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Motor and Machinery Manufacturers Ltd. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 139 of 1962
Judge
Reported inAIR1964Cal262
ActsFactories Act, 1948 - Section 52 and 52(1)
AppellantMotor and Machinery Manufacturers Ltd.
RespondentState of West Bengal and ors.
Appellant AdvocateSubimal Roy, Adv.
Respondent AdvocateA.K. Dutt (Sr.), Adv.
DispositionAppeal allowed
Cases ReferredSeaford Court Estates Ltd. v. Asher
Excerpt:
- .....that he wants to put on clause (a) and it becomes a workable proviso if two consecutive sundays are made working days and one substitutional holiday is given or declared on saturday immediately preceding the first sunday and another substitutional holiday is given or declared on monday or tuesday succeeding the second sunday. but i do not think that this argument is in consonance with the spirit underlying section 52. the primary object of section 52 is to provide weekly holiday for the workers and such day was fixed to be the first day of the week, i. e., the sunday. but if for any special reasons it becomes necessary to make sunday the working day, a substitutional holiday is made compulsory. but the intendment of the section is not that the employers will at their own sweet.....
Judgment:

H.K. Bose, C.J.

1. This is an appeal from an order of Banerjee, J., dated the 16th February, 1962, discharging a Rule issued under Article 226 of the Constitution.

2. The appellant is a public limited company having its registered head office at 37, Chitta Ran-jan Avenue, Calcutta and is engaged in the manufacturing of electric motors etc., and employs about 600 workmen at its factory at 10, JawpurRoad, Dum Dum, Calcutta. The factory run by the appellant company is a factory within the meaning of the Factories Act, 1948, and is governed by the provisions of the said Act. The workmen of the factory save and except a few monthly paid staff get their wages calculated on hourly basis foi all working days excepting those days that are covered by sickness, annual leave and festival holidays under different provisions of the Factories Act. The workmen at the factory enjoy 12 paid festival holidays in a calendar year and also get the usual weekly holiday on Sunday which is a holiday without pay (sic). In the year 1959, 22nd of March was a Sunday and 24th and 25th March were declared holidays on account of Doljatra festival. In that year 10th April and 15th April were also declared holidays on account of Id-ul-fitr and 1st Baisakh respectively. Being under the impression that it would be convenient both to the workmen and the company if the intervening day, namely, 23rd March, 1959 which was a working day could be declared a holiday, the appellant company declared 23rd March, 1959, as a holiday and further declared with a view to compensate the loss of wages for 23rd March, 1959, that Sunday the 29th March 1959 would be working day. Notice as required by the Act declaring that the factory would remain closed on 23rd March, 1959, was given on 9th March, 1959; but as the appellant company was informed by the Factory Inspector upon whom this notice was served that the notice was not strictly in conformity with the provisions of law, the appellant company by a notice dated 20th March, 1959, cancelled the previous notice dated 9th March, 1959, and declared that the fac-tory would remain closed as already declared on 23rd March 1959, but would remain open in lieu thereof on 12th April, 1959, which was a Sunday. On 6th April, 1959, the workmen of the factory and/or their Union wrote a letter to the appellant company contending inter alia that no reasons had been ascribed for declaring 23rd March, 1959, a full working day, as a holiday and so the workmen were entitled to a compensation holiday under Section 53 of the Factories Act, 1948. This contention was disputed by the appellant company with the result that the State Government by an order dated 16th August 1960, referred the dispute between the appellant company and its workmen represented by Motor and Machinery Workers' Union to the 5th Industrial Tribunal, West Bengal for adjudication. The specific issue that was referred was as follows:-

'Whether the workmen are entitled to wages for 23-3-59 which was declared as a holiday by the company.'

