# BIJLI COTTON MILLS (P) LTD v. THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL . .II & . ORS

- **Citation:** [1972] 3 S.C.R. 910
- **Court:** Supreme Court of India
- **Decided:** 1972-03-20
- **Bench:** C. A. Vaidialingam, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bijli-cotton-mills-p-ltd-v-the-presiding-officer-industrial-tribunal-ii-ors-5632
- **Pages:** 12

## Headnote

U.P.
IndustriaA
Establishments
(National) · Holidays Act, 1961No provision for payment of wages for festival holidays-Wherher pco·-
:c.·ble in the .facts and circumstances o0f the case.
An industrial dispute arose between the appellant and its workmen as
to whether the employers were required tC' pay wages for the festival
hOlidays allowed to their workmen in a yeJr.
The appellant contested
the workmen's claim mainly on the ground> that neitmr in law nor in
-prac~icc was there any provision for festival holidays with wages, that
the appell-ant was already paying wages for three holidays allowed to the
workmen undo:T the U.P. Jndustrial Establish~nt (National Holidayll)
Act, 1961 and that in the entire region in which this mill is situated, no
textile mill pays wages for festival holidays. The mill was stated to be
an uneconomic unit and, therefore, not in a position to be-ar an extra
burden. The workmen, on the other hand, in their separate written statements, filed through three Unions, plead~d that the grant of holidays
without wages was illegal and against social justice. In their rejoinder
the 'lPPellant pleaded that the holidays mentioned by the Unions were
granted because the workmen had demanded the same and thosr~ holidays
were substituted by other days in lieu of holidays and as they were paid
for the days on which tht.!y worked on account .of those holidays there
.w~ no loss of wages caused to them.
The Tribunal by its award m'3de the appellant liable to pay to their
daily-rated and piece-rated workmen for· 17 festival holidays,
besides
three national holidays, plus arrears, on the ground that too Seci'etary
of the appellant mill 'ldmitted that the festival holidays were paid holidays
in the sense that workers were allowed to work on their unpaid l'.!st days
in substitution of the said festival holidays.
The appellant being aggrieved by the award presented a writ pr.!tition before the High Court which
was dismissed by a single Judge.
Special le:1ve to a Divisional Bench of
the.'.High Court was di.smissed in limirre, but the Bench cm'tified tm case
to be fit for appeal to· this Court. The appellant was held oatitled to
c~rrifitate either under cl. (a) or cl. '(b) of Art. 133(1) of the. Consti·
tution on the ground that value 9f the subject matter of dispute ·or claim
was Rs. 20,000 or more.
.
Tbe respondent in the Supreme Court objec.,~ t() the competence of
the c'ertiflcate en the ground that .. though ·the judgment of the Di~ision
Bench was one of affirmance the certificate did not disclose on. its face
the existence of any substantial question . of Jaw.
A
B
c
D
E
F
This objection was upheld but as the case was considered fit for_
.U
special leave, on oral !'.!quest special le-:1ve was grap.ted on the condition
that. the- appellallt :"o~ld file a form~ I application for special leave accom-·
pamed ·by an appl!cati,on for condemn g the delay.
·
A
B
c
D
F
G
BIJLI COTTON MILLS v. INDUSTRIAL TRfBUNAL (Dua, J.) .·911
/
AllowiJli the: app¢al 'Oil the merits,
. HELD : -By reading the state~m:nt of the Secretary of the appellant
along with the pleadings as disclosed in the respective statement of cases
of: the parucs, it is JiQt .potsible to hold t~t t~e . appelJ.ant . ~d .admitted
that the 17 festival holidays were hei11g given by them as paid holidays
dispensing with the enquiry into the question referred for adjustment to
the Industrial Tribunal. Even the workl'llen did not plead that the festi·
val holidays were treated as p:1id holidays.
The Secretary'~ statemel)t that . no festival holidays were paid in tl12
sense , that the workers were allowed to work on unpaid rest days in
substitution of the said· festival
holidays. This
staterrunt c!C'lrty ex·
plains that sense in which the Secretary· meant to say that the festival
holidays . were paid. The facts contained in the explanation lead to the
onlY conclusion Jh~t fr:stival holidays are not· paid as the festival holidays
are. This statement read with the· detailed expl

## Text

910
BIJLI COTTON MILLS (P) LTD.
v.
THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL . .II &
.
ORS.
March 20, 1972
[C. A. VAIDIALINGAM AND I. D. DUA, JJ,]
U.P.
IndustriaA
Establishments
(National) · Holidays Act, 1961No provision for payment of wages for festival holidays-Wherher pco·-
:c.·ble in the .facts and circumstances o0f the case.
An industrial dispute arose between the appellant and its workmen as
to whether the employers were required tC' pay wages for the festival
hOlidays allowed to their workmen in a yeJr.
