MADURA COATS LIMITED Vs. INSPECTOR OF FACTORIES

JUDGEMENT

(1.) 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.) SECTION 3 gives a mandate to the employer to allow its employees in each calendar year a holiday on 26th January, 1st May, 15th August and 2nd October and five other holidays for such festivals as the Inspector may, in consultation with the employer and the employees, specify in respect of any industrial establishment. SECTION 4 also directs the employer to send to the Inspector and to display. A statement showing the holidays allowed in each calendar year under S. 3 in the prescribed manner. Rule 5 of the National and Festival Holidays Rules, 1959, provides that the statement referred to in S. 4 shall be sent to the Inspector before the commencement of each calendar year in which the national holidays are to be allowed and to exhibit the same simultaneously in a prominent place in the establishment. This shows that even at the commencement of the calendar year the national and festival holidays allowed in that year have to be notified. That means whether the national or festival holidays fall during a strike period or not, the workers are entitled to have those days as declared holidays. Once that position is reached, S. 5(1) straightway comes into operation. SECTION 5(1) says that, notwithstanding any contract to the contrary, every employee shall be paid wages for each of the holidays allowed to him under S. 3. This section does not make its operation conditional on the holidays falling outside the period of strike; nor does it say that its operation is subject to S. 5(2). It is true, S. 5(2) gives an employer a special right to require an employee to work on any holiday allowed under S. 3 on service of a notice of not less than 24 hours on the concerned employee required to work as aforesaid, and sub-s. (3) provides that if an employee works during the holidays allowed under S. 3, he has to be paid wages at twice the rate or in lieu thereof the normal rate of wages and granted a substituted holiday with wages on any one of the three days immediately before or after the day he has worked. SECTION 5(2) is enacted to confer a special right on the employer which he will not otherwise have having regard to S. 3, under which the employee has to be allowed the specified number of national and festival holidays. This special right of the management to require the employees to work on holidays allowed under S. 3 cannot override the benefit given to the employees under S. 5. That S. 5(1) is independent of S. 5(2) is clear from sub-s. (3) which provides for different rates of wages payable to an employee under sub-ss. (1) and (2). Sub-section (3) says that notwithstanding anything contained in sub-s. (1) or sub-s. (2), an employee who is paid wages by the day or at piece rates shall be entitled to be paid wages for any holiday allowed under S. 3 at two different rates : (1) if he is not called upon to work on the holidays referred to in S. 3, he has to be paid at the rate equivalent to the daily average of his wages calculated in the prescribed manner, and (2) if he works on any such holiday, he has to be paid at twice that rate. Sub-section (3) also does not indicate that an employee should make himself available for work on a holiday allowed under S. 3 so as to enable him to claim wages under cl. (i) of sub-s. (3). The proviso to sub-s. (3) appears to make a distinction between national holidays and festival holidays. For getting wages for national holidays a minimum qualifying service is not necessary while in respect of festival holidays, a minimum qualifying service of 30 days within a continuous period of 90 days immediately preceding such holiday is necessary. This proviso also indicates that national holidays should be paid holidays for all workmen irrespective of the period of service of the employee under the management. It is not, therefore, possible to accept the contention urged on behalf of the management that the right conferred on the workmen under S.5(1) of the Act to receive wages on national and festival holidays is linked up with the right of the management to call upon the workmen to come and work on those days and if an opportunity to exercise such a right is not available to the management on account of the workmen going on strike, the workmen are not entitled to ask for payment of wages for those holidays which had occurred during the period of strike. That contention overlooks sub-s. (3) of S. 5 according to which notwithstanding anything contained in sub-s.(2) the employee shall be entitled to be paid wages for any holiday allowed under S. 3 only at a rate equivalent to the average of his daily wages calculated in the prescribed manner. This is apart from the admitted position that S. 5(1) is not made subject to S. 5(2) so that it can be said that an employee for claiming wages for the holidays allowed under S. 3 must prove that he was available for and willing to work during the holidays if required by the management. We are inclined, therefore, to agree with the view taken by Koshal, J. that as S. 5(1) does not say in so many words that wages shall be payable for holidays only in the event he is willing to work on such a holiday, and that the operation of that section cannot be restricted only to those employees who were available and willing to work during the holidays if they were required to do so by the management. Therefore, the contention of the management that S. 5(1) directs the payment of wages for the holidays allowed under S. 3 to every employee in a normal situation and not an extraordinary situation such as during the period of strike and that the right of the workmen to claim wages for the holidays allowed under S. 3 is coextensive with the right of the management to call upon the workers to come and work on such holidays is not tenable at all.