Bombay High Court
Transport & Dock Workers Union & Anr. vs Chowgule Steamships Ltd. & Anr. on 29 October, 1996
Equivalent citations: 1997(4)BOMCR33, (1997)3BOMLR387, 1997(1)MHLJ574
JUDGMENT Dr. B.P. Saraf, J.
1. The controversy in this appeal pertains to the true meaning of the expression "hours of work" appearing in the Fourth Schedule to the Industrial Disputes Act, 1947. The facts giving rise to this controversy briefly stated, as follows : One Mr. Tulsidas Vittal Morajkar was working as a telephone operator with respondent No. 1 Chowgule Steamship Ltd. (referred to as "the Company"). The Company had been employing a number of telephone operator-cum-receptionists in its office. There were two shifts for the working of the operator-cum-receptionists, one shift from 9.30 a.m. to 5.00 p.m. with rest interval of one hour and another shift from 11 a.m. to 6.30 p.m. with rest interval of one hour from 2 p.m. to 3 p.m. On 28th August, 1984, some changes were made by the Company in the above timings. The working time of the operators was changed from 2 shifts to 3 shifts. The first shift was from 9.30 a.m. to 5.00 p.m. with lunch break for 1 hour between 12.45 and 1.45 p.m. the second shift from 10.00 a.m. to 6.30 p.m. with lunch break for 1 hour from 1 p.m. to 2 p.m. and the third shift from 12 p.m. to 7.30 p.m. with lunch break for 1 hour from 2 p.m. to 3 p.m. The 2nd appellant was placed in the first shift i.e., from 9.30 a.m. to 5.00 p.m. On 28th February 1985, the arrangement was again changed and in place of three shifts, the old system of two shifts was restored. The first shift was from 9.30 a.m. to 5 p.m. and the second shift was from 11 a.m. to 6.30 p.m. with one hour lunch interval from Monday to Friday. On Saturday working hours were from 9.30 a.m. to 1 p.m. and 12 noon to 3.30 p.m. in the two shifts respectively. The timings of the two shifts were again changed by circular dated 20th July 1990 with effect from 1st August 1990. The above circular so far as is relevant reads :
"Monday to Friday 1st Operator 9.30 a.m. to 5.00 p.m. (with lunch between 1.00 p.m. to 2 p.m.) 2nd Operator 12 noon to 7.30 p.m. (with lunch between 5.30 p.m. to 4.30 p.m.) Saturday 1st Operator 9.30 a.m. to 1.00 p.m. (No lunch time) 2nd Operator 12 noon to 3.30 p.m. (No lunch time) Note : (1) When one operator is absent or on leave, the other operator to attend office between 10 a.m. to 5.30 p.m. from Monday to Friday and between 10 a.m. to 1.30 p.m. on Saturday.
(2) This circular supersedes earlier circulars on subject matter".
Appellant No. 2 was aggrieved by the above change and the Union, which is appellant No. 1 herein of which the appellant No. 2 is a member, served a notice on the respondent No. 1 on 27th July 1990 alleging that the above change was in contravention of Section 9-A read with Schedule IV, Items 4 and 6 of the Industrial Disputes Act, 1947. The Company having refused to accept the above allegation of the appellants, an industrial dispute was raised which was ultimately referred by the Government of Maharashtra to the Industrial Tribunal. The following two questions were referred to the Tribunal :
"1. Whether the company's circular dated 20th July 1990 affecting the change in working hours of the telephone operator-cum-receptionists is legal and justified ?
If not, what order warrant in the matter.
2. Whether the suspension of Shri T. V. Morajkar, Telephone Operator-cum-Receptionist with effect from 22.8.1990 is legal, proper and justified ?
If not, what relief he is entitled to".
The Industrial Court after considering the evidence adduced by the parties and the arguments made on their behalf, by its order dated 17th Dec. 1993, decided both the questions in the affirmative i.e., in favour of the management. Aggrieved by the above order of the Industrial Court, the appellants filed a writ petition before this Court. The said writ petition was dismissed by the learned single Judge by a speaking order on 11th July, 1994 at the admission stage itself. In his order dismissing the writ petition the learned Single Judge held that the expression "hours of work" appearing in item 4 of the Fourth Schedule to the Industrial Disputes Act referred to hours of work and not the working hours. The learned single Judge was of the opinion that in the instant case the hours of work remained unchanged what was changed was the time schedule which does not fall under Item 4 of the Fourth Schedule to the Act. Aggrieved by the above order of the learned single Judge, this appeal has been filed.
