Skip to content


Mohmadmiya Kasammiya and anr. Vs. Industrial Court, Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application No. 1023 of 1960
Judge
Reported in(1964)GLR969; (1965)ILLJ535Guj
ActsBombay Industrial Disputes Rules - Rule 64; Bombay Industrial Relations Act, 1946 - Sections 3, 3(17), 3(18), 42, 43, 44, 44(1), 46, 66, 114, 116, 116A and 116(2)
AppellantMohmadmiya Kasammiya and anr.
Respondentindustrial Court, Gujarat and ors.
Excerpt:
.....award passed by industrial court valid. - - 4. in both cases of two shifts as well as three shifts working, there will be a system of change-over at the end of each month by which the workers of the first shift will go over to the second and those of the second to the third and those of the third to the first in rotation. 43 or within such further period as may be mutually fixed by the employers affected and the representative of the employees affected, an agreement is arrived at in regard to the proposed change a memorandum of such agreement signed by the employer or employers as well as by the representative of employees shall be forwarded in the prescribed manner to the chief conciliator, the registrar and the labour officer. these provisions clearly envisage a change either by..........in (2) 3-30 p.m. to 12 mid night, } each shift. 4. in both cases of two shifts as well as three shifts working, there will be a system of change-over at the end of each month by which the workers of the first shift will go over to the second and those of the second to the third and those of the third to the first in rotation. in the case of the two shifts working the day shift and the night shift workers will change in rotation at the end of every month.' 5. thereafter the ahmedabad millowners' association made an application no. 29 of 1947, under rule 64 of the bombay industrial disputes rules, for the interpretation and clarification of the award made on 7 february, 1947 in the said submission no. 9 of 1946 and the clarification that was asked for was as to whether that part of the.....
Judgment:

Shelat, C.J.

1. The two petitioners have been working in the drawing-in department of respondent 2 company as reachers in the second shift and have filed this petition challenging the order passed by the third labour court in Application No. 234 of 1959, dated 10 December, 1959, and confirmed by the Industrial court by its order in Appeal (I.C.) No. 11 of 1960, dated 28 July, 1960.

2. Prior to 1947, there was no system of change-over in the different shifts in the textile mills in Ahmedabad. In 1946, however, a submission bearing No. 9 of 1946 between the Ahmedabad Millowners' Association, Ahmedabad, and the Textile Labour Association, Ahmedabad, was made before the industrial court at Bombay wherein the industrial court, by an interim award, passed inter alia the following order :

'We therefore hold that mills should be allowed to work three shifts if they want to, with a system of change-over. Ordinarily the period of the three shifts should be as follows :- First shift ... 7 a.m. to 3 p.m. Second shift ... 3 p.m. to 11 p.m. Third shift ... 11 p.m. to 7 a.m.

3. There should be a recess of half-an-hour during each of the three shifts In winter the work may begin at 7-30 a.m. instead of 7 with consequent changes in the other shifts. This will be for a period of one year from 15 February, 1947 at the end of which this matter will be placed again for hearing as to whether the system should be continued or not. In the case of mills working two shifts the working period should be as follows :-

(1) 7 a.m. to 3-30 p.m., and } With half-an-hour's } recess in (2) 3-30 p.m. to 12 mid night, } each shift.

4. In both cases of two shifts as well as three shifts working, there will be a system of change-over at the end of each month by which the workers of the first shift will go over to the second and those of the second to the third and those of the third to the first in rotation. In the case of the two shifts working the day shift and the night shift workers will change in rotation at the end of every month.'

5. Thereafter the Ahmedabad Millowners' Association made an Application No. 29 of 1947, under rule 64 of the Bombay Industrial Disputes Rules, for the interpretation and clarification of the award made on 7 February, 1947 in the said Submission No. 9 of 1946 and the clarification that was asked for was as to whether that part of the award pertaining to change-over in the three shifts applied to the mills which worked the third shift partially on some of the machines in a department. In clarification of its award, the industrial court in its order dated 30 April, 1947, stated that :

'At the time when that matter (Submission No. 9 of 1946) was argued there were no arguments as to what should take place when the third shift worked partially and the dispute was argued on the basis of three shifts being worked wholly and not partially. It was in such a case of complete working of three shifts that change over directed in the award was to be applied. The case of partial working of third shift is not covered by the award.

