# [1974] 1 S.C.R. 116

- **Citation:** [1974] 1 S.C.R. 116
- **Court:** Supreme Court of India
- **Decided:** 1973-04-27
- **Bench:** A. N. Grover, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1974-1-s-c-r-116-6635
- **Pages:** 6

## Headnote

lndustrfr:l Disputes Act 1947-S. 9A-Whether appellant
contravened the
St'ction whei1 it r:hanRed the holiday for Ka/ipuja front 11th November to 12th
l'v~oJJember at the request of the majority of workers.
'
The appellant, according to the usual practice of the company, at the begin·
ning of 1966, bad published a list of holidays for that year.
According to this
list. the holiday for Kalipuja was stated to be on Friday the 11th November
1966.
The \Vorkmen in this company were represented by two Unions-The
Amco Employees Association' and 'Amco Shramic Sangha' of \\'hich the Sangha
represented the majority of the workmen of this compariy.
On November 8, 1966, the appellant notified that the factory will remain
closed for Kalipuja on 11th Novembor 1966.
On 10th November 1966.
the
(ieneral Secretary of the Sangha wrote a letter to the Factory Manager of the
Company requesting him to close the factory on Saturday the 12th November,
1966 on account of Kalipuja instead of 11th November, 1966.
A further request was made that the factory may be kept working on Frid3.y in accordance
\vith the timings of the company and stated in his 1etter that if the request fOr
change in the holiday is not acceptable a large number of workmen will not be
attending on Saturday and there will be heavy loss of production.
On receipt
of this letter, the .. appel1ant put up a notice the same day that in response to
the request of the Sangha the factory will remain closed on Saturday the 12th
November instead of Friday the 11th.
After the company's notice regarding the change of holiday for Kalipuja, the
other Union. the Association on the same day addressed a letter to the Manage·
ment that the change of holiday for Kalipuja was not justified and that
the
original date should be allowed to stand. The company did not accede to this
request and as a result most of the workmen belonging to the Association did
not attend \\'Ork on November 11. 1966. The wages for the day were not paid
by the appellant to those workmen who were absent on that day.
After about a year, the respondents filed an application before the Labour
Court under s. 33-A of the Act.
The grievance of these workmen was that
there was an industrial dispute pending at the relevant time and that without
complying with the provisions of s. 33 and s. 9~A. the employer had altered the
condition of the service by changing the date of the
holiday
for Kalipuja.
According to the respondents, one day
holiday for Kalipuja was allowed to
them for a number of years and that it had become a condition of servite. The
standing orders of the com;Jany did not give any power to the appellant to
change the holiday for Kalipuja, and thPrefore s.
33(2) (a) of the Act was
violated.
According
to them, any 'change
of date can only be affected in
accordance with s. 9-A.
Therefore the employer in declaring 12th November
as a holiday and refusing to pay wages for 11. November 1966 acted. illegally.
The management on the other hand, contested the application on the ground
that there had been no change in the conditions
of service of the workmen.
The change was made to suit the convenience of the workmen themselves and
it \\'as done for their benefit.
The Labour Court accepted the plea of the management but held that as
tke holiday has been originally fixed for 11th but later changed to 12th amount·
ed to a change in the condition of service and therefore. the procedure under
s. 9-A had not been followed.
As the said procedure had not been followed
by the appellant, the Labour Court held that there had been a violation of
s. 33 read with s. 9-A of the Act and he granted the reliefs accc>rdingly. Allowing the appeal,
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ASSAM MATCH co. v: B. L. SEN (Vaidia/i11ga111, J.)
117
HELD : (i) The alterauon ot the date regarding the holiday for Kalipuja
from l lth·. to 12th Novi:mb~r 1966, cannot be considered to be an alteration in
the conJilions af ser\•icc. The workmen may be enti:Jcd to have a

## Text

116
ASSAM MATCH COMPANY LIMITED
V,
BUOY LAL SEN & OTHERS
April 27, 1973
(A. N. GROVER AND C. A. VAIDIALINGAM, JJ.]
lndustrfr:l Disputes Act 1947-S. 9A-Whether appellant
contravened the
St'ction whei1 it r:hanRed the holiday for Ka/ipuja front 11th November to 12th
l'v~oJJember at the request of the majority of workers.
