Madura Coats Limited v. Inspector of Factories, First Circle, Madurai & Anr.

) ' A B _c_ D E .F 302 MADURA COATS LIMITED _v._ INSPECTOR OF FACTORIES, FIRST CIRCLE, MADURAI & ANR. _December_ 2, 1980 [A. C. GUPTA AND A. P. SEN, JJ.] _Tan1ilnadu Industrial Establishments_ _(l\:atio11al_ _a11d_ _Festh·al_ _Holida:"s_ 1 _Act_ 1958, _SS._ 3 _and_ 5(1) _and_ _(2)-Scope_ _of._ _Workn1en going on_ _strike-Natural_ _holiday interrening-Liability_ _of_ _!tfanar;e-_ _mcnt_ _to pay_ _H'l1ges_ _for_ _the_ _1Vational_ _holidoy-When_ _arises._ The Ta111il Nadu Industrial Establishment (National and Festival l-folidays) Act, 1958 wns a legislation intended to provide for national and festival holidays in industrial establishments in the State of Tamil Nadu. Section 3 of the Act provides that every employee in an industrial establiE>h:nent shall be entitl ::d to four national and five festival holidays in each calender year. Sub-section (1) of section 5 provides that 'nohvithstanding any contract to the contrary every employee shall be paid wages for each of the holidays allowed to hin1 under section 3. Sub-section (2) of sccti.on 5 confers upon the en1.ployer the right to call upon the 'A-:orkn1en to come rind \\'Ork on such holidays on the fulfilment of the· conditions se' out therein. The oppellant was <in industrial establishment owning textile mills in the State of Tamil Nadu. In respect of a claim for bonus for the year 1974-75 there was a dispute behveen the management and its workmen. This resulted in a strike by the workmen, from January 21, 1976 to February _5,_ 1976 which was called off by the worktnen on Febn1ary 6, 1976. The management paid the workmen wages for the month of January 1976 after excluding therefrom the wages payable for the period of strike during January namely January 21 to January 31, 1976. The Management having withheld the wages pnyable for January 26, 1976 the first respondent addressed a communication stating that in vie~' of section ·5 of the Act payment of \·r,:ages for January 26, 1976 had to be made. The n1anagement challenged the order by A Writ Petition in the High Court. The High Court held that having regard to the pro\iisions contained in section 3 and sub-section ( 1) of section _5_ of the Act, the appellant was bound to pay the workn1en wages for January 26, 1976 even though the workmen \\'Cr~ nn strike on that dote an<l dis111issed the Writ Petition. Allowing the tt·ppeal to this Court I-TELD: (1) The liability of t'he Management to pay wages for !hl! national and festival holidays under section 3 read with sub-section _(1)_ of section _5_ of the Act is subject to the rights under sub-section (2) of section 5 of the Act to c;i\1 upon the \vorkmen ro come and 'vork on such holidays. { MADURA COATS _v._ INSPECTOR OF FACTORIES 303 (2) The construction placed by the High Court on sub-section (2) of sec- A tion 5 of the Act cannot be accepted. Under the schen1e of the Act the workmen are entitled ro wages for the national and festival holidays under section 3 read \Vi th sub-section ( 1) of section 5, but this right of theirs' is subject to the right of management given under sub-section (2) of bCCtion _5_ to call upon the workmen to come and work on such holidays. Any other construction would make the provisions contained in sub-section (2) of section 5 wholly nugatory. [308H; 309A] B _(_ 3) Both sub-sections ( 1) and (2) of section _5_ contain _non_ _ob st ante_ clauses. While the _11011_ _obJlante_ clause in sub-section ( 1) of secl'ion _5_ gives to the \\orkn1en the right to clain1 \vages for snch holidays 'notwithstanding any contract to the contrary' the _11011_ _ohstarlle_ clause in sub-section (2) of section _5_ subordinates the right of the \vorkmen to claim wages for the national or festival holidays 'notwithstanding anything contained in section 3'. Subsections (1) nnd (2) of section _5_ have been enacted with separate and distinct objects and they operate on different planes. [306H; 307AJ _Vasudevan, R.M.S._ _U11ion_ v. _Lotus Mills Ltd._ [1977] II LLJ 483 overruled. c # ( 4) It \VOuld depend on the facts and circun1stances of each case whether or not wages become payable in the context of strike. When a strike is D neither illegal being not in contravention- of any statutory provisiont nor unjustified having been lodged a<; a protest aga1nst the unreasonable attitude of the man<igen1ent, there is no