Before the Tribunal the appellant company inter alia raised a preliminary objection to the effect that the dispute was not an industrial dispute and therefore the Tribunal had no jurisdiction to adjudicate upon the issue. The Tribunal however overruled the preliminary objection and decided the issue on merits. The Tribunal held that the workmen working on daily wages basis on the plea 'no work no pay' would be entitled to get one day's wages by way of compensation for the 23rd March, 1959. The Award of the Tribunal is dated 20th January 1961. On 23rd of March, 1961, the appellant company moved this Court under Article 226 of theConstitution challenging the award and the finding therein and a Rule Nisi was issued on that date by Sinha, J. This Rule finally came up for hearing before Bancrjee, J., who by his judgment delivered on the 16th February, 1962, discharged the Rule with costs.

3. The learned trial Judge has held upon a construction of Section 52 of the Factories Act, 1948 which has a material bearing on the question at issue that the appellant company had not followed the provisions of Section 52 of the Act and their action in declaring 23rd March, 1959, as a substituted holiday for making the Sunday the 12th April a working day was not warranted by the provisions of Section 52 of the Act and as such the Tribunal had come to the correct conclusion with regard to the issue referred to it for adjudication.

4. At the hearing before us the finding of the learned trial Judge on the interpretation of Section 52 of the Act has been challenged. As the decision of the question involved in this appeal turns on the interpretation of Section 52 of the Factories Act, 1948 it will be convenient to set out the same at this stage :-

'52 (1) -- No adult worker shall be required or allowed to work in a factory on the 1st day of the week (hereinafter referred to as the said day), unless -

(a) he has or will have a holiday for a whole day on one of the three days immediately before of after the said day, and

(b) the manager of the factory has, before the said day or the substituted day under Clause (a), whichever is earlier, --

(i) delivered a notice at the office of the Inspector of his intention to require the worker to work on the said day and of the day which is to be substituted, and

(ii) displayed a notice to that effect in the factory:

Provided that no substitution shall be made which will result in any worker working for more than ten days consecutively without a holiday for a whole flay.

(2) Notices given under Sub-section (i) may be cancelled by a notice delivered at the office of the Inspector and notice displayed in the factory not later than the day before the said day or the holiday to be cancelled, whichever is earlier.

(3) Where, in accordance with the provisions of Sub-section (1), any worker works on the said day and has had a holiday on one of the three days immediately before it, that said day shall, for the purpose of calculating his weekly hours of work, be included in the preceding week.'

5. The other provisions which may also be set out are Section 2 (f), Section 51 and Section 53 of the Act which are as follows: -

'2 (f) -- 'Week' means a period of seven days beginning at midnight on Saturday night or such other night as may be approved in writing for a particular area by the Chief Inspector of Factories.

51. -- No adult worker shall be required or allowed to work in a factory for more than forty-eight hours in any week.

53 (1) -- Where, as a result of the passing of an order or the making of a rule tinder the provisions of this Act exempting a factory or the wor-kers therein from the provisions of Section 52, a worker is deprived of any of the weekly holidays for which provision is made in Sub-section (i) of that section, he shall be allowed, within the month in which the holidays were due to him or within the two months immediately following that month, compensatory holidays of equal number to the holidays so lost.