'
The appellant, according to the usual practice of the company, at the begin·
ning of 1966, bad published a list of holidays for that year.
According to this
list. the holiday for Kalipuja was stated to be on Friday the 11th November
1966.
The \Vorkmen in this company were represented by two Unions-The
Amco Employees Association' and 'Amco Shramic Sangha' of \\'hich the Sangha
represented the majority of the workmen of this compariy.
On November 8, 1966, the appellant notified that the factory will remain
closed for Kalipuja on 11th Novembor 1966.
On 10th November 1966.
the
(ieneral Secretary of the Sangha wrote a letter to the Factory Manager of the
Company requesting him to close the factory on Saturday the 12th November,
1966 on account of Kalipuja instead of 11th November, 1966.
A further request was made that the factory may be kept working on Frid3.y in accordance
\vith the timings of the company and stated in his 1etter that if the request fOr
change in the holiday is not acceptable a large number of workmen will not be
attending on Saturday and there will be heavy loss of production.
On receipt
of this letter, the .. appel1ant put up a notice the same day that in response to
the request of the Sangha the factory will remain closed on Saturday the 12th
November instead of Friday the 11th.
After the company's notice regarding the change of holiday for Kalipuja, the
other Union. the Association on the same day addressed a letter to the Manage·
ment that the change of holiday for Kalipuja was not justified and that
the
original date should be allowed to stand. The company did not accede to this
request and as a result most of the workmen belonging to the Association did
not attend \\'Ork on November 11. 1966. The wages for the day were not paid
by the appellant to those workmen who were absent on that day.
After about a year, the respondents filed an application before the Labour
Court under s. 33-A of the Act.
The grievance of these workmen was that
there was an industrial dispute pending at the relevant time and that without
complying with the provisions of s. 33 and s. 9~A. the employer had altered the
condition of the service by changing the date of the
holiday
for Kalipuja.
According to the respondents, one day
holiday for Kalipuja was allowed to
them for a number of years and that it had become a condition of servite. The
standing orders of the com;Jany did not give any power to the appellant to
change the holiday for Kalipuja, and thPrefore s.
33(2) (a) of the Act was
violated.
According
to them, any 'change
of date can only be affected in
accordance with s. 9-A.
Therefore the employer in declaring 12th November
as a holiday and refusing to pay wages for 11. November 1966 acted. illegally.
The management on the other hand, contested the application on the ground
that there had been no change in the conditions
of service of the workmen.
The change was made to suit the convenience of the workmen themselves and
it \\'as done for their benefit.
The Labour Court accepted the plea of the management but held that as
tke holiday has been originally fixed for 11th but later changed to 12th amount·
ed to a change in the condition of service and therefore. the procedure under
s. 9-A had not been followed.
As the said procedure had not been followed
by the appellant, the Labour Court held that there had been a violation of
s. 33 read with s. 9-A of the Act and he granted the reliefs accc>rdingly. Allowing the appeal,
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ASSAM MATCH co. v: B. L. SEN (Vaidia/i11ga111, J.)
117
HELD : (i) The alterauon ot the date regarding the holiday for Kalipuja
from l lth·. to 12th Novi:mb~r 1966, cannot be considered to be an alteration in
the conJilions af ser\•icc. The workmen may be enti:Jcd to have a holiday for
Kalipuja.
But on \vhat particular date Kalipuja falls or it is being o.bserved
nnd a holiday is tb be declared, is a matter to be decided by the management
in consultation \Vith the \Vorkrricn.
If a large body of the workmen require a
change in the date of the holiday on the grqund that the festival was not being
observed on the day originally fixed and the management changed the date1
it cannot be stated that there was an alteration in the conditions of service. The
\vorkmen were not being deprived of a holiday .at all for Kalipuja.
In fact,
they had got it on the 12th Novembor 1966.
[1200]
The 1Vorkuzcn of M /s. Sur Iron & Steel Conzpany Private Ltd.· v. M /s. Sur
Iron & Stet•/ Co. /'rii·are Ltd. [1971] 1 L.L.J. 570, referred to.
'
(ii) Even assuming th3.t alteration of the date· of the hotiday for Kalipuja
\Viii amount to a condition of service there is no question in the present ~ase
of a contravention of s. 9 when the majority of the workmen thef11Selv~ re ..
quested the employer to make the alteration.