The appellant contested
the workmen's claim mainly on the ground> that neitmr in law nor in
-prac~icc was there any provision for festival holidays with wages, that
the appell-ant was already paying wages for three holidays allowed to the
workmen undo:T the U.P. Jndustrial Establish~nt (National Holidayll)
Act, 1961 and that in the entire region in which this mill is situated, no
textile mill pays wages for festival holidays. The mill was stated to be
an uneconomic unit and, therefore, not in a position to be-ar an extra
burden. The workmen, on the other hand, in their separate written statements, filed through three Unions, plead~d that the grant of holidays
without wages was illegal and against social justice. In their rejoinder
the 'lPPellant pleaded that the holidays mentioned by the Unions were
granted because the workmen had demanded the same and thosr~ holidays
were substituted by other days in lieu of holidays and as they were paid
for the days on which tht.!y worked on account .of those holidays there
.w~ no loss of wages caused to them.
The Tribunal by its award m'3de the appellant liable to pay to their
daily-rated and piece-rated workmen for· 17 festival holidays,
besides
three national holidays, plus arrears, on the ground that too Seci'etary
of the appellant mill 'ldmitted that the festival holidays were paid holidays
in the sense that workers were allowed to work on their unpaid l'.!st days
in substitution of the said festival holidays.
The appellant being aggrieved by the award presented a writ pr.!tition before the High Court which
was dismissed by a single Judge.
Special le:1ve to a Divisional Bench of
the.'.High Court was di.smissed in limirre, but the Bench cm'tified tm case
to be fit for appeal to· this Court. The appellant was held oatitled to
c~rrifitate either under cl. (a) or cl. '(b) of Art. 133(1) of the. Consti·
tution on the ground that value 9f the subject matter of dispute ·or claim
was Rs. 20,000 or more.
.
Tbe respondent in the Supreme Court objec.,~ t() the competence of
the c'ertiflcate en the ground that .. though ·the judgment of the Di~ision
Bench was one of affirmance the certificate did not disclose on. its face
the existence of any substantial question . of Jaw.
A
B
c
D
E
F
This objection was upheld but as the case was considered fit for_
.U
special leave, on oral !'.!quest special le-:1ve was grap.ted on the condition
that. the- appellallt :"o~ld file a form~ I application for special leave accom-·
pamed ·by an appl!cati,on for condemn g the delay.
·
A
B
c
D
F
G
BIJLI COTTON MILLS v. INDUSTRIAL TRfBUNAL (Dua, J.) .·911
/
AllowiJli the: app¢al 'Oil the merits,
. HELD : -By reading the state~m:nt of the Secretary of the appellant
along with the pleadings as disclosed in the respective statement of cases
of: the parucs, it is JiQt .potsible to hold t~t t~e . appelJ.ant . ~d .admitted
that the 17 festival holidays were hei11g given by them as paid holidays
dispensing with the enquiry into the question referred for adjustment to
the Industrial Tribunal. Even the workl'llen did not plead that the festi·
val holidays were treated as p:1id holidays.
The Secretary'~ statemel)t that . no festival holidays were paid in tl12
sense , that the workers were allowed to work on unpaid rest days in
substitution of the said· festival
holidays. This
staterrunt c!C'lrty ex·
plains that sense in which the Secretary· meant to say that the festival
holidays . were paid. The facts contained in the explanation lead to the
onlY conclusion Jh~t fr:stival holidays are not· paid as the festival holidays
are. This statement read with the· detailed explanation could not logically
serve as a sround for ignoring the unequivocal denial in the written' statement. The Industrial Tribunal;· was therefore,. wrong in holding that· the
statement made by the Secretary was 'an admission on behalf of the appel·
!ant. The learned single Judge also missed the real point and held that
the- Secretary's. statement constituted an· admission and all :facts evidence
was therefore, excluded. The Division Bench fell into the-·same error in
summarily ~ismissina .. the appeal in limin~. l920 A-El
( ii) The., U .P. Industrial EstabJishmeill s (National Holidays)
Act,
1961 and' rules provide for p:1id National ·Holidays bul that Act do~s not
deal .with festival hqlidays.
In determining the· .number of paid festival
holidays per year, · certam facts, like custom; practice
and
uniformity
in .the 'industry without prejudicially affeeting efficiency · and inc~ased
pi'oduC:tion are some of the relevant hctors ·to be taken into account. The
question affects national economy and does not· remain confiR.!d only to
the. establishment concerned but has its impact on other concerns as weU.
TJ'lis _aspect _has bee)l completely ignored ·by tb~ Industrial Tribunal. Fur·
ther the Tribunal proceeded solely on the basis of misreading of the Secretary's · st~teinent. 'thereby ignoring the plea taken by. ~he appellant. There
is, thus the manifest error of Jaw apparent on .the fact of the record which
bas. ·resulted. in grave failure of· justice, because evidence on tlr- only
ml\tet'ia_l.P.Pint wasillegally s.hut out. [921 AI
·
The Diitlict Board (afterwordr_' Zila · _Paris.had' Allah(.•bad \t : Syed
Tcdrir Hu~sain & Ors. C.A. Ne>. 578 ·of 1963 decided on July 23. l ()65,
followed.
