B.N. Banerjee, J.
1. The petitioner company is a factory, with in the meaning of the Factories Act, 1948. The service conditions of the workmen, employed in the factory of the petitioner company, are governed by a set of standing orders, certified under the industrial Employment (Standing Orders) Act, 1946, from Which three relevant clauses are set oat below;
Clause 3-Acceptance of standing orders.-All workmen engaged in the factory are subject to the following conditions of service and shall be deemed to have accepted them on accepting employment.
Clause 8-Manner of notification of periods of hours of work-The periods of hours of work for a worker shall be displayed at the time-keeper's office and shall be as the management from time to time decide, after notifying the workers or the union of the proposed change and considering the objections, if any, preferred by the workers or the union.
Clause 9-Manner of notification of holidays and pay days.-Notices specifying (a) those days to be observed as holidays with or without pay, (b) pay days as required by the Factories Act and Payment of Wages Act shall be displayed at the time-keeper's office.
2. The workmen in the petitioner's factory get their wages calculated on hourly basis for all working days, excepting for those days which are covered by leave for holidays.
Chapter VI of the Factories Act, 1948 (hereinafter referred to as the Act), deals with working hours for adult workmen. Under Section 51 of the said Act:
No adult worker shall be required or allowed to work in a factory for more than forty-eight hours in any week.
Under Section 52 of the said Act-
(1) No adult worker shall be required or allowed to work in a factory on the first 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 or 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 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 faotory:
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 day.
(2) Notice given under Sub-section (1) may be cancelled by a notice delivered at the office of the inspector and a 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 a holiday on one of three days immediately before it, the said day shall, for the purpose of calculating his weekly hours of work, be included in the preceding week.
3. Between the petitioner-company and its workmen, represented by their union, there arose a dispute, over making the workmen work on a first day of the week (namely, a Sunday) and substituting another day for the said weekly holiday; the dispute arose in the circumstances as hereinafter stated.
4. In the year 1959, the 22 of March was a Sunday and the 24 and 25 days of the month were holidays on account of Doljatra festival. In that year the 10 and the 15 days of April were also holidays respectively on account of Id-Ul-Fitr and the Bengal New Year Day. The petitioner-company decided to declare Thursday, the 23 day of March 1959, also a holiday. It now appears that it was so decided so that employees of the petitioner-company got four consecutive days as holidays, but the reason for the decision was not disclosed at the material time. In order to put that decision into effect, the petitioner-company notified that the factory would remain closed on 23 March 1959 and would remain open on Sunday 29 March 1959, in substitution thereof. The inspector of factories objected to the notification, because the notification in that form was in violation of Section 52 of the Factories Act. Thereupon the petitioner cancelled the first notice and made a fresh notification to the effect that the factory would remain closed on Monday the 23 day of March 1959 and in lieu thereof would remain open on 12 April 1959.
5. The workmen in the factory objected to the notice, inter alia on the ground that there was no good reason for declaring 23 March 1959 as a holiday and that they were entitled to compensatory holiday under Section 53 of the Factories Act. The objection was recorded in writing by a letter, dated 6 April 1959:
This difference raised an industrial dispute and the respondent State Government, in exercise of its power under Section 10 of the industrial Disputes Act, referred the following issue for adjudication by the fifth industrial tribunal:
Whether the workmen are entitled to wages for 23 March 1969, which was declared as a holiday by the company?
The industrial tribunal came to the following findings:
(a) the declaration of 23 March 1959 a normal working day, as a holiday was made for reasons unexplained at the material time.
(b) the explanation later on given before the tribunal that the declaration of holiday on 23 March was made for convenience both of the company and its workmen, be that all may get four consecutive days as holidays, was not an acceptable explanation in the face of the protest made by workmen.
(c) the workmen do not get living wages in the company and it was cruel to deprive them of wages/or one day without justifiable cause. This was treated as opposed to the principles of social justice.
(d) If 23 March 1959 was to be declared a closed day, the company was bound to provide for a substituted day as holiday for a whole day on one of the three days immediately before or after the Bald day. The fact that the 10 and 15 April 1959 were holidays declared from before and as such the workmen got a holiday within three days on either side of the statutory holiday (namely, Sunday), declared as working day, would not serve the purpose of Section 52(1)(a) of the Factories Act.
(e) thus for all practical purposes, the company must be deemed to have locked out the factory on 23 March 1959 within the meaning of the industrial Disputes Act, and accordingly must pay one day's wages as compensation to those workmen who work on daily wages.
6. The tribunal made an award accordingly. The propriety of the award is being disputed before me at the instance of the petitioner-company.