The employer was within
its
rights ·under s. 33(2).
Further. the evidence on the side of the respondentsshowed that the workmen actually celebrated Kalipuja on the 12th November .
'vhich was declared to be a holiday. Therefore, the application filed by the:
\vorkmen before the Labour Court under s. 33·A was misconceived. [121E]
Mis. Tata Iron -& Steel Co. Ltd. v. Workmen and Ors. [19721 JI L.L.J_ 259,
discussed and distinguished.
CML APPELLATE JURISDICTION : Civil Appeal No. 2433 of 1968.
Appeal by &pecial-leave from the Award dated August 9, 1968 of
the Labour Court Gauhati in Case No. 6 of 1968 published in the
Assam Gazette dated the 4th September 1968.
B. Sen, G. Mukhuty and D. N. Gupta, for the appellant.
D. L. Sen Gupta and S. K. Nandy, for the respondents .
The Judgment of the Court was delivered by
V AIDIALINGAM, J. In this appeal, by special leave, the question that
arises for consideration is whether the appellant has contravened
section 9-D of the Industrial Disputeif Act, 194 7 (hereinafter referred
to as the Act), when at the request of the majority of the workmen
the holiday for Diwali was changed from 11th November, 1966 to the
next day. According to the usual practice, at the commencement of
the year 1966, the appellant had published a list of holidays for that
year. According to this list, the holiday for Kali Puja was stated to
be on Friday, the 11th November, 1966. On November 5, 1966, the
appellant notified that the factory will remain closed for Kali Puja on
Friday, the' 11th November, 1966. This notification was only on the
basis of the list of holidays referred to earlier.. The workmen in this
company were represented py two unions
( I) Am co Employees'
Association (hereinafter referred to as the Association) and (2) Amco
Sramik Sangha (hereinafter referred to as the Sangha). There is no
controversy that the Sangha represented the majority of the workmen
..of this company.
On November 10, 1966, the General Secretary of the Sangha wrote
a letter to the factory Manager of the appellant req_uesting him to close
the factory on Sa•urday, the 12th November, 1966, on account of
Kali Puja instea4 c:if the 11th instant as already notified by tbe com-
118
SUPREME COURT REPORTS
[ 197 4] 1 S.C.R.
pany on November 5, 1966. A further request was made in this Jetter
that the factory may be kept working on Friday, the 11th November,
in accordance with the timings mentioned therein.
The General Secretary further stated in this letter that if the request of change in the
holiday is not accepted, a large number of workmen will not be attending on Saturday, the 12th November, which will result in heavy loss
of production. On receipt of this letter, the appellant put up a notice
the same day l'fiat in response to the request of the Sangha, the factory
will remain closed for Kali Puja on Saturday, the
12th November,
instead of Friday, the 11th, as previously notified. This notice further
stated that the factory will remain open on Friday, the 11th November
during the hours mentioned therein. Quite naturally, this notice cancelled the_ previous notice dated November 5, 1966.
After the company's notice regarding the change of holiday for
,Piwali was put up on the notic~board, the Association, on the sam~
day (November 10, 1966), addressed a letter to the management that
the change of holiday for Diwali was not justified and that the date
originally declared as a holiday, namely, the 11th November, should
be allowed to stand. The company obviously did not accede to this
request of the Association with the result that most of the workmen
attached to the association did not attend to work on November 11,
1966. The wages for that day were not paid by the appellant to those
workmen on the ground that they were absent from duty.
Nearly a year later on December 30, 1967, the respondents in this
appeal, 83 in number, filed an application before the Labour Court,
Gauhati, under section 33-A of the Act. The grievance of these work·
men appears to be that there was an industrial dispute pending at the
relevant time and that without complying with the provisions of section 33, and without conforming to the provisions of section 9-A, tbe
employer had altered the condition of service by changing the date of
the holiday for Diwali. According to them, one day holiday for Kali
Puja was being allowed for a number of years and that it has become
a condition of service. The notice issued on November 5, 1%6, declaring November 11, 1966, as a holiday for Diwali was in conformity
with the right of the workmen under the conditions of their service.