reason to deprive the workmen of their wages. [309B] _Bucld11ghan1_ _and_ _Car11aric_ _Co._ _Ltd._ v. _TVorkt'rs_ _of_ _the Buckingha1n_ _and_ _C'arnatlc_ _('o._ _Ltd._ [19531 _SCR_ 219 _and_ _1i-Ia11agenient_ _of_ _Chandramalai_ _Estate,_ E _Ernakularn_ v. _lts_ _Workn1en_ [1960] 3 SCR 451 referred to. Jn the instant case the \Vorkrnen went on strike without serving a notice under section 22 of the Industrial Dispute Act 1947. That, being so the strike resorted to by the workmen was wholly unjustified if not illegal. When the workmen themselves brought about a situation by going on a strike they cannot be permitted to claim wages under sub-section (1) of section _5_ of the Act F since the management were deprived of their right nnder sub-section (2) of section 5 of the Act [309E] _r_ CIVIL APPELLATE JURISDICTJON : Civil Appeal No. 34 of 1980. From the Judgment and Order dated 7-11-1979 of the Madras High Court in Writ Petition No. 2886/76. _Safi_ _J._ _Sorabjee._ _D._ _N._ _Gupta_ and _H._ _K._ _Dutt_ for the Appellant. _R._ _K._ _Garg_ and _V._ _J._ _Francis_ for the Respondent. The Judgment of the Court was delivered by SEN, J. This appeal on certificate, from the judgment of the Madras High Court raises a question of some complexity. The ques fTDf.Tif:i··1T· T G H 304 SUPREME COURT REPORTS [198!] 2 S.C.R. A tion is, whether an employer is statutorily bound to pay wages if the workmen are on strike, for any of the national or festival holidays falling within the period of strike, under s.3 read with sub-s.(l) of s.5 of the Tamil Nadu Industrial Establishments (National and Festival Holidays) Act, 1958 (hereinafter referred to as 'the Act'). B The facts of the case are not in dispute. Messrs Madura Coats Limited are an industrial establishment within the meaning of s.2(e) of the Act, owning textile mills at Madurai, Ambasarnudram and Tulicorin in the State of Tamil Nadu. The cotton textile industry had been declared to be a public utility service for purposes of the C Industrial Disputes Act, 194 7. In respect of daim for bonus for the year 1974-75 a settlement was entered into which stood superseded by the Payment of Bonus Ordinance, 1975. The management accordingly took the view that no bonus was payable for the year in question, since its payment would be against the provisions of the Act, as amended by the Ordinance. This resulted in a strike by D the workmen of the concerned mills. The workmen were on strike from January _21,_ 1976 to February 5, 1976. The strike was called off by the workmen on February 6, 1976 due to the intervention of the Commissioner of Labour, Madras, who brought about a settlement. The proceedings of the Commissioner of Labour dated February 5, 1976 show that the parties, i.e., the management and E the workmen, had agreed to abide by his decision in the matter. The terms of the settlement were, _in/er alia,_ that the strike was to be called off forthwith and the workmen would commence work on February 6, 1976, that the management's proposal to make a penal cut of eight days' wages of the workmen for going on an iUegal strike would be waiv•"d and that there would be no wages payab:e for the F period of the strike. In accordance therewith, the workmen resumed work on February 6, 1976 and the management paid them wages for the month of January, 1976 after excluding therefrom the wages payable for the period of strike during January, namely, for ~he period from January 21 to 31, 1976. The management havmg withheld the wages payable for January 26, 1976, the Inspector of G Factories, 1st Circle, Madurai addressed a communication dated May 22, 1976 stating that in view of s.5 of the Act, payment of wages for January 26, 1976 had to be made. The management challenged the order by a writ petition but the High Court declined to interfere. It held that the appellant was bound to pay to the workmen wages for January 26, 1976, having regard to the proviH sions contained in s.3 and sub-s.(1) of s.5 of the Act, even though the workmen were on strike on that day. The correctness of that decision is in question. { _)_ MADURA COATS _V._ INSPECTOR OF FACTORIES (S~n, _J.)_ 305 It is urged firstly that in view of the term 'wages' in s.2(g) of the Act, no wages were payable to the workmen for January 26, 1976, in terms of the contract of employment since they were not available for work and thereby the management were deprived of the right given to them under sub-s.