The result therefore is this. The change-over in three shifts is to be effected where full number of machines in a department are worked. Where the third shift is working partially the change-over is to be effected between the first and the second shifts only. In the case of full working of three shifts the hours of work will be 7 hours 30 minutes in each shift with half-an-hour recess. In the case of partial working the hours of work will be 8, 8 and 6 hours 30 minutes with half-an-hour's recess. But in the latter case the change-over shall be restricted to first two shifts only.'

6. Since the award as clarified was only intended to operate for one year, another application, being Miscellaneous Application No. 2 of 1948, was brought before the industrial court. In that application the industrial court, in partial modification of the original award dated 7 February, 1947, directed that :

'... there shall be a change-over between the first and the second shifts only and there shall be no change-over in the case of the third shift.'

7. The two petitioners, who have been working as aforesaid as reachers in the respondent 2 company, alleged that prior to 1 November, 1958, they had been working in the first shift, that they had been assigned work in the second shift as from 1 November, 1958, that they had not been given the benefit of the change-over by rotation in accordance with the aforesaid award and that contrary to the said award, they had been permanently assigned work in the second shift. They alleged that respondent 2 company had thus committed an illegal change as also a breach of the said award and consequently filed the aforesaid Application No. 234 of 1959 for declaration that respondent 2 company had committed an illegal change, and for a direction for the withdrawal by the respondent 2 company of the said alleged illegal change. In defence, the respondent 2 company relied upon an award dated 24 February, 1958 made by two private arbitrators under a submission made to them by the textile labour association of the one part and the respondent 2 company of the other part, in which the said arbitrators, in Para 3 of award, had declared as follows :-

'As the second shift is to work partially there shall be no change-over between the first and the second shift workers.'

8. The respondent 2 company's case was that as the second shift in its mills was working partially, it was not bound to carry out the change-over between the first and the second shift workers as provided in the said award given by the industrial court by reason of the arbitrators' award dated 24 February, 1958. The contention of the petitioners before the labour court was that the arbitrators' award dated 24 February, 1958 was illegal and void as the said arbitrators had no jurisdiction to modify the award passed by the industrial court and that it would be the industrial court only under S. 116A of the Bombay Industrial Relations Act, 1946, which had the jurisdiction to effect any change or modification therein. The labour court was of the view that as S. 116(2) of the Act applied only to an award which was in terms of an agreement and not to an award by the industrial court, the award passed by the industrial court could not be modified by private arbitration. The labour court, however, held that the award passed by the arbitrators had not in any way modified the award passed by the industrial court, but only clarified the same, and dismissed on that basis the application of the petitioners. Aggrieved by that order, the petitioners filed an appeal before the industrial court. The industrial court held that the said award by the arbitrators dated 24 February, 1958, being as an award given under a submission to which a representative union was a party, was valid and binding upon the petitioners. The industrial court was of the view that after the award was passed by the industrial court, a dispute as to its interpretation and effect arose between the respondent 2 company and the representative union and such a dispute could be referred to arbitration under the provisions of S. 66 of the Act and an award made under such reference was valid and binding on the arbitrators' award was not valid and binding, the petitioners were not entitled to a change-over as the award passed by the industrial court never contemplated a change-over in shifts which were not fully worked but only partially worked. The petitioners have challenged these orders on the ground inter alia that they are inconsistent with and opposed to the provisions of Ss. 116 and 116A of the Act.

9. Sri Vyas, who appears for the petitioners, raised three contentions :-

(1) that an award passed by the industrial court cannot be altered or modified by means of private arbitration,

(2) that the provisions of Ss. 116 and 116A, when read together, constituted a bar to such modification by private arbitration, and

(3) that the award passed by the industrial court created a right in the petitioners to have a change-over by rotation every month even though the second shift was not working fully and only partially.

10. Sri Patwari, appearing for respondent 2 company, on the other hand, refuted these contentions, and in support of the impugned orders, argued that there was nothing in the provisions of Ss. 116 and 116A which would preclude parties to an award passed by the industrial court from referring to private arbitration any industrial dispute arising from such an award.

11. In order to appreciate these rival contentions, it would be necessary to refer to certain provisions of the Act. Clause(3) of S. 3 defines 'arbitration proceeding' as

(a) any proceeding under the Act before an arbitrator, and

(b) any proceeding before a labour court, a wage board or the industrial court in arbitration.

