VOLTAS VOLKART EMPLOYEES UNION REP Vs. VOLTAS LIMITED

JUDGEMENT

(1.) THIS appeal is directed against the order of the learned single Judge,in W. P. No. 6303 of 1999 dated 30. 07. 1999.

(2.) THE appellant had sought for a writ of declaration declaring that the action of the respondent/management in unilaterally changing the service condition as illegal and contrary to the Industrial Disputes Act, 1947 (hereinafter called "the Act") and consequently, to direct the respondent not to effect any change in service conditions except by means of a settlement or an award or by giving a notice under Section 9a of the Act. According to the petitioner/appellant, the petitioner Union was registered under the Trade union Act, 1926 and the respondent was a company registered under the Companies Act, 1956, involved in the manufacture of Air-conditioners, Water- Coolers, etc. The company has a service station and a godown at Madras. The company grants 12 days of National and festival holidays apart from one extra day for the year in case of extraordinary situation. This has been agreed to by the Union and the management as early as 28. 12. 1984 and from 1984 the management used to send the list of national and festival holidays during December of every year and ask the Union to select 12 days according to the choice of the workers. On receipt of information from the Union, the management would exhibit in the Notice Board the list of 12 national and festival holidays for the following year. Even though this practice was prevalent before 1984 in order to avoid controversy, a Memorandum of Understanding was signed. It was further contended by the Secretary who had sworn to the affidavit that from the year 1964 when he joined the service, the Union had requested Good Friday to be declared as a holiday apart from various 11 holidays depending upon the requirements of the workmen. This had been the practice till 1988 and in December, 1998, the Union submitted a list of holidays which included 2nd April, 1999 being Good Friday. The management instead of intimating the list of holidays for the year 1999, stated affixing in the Notice Board, the list of holidays for the year. The holidays requested by the Union for the months of January, February, and March, 1999 were accepted and declared, but unfortunately the management refused to declare Good Friday as a holiday and directed the workers to report for work. But as the workers used to avail Good Friday as a holiday and directed the workers to report for work. But as the workers used to avail Good Friday as a holiday, they did not report for work and this was duly intimated to the management. The management put up a notice on 2. 4. 1999 stating that the workers will not be adjusted in April, 1999. According to the petitioner, the management, started deviating from the practice of granting holidays as per the list sent by the Union and it was only with reference to 1999, the management was not acceding to the Union's request. The workers working in the service station are governed by the Factories Act and the employees working in godown are governed by the Shops and Establishment Act, 1948. As far as holidays are concerned the employees working in the aforesaid places are concerned working in the aforesaid places are give 12 days national and festival holidays apart from one extraordinary situation. The Tamil Nadu Industrial Establishment (National and Festival Holidays) Act is applicable to the respondent management. As per Section 3 of the said Act the employees shall be allowed in each calendar year 9 holidays. Section 11 of the said Act protects the festival holidays and also the rights and privileges of any employee should not be curtailed. The employees have been enjoying 12 + 1 National and festival holidays which are selected by them and the said practice was in vogue for a very long time and this had become a service condition for the employees. As such, the management cannot withdraw any customary concession or privilege or change in usage except by issuing a notice under Section 9a of the Act. But unfortunately, the management without following the mandatory provision changed the customary practice and had deprived a holiday assigned for Good Friday and had also decided to cut wages for the said day. The respondent was a public limited company and hence the writ petition was maintainable since there was a statutory violation of the provisions of the Act. The management cannot unilaterally withdraw a holiday and declare it as a working day. The wages was a property under Article 300-A of the Constitution of India. Hence the writ for declaration.

(3.) IN the counter filed by the management, it was contended that the Company was always strictly adhering to the various statutory provisions which are applicable to the company and it was one of the few companies in which several welfare measures have been provided for the employees. The respondent/company was acting in full conformity with the provisions of the Tamil Nadu Industrial Establishment (National and Festival Holidays) Act, 1958 and declaring the list of holidays every year and appropriately intimating the same to the Inspector of Factories. The list of holidays for the year 1999 was also duly intimated to the Inspector of Factories and exhibited in the Notice Board of the respondent company. The respondent had not acted in contravention of the provisions of the Act. It is further stated that the competition in the business involved by the company has increased manifold in the recent years. The petitioner Union was attempting to distort the contents of the Memorandum of Understanding regarding holidays. The petitioner Union cannot be permitted to wilfully change the holidays every year in a manner detrimental to the business and image of the respondent company, especially in today's severely competitive environment. Even though the list of holidays had been duly intimated on 3. 3. 1999, the petitioner Union however, refused to accept the list of holidays for the year 1999. The Union had categorically mentioned that there was no scope either for studying or proposing another list of holidays than the one given by them. The stand taken by the Union was not acceptable by the management. The management had also informed the Union in unequivocal terms that inspite of direction of the management if the Union disobeyed the same, the same would be treated as unauthorised concerted action and appropriate action will be initiated by the management. The Union by its reply dated 11. 3. 1999 insisted that the management had no say in the selection of holidays for the current year for Service Station and Godown. Apart from exhibiting the list of holidays applicable to the Service Station and Godown for the month of April, 1999, a list of holidays was also displayed in the Notice Board. The management had also issued a letter dated 31. 3. 1999 making it clear that in case any one of the union members absented himself on 2. 4. 1999 such absence will be clearly unauthorised. It was also made clear that any other member absenting himself on the said date will not be entitled to wages. But inspite of such clear communication and notice, the Union had advised its members to abstain from attending the office. Therefore, the respondent had no other alternative except to order deduction of one day's wages for the absence on 2. 4. 1999.