(2) -- The (State) Government may prescribe the manner in which the holidays for which provision is made in Sub-section (i) shall be allowed.' Now it is the common case of the parties that the principle underlying Section 52 is that a worker in a factory cannot be asked or permitted to work on a Sunday and this day is described as weekly holiday in the section. But if he is made to work on a Sunday he must have another whole day as holiday instead and this substitutional holiday is termed as substituted day in the section. The pivotal clause round which the controversy has centered is Clause (a) of Sub-section (i) of Section 52. The contention of the learned counsel for the appellant is that the expression 'he has or will have a holiday for a whole day on one of the three days immediately before or after the said day' means that if the worker has an existing or an already declared holiday in the calendar (e. g. Dol Jatra festival holiday or the New Year's holiday as in the present case) within three days immediately preceding or succeeding the Sunday on which he is to work, then it is not essential to give the worker a substitutional holiday on one of the three days before or after Sunday but it may be given on any other working day; but if there is no such existing or declared holiday within those three days preceding or succeeding the Sunday then a substitutional holiday must be given within those specified days inasmuch as the object of the enactment is to give some rest or respite to the workmen near-about the Sunday on which he is called upon to work. In support of this argument stress is laid On 'he has' or 'he will have' and it is submitted that the expression 'has' refers to existing or declared holidays in the calendar and the expression 'will have' has reference to substituted holidays which will have to be declared or given by the employer for the Sunday being declared as a working day. The contention of the learned Advocate for the respondent, on the other hand, is that the entire Clause (a) deals with substituted holiday and the expression 'he has' refers to substituted holiday on one of the three days before the Sunday and the expression 'he will have' has reference to the substituted holiday on one of the three days after the Sunday. It is further pointed out by the learned Advocate for the respondent that the expression 'the substituted day under Clause (a)' as occurring in Clause (b) of Sub-section (i) of Section 52 reinforces the interpretation that he seeks to put upon Clause (a) of Sub-section (i) of Section 52 of the Act. It appears to me that' the contention of the learned counsel for the appellant is more in accord with the spirit of the section and preserves harmony in the different parts of the section and therfore it should be accepted. The contention of the learned Advocate for the respondent if accepted will render the proviso appended to Sub-section (i) of Section 52 practically nugatory inasmuch as the proviso contemplates that substitutional holi-day can be fixed in such a way in certain cases as to be beyond three days preceding or succeeding the Sunday in question or otherwise the framers of the proviso would not have felt the necessity of using restrictive words to the effect that no substitution shall be made which will result in any worker working for more than 10 days consecutively without a holiday for a whole day. In other words, if the substitutional holiday has to be in every case on any of the three days -- immediately preceding or succeeding the Sunday in question then no question can ever arise of there being fixed a substitutional holiday which will result in any worker working for more than 10 days consecutively without a holiday for a whole day and so there would be no necessity for the legislature enacting such a meaningless or useless proviso containing restrictive words. The learned Advocate for the respondent has in order to get rid of this situation argued that the proviso becomes quite consistent with the construction that he wants to put on Clause (a) and it becomes a workable proviso if two consecutive Sundays are made working days and one substitutional holiday is given or declared on Saturday immediately preceding the first Sunday and another substitutional holiday is given or declared on Monday or Tuesday succeeding the second Sunday. But I do not think that this argument is in consonance with the spirit underlying Section 52. The primary object of Section 52 is to provide weekly holiday for the workers and such day was fixed to be the first day of the week, i. e., the Sunday. But if for any special reasons it becomes necessary to make Sunday the working day, a substitutional holiday is made compulsory. But the intendment of the section is not that the employers will at their own sweet will convert successive or all the Sundays primarily intended to be holidays as working days and make any other working day of the xveek a : holiday instead of Sunday. Furthermore, if the contention of the respondent's Advocate is accepted, then the words 'he will have' in Clause (a) becomes a surplusage because the clause with the remaining words 'he has a holiday for a whole day on one of the three days immediately before or after the said day' would be quite sufficient to serve the purpose that the respondent is contending for. There would not have been any necessity of introducing the additional words 'or he will have' in Clause (a). These words must have been introduced with some purpose or design and the object appears to be to emphasise the distinction between the substituted holidays that will be declared and the declared holidays that exist already in the calendar. A legislature is presumed not to use any words in vain. Moreover, our attention has not been drawn to any other section of the Factories Act, 1948 or to any rule made thereunder which deals specifically with festival holidays or other declared holidays in the calender, and therefore there is no reason to suppose that Section 52(1)(a) was never intended to have any reference to such festival holidays or other declared holidays. If one looks at the history of the Factory Legislation in India it will be clear that the drafting of this legislation has been far from perfect. It is well known that the first Act which was framed in relation to the factories in India was the Factory Act, 1881. This Act was mainly concerned with the employment of children in factories and about their working hours and age limit. This was followed by another Act passed in 1891. These Acts were repealed and were replaced by Act XII of 1911 which was passed as a result of the report submitted by the Factory Labour Commission, 1908 which disclosed the existence of abuses in factory particularly in connection with the employment of children and the length of the hours for which the operatives were generally employed. The Commission had made proposals with the object of checking those abuses and also submitted proposals for strengthening the law on several points so that inspection might be more effective and the administration of law improved. The Act of 1911 secured one weekly holiday for all workers in factories, maximum of 11 hours of work a day for women with one and a half hours rest during that time, and it also prohibited work of women and children at night and raised the age of children permitted to work in mills from 8 to 9 years and allowed them to work for 7 hours only. But as the drafting of the provisions of this Act was also not very happy and the working of the Act disclosed many defects and infirmities, necessity was felt for replacing this Act by another Act. Some observations made by this Court with regard to the Act of 1911 in a case reported in : AIR1931Cal639 : Supdt. and Remembrancer of Legal Affairs, Bengal v. J. J. Andrews, may be referred to in this connection. In this case Mallick, J., observed:- 'The Act is carelessly and loosely drawn. It seems to consist mainly of parts of the English Act taken from their context and patched together. It is a penal statute and as such it is essential that its terms should be clear, definite and unambiguous. On the contrary, it is difficult -- if not impossible for a lawyer still less a layman to understand many of its provisions (page 1111 (of Cal WN): (at p. 640 of AIR) .....There are many provisions in the Act which are confused and ambiguous and the rules and forms provided do not tally with the requirement of the sections. Truth seems to be that the application of the Act to factories has never been properly thought out. Drastic re-drafting and amendment of this important Act seems to be required urgently.' (at page 1112 (of Cal WN) : (at p. 641 of AIR).