12. Clause (4) defines 'arbitrator' as one to whom a dispute is referred for arbitration under the provisions of the Act and includes an umpire. Clause(6) defines as 'award' as meaning any interim, final or supplementary determination in an arbitration proceeding of any industrial dispute or of any question relating thereto. Under Clause (17) of S. 3, 'industrial dispute' means any dispute or difference between an employer and employee or between employees and employees and which is connected with any industrial matter. 'Industrial matter' within the meaning of Clause (18) of that section means any matter relating to employment, work, wages, hours of work, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment and includes inter alia all matters pertaining to any right or claim under or in respect of or concerning a registered agreement or a submission, settlement or award made under the act. Chapter VIII of the Act deals withe changes and S. 42 therein in inter alia provides the if any employer intends to effect any change in respect of an industrial matter specified in Sch. II, he shall give notice of such intention in the prescribed form to the representative of employees. Similarly, Sub-section (2) provides that an employee desiring a change in respect of an industrial matter not specified in Sch. I or III shall give notice in the prescribed form to the employer through the representative of employees, etc. Section 44 deals with an agreement regarding change and lays down that if within seven days from the date of service of a notice under S. 42 or an intimation or special notice under S. 43 or within such further period as may be mutually fixed by the employers affected and the representative of the employees affected, an agreement is arrived at in regard to the proposed change a memorandum of such agreement signed by the employer or employers as well as by the representative of employees shall be forwarded in the prescribed manner to the chief conciliator, the registrar and the labour officer. Section 44 thus contemplates a change in an award and such an agreed change is made binding thereunder upon the parties when the registrar, under Sub-section (2) thereof, enters the agreed change in the register. Section 46 prohibits an employer from making any change in any standing order settled under Chap. VII without following the procedure prescribed therefor in the Act. Sub-section(2) thereof also provides that no employer shall make any change in any industrial matter mentioned in Sch. II before giving notice of the change, as required by S. 42 or within the period provided for Sub-section (1) of S. 44 unless an agreement is arrived at or where no agreement is arrived at before the completion of conciliation proceedings and during the period of ten days thereafter or where no settlement is arrived at, after two months from the date of the completion of the proceedings before the conciliator, or in cases where there is a registered submission or in which the dispute has been referred to arbitration before the date on which the award comes into operation, etc. Section 46 thus contemplates a change in any of the industrial matters set out in Sch. II either by agreement or settlement or by a registered submission or a reference to arbitration. Chapter XI contains provisions with regard to arbitration and S. 66 empowers any employer or a representative union or any other registered union which is a representative of employees, to agree by a written agreement to submit present or future industrial dispute of class of such disputes to arbitration of 'any person.' Sub-section (2) of that section provides that such submission may provide that the dispute shall be referred to arbitration of a labour court or the industrial court. Section 66 thus contemplates both private arbitration as also the arbitration of a labour court or the industrial court, through a submission by an employer or a representative union or any other registered union representative of employees. These provisions clearly envisage a change either by agreement or settlement or by an award through arbitration and provide for the solution of an industrial dispute through a reference to arbitration.