SIM Dur!(ri Prasad & •! ' r ' . Tlrt• Ba . .,aras Bank Ltd., [1964] 1 S.C;R.
475. r:de'rred to.
CIVIL APPELLATE JURISDICTION : Civil. Appeal No. 1611 Qf
1968:
H
Appeal from the judgment and order dat~ Decem\jer 5, 19~6
of~the Allahalta~· ·High.Counin Special Appeal ·No. 760 of .1966
and··Petition for Special t.eave to appe<:d ·(civil) No. 676 of. 1972.
912
S.UPRIME COURT R.EfOi,TS'
(1972] 3 S.C.R.
Y. M. Tarkunde, J, P. Goyal and SDbfla~ Mal Jain, fOr the
A
appellant.
E. C. Agarwala and A. T. M. Sampat, for respondent No.2.
· The Ju4i!nen't of the Court was delivered by
Dua, J~ The following dispute between Mls. Bijli Cotton Mills
B
(P) Ltd.~ and their workmen was referred ~o. the Industrial Tribu- ·
nal II, U.P . .fpr adiudication :
"Should the employers be required to pay wages for
the festival holidays allowed to their workmen in a
year ? Jf so, from which date and wi!fu what other
details?
C
· Accordin~ to the workmen the employers had been givin~ 17
fe9tival holidays to their workmen in a year and though those
holi~ays should have been paid ones the employers were not .mak·
in~ anv payment..
The disput~ was ori.1dnally espoused at the instance of Hathras
Mazdoor Panchayat but later three other unions namely Sooti
Mi11 Mazdoor Pancbayat, Congress Mazdoor Sangh and Suti MUl
Kannachari Sangh were also acconied right of represen1a1ion on
their applications. The employer mills coJ.lltested the claim . on
various grounds. The olea on the merits in substance was to the
effect that neither in law nor in practice was there any provisiou,
fot: feslival holidays with wa~es. The Mill, it was averred, was
al.r~ady paying wages for three holidays allowed to the workmen
u-nder the U.P: Industrial Establishments (National Holjdays) Act
(U·,P. Act XVUI of 1961) and in the entire Agra region in which
this Mill is situar..d to textile mill pays wages for festival holi-
~ys. l't was added that the Mill was an uneconomic unit and was
ni;)i in ll. position to bear anv extra burden. The Congress Maz·
door Sangh, the Sooti MilL Kaqn.achari . Sl}ngh and the H~thr.as
Mazdoor Panchavat filed separate written statements on behalf of
tho wqdanen and. pl~ded thaJ.t· tbe grant of holidays without wages
was illegal and aJ!,ainst social iustice.
'The employer Mill filed rejoinder statement to 1the written statements of all the Unions, pleadine: that the holidays mentioned by
the Unions were not allowed to the workmen at the employer's
initiative but were granted because the workmen demanded the
same and these holidays w.e~ su~ituted: bY. o~r ~ays in lie.u of
holidays, and as they were paid for the days on which they workec\
on account of these holidays there was no loss of wages caused
to~ th~. workmen~
· On, Ju}v. lS, 196.5 the. parties made theit statemontg, under
r. 12- of the UP. Industrial Disputes Rules, 1.957, which-l)rovides
I)
E
F
G
BIJLI COtTON MILLS V. INDUSTRIAL TIUBUMAL (Dua, J.) Sl ~
A· [or proced~e a:t first. sittings of the f'ribunal requiring the· parties ·
to state the1r resp~hve c~es. Shrt M. P. Jaiswal, on behal~ of
the employers adnutted that the company gives 17 feStival holidays
to all its employees, 15 of which ar~ those mentioned in the written
statement. of the Congress Mazd<?or Sangh and two others being
Sankrantt -and Baldev Chat observed on Bhadon Sukla Chnt. - All
B - these holioays were stated by him to be paid holidays in 1he sense
that the workers were allowed to work on their unpaid rest days
in substitution of the said festival holidays. The unpaid rest days
were the same as those provided and observed under s. 52 of the
Factories Act as unpaid holidays. It was admitted that tM monthly
raters we·re .Qald for 365 days in a year whereas piece-raters were
c
paid accordin2 to the quantum of work done by them on working
days in a month. Tile national holidays given by the employer
are not substituted on any rest day and if any national holiday falls
on a rest day the employer pays s.in~~ day's wa~es if no work i->
done. If a holiday is substituted on rest day then only one day's
wa~cs are paid.
D
F
G
u
After this statemen1 four representatives of the contesting
unions stated that v.henever the management takes work from the
workers on a test day only one day's wages are paid and it was
.zmphaticallv denied that holidays were substituted on a rest day.
Monthly raters, accordin~ to these representatives, f/;Ct their wages
for all 365 days.