The Standing Orders of the company did not give any power to the
appellant to change the holiday for Diwali and, therefore, section'
33(2)(a) of the Act does not give power to the appellant to alter the
said date. Any change of date can only be effected in accordance _with
section 9-A· As that has not been done, the action of the employer in
declaring 12th November, 1966, as a holidav and refusing to· pay
wages for 1 lth November, 1966, were both illegal. Accordingly they
praverl for directing the apoellant to. pav them woges for Novemher
11, 1966, which has been iJenied to them, as their absence on that
day was perfectly legal.
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The management contested the application on the ground that
there has been no change effected in the conditions of service of the
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workmen by alterinf! the holidav of Diwali from November 11, to the
next day. ·As the holiday is for Diwali and as the majoritv of the
workmen specifically desired the holiday on the 12th November, the
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ASSAM MATCH co. v. B. L. SEN (Vaidialingam, !.)
119
change was made to suit the convenience of the workmen.
Even if
the fixation of a holiday is a condition of service, the change has been
made for the benefit of the
workmen.
The management further
pleaded that under the Standing Orders they were entitled to fix the
holidays and also to effect any changes therein and, therefore, section
33(2)(a) of the Act gives power to them to effect such a change,
although an industrial dispute was then pending. The management
also cited certain previous instances when the holiday for Holiday or
for Diwali once fixed had been altered at the request of the workmen.
The Labour Court has accepted the plea of the management that
the Sangha represented the majority of the workmen of the appellant.
It has further found that the appellant altered the date from 11th to
12th at the specific request of the Sangha.
But the Labour Court held
that, as the holiday has been originally fixed for the 11th November by
the notice dated November 5, 1966, on the basis of the list of holidays announced by the company, the alteration of the holiday frow
1 lth to 12th November, though at the request of the majority of th'
workmen, amounted to a change in the condition of service and
:is
such, the procedure under section 9-A should have been followed. As
the said procedure had not been followed by the appellant, the Labour
Court held that there has been a violation of section 33 read with
section 9-A of the Act. In this view, it granted the reliefs asked for
by the 33 workmen.
Mr. B. Sen, on behalf of the appellant company, supported the
stand taken by it before the Labour Court. He urged that there is no
question of any cancellation of a holiday that the workmen were entitled to, in which case it may be stated that the condition of service
is effected. On the other hand, the workmen did have a holiday for,
Diwali on the 12th November.
The counsel also referred us to th~
evidence on record to show that on previous occasions such changes
had been effected in the holidays when a request was made by the
workmen concerned. Mr. Sen Gupta, learned counsel for the. respondents, has adopted the reasons given by the Labour Cour• for holding
that a 'change in the condition of service has been effected by the apnellant. In particular, Mr. Sen Gupta pointed out •hat if the employer
wanted to effect a chan~e in the date of the holiday, it should have
been done by the appellant entering in•o a settlement wit'1 the workmen, as contemolated by clause (a) of the proviso to section 9-A. The
sum ~nd substance of the arguments of Mr. Sen Gunta was that the
a.ooellant, having fixed the holiday for Diwa'i as per its previons ciI"<:U->
Jars. had no power to change the same even thongh a majority of the
workmen had desired the appellant lo do so.
Section 9-A no doubt provides that the conditions of service of
any workmen in resnect of anv matter soec;fied in the Fonrtli S0 1i
0 dule
cannot be changed without following the oroce<lure indicated therein.
If tJie alteration of the d1te of a .holidav amounts to a change in the
· con<liti,.,ris of service. i• is needless to state tliat the apoella"' is b"und
to follow the orocedure laid down in section 9-A. Item 5 of the
Fourth Schedule deals with "leave with wages and holiday". There-
120
SUPREME COURT REPORTS
[ 1974 j 1 S.C.R.
fore, prima·facie, if a ho1iday has been fixed, the management may
not ha·1e power to totally cancel the same or deprive the workmen· of
such a holiday without conforming to provisions of s~ction 9-A.
In
the notice published at the beginning of the year 1966 regarding the
holidays for the said year, the appellant has no doubt .stated that -Friday, tile 11th November, will be a holiday for Kali Puja. But there
is a statement in this notice to the effect that this list is subject to
modification, if thought necessary". .Under paragraph 6 of the company's certified S.anding Orders, it is provided that "Notice specifying
(a) the days observed by the Factory as holidays and (b) pay days,
shall be posted as required by the Factory Act and the payment of
\'!ages Act respectively". There is no controversy that the list of
holidays published at the beginning of the year 1966 as well as the
circular dated November 5, 1966 are in conformity with this provision.