2. Mr. S. G. Deshmukh, learned counsel for the appellants submits that the learned single Judge erred in law in construing the expression "hours of work" appearing in item 4 of the Fourth Schedule to the Industrial Disputes Act to mean only working hours and not the period of work. According to him, the expression "hours of work" is wide enough to take within its sweep the "period of work". It is further submitted that the change of working hours falls under Item 4 of the Fourth Schedule and, hence, any change in working hours can be effected only after complying with the requirements of Section 9-A of the Industrial Disputes Act. Any change effected without a notice contemplated by Section 9-A, according to the learned Counsel, would be illegal and void. Reliance is placed on the decisions of the Supreme Court in Tata Iron & Steel Co. Ltd. v. Workmen of M/s. Tata Iron & Steel Co. Ltd. & Ors. , M/s. Girdhari Lal & Sons v. Balbir Nath Mathur & Ors. and India General Navigation and Railway Co. Ltd. & Anr. v. Their Workmen, , to show as to how expressions like the one contained in Item 4 of Fourth Schedule should be interpreted or construed.
3. Mr. C. U. Singh, learned counsel for the respondents, on the other hand, submits that the expression "hours of work" appearing in Item 4 of the Fourth Schedule only means the hours of work and does not mean or include the "period of work". Mr. Singh further submits that there is a cleat distinction between "hours of work" and "period of work". What has been changed by the management in the instant case, according to Mr. Singh, is the period of work and not hours of work. Our attention was drawn by Mr. Singh to another enactment of the Parliament viz., Factories Act, in particular Sections 31, 54 and 55 thereof, to show that the Parliament itself has used the two expressions "hours of work" and "period of work" to denote two different things. Our attention was also been drawn to the Maharashtra Factories Rules, 1963, in particular Rules 96, 98 and Form 16 to show that "period of work" is different from "hours of work".
4. Our attention was drawn also to the earlier circulars of the respondents, by which similar changes had been made in the past from time to time. Our attention was also drawn to standing order Nos. 5 and 8 of the Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 where both the expressions, "periods" and "hours of work" have been used. Standing Order 5 provides for display of a notice-boards showing periods and hours of work for every class and group of workmen in the establishment and for each shift. Clause (b) provides that if any workman is required to work for a different period, it shall be incumbent on the part of the management to notify to that effect at the least on the day previous to that on which he is required to work for such different period. Clause (c) of Standing Order 8 requires the management to give 7 days' notice in case additional shift is started or shifts are altered or discontinued. Identical provisions applicable to manual workmen are contained in clauses 6 and 8 of the Model Standing Orders applicable to such workmen.
5. Mr. Singh also relies upon the decision of this Court in Indian Security Press Mazdoor Sangh v. Currency Note Press, reported in 1987 II CLR 310.
6. We have carefully considered the rival submissions. To appreciate the controversy, it may be expedient to set out some of the relevant provisions of the Industrial Disputes Act as well as some other relevant statutes. Section 9-A of the Industrial Disputes Act provides for 21 days' notice to the workman in case any change is proposed to be effected in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule. It reads as follows :
"9-A. Notice of change. - No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change, -
(a) without giving to the workman likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or
(b) within twenty-one days of giving such notice :
Provided that no notice shall be required for effecting any such change -
(a) where the change is effected in pursuance of any (settlement or award); or
(b) where the workman likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or an other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply".
The Fourth Schedule to the Act sets out the conditions of service for change of which notice is to be given. Clause 4 thereof reads as follows :
"Hours of work and rest intervals".
Clauses 6 is also relevant which reads as follows :
"Starting, alteration or discontinuance of shift working otherwise than in accordance with standing orders".
It may be expedient at this stage also to set out the relevant standing orders pertaining to starting, alteration or discontinuance of shift working. These standing orders are contained in the Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946. There are two sets of Model Standing Orders, (1) it is applicable to workman doing manual or technical work and (2) for workman employed on clerical or supervisory work. Standing orders 5 and 8, so far as relevant, are set out below :
"5.(a) Notices showing the periods and hours of work for every class and group of workmen in the establishment and for each shift shall be displayed on notice-boards maintained for the purpose in the departments concerned at the time-keeper's office or at or near the main entrance of the establishment.
(b) Any workman required to work for a different period shall be notified to that effect at the least on the day previous to that on which he is required to work for such different period.
8.(1)(a) More than one shift may be worked in a department or section of a department at the discretion of the Manager.
(b) If more than one shift is worked in the establishment the workman shall be liable to be transferred from one shift to another.
(c) Whenever an additional shift is started or shifts are altered or discontinued, a seven days' notice shall be given, but if as a result of the discontinuance of the shift any permanent workman is likely to be discharged a notice of one month will be given. After giving one month's notice to the workmen, seven days' notice of the re-starting of the establishment shall be given either in a newspaper having wide local circulation or by letters to individual concerned ....".
Identical provisions are contained in the standing orders for workmen doing manual or technical work. In standing orders 6 and 10, more or less, similar provisions have been made.