-
After these statements the Presidio~ Officer ~f '!he Tribunll
put the (ollowin~ question to Shri Jai$wal :
Q : Whether the festival holidays observed in the Mill
are paid or unpaid ?
A : They are paid holid~ys and payment is made by
substitution ns ~1ated earlier.
Thereafter it appears that the workmen did not kad any evi~~nc_e
but Shri M.P. Jaiswat, Secretary of the Mil!.s appeare~ a,; a w•~nc~s
on behalf of 1M employer. He fikd two charts sbowtn~ the ~e~tl·
~al holidays observed in ~he Mills in the year 19~ and upto 0 lJ
1965. He proved these cb:uts stating that they had ~en ptepar~r
from the Mills' Muster Rolls and that they were true coptes c
J
f th M.ills
These two charts
rectly prepared from the Jccor s 0 •2 ~When~ 'the wi~ss tried to
were m.-uked ai Ex. ~- 1 an~ Ex. E, ·
T til Mills the ,ques·
d_(puse 21bo"( the hohdayi_.Jn. lh¢ Kanp~!-f_
e.x. \ · B. D. Sethi,
tlon_ was qisa1Jowed,
'Yt'h!le, cross-~ .n1nt~~ by .S n .
E~-£-1
o-n behalf of t~ work:motr. 'Mr. Jrusw!lt st.!:ted -~
F ~ ·· cy'-23
only two bolkil..ys for Ho~ ~u• substituted. onc.0!' ~ ~w~~ot be~
~ ~~ and the other on Mar4· L, ~ 9~
.. tb_c ~~olida~ v.-crc
m~ substilR~ •. lAthe ca.sc (lf_ Otwali eho ·two
J•
-
l l
1
I
I
914
SUPREME COURT REPORTS
[1972]'3 s.t.R.
substituted leaving unsubStituted the remaining. two holidays.
0~
being··cr<JSs-examined·by Shri 0. P. Gautam also on behalf of the.
workn1ert· the. witness. stated that in 1965 as well only two holidays
on. account of Holi were substituted, the remaining two being lin
substituted. In the preceding years also the position was stated to
be 1he same· in regard to Holf holidays.
The followin)!; two auestions and answers may also · be reproduced :
Q -: When you .take work on Sunday which is ~
weekly holiday on which date you ' give the festival
hQliday?
·
·
A: As such we do not give the weekly·rest day on
the day on which the· festival falls within the limits
. allowed under the Factories Act.
Q : Is there any limit for festival holidays in Factories
·Act?
A : There is no such limit nor any such direction in
the Factories Act. For substitution there is a restriction
in Sections 51 and 52 of the Factories Act.
Exhibi'ts E-1 and E-2 show festival holidays for ~h·.;l years 1964
and 1965 and these charts corroborate the answers elicited from
Shri Jaiswal that for Holi and Diwali only two days on which
substitution was allowed were paid for, the remaining two holidays
bein,g unpaid.
It may b.~ pointed out that •the Tribunal: after the statements
of the parties under r. 12, framed the following issue :
"Whether the festival holidays are given to the work ..
men in the form of substituted holidays on weekly rest
days ? If so are 'lhe workmen other than the
m~>nthly
· raters entitled to only om~ day's wages or two days' wages .
i.e., one day's wages for the work done on the week\Y
. rest day and one day's wages for the substituted holiday?"
. It appears that the language of ~his Issue was not objected to
by either party and this appears to be the real crux of the controversy which emer~d after the statements of rthe parties requiring
decision by <the TribunaL It was not disputed before the Tribunal
that the employers had been giving, 17 festival holidays to· all the
'workmen besides three national holidays. The plea ·taken by the
employers. in their· pleadings that the holidays· are not paid holidays Was in the·· opinion of. the Tribunal ~ven the· )tO-by fu
~he8
c
D
E
F
G
BI,JLI COTTON MILLS V, INDUSTRIAL TRIBUN
(0
' AL
ua, I.) 9 15
A -
~tatement of Shri Jaiswal recorded under r 12 0 1 1 lS
The Tribunal t~en dealt with that statement. and o~c~:d th~t
1:·
ththat&sta!em
1
ehnt
1
~dt was f~r the ~mployers to show how payment fo~
e 1esuva
o 1 ay~ was made by thenr. To reproduce the . ds
B
c
D
l
F
c
of the award ·
.
\lor
."In 'the. written statement without statin_g whether the
fcs.uval .holidays w.ere pai~ or unpaid they pleaded that
nett.her m l~w nor J? pracUce there was any provision for
festtyal ·.holiday~ wtt~t wages an? that in the eniire · Agra
Re,IUon no textile mtll was paymg wa,ges for the festival
holidays. Originally it appeared that the employers
wanted to set up that the festival holidays were unpaid
but at the time of the statement under rule 12, Shri
Jaiswal took a contrary po6ruon and stated that all the
festival holidays wer;: paid holidays R11d tho payment was
made in the sense that they were substituted on
r~t
days.
