# INDIAN OXYGEN LTD v. THEIR WORK.\IEN

- **Citation:** [1969] 1 S.C.R. 550
- **Court:** Supreme Court of India
- **Decided:** 1968-08-05
- **Case number:** Civil Appeal No. 560 of 1966
- **Bench:** J. M. Shelat, V. Bhargaya, C. A. Vaidial!Ngam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indian-oxygen-ltd-v-their-work-ien-4442
- **Pages:** 12

## Headnote

B
Industrial Dispute-Joint application to refer dispute-Metnhership of
1vork1nen union thro1vn open-Wlzerlzer au:ard applies to night 1nembers
o~vertime-Principles of payment-Absence
without
leave
to
attend nreetings etc.-lf permissible.
The appellant and it' workmen, represented by their union called the
Indoxco Labour Union, Jamshedpur, made a joint
application to
the
C
Government referring certain disputes to the Industrial Tribunal.
The
application stated that the number df workmen employed in the undertaking affected were those employed in the company's factory at Jamsbcdpur, and that the same number were likely to be affected by the disputes.
The Government referred the disputes to the Industrial Tribunal, and the
notification also stated that the disputes were between the management
of the appellant company-'s factory at Jamc;hedpur and their workmen represented by Indoxco Labour Union. Two of the demands were (I)
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payment of overtime to office staff should be
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times the ordinary rate
and ( 2) the union represcntativL>s should he allowed special
leave to
attend law courts for matters connected with the workers and the managemcnl, to atlcnd the annual conventions of their federation, to attend to
Executive C.Ommittee meetings of the union-federation and the conventions
of the central organisation i.e., INTIJC. The union at a general mceling,
held prior to the reference, had passed a resolution changing the name
of the union to fodian Oxygen Workers Union and making the workmen
E
of all the establishments of the Appellant company in Bihar eligible for its
membership. By a
letter the
union informed the appellant company at
Jamshedpur of this amendment.
The Tribunal held that (i) the award
in this case was to apply to all of the workmen and could not be restricted
to the workman working at Jamshedpur;
(ii) It times the ordinary
wages 'for overtime work exceeding 39 hours but not exceeding 48 hours
per week should be paid; and if the O\"ertime exceeded 48 hours per week,
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tbe company would be liable to pay double the ordinary rate of wages; and
(iii) the appellant company bacl been allowing without loss of pay the
representatives of the workmen to attend proceedings before conciliation
officers and Industrial Tribunals, and that this concession was
sufficient;
therefore the Tribunal rejected the demand for special leave with pay to
attend the law courts; but held the union's representatives were to be given
special leave to attend (a) meetings of its executive committee, (b) meetings of the federation of the union, (c) the annual convention of that fedeG
ration when held at Jamshcdpur and (d) the convention of tbe INTUC.
In appeal to this Court,
HELD : (i) The award was operative only in respect of the workmen
of the appellant company's factory at Jamshcdpur and not the workmen
of its other establishments. [561 C-Dl
The agreement by which the parties agreed to refer the said disputes
for adjudication was between the management of the appellant company's
factory at Jamshedpur, and the workmen employed in that factory and
represented by their said union, the lndoxco Labour Union.
Under the
notification of the Government also the disputes referred ta the Tribunal
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INDIAN OXYGEN v. WORKMEN
551
were those set out in the said agreement. Even assuming that the Indoxco
Labour Union validly amended its constitution so as to extend its membership to the company's other workmen in its other establishments, inasmuch as the disputes referred to the Tribunal were only those set out m
the said agreement, any award made by the Tribunal in respect of those
disputes mnst necessarily be e-0nfined to the disputes refered to it, the
parties to thooe disputes and the parties who had agreed to refer those
disputes for adjudication.
There is nothing to show in that notification
that other workmen <if the company had raised similar demands or that
there were any disputes existing or apprehended which were included in
that

## Text

550
INDIAN OXYGEN LTD.
v.
THEIR WORK.\IEN
August 5, 1968
A
[J. M. SHELAT, V. BHARGAYA AND C. A. VAIDIAL!NGAM, JJ.]