From a careful reading of the above standing orders, it is clear that two expressions viz., "period" and "hours of work" have been used herein to express two different and distinct ideas.
7. Reference may also be made in this connection to some of the provisions of the Factories Act, 1948. Section 54 of the said Act which deals with "daily hours" reads as follows :
"Subject to the provisions of Section 51, no adult worker shall be required or allowed to work in a factory for more than nine hours in any day :
[Provided that, subject to the previous approval of the Chief Inspector, the daily maximum specified in this section may be exceeded in order to facilitate the change of shifts"].
Section 55 provides for "intervals for rest" which reads as under :
"(1) The periods of work of adult workers in a factory each day shall be so fixed that no period shall exceed five hours and that no worker shall work for more than five hours before he has had an intervals of rest of at half an hour.
(2) The State Government or, subject to the control of the State Government, the Chief Inspector may, by written order and for the reasons specified therein, exempt any factory from the provisions of Sub-section (1) so however that the total number of hours worked by a worker, without an interval does not exceed six".
Section 56, where a provision has been made for spread over of work, uses the expression "periods of work". It reads as follows :
"The periods of work of an adult worker in a factory shall be so arranged that inclusive of his intervals for rest under Section 55, they shall not spread over more than ten and half hours in any day :
Provided that the Chief Inspector may, for reasons to be specified in writing, increase the (spread over to twelve hours)".
It is clear from the above provisions of the Factories Act, which is also an enactment made by the Parliament, that the Parliament has used two different expressions viz. "hours of work" and "periods of work". Hours of work means total hours for which the workman is required to work. Periods of work means the periods including the hours of work and interval for rest. Period of work, in fact, is the period during which the workman is required to remain present on the premises whereas hours of work means the period for which the workman in required to work. The two expressions are neither inter-changeable nor is it possible to say that "hours of work" is wide enough to include period of work. On the contrary, the reverse is true. Obviously, period of work is a wider expression. It is wider and longer than the hours of work because it includes not only the hours of work but also intervals for rest. It is clear from the above discussion that hours of work referred to in Item 4 of the Fourth Schedule to the Industrial Disputes Acts does not mean periods of work. It is also clear from the expression "the rest intervals" added to the hours of work in the said item itself, that, in fact, it is the actual hours of work and actual rest intervals that are referred to in Item 4. If any change is proposed to be made in hours of work or the rest intervals such a change would fall under item 4 and Section 9-A would be attracted. But if no change is made therein i.e., the hours of work or the rest intervals, and what is changed is the period of work, such change would not fall under Item 4 of the Fourth Schedule and Section 9-A would not be attracted for that purpose. No notice of 21 days' contemplated by Section 9-A would be required in such a case.
8. In view of the above, in our opinion, the learned single Judge was right in holding that what was changed in the instant case was the period of work or the shift timings and not the hours of work and hence, the change did not fall under Item 4 of the Fourth Schedule and that being so Section 9-A was not attracted.
9. We are also supported in our above conclusion by the decision of this Court in India Security Press Mazdoor Sangh v. Currency Note Press, (Supra). In the above case, while referring to item 4 of the Fourth Schedule, it was observed :
"Item 4 speaks of "hours of work" and "rest intervals". It is undisputed that the proposed working hours do not impinge on rest intervals. As far as "hours of work" are concerned, the item refers to the maximum regular hours of work and settled either under an award or settlement or prescribed by the statute. If, for example in the present case, such regular hours of work were sought to be increased, it would have required a notice of change under Section 9-A".
10. Mr. Deshmukh, learned counsel for the appellants drew our attention to the dictionary meaning of the word "hours" and submitted that considering the dictionary meaning as well as the object and purpose of Section 9-A, we should give the expression "hours of work" a wider interpretation to mean not only "hours of work", but also the "period of work". We find it difficult to accept the above submission. Section 9-A has got a definite purpose and object. It provides for service of notice on the workman affected in any change in the conditions of service in respect of matters set out in the Fourth Schedule. It is not any and every change which attracts Section 9-A. It is only in case of changes in respect of matters specified in the Fourth Schedule that a notice is contemplated under Section 9-A to the effected workmen. In our opinion, the legislature has rightly included "hours of work" in the Fourth Schedule as a condition of service on any change in respect of which section 9-A would be attracted and has deliberately avoided the use of the expression "periods of work" which it has itself used in other legislations, such as the Factories Act. The change in the hours of work may affect the workman so it has been included in Item 4 of the Fourth Schedule. Its scope cannot be expanded by interpreting it to mean or include "hours of work".
11. In view of the above, we do not find any merit in this appeal. The same is, therefore, dismissed. In the facts and circumstances of the case, there shall be no order as to costs.