they were given wages for one national holiday and two festival holidays, but he adds that it was by mistake. Thus, these casual workers go to the factory daily. Their names are in the Registers. They are engaged by turns in the different shifts. They get the benefits of the E.S.I. scheme. They are given tokens. The same is the work done by the permanent workers. There is nothing in the Act even remotely to suggest that casual workers employed in any factory are excluded from the purview of this Act.