B
Industrial Dispute-Joint application to refer dispute-Metnhership of
1vork1nen union thro1vn open-Wlzerlzer au:ard applies to night 1nembers
o~vertime-Principles of payment-Absence
without
leave
to
attend nreetings etc.-lf permissible.
The appellant and it' workmen, represented by their union called the
Indoxco Labour Union, Jamshedpur, made a joint
application to
the
C
Government referring certain disputes to the Industrial Tribunal.
The
application stated that the number df workmen employed in the undertaking affected were those employed in the company's factory at Jamsbcdpur, and that the same number were likely to be affected by the disputes.
The Government referred the disputes to the Industrial Tribunal, and the
notification also stated that the disputes were between the management
of the appellant company-'s factory at Jamc;hedpur and their workmen represented by Indoxco Labour Union. Two of the demands were (I)
D
payment of overtime to office staff should be
l i
times the ordinary rate
and ( 2) the union represcntativL>s should he allowed special
leave to
attend law courts for matters connected with the workers and the managemcnl, to atlcnd the annual conventions of their federation, to attend to
Executive C.Ommittee meetings of the union-federation and the conventions
of the central organisation i.e., INTIJC. The union at a general mceling,
held prior to the reference, had passed a resolution changing the name
of the union to fodian Oxygen Workers Union and making the workmen
E
of all the establishments of the Appellant company in Bihar eligible for its
membership. By a
letter the
union informed the appellant company at
Jamshedpur of this amendment.
The Tribunal held that (i) the award
in this case was to apply to all of the workmen and could not be restricted
to the workman working at Jamshedpur;
(ii) It times the ordinary
wages 'for overtime work exceeding 39 hours but not exceeding 48 hours
per week should be paid; and if the O\"ertime exceeded 48 hours per week,
F
tbe company would be liable to pay double the ordinary rate of wages; and
(iii) the appellant company bacl been allowing without loss of pay the
representatives of the workmen to attend proceedings before conciliation
officers and Industrial Tribunals, and that this concession was
sufficient;
therefore the Tribunal rejected the demand for special leave with pay to
attend the law courts; but held the union's representatives were to be given
special leave to attend (a) meetings of its executive committee, (b) meetings of the federation of the union, (c) the annual convention of that fedeG
ration when held at Jamshcdpur and (d) the convention of tbe INTUC.
In appeal to this Court,
HELD : (i) The award was operative only in respect of the workmen
of the appellant company's factory at Jamshcdpur and not the workmen
of its other establishments. [561 C-Dl
The agreement by which the parties agreed to refer the said disputes
for adjudication was between the management of the appellant company's
factory at Jamshedpur, and the workmen employed in that factory and
represented by their said union, the lndoxco Labour Union.
Under the
notification of the Government also the disputes referred ta the Tribunal
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INDIAN OXYGEN v. WORKMEN
551
were those set out in the said agreement. Even assuming that the Indoxco
Labour Union validly amended its constitution so as to extend its membership to the company's other workmen in its other establishments, inasmuch as the disputes referred to the Tribunal were only those set out m
the said agreement, any award made by the Tribunal in respect of those
disputes mnst necessarily be e-0nfined to the disputes refered to it, the
parties to thooe disputes and the parties who had agreed to refer those
disputes for adjudication.
There is nothing to show in that notification
that other workmen <if the company had raised similar demands or that
there were any disputes existing or apprehended which were included in
that reference. [555 D-G]
The Union did not produce any evidence to show that the amendments
purported to have been carried out by the resolution were sent to the
Registrar as provided in ss. 6(g), 28(3), 29 and 30(3) of the Trade Umon
Act and regulation 9 of the Central Trade Union Regulation, nor did it
produce any e-0mrnunication of the Registrar notifying the fact of his
having registered the said amendments.