13. Section 114 lays down the binding character of a registered agreement, or a settlement, submission or award and provides that a registered agreement or a settlement, a submission or an award, shall be binding upon all parties who are parties thereto. Prima facie, therefore, a submission to arbitration under S. 66 and an award made by an arbitrator thereon would be binding on workmen in cases where a representative union has been a party to a submission and to arbitration proceedings taken in pursuance thereof, by reason of this section having conferred binding effect to a registered agreement, settlement, submission or award upon persons who are parties thereto. The legislature then provides as to when and how they cease to have effect and when they can be changed or modified. For that purpose, the legislature enacted S. 116 and provided thereby that a registered agreement or a settlement or an award shall cease to have effect on the date specified therein or, if no such date is specified therein, on the expiry of the period of two months from the date on which notice in writing to terminate such agreement, settlement or award, as the case may be, is given in the prescribed manner by any of the parties thereto to the other party. Sub-section(2), however, enables the terms of a registered agreement or a settlement or in the case of an award which is in terms of an agreement, being changed or modified by mutual consent of the parties affected thereby, and provides that the registered agreement, settlement or award shall be deemed to be changed or modified accordingly. Sub-section(5) thereof then provides that if a registered agreement or a settlement or award is terminated under Sub-section (1) or (3) or it the terms of a registered agreement or a settlement or an award are changed or modified by mutual consent, notice of such termination, change or modification has to be given by the parties concerned to the registrar and the labour officer, and the registrar thereupon has to enter the notice of such termination, change or modification in a register kept for the purpose. The explanation provides that the parties who shall be competent to terminate a registered agreement or a settlement or award or to change or modify the terms of a registered agreement or settlement or an award and who shall give notice of such termination, change or modification under Sub-section (5) shall be the employer who has signed the agreement or settlement or who is a party to the award or the heirs, successors or assigns of such employer in respect of the undertaking concerned and the representative of the employees affected by the agreement, settlement or award. Section 116A, which was inserted in the Act by Bombay Act 74 of 1948, provides for modification of an award and the procedure to be followed therefor, and Sub-section (3) of that section provides that on an application being made for such modification, the industrial court, the labour court or the wage board, as the case may be, may, after hearing the parties and taking such evidence as it thinks fit, modify the award. Thus, under S. 116 an award ceases to have effect by afflux of time or by termination. Sub-section(2) enables parties to modify or change an award if such award is one in terms of an agreement instead of going through the procedure of termination. Thus, three remedies are provided for to the parties in the case of an agreement, settlement or an award, namely,

(1) cesser by afflux of time,

(2) termination, and

(3) change by mutual consent,

but such a change could be made only in the case of an award which is in terms of an agreement. The legislature appears to have felt a lacuna in S. 116, for that section only provided for the termination of an award if any one of the parties thereto was dissatisfied with it or if the parties thereto felt any difficulty in working it out, as it was only an award which was one in terms of an agreement which, under Sub-section (2) of S. 116, could be changed by mutual consent of the parties. It was with a view to provide against such a lacuna that S. 116A appears to have been introduced in the Act and the legislature therefore provided machinery for the modification of an award where the parties could not agreement, and all other awards where the parties thereto or either of them desired a modification instead of having recourse to its termination. Thus, an award may be affected or put an end to

(1) by afflux of time.

(2) by termination.

(3) by changing with mutual consent, in the case of an award which is one in terms of an agreement, and lastly,

(4) by making an application for its modification.

14. But the contention of Sri Vyas was that once there is an award by an industrial court, that award cannot be changed or modified except by a fresh submission to the industrial court or by an application for modification under S. 116A, but not by a submission to a private arbitrator even if agreed to by the employer and the representative union. The learned Assistant Government Pleader appearing for the State argued that S. 66, which provides for arbitration, is a general provision, whereas Ss. 116 and 116A are special provisions providing for a change or modification in an award passed by an industrial court and that therefore, the latter would prevail over the former. In out view, on a plain reading of the various sections and the scheme of the Act, these contentions cannot be accepted. To accept Sri Vyas's contention would virtually mean to nullify the provisions of S. 66 which enables an employer and a representative union to settle their dispute by means of a reference to arbitration, and to stultify the very object of the Act, namely, to promote industrial peace and harmony of relations between employers and employees. The principle of construction which the learned Assistant Government Pleader relied upon can only arise if there is any conflict between S. 66 on the one hand and Ss. 116 and 116A on the other. The two sets of provisions deal with different subjects and occupy distinct fields and there is no conflict or repugnancy between the two, for one deals with arbitration and the other provides machinery for termination, cesser and modification of of an agreement, settlement or an award. Besides, there is nothing in Ss. 116 and 116A indicative of any legislative ban against a reference to arbitration under S. 66 where parties are agreed to refer their disputes to arbitration by having recourse to that section.

15. Whether a party has a right to change-over from one shift to another or not would certainly be an industrial matter as it affects conditions of his employment and a dispute regarding such a matter would be an industrial dispute within the meaning of Ss. 3(17) and 3(18). If after and award is made by the industrial court, differences arise as to its interpretation and effect between an employer and a representative union, such differences would constitute an industrial dispute. As stated earlier, there is nothing in S. 116 or 116A which precludes such parties to go to arbitration of person agreed to by them by resorting to the provisions of S. 66. After that is done, an award made on such submission would be binding on the employer and the employees. The industrial court, therefore, was right in holding that the award was valid and binding on the petitioners and the petitioners were not entitled to file this special civil application, as respondent 2 company after the award dated 24 February, 1958 was not bound to effect a change-over to the workmen working in the second shift.

