(i) It is hereby declared that the demand for changing the roster off system for giving Sunday off as weekly day of rest in respect of Grade II Supervisors and Markers/Sorters/Checkers is justified.
(ii) Roster off system in respect of Grade II Supervisors and Markers/ Sorters/Checkers is directed to be discontinued with effect from 1st December, 1969.
(iii) Award is made accordingly.
(iv) No order as to costs.
Before that it had said in paragraph 36 :
In short, considering the oral and documentary evidence on record and the arguments advanced by both the parties, I am of the view that roster off system of Grade II Supervisors and Markers/Sorters/Checkers should be discontinued, that they should be given additional half day's wages and other day off for working on Sundays and that their demand for discontinuing the Roster off system is just and fair. The same deserves to be accepted.
5. The dispute raised is on behalf of the non-roster staff of the traffic department of the port. Of the 17 categories of staff in this department, as specified in the statement of claim filed on behalf of the workmen, only two, namely, Labour Supervisors Grade II (Category xvi) and Markers/Sorters/Checkers (Category xvii), are put on the roster. The remaining 15 categories, some on higher and some on lower scales of pay, are not on the roster. This, according to the Tribunal, amounts to unfair discrimination against the two categories put on the roster since it means that, while for working on Sunday which is their weekly holiday the non-roster staff get half a-day's additional wages as also a compensating holiday, the roster staff get no additional wages for working on a Sunday which is not their weekly holiday. And this is the sole reason for the Tribunal's decision.
6. The objections taken on behalf of the petitioner are:
(1) that the finding of unfair discrimination is perverse in the sense that it is not merely unsupported by evidence but is contrary to the evidence adduced on both sides; and
(2) that what the Tribunal in effect has done is to maintain the roster off system while at the same time awarding additional wages for working on a Sunday which is beyond the scope of the reference made to it and is, therefore, without jurisdiction.
7. We consider both objections to be well-founded. With regard to the first, it must be remembered that, although Sunday is not a holiday for the port as such, the volume of business which the port has to transact on Sundays is much less than on week days since Sunday is a general public holiday. But some items of business are carried on on Sundays just as on week days. In the traffic department, the loading and unloading of ships goes on as usual on Sundays since a ship would not be detained for a longer period than is absolutely necessary. Other items of business as, for example, the receipt and delivery of cargo, are not transacted on Sundays except in urgent cases on special request. The evidence adduced in the case, both on behalf of the port and on behalf of the workmen, is to the effect that while the roster staff of the department is engaged solely on work connected with the loading and unloading of ships, which work proceeds on a Sunday in the same way and to the same extent as on a week day, the non-roster staff are only partly engaged in such work, and, for the rest, are engaged in work which is transacted only on week days. The evidence on both sides is that while the roster staff work at the same strength on Sundays as on week days, so far as the non-roster staff are concerned, only a skeleton staff work on Sundays. That being so, we fail to see how any unfair discrimination is involved in giving Sunday as the weekly holiday for the non-roster staff and one day of the week by a rotation as the weekly holiday for the roster staff. How the work of an establishment is to be carried out, how the holidays are to be fixed are essentially for the management to determine, and interference is permissible only if this power is exercised in an unreasonable or unfair manner. This the Tribunal recognised, and as we have seen, the reason it gave for interference was that there was unfair discrimination. In so doing, it forgot that so far as work on Sundays was concerned, the non-roster staff stood on a different footing from the roster staff since the volume of work the non-roster staff had to do on Sundays was much less than on week days, whereas the volume of work which the roster staff had to do on Sundays was the same as on week days. There was thus a very good reason for giving Sunday as the weekly holiday for the non-roster staff and giving one day of the week by rotation as the weekly holiday for the roster staff. The Tribunal also seems to have forgotten that while the non-roster staff are given half-a-day's additional wages as also a compensating holiday for working on their weekly holiday, the roster staff are paid one day's additional wages as also a compensating holiday for working on their weekly holiday. The only difference is that while Sunday is always the weekly holiday for the non-roster staff, the weekly holiday for the roster staff changes ones in every three months according to the roster.
8. So far as the second objection is concerned, it is said on behalf of the workmen that the decretal part of the award, as set out in the concluding paragraph thereof, says nothing about wages and that, therefore, there is no question of the Tribunal having gone beyond the terms of its reference. This seems to us to be a contention without substance. As we have seen, the Tribunal has held, in more places than one, that the roster staff should be paid half-a-day's additional wages for working on a Sunday, and, in fact, the demand for additional wages for working on Sundays is the very basis of the dispute. That the contention raised is idle is apparent from the fact that counsel for the workmen was not prepared to say that the implementation of the award would not involve the payment of additional wages for working on Sundays. Of course, had he done so, the workmen might as well not have raised the dispute.
9. To the contention of the port that, since the roster staff has to work at the same strength on Sundays as on week days, it would not be possible to give them Sunday as the weekly holiday, the answer of the Tribunal was that a sufficient number of workmen could be told off in rotation to work on Sundays, being given a compensating holiday on some other day of the week. This is, in effect, retaining the roster system for the weekly day off and compelling the port to pay additional wages for working on Sundays. The question of wages was not referred to the Tribunal and its award seems to be clearly in excess of jurisdiction.
10. Before coming to this Court, the petitioner had moved the Supreme Court for special leave to appeal from the award under Article 136 of the Constitution. Its application for the purpose was dismissed by the Supreme Court by an order dated 18-3-1970, That order, it is conceded, gave no reasons for the dismissal. It is true that in appeal the entire casa is before the appellate Court and that, therefore, the scope for interference is much wider than in a proceeding under Article 226 of the Constitution. But then, the grant of special leave under Article 136 is in practice hedged in by very stringent conditions, such leave it granted very sparingly and the Supreme Court has repeatedly said that it will be granted only in exceptional cases: see for example, Pritam Singh v. The State A.LR. 1950 S.C. 160. It is not in every case where interference under Article 226 of the Constitution would be justified that leave to appeal under Article 136 is granted ; indeed that writ petition would lie might be a consideration for declining leave. That being so, we do not think that the refusal of special leave in this case stands in the way of the petitioner either as a precedent or on principles of res judicata.
11. We allow this petition and quash the award, Ext. P1. We make no order as to costs.