The only evidence it produced
was its letter to the appellant company which indicated that the Registrar
notified to the union of his having registered the said amendments. The
Tribunal's conclusion, therefore, that the union's constitution was duly
amended or that the Indian Oxygen Workers Union represented the workmen <if the company's factory at Jamsbedpur and that consequently it
made no difference that the name of Indoxco Labour Union as representing the workmen concerned was mentioned in the said agreement and the
said statement and not that of the Indian Oxygen Workers Union is
erroneous and cannot be sustained. Any award, therefore, made by the
Tribunal in these circumstances can operate only in respect of the workmen of the appellant e-0mpany's factory at Jamshedpur and the Tribunal's
extension of that award to workmen in the company"s other establishments
was clearly without jurisdiction. [557 D-G]
The Associated Cement Companies Ltd. v. Their Workmen, [1960]
3 S.C.R. 157 and Ramnagar Cane and Sugar Co. Ltd. v. Jatin Chakravorty, [1960] 3 S.C.R. 968, distinguished.
(ii) Under the conditions of service of the company, the total hours
o'f work per week were 39 hours. The Bihar Shops and Establishments
Act fixes the maximum number of hours of work allowable thereunder,
i.e. 48 hours a week, and provides for double the rate of ordinary wages
for work done over and above 48 hours.
But no reliance can be placed
on the p'rovisions of that Act for the company's contention that it cannot
be called upon to pay for overtime work anything more than its ordinary
rate of wages if the workmen do work beyond 39 hours but not exceeding
49 ~ours a week.
Any workman asked to work beyond 39 hours would
obviously be working overtime and the company in fairness would be
expected to pay him compensation for· such overtime work.
If the company pays at the ordinary rate of wages for work done beyond 39 hours
but not exceeding 48 hours work a week, it would be paying no extra
compensation at all for the work done beyond the agreed hours df work.
The company would thus be indirectly increasing the hours of work and
consequently altering its condition of service. [558 C-FJ
If after taking into consideration the fact of the comparatively higher
scale of wages prevailing in the appellant
company, the Tribunal fixed
~e rat~ for overtime work at
1 t times the ordinary rate df wages, it is
1mposs1ble to say that the Tribunal erred in doing so or acted unjustly.
(iii) The demand for special leave must be disallowed.
552
SUPREME COURT REPORTS
[!969] J S.C.R.
The appellant company has been allowing those of its workmen who
:l.J'e the union's representatives to attend without loss of pay proceed.in~
before conciliation officers and industrial tribunals.
In coaccding:
the
demand of the union foi:, more lca.vc the l'ribunal does not appear 10 have
considered the adverse effect on the company's production if further
absentccisn1 were to be allowed especially \\·hen the crying need
of the .
country's economy is more and more production. In awarding this
demand the Tribunal also did not specify on how many occasions the
executive committee meetings of the union and other meetings would be
held when the company would be obliged to give special leave with pay
to the union's representatives.
Similarly, there is no kno\\•ing how many
delegates the union would ~end to attend the conventions of the federation and the INTUC.
The ·rribunal could not in the very nature of
things ~pecify or limit the number of such meetings for such an attempt
would amount to intetfcrence in the administration of the union and its
autonomy.
Its order must of necessity, therefore, have to he indefinite
with the result that the appellant company would not know before hand
on how many occasions and to how many of its workmen it would be
called upon to grant special leave.
Further,- in case there are more than
one union in the company's cslablishmcnt, the repfcscntatives of all such
tmions would also have to be given such leave to attend the aforesaid
meeting.~.
In considering such a demand, the question as to why the
meetings of the executive committee of the union cannot be held outside
the hours of \\·ork should be considered.
It was said that it may not be
PoSliible ahvays to do so if an emcr~ency arises.
But emergencies are not
of regular occurrence and if there be one, the reprcsenlatives can certainly
sacrifice one of their earned leave.
Similarly the meetings of the federation and the annual conventions of the INl't..:C too can be attended by
the union's delegates
by
availing
themselves Of their earned leave.
1559 [).E; 560 C-H]
!. K. Co/1011 u11d Spi11ni11g and W<e01•i11g Mills v. Badri Mali, [1964]
3 S.C.R. 724, referred to.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No. 560 of
1966.
Appeal by special leave from the Award dated September 28,
1964 of the Industrial Tribunal, Bihar in Reference No. 32 of
1963.