Similarly the notice dated November 10, 1966, by the management
regarding the 12th November being a holiday for Diwali, acceding to
the request of the workmen, must also be considered to satisfy the
provisions of this clause in the Standing Orders.
:!II our opinion, the alteration of the date regarding the holiday for
Diwali, from 11th to the next day, cannot he considered to be an alteration in the conditions of service. The workmen may be entitled to
have a holiday for Diwali. But on what particular day Diwali falls
or it is being observed and a holiday is to be declared, is a matter to
be decided by the management in consultation with the workmen. If
a large body of the workmen require a change in the cjate of the holiday on the ground that the festival is not being observed on the day
originally fixed and the management changes the date, it cannot be
stated that there is an alteration in the conditions of service. The
workmen are not being deprived of a holiday at all for Diwali. Jn
fact they have got it on the 12th November, 1966,
In The Workmen of M/s. Sur lro11 & Steel Co. Pvt. Ltd. v. Mis.
Sur Iron & Steel Co. Pvt. Ltd., and another(I), the workmen contended that the change in the weekly off-day, from Sunday to Satur·
day, without complying with the provisions of section 9-A, was illegal.
This Court rejected that contention on two grounds that (1) there
was no specific entry in the Fourth Schedule covering a condition of
service relating to a weekly off-day and (2) even assμming that the
grant of a weekly off-day falls under item 4 of the Fourth Schedule,
the State Government bad issued a notification on April 10, 1962
under section 9-B laying down that no notice under section 9-A was
required to be served in respect of the matters covered by items 4, 6
and 11 of the said Schedule for a period of three months. Therefore,
it will be seen ihat this decision did riot express any opinion on the
question whether the alteration of the weekly off-day from Sunday to
Saturday, amounts to a change in the conditions of service coming
within section 9-A. In fact the indications in the jndgment are that snch
an alteration will not attract section 9-A.
The decision in M/s Tata Iron and Steel Co. Ltd. vs. The Workmen and others(") does not advance the case of the respondents. From
(I) [1971] (I) LU 570,
(2) [1972]II LLJ. 259.
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ASSAM MATCH co. v. B. L. SEN (Vaidialingam, J.)
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the facts of that case it is seen that Sunday had been a holiday in
the factory concerned for a Jong number of years. The company, for
the reasons stated in the judgment, cancelled this holiday and in turn
gave a holiday in the mid-week without following the procedure under
section 9-A. It was held in the particular circumstances of that case
th ' •lie alteratioo amounts to a change in the conditions of service.
It must be noted that the workmen have been having for a long number o! years Sunday as a hohday and that may have become a condition 01 weir service. A holiday on a Sunday can only be on that day
and no other day of the week can be Sunday. On this basis the decision has been rendered holding that cancdling the holiday enjoyed on
Sunday amounts, in the circumstances, to a change in the conditions
of service.
J:be position in the case before us is entirely different. The fact
is that the workmen have not been deprived of a holiday for DiWaJi.
Even assuming that the workmen have got a right to get a holiday for
Diwali and that it has become a condition of service, in this case the
workmen did have a holiday for Diwali. The holiday for the said
festival is to be given on the date when the majority of the workmen
claim that they are celebrating Diwali. It has been emphasised in
Mfs. Tata Iron and Steel Co. Ltd. v. The workmen and others(')
that the real object and purpose of section 9-A is to afford an opportunity to the workmen to consider the effect of a proposed change and.
if necessary, to represent their view on the proposal. Even assuming
that the alteration of the date of the holiday for Diwali will amount to
a condition of service, there is no question, in this case, of a contravention of section 9-A, when the majority of the workmen themselves
requested the employer to make the alteration. The employer
wa~
within its rights under section 33(2)(a). The evideuce on the side
of the respondents shows that the workmen ac•ually celebrated Diwali
on the 12th November, which was declared to be a holiday.
For the reasons stated above, we are of the O{linion that the application filed by the workmen before the Labour Court iinder section
33-A was misconceived. In the result, the order of the Labour Court
is set aside and this appeal is allowed. There will be no order as to
costs.
s.c.
(1) 1972 (II) L.L.J. 259.