(1.)THIS appeal by special leave arises from an industrial dispute between the appellant the Alembic Chemical Works Co. Ltd., and the respondents, its workmen. The said dispute related to a single demand made by the respondents with regard to leave. THIS demand consisted of three parts, (a) one month's privilege leave with full salary and dearness allowance on completion of eleven months service in a year with a right to accumulate upto six months, (b) one month's sick leave with full salary and dearness allowance for each year of service with right to accumulate for the entire period of service, and (c) every workman should be entitled to take leave in proportion to the number of days he is in service of the company at the time of his application for the same. THIS dispute was referred by the Government of Bombay for adjudication before the Industrial Tribunal under S. 10 (1) (d) of the Industrial Disputes Act XIV of 1947.
(2.)THE Tribunal considered the contentions raised by the appellant against the respondent's demands, took into account awards or agreements between employers and their employees in comparable concerns and made its award. In regard to privilege leave the Tribunal has ordered that leave should be granted to the staff members covered by the reference as follows.
Privilege leave upto 3 ..16 days as at completed years of service present per year.
Up to 9 completed years ..22 days per year.
And thereafter ..one month for every 11 months of service.
THE award allows accumulation of privilege leave upto three years. As regards sick leave, the Tribunal has ordered that the appellant should give its staff covered by the present award 15 days sick leave in a year with full pay and dearness allowance with a right to accumulate upto 45 days. It has also directed that no medical certificate should be demanded if sick leave for three days or less is asked for. In regard to the third item of demand concerning leave in proportion the Tribunal has made appropriate direction which it is unnecessary to set out for the purpose of this appeal.
Before the Tribunal the main contention raised by the appellant was in regard to the propriety and reasonableness of the demand and in regard to the practice prevailing in comparable concerns. Before this Court, however, the provision made by the award in regard to privilege leave has been attacked mainly on the ground that the Tribunal had no jurisdiction to make such an award having regard to the provisions of S. 79 of the Factories Act, 1948 (63 of 1948) (hereafter called the Act). It is urged that S. 79 of the Act has made exhaustive and self-contained provisions with regard to the granting of annual leave with wages to the employees to whom the said Act applies, and the effect of S. 79 is to introduce standardisation in the matter of leave; which means neither the employer voluntarily, nor an Industrial Tribunal by its award, can add to the leave prescribed by the said section. In the matter of leave S. 79 is a complete code, and no additions to the said leave can be made either by a contract or by an award. It is common ground that the respondents are governed by the provisions of the Act. This point was not raised before the Tribunal, but since it is a point of law which arises on admitted facts we have permitted the learned Attorney-General to argue it before us.
The Act was first enacted in 1934 as Act 25 of 1934. Since then it has been amended from time to time. Its main object is to consolidate and amend the law regulating labour in factories. For the purpose of determining which concerns and which employees would be governed by the Act S. 2 (m) and (1) define "factory" and "worker" respectively. Even a broad view of the scheme of the Act and a perusal of its provisions would clearly indicate that the Act is a beneficent measure and its policy is to make reasonable provisions for the preservation of health of the workmen, their safety and their welfare. With that object in view, the Act has made provisions for the regulation of working hours of adults, has regulated the employment of young persons, and has also provided for annual leave with wages to the workmen. The amendments made in the relevant provisions of the Act from time to time indicate that the Act has been pursuing its beneficent policy slowly but steadily and attempting to provide for the workmen better and larger amenities in their employment. It is in the light of this obvious policy and object of the Act that we have to decide the question raised before us by the appellant.
(3.)SECTION 79 (1) occurs in Chapter VIII which deals with annual leave with wages. It provides thus :
"79. (1) Every worker who has worked for a period of 240 days or more in a factory during a calendar year shall be allowed during the subsequent calendar year, leave with wages for a number of days calculated at the rate of -
(i) if an adult, one day for every twenty days of work performed by him during the previous calendar year;
(ii) if a child, one day for every fifteen days of work performed by him during the previous calendar year.
Explanation 1. - For the purpose of this sub-section -
(a) any days of lay off, by agreement or contract or as permissible under the standing orders;
(b) in the case of a female worker, maternity leave for any number of days not exceeding twelve weeks; and
(c) the leave earned in the year prior to that in which the leave is enjoyed;
shall be deemed to be days on which the worker has worked in a factory for the computation of the period of 240 days or more, but he shall not earn leave for these days.
This section has 11 other sub-sections which deal with different aspects and make relevant provisions in regard to annual leave with wages. It is not disputed that the award purports to make provisions for privilege leave in excess of the annual leave sanctioned by S. 79. Can the industrial Tribunal direct the appellant to provide such additional privilege leave to its employees ?; in other words, does S. 79 purport to standardise annual leave with wages so that no departure from the said standard is permissible either way ? The appellant's contention is that except for pre-existing awards agreements, contracts or except for pre-existing law no departure from the standardised provision is permissible after S. 79 was enacted.
This argument raises the question of construing S. 79 in the light of the other relevant provisions of the Act. It may be conceded that the provisions made by S. 79 are elaborate, and in that sense may be treated as self-contained and exhaustive. It is also clear that S. 79(1) does not use the expression "not more than or not less than" as it might have done if the intention of the Legislature was to make its provisions correspond either to the minimum or the maximum leave claimable by the employees; but even so, when S. 79 (1) provides that every worker shall be allowed leave as therein prescribed, the provision prima facie sound like a provision for the minimum rather than for the maximum leave which may be awarded to the worker. If the intention of the Legislature was to make the leave permissible under S. 79(1) the maximum to which a workman would be entitled, it would have used definite and appropriate language in that behalf. We are therefore, inclined to think that even on a plain construction of S. 79(1) it would be difficult to accede to the argument that it prescribes standardised leave which inevitably would mean the maximum permissible until S. 79(1) itself is changed.