I have already shown how this statement is incorrect and no impanial mind will be wrong in drawing
a legitimate inference that the purpose. ~f tb.e empl?yers
in settin~ up inconsistent pleas or in glVIDl! m-consJStent
statem·~ms was only to conceal the truth or it may be thlt
the purpose was to confuse. the issue."
A little lower down, after observin~ that Shri Jaiswal w~ not the
kind of witness who would ~rive straight answers to. stra1~M quc!Stions and that the witness had to be warned for this altitude observed :
"From the employers own ple3dings th~ st~!e':~~~
Shri Jaiswal recorded unda ruh: 1~ and~ 'd P th~
it is evident that 17 fe51ivul
h?hdays
51 es lo ·ers
National Holiday~ ore nil P.ai.d holhld~ys ~~~~~ne~r their
had been wrongfully depnVJng t ctr w
dues in this behalf."
b-
.
e f monthly raters o
1be Tribunal, while denlin,g wsth the cas
1~ f because they \\·ere
served that they' were not entitled to the re tese of daily rate~ or
P&ld for all the 36.5 days in 8 year. Th: ~~cording to ihe nompice¢ raters beinst different (they were p~td uantum of worlc theY
ber of days on which they WC!rked orf 1 t Ql holidays with wa,~:e~.
turned out) they were held entttlcd to. es
1~
0
~yment on the basts
DaUy r111e~ were accordinRIY beld entitled 0 P held entitled to llet
or tht:i,(. d:.ily waj!e whereas piece mterst~e~ts of the 8\'"erJge of
the avcra)!C c:aroinl% to be calculated ond.
ihe holiday. 'Ibe rethe la't one month immediately preceh
1
~1! ••
li<'( f'r:.sJted h the award was st.:~ ted 1 u · ·
sball
.
•
h· t the c:mployeri
"My award, therefore, u t ad ieee raied workffic:G
pay wun to their dJily ra1ed an P
,
gJ6
SVPIENB Cf>VRT R:&POllTS
·[1972].3 S.C.R.
.
l'da
-~icles 1hr.ae Nationa1 Holid~
A
for. 17 fesnval hO 1• ys ibnen who arc daily raters ancl·
~~et~a~!~: :J:::eo~'!fl'Oln ·the 1st · January.,
1965~
For the holidays which -have accrued _from the .1st Janu
1965 till the date of. enforcement of the award aiWl
:%ich .are gj\'."!n in .the list Ex. E-2 th~ employers shall
.pay the arrears and in future a~ the fe$ti~al holidays and
B
National Holidays shall ·be .patd for. If the employers
,ub9litute festival holidays on a rest day, for that day they
.iball :pay double 'the wages.''
.
The irppellant, f~ling aggrieved by Uris award, presented a
writ ~tion in the A1lail.abad High Court under Art. 226 of the
Constitution complaining that the Industrial Tribunal had misC
read and ,misinterpreted Zhe statement of the parties recorded
under r. 12 particularly the statement of Shri Jaiswal. It wu also
averred that the QU.estian of festiv.al holidays depends on so many
other factors particularly custom and usap;e and the Industrial
Tribunal had -com.mitted a serious ·error in shutting ·out evidence in
re_~tard to the practice prevalent at Kanpur · in l'e!pect of the cusI)
tom and usage r~ltt'di~ 'festival holidays in the te-xtile industry
there. The maiB te~tile industry m 'the State of Uttar Pra~sh according to the appellant's averme!it is concentrated at Kanpur.
The ~lle_ged admission by Shri Jaiswal contrary to the appellant•s
pleadmg al}d contrary to 'the case set np 'by bot'h -parties ccm'ld not
~ wnclustve .and tlle Industrial Tribunal ntegatly based its find- r:
m_g; on such alle£ed admission.
·
Jbe High Court. dismi.ssed the writ petition holding that it was
~ tc:> the l~dustnal Tribunal to allow or disanow any question
whtc~ ?t c~m~de;r~ r~evant -or irrelevant and the High Court, in
ex~rcJst~£ tts rarudiction tmder Art. !26 of the Constitution, could
no
11:0. tnto the c~rrectness or otherwise of the order disallowing f
!eft:!i
1~iar· question to be Pot to- a witness such function being
Tribunal .;.:- 3? appellate court. The ~~;rounds that the Industrial
he bad made ::read.~· statement of Shri Jaiswal in hOlditlg tliit
iaR .allowed to tb adnns~on that 17 paid festival holidays were be·
sible in tbe ~h
e~or ~n ~as also considered (O bo impennisto Clte "Pil~ioltion ott ~ wnt iurisdiction because tbat l)e~ins o
J~w.U \l:nder r l2 ~v' :U:e. · The statement made by Sbri
the in'-rpret.~l~ tkat . or 10&,to tlle High Court, was capable of
pJ.oya-s. Were ~V~ l7Jt ~~~o:d ~n ~roiision that · the . tntNot be1nR ~isf~ed that tt-r! . esuv.u holidays to their work.Jn.oo.