(2) of s.5 of the Act, to call upon the workmen to come and do the work; and secondly, the right of the workmen to receive wages for the national or festival holidays under s.3 of the Act, is subject to the right of the management under sub-s.(2) of s.5 to call upon them to come and work on such holidays. It is said that when a person creates a situation by going on a strike whereby he is not available for work, the terms of employment cannot be fulfilled and, therefore, _a fortiori_ no wages are payable. _It_ is suggested that the right of the workmen to wages is not dependent on their status as such, but on the fulfihnent of the contract of employment. A B c It would be convenient in the first instance to set out the ## relevant provisions of the Act. In the Act the term 'wages' as D dellned in s.2(g), insofar as relevant, is in these terms: -~ "2(g) "Wages" means all remuneration capable of being expressed i.n terms of money, which would, if the terms of employment, express or implied, were fulfilled, be payable to an employee in respect of his employment or of the work done by him in such employment ........ ". Section 3 of the Act provides as follows: "3. Grant of National and Festival holidays-Every employee shall be allowed in each calendar year a holiday of one whole day on the 26th January, the first May, the 15th August and the 2nd October and five other holidays each of one whole day for such festivals as the Inspector may, in consultation with the employer and the employees, specify in respect of any industrial establishment." Sub-sections (1) and (2) of s.5 of the Act provide: "5. Wages-(1) Notwithstanding any contract to the contrary, every employee shall be paid wages for each of the holidays allowed to him under section 3. (2) (a) Notwithstanding anything contained in section 3, any employee may be required by the employer to work on E F G H 30~ SUPRHIE COURT REPORTS [1981] 2 S.C.R, A any holiday allowed under that section if the employer has, not less than twenty-four hours before such holiday, (i) served in the prescribed manner on the employee a notice in writing requiring him to work as aforesaid; and B c D E F The legislation is intended to provide for national and festival holidays in industrial establishments in the State. Section 3 of the Act provides that every employee in an industrial establishment shall be entitled to four national and five festival holidays in each calendar year. Sub-section (1) of s.5 provides that 'notwithstanding any contract to the contrary' every employee shall be paid wages for each of the holidays allowed to him under s.3. The matter is thus taken out of the realm of contract. There is a statutory obligation cast on the employer and a corresponding benefit conferred on the employees. The word 'allowed' in sub-s. ( l) of s.5 means holidays allowed under s.3. In other words, the employer has no option in the matter. There can be no contracting out of the liability to pay ~ wages for snch holidays. ' (ii) send to the Inspector having jurisdiction over the area in which the industrial establishment is situated and displayed in the prentises of the industrial establishment a copy of such notice. (b) Where an employee works on any holiday allowed under section 3, he shall, at his option, be entitled to (i) twice the wages; or (ii) wages for such day and to avail himself of a substituted holiday with wages on one of the three day< immediately before or after the day on which he so works." G It will be noticed that both sub-ss. (1) and (2) of s.5 contain _non obstante_ clauses. While the _non obstante_ clause in sub-s. (1) of s.5 gives to the workmen the right to claim wages for such holidays 'notwithstanding any contract to the contrary', the _non obstal!fe_ clause in sub-s. (2) of s.5 subordinates the right of the workmen to claim wages for the national or festival holidays 'notwithstanding anything H contained in s.3'. Sub-sections (l) and (2) of s.5 have been enacted with separate and distinct objects and they operate on different planes. Snb-section (2) of s.S confers npon the employer the right to call MADURA COATS _v._ JNSPECTOR OF FACTORIES _(Sen,_ _J.)