C.A. Vaidialingam, J.
1. This is an application under Article 226 of the Constitution by the workmen of the Parvathy Mills (Private), Ltd., Quilon, represented by the Quilon District Watchers and Peons Association, Quilon, for calling for the records in Industrial Dispute No. 13 of 1956 on the file of the industrial tribunal, Trivandrum, and for quashing the award dated 23 March 1959 in so far as it relates to the findings recorded on Issues 3 and 4.
2. As the attack made on the said industrial dispute relates only to these two issues, it is not necessary to consider elaborately, the various other matters discussed and considered in the said award. But it is enough to state that on a reference made by State Government to the industrial tribunal, Trivandrum, for considering certain matters, the industrial tribunal has considered the various issues referred to it and recorded findings thereon. In particular, the issue 3 relates to 'whether the watchers should be granted a weekly paid holiday?' and issue 4 was to the effect 'whether the watchers working between 12 p.m. and 6 a.m. should be given any night allowance? If so, at what rate ?'
3. According to the union, the watchers working in the management in question must be given also a weekly holiday and they also claimed that the watchers must be given night allowance.
4. In so far as issue 3 is concerned, the industrial tribunal has considered it along with Issues 5 and 7, because the tribunal was of the view that all those Issues are very closely interconnected and a decision on one will have a great bearing on the other Issues. 'After considering issue 3, the tribunal ultimately came to the conclusion that in view of the fact that the watchmen are now monthly rated as per its finding on issue 5, there was no evidence to show that in any of the other concerns, the watchers, similarly situated and monthly rated, are granted weekly holidays. In fact, it has referred to to the concerns, viz., Harrisons & Crosfield, and Thomas Stephen & Co., and found that those two concerns do not grant weekly holidays to the watchers. But the tribunal was of the view that the watchers in the concern in question have all along been enjoying the benefit of weekly holidays and finally held that they will be entitled to a substitute monthly holiday as is granted to the watchers in Harrisons & Crosfield, Ltd., Quilon.
5. Before dealing with its finding on issue 4, it is desirable also to briefly refer to the findings recorded by the tribunal on the allied issues, namely, issues 5 and 7. Issue 5 was as to whether the watchers should be granted a basic scale of pay with weightage on the basis of service and there were also certain other incidental matters therein. Issue 7 was as to how many days' sick leave and casual leave with pay should be granted to the watchers. On issue 5, the tribunal, considering the entire materials placed before it, fixed the monthly wages of the watchers on a particular scale. Similarly, on issue 7, the tribunal has considered, the demand of the union that the watchers should be granted 15 days' sick leave and 15 days' casual leave with full pay. But before the tribunal, it appears to have been conceded by the representative appearing for the workers that since sick leave has been provided for by the Employees' State Insurance Act, the demand in regard to the same need not be considered in that reference. The tribunal has taken into account the fact that in other allied concerns, namely, Harrisons & Crosfiled, and Peirce, Leslie & Co., watchers are granted 12 days' casual leave. Accordingly, the tribunal was of the view that the same benefit should be granted to the watchers in the concern In question also. Finally the tribunal held that the watchers, under the management In question, will be entitled to 12 days' casual leave in addition to the sick leave benefits under the State Employees' Insurance Act.
6. Coming to issue 4, which, as already staged, related to the night allowance to be given to watchers working between 12 p.m. and 6 a.m. the tribunal considered this matter and took into account the evidence on record to the effect that the other allied concerns in the area, namely, Harrisons & Crosfiled, Peirce Leslie & Co., and Thomas Stephen & Co., do not give any night allowance to their watchers. The tribunal also noted that other industries such as cashew, tin factories and saw mill also do not give any night allowance to its watchers. It finally held that the claim made by the union is not justified and as such held that the watchmen in the management are not entitled to claim night allowance and negatived the demand of the union.
7. Mr. V. Viswanatha Menon, learned Counsel appearing for the union, contended that the finding of the tribunal on both these matters is not justified by the evidence on record. He also alternatively contended that as his clients were of the view that the practice of having a weekly holiday enjoyed by them so long, would not be disturbed and so sufficient evidence has not been placed before the tribunal. According to the learned Counsel, the watchmen will be workmen within the definition of that expression in Section 2(i) of the Factories Act and he also invited my attention to Sections 51 and 52 of the Factories Act. Section 51 is to the effect that no adult workers shall be required or allowed to work in a factory for more than 48 hours in any week. Section 52 is to the effect that no adult worker shall be required or allowed to work in a factory on the first day of the week unless...etc. It is not necessary to go into the other clauses in Section 52 for the purpose of this case. But the essential requirement for the application of Sections 51 and 52 of the Act is that a person must be a ' worker ' as defined in Section 2(i) of the Factories Act. I do not find from the records that the petitioners took up any such plea before the tribunal nor wanted any oppor tunity for them to show that the watchers in question are connected in any kind of work incidental to, or connected with the manufacturing process as is required under Section 2(i). The only contention that they took up before the tribunal, as is seen from the statement on behalf of the union, is to the effect that even if the watchmen are monthly rated, they should continue to get the privilege of one day off in a week. Therefore, I cannot accept the contention of Mr. Viswanatha Menon that sufficient opportunity was not given to the petitioners to place any necessary evidence if they so chose. No opportunity was asked and denied. The only point that the tribunal had to consider under issue 3 was to find out whether the watchmen have to be given also a weekly holiday which they were enjoying when they were getting daily rates. After its finding on issue 5 fixing their pay and other allowances on a monthly basis, the tribunal was of the view that the watchmen are not entitled to have a weekly holiday also. This, according to Mr. Viswanatha Menon, works a hardship on the workmen.
8. Sitting in proceedings under Article 226 of the Constitution, it is not within my province to find out whether a particular award works hardship or not, if the award as passed is within the jurisdiction of the tribunal. No such contention is raised before me.
9. On the other hand, Mr. Govindan Nair, learned Counsel for the management, has drawn my attention to the findings recorded on issues 5 and 7 to show that really there is no (?) hardship to the watchmen in this case because their salary and other conditions have been bettered by their now being paid on monthly rate. He has also drawn my attention in particular to the findings on issue 7 to the effect that they are now' getting 12 days' casual leave apart from the sick leave benefits under the State Employees' Insurance Act. The learned Counsel also pointed out that when the watchmen were daily rated, they were not getting any of these benefits or advantages. As I have mentioned earlier, it is not within my province to find out the hardship or otherwise of a particular award one way or the other provided there was jurisdiction. Taking the award as a whole and considering the nature of the dispute referred to the tribunal and the evidence adduced before the same, it cannot be said that the finding on issue 3 is in any way not supported by the evidence on record.
10. Coming to issue 4 relating to the night allowance, even here the tribunal has considered the evidence placed before it, and recorded a finding against the petitioners. The findings on both the issues 3 and 4, in my opinion, are amply supported by the evidence and justified in the circumstances of the case. There is no error or illegal exercise of jurisdiction, nor is there any error apparent on the face of the record, nor can it be said that the award of the tribunal in so far as it is attacked before me, is opposed to any principles of natural justice. Certainly the tribunal had jurisdiction to decide those issues on the evidence on record.
11. In the result, the application fails and is dismissed with costs of the respondent 3 fixed in the sum of Rs. 100.
C.M P. No. 2301 of 1959 is also dismissed.