enor of iud.sdictioa oc £ • unp~aed award su.tre.red from anY
t>elition was dismissed. ~om auy manife~t error of law the writ u
S~] ~
from th ·
to a ~
of~ J~
0 tad~~t Ol the learned ~le Judge
~
~ltti!y ~We"
4l't• DooftnbeC -
BIJLI: OOTTON MlLLS'i\1; INDllSTklAL Tl\l'IUNAL (Dua, /,) 917
A 5, 1966. ·However, leave tto appeal to thi!i Court was granted by
the Division Bench on February ·16, 1968, the petition~r having
been held, to gpote the words of t.he High Court "entitled to a
certificate either under cl. (a) or . (b) of Art. 13 3 ( 1 ) · of the
Con9titution
11
• The Hi~ Court also certified "that the. value of
the subiect matter of dispute before the High Court and in appeal
B is not less than Rs. 20,000/ -; alternatively, it is certified that the
iud~ent.of 1tbis Court involves directly or indirectly a claim res·
pectin~ wages amo1,1nting to more than Rs. 20,000/ -."
Before us the respondents raised an objection that the certificate ~anted by the High Court was incompetent and, therefore,
c should be cancelled. Out attention was drawn to Art. 133(l)(a)
. and (b) of the Constitution and it was pointed out that the High
Court misse~ that part of sut>.Art. 133 (1) where it is stated: that
''where the iud~ment, decree or final order appealed from affinns
the decision of the court immediately below in any ca~ other than
a case referred 'to in sub-clause (c), if the High Court nirtber •
certifies that the appeal involves some substantial question of law."
0
Merely because the value of the sub;ect matter in dispute is more
than Rs. 20,000/-, the respondent contended, it does not by itself
justify the I!Tant of a certificate under cl. (a) or cl. (b). In the
application for the requisite certificate the prayer included cl. (c)
of Art. 133(1) as well, bUll: apparently at the time of arguments
the submission was confined to cis. (a) and (b) alone.
E
The appellant, when faced with this. difficulty, submitted that
this Court should, on its oral request, ~rant s~cialleave to appeal
after eondonin~ delay and it also filed a formal written application
for special leave to appeal accompanied with an application for
condonation of delay. For adopting such a course the appellant
F relied on an unreported decision of this Court in The District
Board (afterwards lila Parishad), Allahabad v. Syed Tahir
Hussain & ors. ('1) There 1he appellant had come to this Court on
a certificate purportin~~: to have been granted under Art. 133 of
the Constitution. At the time of hearin~ it was objected on behalf
of one of the respondents 1here that the certificate could only be
G granted if thue was a substantial question of law and ~ince the
certificate did not disclose on its face the existence of any such
qu~stion, the appeal was incon1petent. This Court, in view of i1s
earlier decision in Shri Durga Prasad & anr. vs. The Banaras Bank
Ltd.(2), su&itained this objection and in the absence of a certificate of the High Court showing the existence of some substantial
H question c:if law held the appeal to be incompetent. The appellant
in that case when faced with a similar situation, had made an ornl
r~uest prayin,g for special leave, undertaking to file a written
.(l~ £,-A, No. 57S ofi963 ~eel on lu\y 23,1965. · (2) {1964) 1 S.C.R, 475.
•
918
SUPREME COURT .REPORTS
[1972] ·3 S:C.R.
petition for that purpose supported by an affidavit and accompa:nieCI
A
by an application for condonation of delay: This Court considered
the CJ!.Se to' be firt and. proper fOr granting spe~iaJJeave whic)li wits
granted on oral prayer but the appellant th~'re ws directed tb :tile
special leave petition in this. Court within a week. The appellant
in the present cas•; also filed during lthe ·c6urse of hearing special
leave petition no. 676 of 1972 duly supported by an affidavit and
B
Civil Misc·eUaneous Petition . no.· 1319 of 1972 with a supportin,g
affidavit· praying for (i) condonation of delay, (ii) treating-, court
fee paid on C.A. No. 1611 of 1968 as court fee on special leave·
t& appe~ ·and (iii) the security deposit in the earlier appeal being
treated ·as security in the s~cialleave apoeal .• We heard all the
matters· ·together.
We consider the case to be covered by the precedent cHed and
accordin.gly held the certificate granted by the High Court to be
incompetent and, therefore, liable to be cancelled. With the cancellation of the certificate C.A. no. 1611 of 1968 must be dismis.-
Sed; but in the circumstances there would be no order as to costs.
With reg,ard to the prayer for ~ranting special leave to appeal
there can be no dispute that this Court is fplly competent to entertain this prayeJ:" and if the cause of justice so demands, to grant
c
I>
the same and consider the special leave to appeal on the
m~rits.