_ 307 upon the workmen to come and work on such holidays on the fulfil- A ment of the conditions set out therein. As a matter of construction, the _non obstante_ clause contained in sub-s. (2) of s.5 has an overriding effect over s.3. The right of the workmen to claim wages under sub-s. (1) of s.5 for any of the national and festival holidays under s.3 is, therefore, co-extensive with B the right of the management under sub-s.(2) of s.5 to call upon the workmen to come and work on such holidays subject to the compliance with the conditions laid down therein. c D E F G H On the construction of sub-s.(2) of s.5 of tJie Act and its impact on s.3 and sub-s. (J) of s.5 of the Act, there is a conflict of opinion in the High Court. In _Vasudevan, R.M.S. Union_ v. _Lotus_ _Mills_ Ltd.(1) Koshal J. in dealing with a case where the workers of a textile mill went on a strike, and in-between there were two paid holidays, held that wages for the holidays in question were payable despite the strike since sub-s.( 1) of s.5 was absolute and unconditional and gave to the employees the right to stay away from work. He was of the view that s.3 and sub-s. (1) of s.5 opetate independently without reference to sub-s. ( 2) of s.5 and as such, even if the management had no opportunity to call upon the workmen to come and work on national and festival holidays as provided for in subs.(2) of s.5, they were bound to declare such national and festival holidays under s.3 and pay wages for these holidays to the workmen as provided by sub-s.(l) of s.5. In substance, Koshal J. was uf the view that the legislature never intended to give to sub-s.(2) of s.5 an overriding effect so as to make the fulfilment of the tenm of contract of employment and of the work done a condition prerequisite for the payment of wages for the national or festival holidays. When the matter came before Natarajan J., he expressed his doubts about the correctness of the view taken in _Lotus Mills_ _case._ In his view the benefit conferred on the workmen under s.3 and sub-s.(l) of s.5 cannot be taken to be independent of sub-s.(2) of s.5 which confers a special right on the management to call upon the workmen to come and work on national and festival holidays declared under s.3, and so long as that right of the management could not be exercised as the workmen were on strike on these days, the benefits cannot be enforced by the workmen. He, accordingly, referred the case to a Division Bench for a reconsideration of the decision in _Lotus Mills_ _case._ The Division Bench (Ramanujam and Padmanabhan JJ.), however, disagreed with him and preferred to (!) [1977] II LU 483 . A _c_ 308 SUPREME COURT REPORTS [198 J) 2 S.C.R. follow the view taken by Koshal J. expressed in _Lotus Mills ewe._ The question is which of the two views is in accord with the provisions of the Act. Ramanujam J., speaking for the Division Bench, while accepting that 'sub-s.(2) of s.5 conferred a special right on the management, which is somewhat inconsistent with s.3 and sub-s.(1) of s.5, comments that 'these provisions confer two benefits on the employees, viz., (1) not to work on a holiday, and (2) to get wages from the management for such holiday', and observes : _"If the right conferred on the management under section_ 5(2) _is_ _intended_ _to_ _override the right given to the employees_ _under section_ 3 _and_ 5 (1), _the legislature would have specifi-_ _cally said_ _so_ _by giving an overriding effect to section_ 5(2). But so long as section 5(2) does not specifically override sections 3 and 5 ( 1), it is not possible for us to say tbat sections 3 and 5 ( 1) are subject to section 5 (2). The right conferred on the management under section 5(2) and the right conferred on employees under sections 3 and 5 ( 1) should be taken to be independent of each other." (Emphasis supplied) This observation virtually renders sub-s. (2) of s.5 a mere super£ fluity. Furthermore, the assumption that the Act confers the right not to work on a holiday' appears to be unwarranted. The ultimate conclusion of the High Court was that the contract of service continues even during the period of strike and, therefore, though in the instant case the employees were on strike, tbey still continued to enjoy the benefits of the Act and must be paid their wages for 26th January, 1976 even though they were on strike. tH In our judgment, the construction placed by the High Court on sub-s. (2) of s.5 of the Act cannot be accepted. It is apparently wrong in observing that 'if the legislature intended such a result, the language used would have been different'. That precisely is tbe effect of the _non obstante_ clause in sub-s.