7. Sri Arun Kumar Dutt (Sr.), learned advocate for the petitioner-company, contended that by declaring 23 March 1959 as holiday and by substituting therefor 12 April 1959 as working day, the company did not violate the provisions of Section 52 of the Factories Act. If the petitioner-company did not violate the provisions of the Act, then the other considerations on which the tribunal proceeded must be discarded as irrelevant. He further contended that under Clauses (8) and (9) of the standing orders of the petitioner-company, it was open to the petitioner company to act in the manner done and inasmuch as the standing orders were the conditions of service of the workmen, they were not entitled to object to the action taken.
8. The argument based on Section 52 of the Act is not very well conceived. Clause (a) of Sub-section (1) of Section 52 prescribes the condition on which the workmen may be required to work in a factory on a Sunday. The condition is that the workmen must be given a holiday for a whole day on one of the three days immediately before or after the said day, that is to say 'Sunday.' The holiday, which is substituted for the Sunday is, in the language of the section, called the 'substituted' day.' Clause (b) of Sub-section (1) of Section 52 prescribes the procedure to he adopted for making workmen work on a Sunday and the proviso thereto prescribes limits in the matter of substitution of holiday and is to the effect that no substitution shall be made which would result in any worker working for more than ten days consecutively without a holiday for a whole day.
9. In the instant case, the petitioner-company declared 23 March 1959. a Monday, as a holiday and thereafter tried to get itself compensated as to loss of working hours by making the workmen work on 12 April 1959, a Sunday. Now, if Sunday 12 April 1959 was to be converted into a working day, then Section 51(1)(a) of the Act required that the workers must get a substituted holiday on one of the three days immediately before or after the Sunday. No such day was substituted within three days before or after the Sunday, on which the workers were required to work. It was, however, contended that no fresh substitution of holiday was necessary because the 10 April and 15 April 1959 were already holidays, respectively, on acoount of Id-Ul-Fitr and the Bengal New Year Day, and therefore, Sunday 12 April 1959, had a holiday on one of the three days immediately before and also on one of the three days immediately thereafter. The fallacy of this argument is that those two holidays, Id-Ul-Fitr and Bengali New Year Day, were not substituted days declared as holidays in lieu of Sunday. The petitioner-company should not be allowed to exploit ordinary holidays of the year for the purposes of substitution under Section 52(1)(a) of the Act. Faced with this difficulty, Mr. Dutt contended that Monday, 23 March 1959, which was declared as a holiday, should be treated as the substituted day for 12 April 1959. This argument is also fallacious because that 23 March is not a day which is one of the three days, either immediately before or after Sunday 12 April 1959, and therefore, by declaring 23 March as a holiday the conditions in Section 52(1)(a) were not fulfilled. I, therefore, hold that the petitioner-company did not comply with the provisions of Section 52 of the Act when they required their workmen to work on Sunday.
10. Standing orders of the company, on which Mr. Dutt placed strong reliance, do not authorize the petitioner-company to act in a manner opposed to Section 52 of the Act. I have hereinbefore quoted Clauses (8) and (9) of the standing orders and I read in the said orders the limitations prescribed in Section 52 and other sections of the Factories Act.
11. I, however, agree with Mr. Dutt that for the purpose of deciding the present dispute it was not necessary for the tribunal to invoke the principles of social justice.
12. It is true that 'the concept of social and economic justice' is living concept of revolutionary import, it gives substance to the rule of law and the meaning and significance to the ideal of a 'welfare State 'State of Mysore v. workers of gold mines 1958-II L.L.J. 479. But the Supreme Court administered a caution against much too free invocation of the concept in the following language:
Social justice does not emanate from the fanciful notions of any particular adjudicator but must be founded on more solid foundation.
13. Reference in this connexion may also be made to the case of Muir Mills Co. v. Suti Mills Mazdoor Union 1955-I L.L.J. 1 and to the case of J.K. Iron and Steel Company v. Iron and Steel Mazdoor Union 1956-I L.L.J. 227. In the latter case the Supreme Court further observed that the attitude of benevolent despot in the name of social justice should be avoided in industrial adjudications.
14. Thus, in construing whether the petitioner-company had violated the provision of Section 52 of the Factories Act, in making its workmen work on a Sunday, there was no necessity for the tribunal to invoke the principles of social justice and also the consideration as to whether the workers were getting living wages. If the law had been complied with, the consideration of hardship would not have been relevant. Although I hold that the tribunal ultimately came to the correct conclusion, the materials considered by it in arriving at its conclusion were not all relevant. Nevertheless since I agree with its ultimate conclusions, I discharge the rule with costs.