Article 13 6 is couched in very wide terms and it vests this Court
with discretionary power for setting right grave injustice in fit
E
cases. ln Shri Du~:ga Prasad's case (supra), this Court, having
regard to all the circumstances, did not consider that to be a fit
case for gran~ing special leave to appeal whereaS i.ti the· later case
of the· District Board
(afterwards Zila Parisha4)
Allahabad
(supra), it m;1y be recalled, this Court granted speCial leave tq
appeal on oral request, din~ctin~ that a fonnal sp~ialleavc appliF
cation be filed within a week.
After considering all the circum-.
stances we· consider the present case to ·be fit for granting s~ial
leave to appeal and for condoning the delay.
We order:acoord~
ingly .. : ·The appellant, however, must pay full court fee payable
within 'two weeks but the security already deposited inCA:~·
l 611 of 1968 m~y .~e
treate~ as security in the special leave
appeal. The result, therefore, is that now we have the fresh. appeal
G
by sPe¢hll1e.ave before us for decision. ' •
·
. .
.
The a~pellant's learned counsel drew.~ur attention to'tbe' slate~.
ml;lnts ·of t~~ respective cases of the parties before· the lndu5ldal
Tribunal and also to the statement of Shri Jaiswal under r . .t2~ lit
ouf ''Vie~' .the statement of'.Shri J aiswal had~ as a matter of Iaw/~o H
be t~d as. a whole and alSo in the background and along .with tf)e
pleadinJ!;s· as disclosed in the respective statements of cases. of: file
parties-.fn ·order to: understand whether Shri Jatswal's .statement
. I
. BWLI.COTtON MILLS y. lNDUSTaiAL TanmNAL (Dua, J.) 919'
A
amounted to a clear and. oonscious admission eliminating a cruciat
p~rrt' of the controversial issue.
Re~dtn~ them ·as a Whble we doo
not 'consider it pOssible to bold tha( Jtl1e 'apPellant. had admitted
1hat the 17 feStival holidays were beirik·'given. by' tnem as paid
holidays dispensing with the enquiry into the question referred fo1
adjudication to the· Industrial Tribunal ·
B
It may in this connection be pointed out that the real p.urpose
<:ind object of r. 12 is only to pinpoint ~he precise comroversy by
requiring the Qarties to state their respective cases at the .very .fi~l
sittirt~ of the Tribunal. This sta'tement is not like ilie testimony of
a witness, part of which can be accepted and the rest rejoc;te.d. . It
c was only in th.e nature of a supplementary pleading designed
mai.nly 1o remove vagueness and to clear ambiguities or indefiniteness in the pl~adings. This statement had, theref~re, to be reao
and considered .as a whole. If it was considered unsati5factory in
some respects this factor could be taken into account in. appreciat:--
ing the pleadings and evid•;!nce led in the case while coming i.O the
o final decision but it could not debar the appeUant from leading
evidence on the controversial issue as if such issue did not arise.
It is noteworthy that even the workmen did not plead that the festi·
val holidays were treated as paid holidays but no payment was as.
a matter of fact being made.
E
F
The holidays were of course allowed to the workmen but thewritten statement on behalf of the· appellant unequivocally denied
that there was any provision in law or practice for allowing festival holidays wi!th wages and it also denied that in the Agra region·
where the appellant's mill is situated any textile mill was paying
wages for festival holidays. The appellant Mill it was emphasised
could not be treated on a different footing. It was further pointed
out that the appellant Mill was a highly uneconomic mill and was
not in a position to take any extra bur~en. The statement made
by Shri Jaiswal under r.- 12 could on no reasonable hypothesis be
co~idered to have replaced this ur.equ~voca1 and clear' ,lea; It
is true that Shri Jaiswal tried to be sorriewh~t clever by stati11~ that
the festival holidays were paid in the sense tbat the workers were
G . allowed to work on unpaid test days in substitution of the sajd'
festival holidays. But this statement clearly explains in Linainbiguous termLti!e sense in which Shri Jaiswal meant to say that the
festival holidays were paid. The facts contained in the explaua~ion
lead to the only conclusion that festival.holidays are not paid ~s
the National Holidays are. ·This statement read with the. deta.iled'
H explualiOn which constitutes its real core .could not logically serv~
as a ~nd for ignorin~ tlie unequivocal> denial in the . written·
stattment uarticularly when even tbc workmen did not set up this
case. ~
Industrial tribunal hJI.d,· in. ·0\11:-0pinicin,- erroneo'usly
I
920
SUPIU!'NI! COU.IlT REPORTS
[1972) 3 :&C:R.
i~no~ the real plea and had on the basis of this manifest blatant
A
error. whicla is clear on the face of the record, disallowed the .evidence on the question of the practice and custom in the textile
industry in Kanpur. In Shri Iaiswal's statement we find a clear·distinction drawn that three National Holidays were paid holidays
and the other festival holidays were such for which the workers
1Vere allowed to work on substituted rest days. It was also clearly
B
mentioned in iha't statement that if a holiday is substituted on a
rest day then the workmen gets only one day's wages. This important p~ut of the statement was virtually h~nored by tt).e Tribunal.
'The facts bein~ clearly stated, in our view, ~he Industrial Tribuna I
was wron~ in law in holdin~ that the appellant's written plea was
modified by reason of the sta~ement under r. 12 or that there was
C
.a clear admission supetsedimz the earlier plea. The learned single
· Jud~e of the Hi~h Courtt, in our opinion, also missed the real
point; and if the real plea was ignored and it was erroneously held
1hat Shri Jaiswal's statement under r. 12 cortstituted an admission
1
<>verrldiQi the earlier olea and as a result evidence on that plea was
excluded, then it was an eminently fit case for interference under
Art. 226 of the Constitution, the error being gross and palpable
D
which wa• manifest on the face of the record and the same having
resulted in failure of justice by excludin~ evidence on 1he most
vital point. The Division Bench on special appeal from the judgment of the learned single Judge fell into the same error in summarily dismissing the appeal in limine without even recording a
·speaking order on the crucial point of substance arising in the case
E
which went to the root of ,the matter.
.
The question of fes'tival holidays requires consideration from
-several aspects. Employers and workers have always differed in
t~t SUJ~;Jilestions about the level at which unifonnity in the number of holidays should g;enerally be achieved. In the Report of F
the National Commission on Labour prepared in August, 1969 we
find .at p. 105 ·that the workers' organisallions generally favour a
minimUill of 7 to 12 paid holidays in a year without makin,l! any
diffel'.entiation as between: different categories of employees. Em-
-ployer~; on the other hand, feel that the number of paid holidays
enjoyed by workers in India is already on the high side, al').d,
G
there(ore, uniformity should be achieved ~t a much lower level.
The opiniqn of the Commission contained in its Report supported.
the. view of its Study Gro9u· on Labour Legislation which re~m
JOOn~_ed three paid National Holidays viz. 26th 1anuary (Republic
· Day), l~th Au~ust (Independence Day.)
and 2nd
Q~tober
(Mahatma Gandhi's Birth Day) and five paid festival holidays as
H
may be fixed by 'the appropriate Government in consu1tatio11 with
the representatives ol employer• and employees. The Report also
satRelti ·that ·there is a trend towards industry·wiae uniformity in
BIJLI COTTON MILLS V, INDUSTRIAL TRIBUNAL (Dua, J.) 921
~
A the matter of holidays, as in the case of jute and coaL lnciden··
tally it may be mentioned that in U.P., the U.P. Industrial Estab-·
lishments (National Holidays) Act No. XVIII of 1961 and rules
made. under s. 9 thereof provide for .paid National Holidays but.
that Act does not deal with festival holidays.
·In the case before us, according to the appellant, the 17 festiB val holidays as directed by the award would impOSe on the appel·
!ant industry an additional burden to the · extent of about
Rs. 1,49,600 as was stated in 'the order of the Allahabad High
Cou1't while granting leave. Custom, practice and uniformity in
the industry without prejt,tdicially affecting efficiency and
in-
·creased production are some of the relevant factors' which have
C to be taken in't9 account in determining the number of paid festi·
val holidays. per year. The question affects national economy
and the present instance may well be cited in future in deciding
similar questiops in other allied cqncerns in the region. The
effect of such instances, therefore, does not remain confined only
to the establishment concerned but has its impact on other con•
D cerns as well. This aspect has been completely ignored by the
Industrial Trib_unal which has proceeded solely on the basis of
the statement of Shri Jais~al as interpreted by it. This statement
being the sole .basis of the Tribunal's conclusion if it is not.
possibl~ to read in this statemem any admission having the effect
of giving up the only crucial plea that the workmen have no r.ight
E to 17 paid holidays than this is clearly a misreading of that
statement and the Tribunal's order mu&t be held to be tainted by
a manifest error of law on the face of the record which has resulted in gr!!ve failure of justice as evidence on the only material
point in issue was illegally shut out. In our view, the High Court
also fell into the same er.ror and did not apply its mind •to the
real point which .arose for decision in the case. We accordingly
F
aUow this appeal, set aside •the orders of the High Court aud of
the Industdal Tribunal and remit the case back to the Tribunal
for a fresh decision on the merits after permitting the parties to
lead releva~ evidence in accordance with law and in 'the light of
the observations made above. As the whole trouble arose 00caus~
of the un.s~tisf~ctory nature of the statement made by Shri
G Jaiswal, who was also found by the Tribunal aS a person who was
H
· not inclined to give straight answers to straight questions, it is
only just and proper that the appellant should pay the respondents' costs both in th.is Court and in the High Court. The coul't
fee, as already directed, must be paid by the appelJant within·
two weeks.
S.C.
Ap,wl aUowM.