(2) of s.5 which clearly has an overriding effect over s.3. Under the scheme of the Act, the workmen are entitled to wages for the national and festival holidays under s.3 read with sub-s. (1) of s.5, but this right of theirs' is subject to the right of the management given under sub-s.(2) of s.5, to call upon tbe workmen to come and work on such holidays. Any other construction would make the provisions contained in sub-s. (2) of s.5 wholly nugatory. A B c D E F G H #### • _>_ .. ._, MADURA COATS _v._ INSPECTOR OF FACTORIES _(Sen,_ /.) 309 1t would depend on the facts and circumstances of each case whether or not wages become payable in the context of strike. It is true that where a strike is neither illegal being not in contravention or any statutory provision, nor unjustified havin&,.been lodged as a protest against the unreasonable attitude of the management, there is no reason to· deprive the workmen of their wages. It must, never· thelcss, be observed that workmen cannot resort to strike with impunity for any kind of demand without first exhausting reasonable avenues for possible achievement of their object. In the present case, the affidavit of the Inspector of Factories, First Circle, Madurai shows that the dispute between the management and their workmen as to payment of bonus for the year 1974-75 had been referred to the Special Industrial Tribunal Madras which gave a decision in favour of the workmen. That has a bearing on the claim for bonus but has no relevance to the question in controversy . It appears that the workmen went on a strike without serving a notice under s. 22 of the Industrial Disputes Act, 194 7. That being so, the strike resorted to by the workmen was wholly unjustified if not illegal. When the workmen themselves brought about a situation by going on a strike, they cannot be permitted to claim wages under sub-s. ( 1) of s.5 of the Act, since the management were deprived of their right under sub-s.(2) of s.5 of the Act. In _Buckingham and Carnatic Co. Ltd._ v. _Workers of_ _the_ _Buckin·_ _gham and Carnatic Co._ _Ltd.(I)_ the night-shift operatives of a textile mills stopped work from about 4 p.m. upto al?out 8 p.m. on a certain day, the apparent cause of the strike bcini: that the management had expressed their inability to comply with the request of the workers to declare the forenoon of that day as a holiday for solar eclipse. The stoppage of work was the result of a concerted action and !ell within the definition of a 'strike' in s.2(q) of the Industrial Disputes Act, l 9~ 7. The strike was an illegal strike as the t!'xtile mills was a public utility industry and no notice had been giY,en to the manage· ment, even though the refusal to work continued only for a few hours. It was held that the continuity of service of the workers was interrupted by the illegal strike and, therefore, they were not entitled to claim holidays with pay under s. 49-B(l) of the Factories Act, 1934. In _Management_ _of Chandramalai Estate, Ernakulam_ v. _Its Workmen(!)_ the workmen made certain demands and the matter was referred for conciliation. After conciliation efforts failed the workmen struck work. The question was whether the workmen were entitled to .. (I) [1953] SCR 219. (2) [1960]3 SCR 451. ,. 4--57 SCI}Sl ##### • ###### ' ' . ### .. A B c D 310 . StJPR,EME COURT REPORTS ·[198·1] 2 ·S.C.R. paid holidays for the period of strike. It was held, on the facts of the case, that the strike was unjustified and the workmen were not entitled to any wages for the period. The question ultimately is one of fact. The liability of the management to pay wages for the national and festival holidays under s.3, read with sub-s. ( 1) of s.5 of the. Act, is subject to their right under sulJ.-s.(2) of s.5 of the Act to call upon the workmen to come and work on such holidays. That depends upon whether or not the strike was illegal or unjustified. In the result, the appeal succeeds and is allowed. The judgment of the High Court is reversed. The writ petition filed by the appellant is· allowed and the impugned notice issued by the Inspector of Factories is quashed. We wish to mention that the appellant has undertaken to pay· wages to the workmen for 26th January, 1976 irrespective of the result of the appeal. There shall be no order as to costs. N.V.K. _Appeal allowed._