6-7. To rectify these defects in the Act and also to consolidate and clarify the law relating to factories in India, the Factories Act XXV of 1934 was passed with effect from 20th August, 1934. Section 35 of this Act dealt with weekly holidays. The complexity of modern industrial organisation and operation however brought new problems and in order to satisfy the growing needs of labour and for the improvement of the health, efficiency and standard of living of the workers and the relations between the employers and the employed it became necessary to make further amendments and consolidation of the law regulating the factories and so the present Factories Act 1948 (Act 63 of 1948) was passed with effect from 23rd September, 1948. But it is a matter of regret that the drafting is still far from satisfactory and there is still a considerable possibility of diversity of opinion with regardto interpretation of some of the provisions in this Act and unfortunately Section 52 appears to be one of such provisions. But as perfection in the matter of drafting of legislation cannot always be expected, it becomes the task of the Court to interpret the statutes as best as it can. It may not be out of place in this connection to refer to the observations of Lord Justice Denning in the case of Seaford Court Estates Ltd. v. Asher, 1949-2 All ER 155 at p. 164 which were as follows:-

'It would certainly save the judges' trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set out to work on the constructive task of finding the intention of Parliament and he must do this not only from the language of the statute but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature. That was clearly laid down ( (1584) 3 Co. Rep. 73, 7b) by the resolution of the Judges Sir Roger Manwood C. B. and the other Barons of the Exchequer in Heydon's case and it is the safest guide to-day.'

8. I have approached the question canvassed before us with this passage in mind and for the reasons given above, I hold that the contention of the appellant with regard to the interpretation of Section 52 of the Act should be accepted in preference to the contention of the respondent. In my view the 23rd March, 1959, was a proper substitu-tional holiday for the 12th April, 1959 which was made a working day and the workmen were therefore not entitled to wages for the 23rd March 1959. As the error of the Tribunal is an error of law apparent on the face of the award, the finding of the Tribunal can he quashed by a writ of certiorari under Article 226 of the Constitution. The finding of the learned trial Judge which confirms the finding of the Tribunal is also erroneous and must be set aside.

9. In the result, this appeal is allowed, the judgment and order of the learned trial Judge are set aside and the finding of the Fifth Industrial Tribunal as contained in the award dated 20th January, 1961, is quashed. Let a writ of certiorari issue quashing the same.

10. There will be no order as to costs.

11. There will be a stay of operation of this order for one month from date.

12. With regard to the interim order made by Sinha, J., on March 23, 1961, the appellant will be at liberty to operate the separate account in the United Commercial Bank Ltd., of 2, India Exchange Place, Calcutta after a month from date.

G.K. Mitter, J.

13. I agree.


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