A. C. Mitra and D. N. Gupta, for the apPellant.
0. P. Sharma and V. C. Parashar, for the respondents.
The Judgment of the Court was delivered by
Shela!, J. This appeal, by special leave, is against the award
dated September 28, 1964 of the Industrial Tribunal, Patna. ·
The appellant company is an all India complex having establishments in different parts of the country.
In Bihar alone, it has
two factories. one at Jamshedpur and the other at Ranchi, and
has depots at Patna and other towns.
The factory at Jamshedpur
is an establishment under the Bihar Shops and Establishments
Act.
Certain disputes having arisen between the appellant company
and its workmen employed in the factory at Jamshcdpur, the com·
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INDIAN OXYGEN V. WORKMEN (Shelat, /.)
553
pany and the said workmen represented by thei~ union call.ed ~e
Indoxco Labour Union, Jamshedpur, made a 1omt applica110n
dated September 7, 1963 to the Government of Bihar for a reference under s. 10(2) of the Industrial Disputes Act, 1947. By
a notification dated October 23, 1963, the Government referred
five disputes to the Tribunal for adjudication.
We are concerned
in this appeal with only two disputes arising from demands Nos.
3 and 5. These demands were,
No. 3. "The payment of overtime to office staff
should be 1 t times the ordinary rate beyond their normal duty hours."
No. 5. "Union representatives should be allowed
special leave to a1tend to law courts for matters connected with the workers and the management, to attend to
annual conventions of their federation, to attend to
Executive Colllllli1tee meeting of the union-federation
and convention of central organisation i.e., INTUC."
As required by r. 3 of the Industrial Disputes
(Bihar)
Rules,
1961, the statement accompanying the said application signed by
the District Manager on behalf of the company and the General
Secretary of the said union representing the said workmen contained inter a/ia the following information, namely,
" ( c) Number of workmen employed in the undertaking affected
352
( d) Estimated number of workmen affected or likely
to be affected by the dispute
352"
F
It is quite clear from the said application and the statement signed
by the parties, ( 1) that the said disputes concerned the 352 workmen employed in the company's factory at Jamshedpur and ( 2)
that these 352 workmen were represented by the Indoxco Labour
Union.
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The said notification also stated "Whereas the Governor of
Bihar is of opinion that an industrial dispute exists or is apprehended between the management of Indian Oxygen Limited ....
Jamshedpur-7 and their workmen represented by Indoxco Labour
Union ..... Jamshedpur, regarding the matters specified in their
joint applications dated 7-9-1963
annexed hereto....
Now,.
therefore, in exercise of powers conferred by sub-sec. (2) of section 10 of the Industrial Disputes Act, 1947 (XIV of 1947), the
Governor of Bihar is pleased to refer the said dispute ..... " The
notification thus makes it clear that the disputes referred to the
Tribunal were disputes set out in the said agreement and state-
554
SUPREME COURT REPORTS
[1969) J S.C.R.
moot and were between the management of the appellant comA
pany 's factory at J amshedpur and their workmen represented by
the lndoxco Labour Union.
It appears, however, that the union at its general meeting held
on January 6, 1963, purported to amend its constitution by "
resolution passed thereat by changing the name of the union to
Indian Oxygen Workers Union Jnd making the workmen of all
the establishments of the appellant company in Bihar eligible for
its membership.
Ext. C is the copy of a letter dated January 21,
1963 by which the Secretary of the said union informed the District Manager of the appellant company at J amshedpur of the
said purported amendment.
The Tribunal appears 1o be of the
view that the constitution of the said Indoxco Labour Union came
to be amended as from January 6, 1963 and that as
the said
reference was made in October 1963, i.e., after the said purported
amendment, "the mention in it of the dispute as a dispute between
the company and Jndoxco Labour Union does
not materially
affect the posi'tion that the dispute raised by the union is in rc'-
pect of the employees of the company wherever
they may
be
stationed. Consequently, the award in this case shall be effective
in respect of all of them and cannot be restricted to the workmen
working at Jamshedpur''. So far as the workmen's demands Nos.