16. This would dispose of the petition, but since Sri Vyas has also argued at some length on the other finding of the industrial court, it is but fair that we should deal with that aspect also. That, of course, would arise only if our construction of Ss. 66, 116 and 116A is not a correct construction. The view of both the labour court as well as the industrial court was that the award dated 24 February, 1958 did not alter or modify the decision of the industrial court and that the only thing that the award did was to clarify the original decision of the industrial court. In other words, the contention by respondent 2 company was that even under the award of the industrial court as modified in 1948, no absolute right of change-over was given to the employees working in the second shift irrespective of the fact whether that shift worked fully or not. On the other hand, the argument of Sri Vyas was that such a right was conferred at least so far as workmen in the second shift were concerned and the only change that was made in 1948 was with regard to the third shift. Reliance was placed by Sri Vyas on the observations made in the first decision where it has been stated that in both cases of two shifts as well as three shifts working, there would be a system of change-over at the end of each month. Sri Vyas argued that there was some dispute regarding the interpretation of these words and that on an application made by the Millowners' Association for clarification, the Court then interpreted its award and held that the change-over in three shifts was to be effected where the full number of machines in a department were worked and that where the third shifts worked partially, the change-over was to be effected between the first and the second shifts only. It was argued that the industrial court then was concerned only with a modification in its order as regards the third shift and not as regards the second shift and therefore the company was bound to effect the change-over in the first and the second shifts irrespective of the fact whether the second shift worked fully or not. Sri Vyas then relied upon the decision of the industrial court in Pirbhai Galubhai and others v. Ahmedabad New Textile Mills Company, Ltd., No. 1, Ahmedabad, in Appeal No. 35 of 1949 decided on 6 April, 1949 [1949 I.C.R. 855]. The respondent-company there had stopped the practice of change-over of shifts which used to occur every month under the award dated 7 February, 1947. After the industrial court as aforesaid had held that the award did not cover cases of partial working of the third shift, the respondent-company stopped the change-over between the first and the second shifts on the ground that the second shift was being partially worked and that the award dated 7 February, 1947 did not apply to such a case. The industrial court there held that 'on the facts of the case' there were not sufficient reasons for the management to act as if the Court had made not apply to regarding change-overs at all and therefore they must be deemed to have technically committed an illegal change. We may state that the industrial court there expressed doubt whether the first award intended to cover the right of change-over absolutely irrespective of whether any particular shift worked fully or not, but held against the company there on the ground that if a right of change-over was given in favour of the employees, the Court would not take it away or whittle it down. We are, however, somewhat doubtful whether that was a correct approach and in any event, the learned Judge did not give any reasons for his conclusion. If the award dated 7 February, 1947 as amended in Miscellaneous Application No. 2 of 1948 were to be closely examined, it is evident that when the first order providing for a change over was made, it was not considered as to whether it should be applied or not to an employer in whose concerned the shift was not working fully. When the clarification was asked for, the Court in so many words stated that -

'At the time when that matter (Submission No. 9 of 1946) was argued there were no arguments as to what should take place when the third shift worked partially and the dispute was argued on the basis of three shifts being worked wholly and not partially.'

17. The Court then observed that -

'It was in such a case of complete working of three shifts that change-over directed in the award was to be applied.'

18. It is true that in the decision given in 1948, the change-over was restricted to the first and the second shifts and was lifted from third shift where it worked partially, but that was because the contention then was confined to the third shift where it did not work fully. But it is clear that the intention of the Court was to apply the change-over only in cases where the third shift was being worked wholly. This is quite clear from what the Court stated in its order in the application for clarification under rule 64 of the Industrial Disputes Rules, namely.

'It was in such a case of complete working of three shifts that change-over directed in the award was to be applied.'

19. These words would not have found their place in that order of clarification if the industrial court had intended that the change-over was to be effected even if a shift did not work fully. That being the position, the industrial court was right in holding that the said award did not confer absolutely the right of change-over to workmen working in a particular shift irrespective of whether such a shift worked fully or not. It is thus not possible for us to accede to either of the two contentions urged before us on behalf of the petitioners.

20. The result, therefore, is that the petition must fail and must be dismissed. Rule discharged with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //