Bombay High Court
Rajya Pariwahan Yantrik Kamgar ... vs Regional Manager, Maharashtra State ... on 26 April, 1989
Equivalent citations: 1990(1)BOMCR467
JUDGMENT A.A. Desai, J.
1. The petitioner-Union have questioned the validity of the action taken by the respondent in refixing the working hours, on the ground of violation of condition of service and denial/withdrawal of half day holiday which is a right privilege, advantage or concession, accured in their favour by passage of time and or by usage and custom.
2. The petitioners are Unions of the Employees of respondent. Corporation engaged in Divisional and Central Work Shops of the respondent-corporation in the Vidharbh Region. These employees have been working from Thursday to Monday during 7.30 to 17.00 hours (one hour lunch brake, thus for 8 hours, a day) and on Tuesday during 7.30 to 13.30 hours (half hour brake-thus 5 hours). Wednesday has been a weekly off-holiday. Accordingly, they used to complete 48 working hours in a week. The respondent issued a Circular dated 28-4-1988 after the working hours, from 12-5-1988. The employees have here after been required to work from Thursday to Tuesday during 8 to 17 hours with one hour as a brake. Wednesday has been maintained as a weekly off. The employees are accordingly required to work for 8 hours a day for six days to complete 48 working hours in a week.
3. The petitioner unions in May 1988 filed a complaint under section 28 of the Maharashtra Recognition of Trade Unions and prevention of Unfair Labour Practices Act. According to them by working only for 5 hours on Tuesday, they availed half day holiday. They have enjoyed the same since last more 25 years. It has, therefore, become a part of a condition of service and also a right, privilege and advantage. The respondent by the circular has withdrawn the half day holiday without any notice, conciliation or agreement. The respondent have, therefore, indulged in an unfair labour practices, enumerated vide items Nos. 9 and 10 of Schedule IV of the Act.
The Industrial Court by the impugned order dated 23-2-1989 dismissed the complaint. It is held that the provisions of Bombay Industrial Relations Act have no application to the Corporation. It is also exempted from the provisions of section 9-A of the Industrial Dispute Act. The Industrial Court has observed that half day working on Tuesday was neither a facility nor a right or privilege. Impugned Circular dated 28-4-1988 does not affect the employees adversely. The petitioner Unions have impugned this judgment of the Industrial Court, in these petitions raising the question as formulated.
4. Mr. Jaiswal, the learned Counsel appearing for the petitioner in Writ Petition No. 641 made a submission that the Government by Notification dated 2-5-1967 has exempted an Industry engaged in conduct and maintenance of public passenger transport services by omnibus form the provisions of the Bombay Industrial Relations Act according to Mr. Jaiswal, the work shops carry the work of repair and renovation of vehicles of the Corporation. This activity does not become part of the Industry engaged in conduct or maintenance of transport service. As such, in the submission of Mr. Jaiswal exemption so granted has no application to the work-shops of the Corporation. These workshops are, therefore, governed by the Bombay Industrial Relations Act and it is, therefore, obligatory on the part of the respondent to give notice under section 42 of the Bombay Industrial Relations Act before bringing a change as laid down in the impugned circular.
The Corporation has principally engaged to render public passenger transport service. Repairy or renovation of the vehicles which are employed for the purpose is not the main activity of the Corporation. It is not a case of the petitioner that the work-shops undertake repairy or renovation of vehicles other then that of the Corporation. For carrying out the principal activity of transport service, repairy and renovation of vehicles are incidental to the main function of transport. The Supreme Court in a case of Ballapur Collatries Co. v. State Industrial Court, 1966 A.I.R. 1925 has held that the exemption to the Industry of Mice does not confine only to the colliery where the coals are raised but also applicable to that part where the sale or supply of the coal to the customer are carried and includes the Head Office. Workshops are the integral and essential part of the Industry engaged in transport of public passenger. As such, the exemption granted to the Industry also includes the work-shops of the Corporation. The proviso of the Bombay Industrial Relations Act have therefore, no application to the workshops of the Corporation.
5. Mr. Jaiswal and Mr. Pradhan, the learned Counsel appearing for the petitioners, raised a common grounds before me. According to them, the employees by working only for 5 hours on Tuesday as against normal working of 8 hours have practically been enjoying the half day holiday and by passage of time, it has become a part condition of service. The learned Counsel then invited my attention to Clause 41 of settlement dated 25-5-1956 which reads as thus:---
"After 15th June, 1956 no charges in the service conditions of workers will be made without mutual agreement."
According to the learned Counsel, withdrawal of half day holiday is a change in the condition of service without their being any mutual agreement. They, therefore, submitted that the respondents have committed an unfair labour practice by not implementing this term of the settlement. Impugned action is also violative of condition of service and is therefore illegal. In support of their submission they placed reliance on a decision in case of (Mistry Lallubhoy Co. v. Engineering and Metal Workers Union, 1979 Lab. I.C. 196. The Andhra Pradesh High Court held that holiday is a condition of service. Reduction thereof leads to increase in work load.
6. The respondent Corporation came into being on 6-2-1950 pursuant to the provisions of Road Transport Corporation Act, 1950. The Corporation in exercise of power under section 45 of the Act of 1950 framed the Bombay State Transport Employees Service Regulations laying down amongst other the condition of service of employees of the Corporation (hereinafter referred to as "The Regulations"). The Regulations came into force with effect from 18-2-1954. Clause 19 defines "holiday" which can be declared as laid down by the Competent Authority. According to Appendix 'P' to the Regulations, the General Manager has been notified as the Competent Authority in this behalf.
7. The parties specifically agreed before me that the working hours as in vogue earlier to impugned circular have not been fixed in pursuance of term of condition of any agreement, settlement or award. Section 51 of the Factory Act prescribes 48 as a maximum hours of working in a week. Section 54 lays down as a maximum nine hours of a working in a day. Section 56 provides that the period of working including rest interval shall not be more than 10 hours on any day.
Clause 54 of the Regulations reads as thus:---
"The working hours of employees shall be fixed or altered in such manner as the Competent Authority may deem necessary in the public interest."
Regulations thus authorise the Competent Authority to fix or alter the working hours, and in such manner which suits the interest of administration. This Authority for fixation of working hours is, however, subject to the limits as prescribed by the Factories Act. In the workshop the employees perform duties of 8 hours a day for 5 days (Thursday to Monday). They thus complete 42 working hours. As such on Tuesday only 5 working hours are available as the provisions of Factories Act. To work less than usual working hours does not amount to holiday or half-day holiday.
8. Moreover fixing comparatively less working hours on a particular day was never with an intention to grant half day Holiday in terms of any agreement, settlement or award. It was also not so declared any time before under Clause 19 of the Regulations. Clause 19 empowers the Competent Authority to declare a holiday on a particular occasion or an occasion of special significance. Holiday as such declared under Clause 9 is in addition to the normal holiday under the Negotiable Instruments Act or other enactments or the orders of the Government. The Competent Authority can exercise his power under clause 19 on the special occasion. Even otherwise, "Half day Holiday on Tuesday" as styled by the petitioner does not fall within the description of "Holiday" as defined under Clause 19. Due to refixation of working hours neither there is a curtailment or withdrawal of holiday. Dictum laid down in case of Lallubhai, cited supra, has no application.
9. The learned Counsel for the petitioners relied on the decision of the Supreme Court in a case of Ispahani Limited v. Ispahani Employees Union, . The Supreme Court has held that the payment of Puja Bonus irrespective of profit bonus by inference was an implied condition of employment. My attention is then invited to a decision reported in case of The Management of Indian Oil Corporation v. Its workmen, . The Supreme Court has held that the voluntary decision of the Management to grant compensatory allowance was an implied condition of service.
Working hours in the factory are regulated and controlled by the Statute. They are to be fixed under Clause 54 of the Regulations in a manner so as to attain efficiency and also administrative convenience. Since fixation of and/or alteration of working hours is a matter controlled and regulated by the express provision, working for specified period on a particular day cannot be inferred as an implied term of contract of employment.
10. It is also not the case of the petitioners before me that the working for a limited period of 5 hours on Tuesday was fixed with a specific intention which has a relation to the local condition or taking into account particular or special circumstances usage or custom. In absence of any special circumstances, the working of 5 hours on Tuesday cannot be said to be a customary right or a right derived through long standing usage or practice.
The Supreme Court in case of The Oil and Natural Gas Commission v. Its Workmen, A.I.R. 1978 S.C. 968 has held that the Management has full power and discretion in fixing working hours within a limit prescribed by statute. It follows therefrom that working for limited period on a particular day cannot as such form a part of conditions of service. Calling upon the employees to work for 8 hours instead of 5 hours on Tuesday particularly when it does not exceed the maximum limit, cannot even otherwise be treated as variation in condition of service. As such Clause 41 of the settlement dated 25-5-1956, as pressed into service by the petitioners, has no application. The grievance of violation thereof, therefore, cannot be sustained.
The Counsel for the petitioners then made a submission that working only for 5 hours on Tuesday means practically a half day working. This half day working was connected with the next day weekly off. The employees in the workshop, have thus availed the rest-interval right from 1.30 hours of Tuesday till 7.30 hours of Thursday. This working system was beneficial and advantageous to the workers and by passage of time, the same has been riped into a right facility advantage and privilege. The learned Counsel invited my attention to Clause 41 (ii) of the settlement dated 19-12-1985. The clause reads as thus:---
"All privileges, rights, advantages benefits, facilities and amenities existing prior to this settlement, unless otherwise expressly modified deleted in this settlement shall be continued."
The learned Counsel, therefore, made a submission that calling upon the workers to work for 8 hours on Tuesday as against earlier 5 hours of working amounts to withdrawal of half-working day. It practically results in curtailment of rest-interval. Consequently, the right, privilege or benefits which have been protected under Clause 41(ii) have thus been discontinued and this would lead according to the Counsel in failure to implement the settlement which is binding on the employer.
11. As per section 55 of the Factories Act, rest-interval means a period for recesses between the working hours of a day. Section 55 prohibits un-interrupted working of more than 5 hours. It calls upon the employer to provide interruption of minimum half hour for the rest. Period between two working days cannot be termed as rest interval. The submission of the petitioners that the Circulars curtail the rest-interval is, therefore devoid of substance.
12. As per the provisions of section 51 of the Factories Act, the employer is under statutory obligation to work for 48 hours in a week. The management while distributing these working hours on any day or particular days may allot comparatively less working hours. However, it does not amount to either a concession, advantage or benefit to the employees. It does not confer any right or privilege, customary or otherwise. Impugned Circular does not take away any right as contemplated under Clause 41 (ii) of the settlement dated 19-4-1985. The grievance of the petitioner relating to the violation of the clause of settlement is totally unfounded.
13. Clause 54 of the Regulations as discussed empowers the Management to fix or alter working hours in a manner deemed necessary is the public interest. The respondent Corporation decided to alter the working hours for the following reason:----
(a) Worker is tried due to 8 hours working resulting in affecting his efficiency.
(b) As the working on Tuesday is upto 2 p.m. working in Accounts Section particularly in respect of Bank transaction suffers. It also affects delivery.
(c) As the R.T.O. Office is closed on Saturday and Sunday and work-shop is closed on Wednesday with 1/2 days working on Tuesday about 3 days are vested and passing and connected work cannot be done. Moreover, over time is required to be paid to workers who work beyond 1/2 day on Tuesday. This over time can be avoided.
(d) Local purchases are also affected. On Sunday local market is closed whereas on Tuesday 1/2 day working creates problems for local purchases for the management.
(e) On Tuesday though worker works for 1/2 day is required to take leave he has to take leave for 1 day.
(f) Due to 1/2 day working the production suffers.
The genuineness of the reasons as assigned have not been questions before me. The reasons as assigned for refixing of working hours are definitely with an intention to achieve efficiency and co-ordination in the working of the Corporation. As such the respondents are justified in altering and refixing the working hours in exercise of power under Clause 54.
13. The respondent by refixing the working hours has not added any extra working hours nor there has been any increase in work load or even curtailmant of Holiday.
The Supreme Court in the case of The Oil and Natural Gas Commission v. The Workmen, and this Court in Mistry Lallubhoy & Co. v. Engg. & Metal Worker's Union, 1979 Lab. I.C. 196, have held that change contemplated under section 9-A of the Industrial Disputes Act must be one which affects the employees adversely. Refixation of working hours by the impugned Circular even otherwise is not any way prejudicial to the employees. It does not deprive any right, privilege benefit or advantage which has been derived by the employees either through the special nature of work or because of peculiar circumstances. It does not cause any increase in work loan or loss of monetary benefit. As such the impugned change does not fall within the scope of section 9-A.
14. The respondent before issuing the impugned Circular on 28-4-1988 held discussions with the union. It is submitted on behalf of the respondent that 4 out of 7 unions have consented for the alteration in the working hours. Only the petitioner Unions have lodged their protest.
The Counsel for the petitioners invited my attention to a decision reported in M/s. Tata Iron and Steel Co. Ltd. v. Workmen or M/s. Tata Iron & Steel Co. Ltd., 1972 Lab. I.C. 1128. The Supreme Court has held that change in weekly off without notice under section 9-A is ineffective. However, according to me the ratio as laid down has no application to the instruct case. The learned Counsel for the petitioners then relied on the decision of this Court in a case of Shakti Electric Mechanical Industries Private Limited v. F.H. Lala, 1974 Mh.L.J. 264. This Court has held that notice in compliance of section 9-A of the Industrial Disputes Act is necessary for change in timing of hours of work and rest-interval must be regarded as a condition of service.
The Government by notification dated 12-3-1951 in exercise of the power under Clause (b) of the proviso to section 9-A of the Industrial Dispute Act, has notified the Regulations Admittedly, alteration in working hours are brought in pursuance of powers conferred on this respondent under Clause 54 of the regulations. The Corporation in view of the notifications has been exempted from the provisions laid down under section 9-A of the Industrial Disputes Act for giving notice of change.
15. The learned Counsel for the petitioners made a submission that period of work is a matter covered by Item 2 of Schedule to the Industrial Employment (Standing Order) Act. They invited my attention to a proviso to Clause 2 of the Regulations. They submitted that alternation in working hours being the subject matter of the Schedule could be made in view of proviso to Clause 2 of the Regulation only after consulation with the Recognised Union and the Commissioner of Labour Proviso to Clause 2 deals with alternation or amendment in the Regulations. However, no such alternation or amendment has been made in the Regulations. It has, therefore, no application. Besides this, there is no recognised Union either under Bombay Industrial Relations Act or under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. Moreover, the Government by notification dated 8-5-1957 by exercising power under section 13-B of the Industrial Employment (Standing Orders) Act 1946, notified the Regulations in that behalf. Consequently, the Act of 1946 has no application to the workers engaged in the Industrial Establishment of the respondent.
16. The learned Counsel for the petitioners then made a submission that the Competent Authority under Clauses 19 and 54 of the Regulation as laid down in Appendix P is the General Manager. The impugned Circular has been issued by the Divisional Manager. As such the same is without authority and, therefore, inoperative. As discussed, Clause 19 which defines "Holidays" has no application. The petitioners in their compliant has not raised this question. It is submitted by the respondent in para 10 of their Return that the Vice-Chairman Managing Director has directed that the issue of change of working hours should be resolved by the workshop Manager or by the Divisional Labour Officer. This decision was communicated to the representative of the workers. Therefore, the Divisional Controller and the Workshop Managers are empowered to take steps. They further contended that there was an implied delegation and which is permitted by Clause 5 of the Regulations. The Industrial Court has considered this aspect in para 22 of the impugned judgment. According to me, the respondents who are subordinate to the General Manager have taken steps in pursuance of the decision of the Competent Authority. As such, it amounts to implied delegation. Even otherwise, the ground as raised does not create any incurable Infirmity.
The petitioners are without any merit. The same are, therefore liable to be dismissed.
17. In the result, the petitions are dismissed. No order as to costs. The order of the Industrial Court is hereby confirmed.