3 and 5 were concerned, the Tribunal after observing that the
company's wage scales were satisfactory, compared the rates of
overtime paid by other industrial concerns in Jamshedpur and
awarded It times the ordinary wages for overtime work exceed in~
39 hours but not exceeding 48 hours per week. If the overtime
exceeded 48 hours per week, 48 hours of work being the maximum provided by the Bihar Shops and Establishments Act, the
company would be liable to pay at double the ordinary rate of
wages as provided in that Act.
Regarding demand No. 5, the
union produced three letters addressed to its Secretary, (I ) a letter
by the General Secretary of 1he Tata Workers Union, (Ext. I) dated
November 30, 1963, wherein it was stated that the officials of
that union were granted soecial leave to attend the union's executive committee meetings, the meetings of their federation and the
meetings of the J.N.T.U.C. if held al Jamshedpur; (2) a letter
dated January 25, 1964 by the General Secretary of Golmuri
Tinplate Workers Union, Jamshedpur, to the effect that member;
of the executive committee of that union were relieved from duty
with pay to attend meetings of the executive committee or any
other meeting called by the union except mass meetings and the
union's delegates were also allowed special leave with pay to
attend I.N.T.U.C. sessions; and (3) a Jetter dated December 7,
1963 by the Secretary of Telco Workers Union, Jamshedpur, to
the effect that members of the executive committee of that union
and office bearers were allowed to attend union's meetings without loss of pay. The Tribunal noted that the appellant company
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INDIAN OXYGEN v. WORKMEN (She/at, J.)
555
had been allowing without loss of pay the representatives of the
workmen to attend proceedings bef?re ~onciliatio!l officers and
Industrial Tribunals.
This concess10n, 1t considered, was sufficient and, therefore, rejected the demand for special leave :ovit~
pay to attend the law courts.
But it awarded that the uruon s
representatives should be given special leav~ to attend (1) mi:etings of its executive commit1ee, (2) meetmgs of the federat10n
of the union, ( 3) the annual convention of that federation when
held at Jamshedpur and ( 4) the convention of the I.N.T.U.C.
The first contention urged on behalf of the appellant company
was that the Tribunal was in error in making its award operative
not only to the said workmen at its J amshedpur factory but also
to workmen at its other establishments and that in doing so it
acted beyond jurisdiction. In our view, tills contention must be
upheld.
·
In the first place, the agreement by wltich the parties agreed
to refer the said disputes for adjudication was clearly between the
management of the appellant company's factory at Jamshedpur
and the workmen employed in that factory and represented by
their said union the Indoxco Labour Union. The statement accomping that agreement clearly stated that the disputes agreed to be
referred to were between the workmen of that factory and the
management of that factory.
The notification referring those
disputes to the Tribunal also made it clear that the disputes referred to were those set out in the said agreement and the statement
and no other disputes and further that they were the disputes
between the parties to that agreement.
There was no evidence
before the Tribunal that sUnilar demands were raised by workmen
engaged in the appellant company's other establishments.
Even
assuming that the Indoxco Labour Union validly amended its
constitution so as to extend its membership to the company's other
workmen in its other establishments, inasmuch as the disputes
referred to the Tribunal were only those set out in the said agreement and the said statement, any award made by the Tribunal in
respect of those disputes must necessarily be confip.ed to the disputes referred to it, the parties to those disputes and the parties
who had agreed to refer those disputes for adjudication.
Next, as to the claim of the Union that it had amended its
constitution on January 6, 1963 and, therefore, as the workmen
of the factory at J amshedpur came henceforth to be represented
by the Indian Oxygen Workers' Union whlch represented also
workmen employed in the appellant company's other establishments, the reference extended to them also and the Tribunal's
award would cover them also.
We fail to see any connection
between the purported amendment of the union's constitution and
556
SUPREME COURT REPORTS
[I 969] I S.C.R.
the reference made by the government on the basis of the said
agreement and the said statement.
These as aforesaid related
to the disputes between the management a~d the workm~n of the
appellant company's factory at Jamshedpur who alone had made
the aforesaid demands and disputes arising from those demands
only were agreed to be referred to and were actually referred to
~he Tribun.al b:t the said notifica1ion.
There is nothing to show
m t~at notilication that other workmen of the company had raised
smular demands or that there were any disputes existing or apprehended which were included in that reference.
The question next is whether the union's constitution was dulv
amended on January 6, 1963 as claimed by the union and held
by the Tribunal.
The constitution of the union prior to its purported amendment contained amongst other Articles, Articles I
and 3. These Articles read as follows :
"ARTICLE NO. I : Name and Address :
I. This Union
is a Trade Union Organisation of
wage earners of the Indian Oxygen & Acetylene Co.
Ltd., Jamshedpur and shall be called Indoxco Labour
Union ....
3. !he situation of the Registered Office shall not
be changed except by resolution of the General Body
Meeting specially held for the purpose. Any change of
the address of the Registered Office of the Union will be
communicated to the Registrar of the Trade Unions
within 14 days of such change."
Article XII of the said constitution deals with alteration of rules
and cl. ( c) thereof provides that copies of all new rules and
amendments or revisions of rules shall be submitted to the RegisA
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trar within the prescribed period as required by s. 28 (3) of the
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Trade Unions Act, 1926. This rule had to be incorporated in the
constitution in view of the express tenns of that section.
Section 6 of the Trade Unions Act provides that a trade union
would not be entitled to registration under the Act unless the executive ~hereof is constituted in accordance with the provisions of
this Act, and the rules thereof provide amongst other things for
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its name and the manner in which the rules shall be amended,
varied or rescinded. Section 28 (3) provides that a copy oi every
alteration made in the rules of a registered trade union shall be
.sent to the Reoistrar within fifteen days of the making
of the
alteration. Section 29 contains the power of the appropriate government to make regulations and sub-s. 2 (a) provides that with11
out prejudice to the generality of the powef in s~b-s. (I) such
regulations may provide inter a/ia f~r the manner. m which trade
unions and their rules shall be registered.
Sectton 30 ( 3) lays
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INDIAN OXYGEN v. WORKMEN (She/at, J.)
557
down that regulations so made shall be published i1:1 the of!ici~l
gazette and on such publication shall have effect as 1f e!1acted m
this Act.
In pursuance of the power to make regulations
the
Central Government framed Central Trade Unions Regulations,
1938, regulation 9 whereof provided that on .receiving a copy of
an alteration made in the rules of a trade umon under s. 28 (3),
the Registrar shall register the alteratioμ in the register maintained
for this purpose and shall notify the fact that he has done so to·
the secretary of the trade union.
The combined effect of secs. 6(g), 28(3), 29 and 30(3) and
regulation 9 is that a registered union can alter its rules only in
the manner provided in these provisions, that is, it has to send the
amended rules to the Registrar within 15 days from the amendment and until the Registrar is satisfied that the amendments are
in accordance with the rules of the union and on such satisfaction
registers them in a register kept for that purpose and notifies that
fact to the union's secretary, the amendments do not become
effective. The union did not produce any evidence to show that
the amendments purported to have been carried out by the said
resolution dated January 6, 1963 were sent to the Registrar as.
provided in the aforesaid provisions, nor did it produce any communication of the Registrar notifying
the fact of . his having
registered the said amendments.
The only evidence it produced
was its letter dated May 21, 1964 to the appellant company which
indicated that the Registrar notified to the union of his having
registered the said amendments on May 13, 1964. The Tribunal's
conclusion, therefore, that the union's constitution was duly amended on either January 6, or 21, 1963 or that, therefore, the Indian
Oxygen Workers Union represented the workmen of the company's
factory at J amshedpur and that consequently it made no difference
that the name of Indoxco Labour Union as representing the
W<;>rkmen concerned was mentioned in the said agreement and the
said statement and not that of the Indian Oxygen Workers Union
is erroneous and cannot be sustained. Any award, therefore,
made by the Tribunal in these circumstances can operate only in
respect of the workmen of the appellant company's factory at
Jamshedpur and the Tribunal's extension of that award to work1:11e!1 ~n .the company's other establishments was clearly without
1unsd1ctton. The decisions in The Associated Cement Companies
Ltd. v. Their Workmen(') and Ramnagar Cane and Sugar Co.
Ltd. v. Jatin Chakravorty( 2 ) on the effect and interpretation of
s. 18 of the Industrial Disputes Act, relied on by counsel for the
union are beside the point and do not assist him.
As regards the Tribunal's finding on demand No. 3, counsel
for the company raised two contentions : ( 1) that the company's
factory at J amshedpur having been declared
an establishment
--~-
(l) [1960)
3 S.C.R. l 57.
(2)
[1960] 3 S.C.R. 968.
558
SUPREME COURT REPORTS
(l 969) 1 s.c.R.
under the Bihar Shops and Establishments Act, it could be made
liable to pay for overtime work at the rate provided in that Act,
viz. at double the ordinary rate when a workman was asked to
work beyond 48 hours per week as provided therein. Therefore,
the argument ran, the appellant company could not be asked to
pay more than its ordinary rnte of wages payable to workmen if
they were asked to work beyond 39 hours but not exceeding 48
.hours.
And (2) that the comparative statement
(Ext. M) of
<>vertime rates paid by other concerns in Jamshedpur before the
Tribunal showed that if the company were made to pay I! times
its ordinary rate of wages it would, in the light of its higher scale
·of wages be paying more than the other concerns.
In our judgment both these contentions are
unsustainable.
·Under the conditions of service of the company, the total hours
of work per week are 39 hours.
Any workman asked to work
beyond these hours would obviously be working overtime and the
company in fairness would be expected to pay him compensation
for such overtime work.
The Bihar Shops and Establishments
Act has no relevance to this question as that Act fixes the maximum number of hours of work allowable thereunder, i.e. 48 hours
a week, and provides for double the rate of ordinary wages for
work done over and above 48 hours. It is not, therefore, as if the
provisions of that Act govern overtime payment payable by an
employer where maximum hours of work arc governed by the
conditions of service prevailing in his establishment. Therefore,
no reliance can be placed on the provisions of that Act for the
company's contention that it cannot be called upon to pay for
overtime work anything more than its ordinary rate of wages if
the workmen do work beyond 39 hours but not exceeding 48
hours a week. It is obvious that if the company were asked to
pay at the rate equivalent to the ordinary rate of wages for work
done beyond 39 hours but not exceeding 48 hours work a week,
it would be paying no extra compensation at all for the work done
beyond the agreed hours of work.
The company would in that
case be indirectly increasing the hours of work and consequently
altering its conditions of service.
Ext. 'M., relied on by counsel, gives the overtime rate paid
by six industrial concerns situate in Jamshedpur.
Out .of these
.six concerns, four pay overtime compensation at It Umes the
ordinary wages and dearness allowance payable by them.· If after
taking into consideration the fact of the comparatively higher scale
of wages prevailing in the appel!ant company the Tribunal fixed
the rate for overtime work at U times the ordinary rate of wages,
it is impossible to say that the Tribunal erred in doing so or act~
unjustly.
The company's contention, therefore, as regards this
·demand must be rejected.
A
B
c
D
E
F
G
H
A
B
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c
D
E
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INDIAN OXYGEN v. WORKMEN (She/at, !.)
559·
As regards demand No. 5, counsel for the company very
seriously challenged that part of the award as unjustified and contended that an obligation to grant special leave to attend the
meetings of the executive committee of the union, the meetings
of the federation and the conventions of the l.N.T.U.C. over and
above the various types of leave available to the company's workmen was tantamount to the company having practically to finance·
the administration and management of the union.
He argued
that imposing such an obligation on the company cannot be justified on the ground of social justice or promotion of trade unionism.
Counsel for the union, on the other hand, sought to support this
part of the award on the ground that such a demand was justified,
as the Tribunal has observed, in the interest of a proper growth
of trade union movement and the promotion of harmony in indus-·
trial relations inasmuch as if facilities are given to the workmen
to conduct the administration of the union themselves, there would
be less possibility of outside elements establishing their hold on
the union.
We apprehend the argument does not take into consideration
certain important aspects of the demand. As aforesaid, the apPelIant company has been allowing those of its workmen who are
the union's representatives to attend without loss of pay proceedings before conciliation officers and industrial tribunals. This is
fair because conciliation proceedings are likely to get thwarte
if the workmen's representatives are not there to discuss the disputes and put forward their point of view before conciliation officers and wherever possible to arrive at a settlement or compromise.
Over and above this facility, the workmen get various
types of paid leave. As the figures of such leave are not correctly
stated in the award, we collected them from counsel on both
sides.
The following table shows the types of leave enjoyed by
the workmen : .
Factory Staff :
Earned leave
21
Festival leave
1 O
Casual leave
7
Medical leave
15
53
Office Staff :
Earned leave
21
Festival leave
17
Casual leave
7
Medical leave
15
60
560
SUPREME COURT REPORTS
General Staff :
Earned leave
Festival leave
Casual leave
Medical leave
--
[1969] I S.C.R.
15
17
7
15
54
It is impossible to say that the ]eave granted by the company
with full pay is not fair or even liberal. In conceding the demand
of the union the Tribunal does not appear to have considered the
.adverse effect on the company's production if further absenteeism
were to be allowed especially when the crying need of the country's
economy is more and more production and employers are exhorted
to streamline their management to achieve this objective and to
bring down their cost in line with international cost. In awarding
this demand the Tribunal also did not specify on how many occasions the executive committee meetings of the union
and other
meetings would be held when the company would be obliged to
give special leave with pay to the union's representatives.
Similarly there is no knowing how many delegates the union would
send to attend the conventions of the federation and the I.N.T.U.C.
The Tribunal could not in the very nature of things specify or limit
the number of such meetings for such an attempt would amount
to interference in the administration of the union and its autonomy. Its order must of necessity, therefore, have to be indefinite
with the result that the appellant company would not know before
hand on how many occasions and to how many of its workmen
1t would be called upon to grant special leave.
Further, in case
.there are more than one union in the company's establishment,
the representatives of all such unions would also have to be given
-such leave to attend the aforesaid meetings.
A healthy growth of trade union movement undoubtedly would
lead to industrial peace and harmony and consequently to higher
·efficiency.
But a demand of the type we have before us has to
be considered from all aspects and its implications and results
have to be properly examined.
In considering such a demand.
the first question which strikes one is as to why the meetings of
the executive committee of the union cannot be held outside the
hours of work.
It was said that it may not be possible always
to do so if an emergency arises.
But emergencies are not of
regular occurrence and if there be one, the representatives can
certainly sacrifice one of their earned leave.
There can obviously
be no difficulty in so doing. The meetings of the federation and
the annual conventions of the l.N.T.U.C. too can be attended bv
the union's delegates by availing themselves of their earned leave.
A
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INDIAN OXYGEN v. WORKMEN (She/at, J.)
561
A
Industrial adjudication, as observed in J. K. Cotton and Spinning
and Weaving Mills v. Badri Mali(') cannot and should not ignore
the claims of social justice, a concept based on socio-economie
equality, and which endeavours to resolve conflicting claims of
employers and employees by finding not a one-sided but a fair and
just solution.
A demand for special leave has, however, nothing
B
to do with any disparities or inequalities social or economic. On ·
the other hand, too much absenteeism harms both the employers
and the employees inasmuch as it saps industrial economy. In
our view, the Tribunal, on the considerations aforesaid, was not
justified in obliging the appellant company to grant special leave
demanded by the union.
C
The result is that except for the overtime rate allowed by the
Tribunal which we confirm, the rest of the appeal has to be allowed and the Tribunal's award set aside.
We hold that the award
is operative in respect of the workmen of the appellant company's
factory at J amshedpur and not the workmen of its other establishments. The demand for special leave comprised in demand
o
No. 5 is disallowed.
There will be no order as to costs .
Y.P.
Appeal allowed in part .
(!) [1964] 3 S.C.R. 724.