- (1.) PRESENT writ petition is directed against the award dated 1.2.1989 passed by the Presiding Officer Industrial Tribunal(III), Kanpur in Adjudication Case No.83 of 1988. Sri Navin Sinha, learned Senior Advocate assisted by Sri Rohan Gupta have put in appearance on behalf of Kanpur Fertilizer and Cement Limited, a company incorporated under the provisions of Companies Act, 1956 having its registered office at Sector 128 NOIDA, Gautambuddh Nagar. It had been impleaded by the order dated 18.2.2013 passed by this Court as it had taken over M/s. I.E.L. Limited, Fertilizer Division, Panki, Kanpur the then petitioner. Heard learned Senior Counsel assisted by Sri Rohan Gupta for the petitioner and Ms. Bushra Maryam, learned counsel appearing on behalf of the respondent No.3. The respondent No.3 raised an industrial dispute which was referred to the Tribunal for adjudication under Section 4 -K of the Industrial Disputes Act, 1947 on 28.8.1981. The same was registered as Adjudication Case No. 139 of 1981 and later on transferred to Industrial Tribunal (I), Allahabad from where it was again transferred to Industrial Tribunal(III) at Kanpur and was registered afresh as Adjudication Case No. 83 of 1988. The reference for adjudication under Section 4 -K of the U.P. Industrial Disputes Act, 1947Act is as under: - JUDGEMENT_54_TLALL0_2014.jpg
(2.) THE dispute was raised by 59 workers of M/s. Indian Explosives Ltd., Panki, Kanpur. The respondent no. 3 i.e. Fertilizers Union raised the dispute on behalf of the workers. The dispute raised was with regard to claim of the workmen for payment of Compensatory off with wages in lieu of the work done by them on the day of weekly rest. The stand taken by the workmen was that they were enjoying the concession of Compensatory off with wages upto 5.4.1976. This concession was withdrawn by the company i.e. I.E.L. Limited with effect from 6.4.1976. The said concession granted by the then employer became a condition of their service which could not have been withdrawn by the company unilaterally without following the procedure laid down under Section 4 -I of the Industrial Disputes Act, 1947(hereinafter referred as the 'Act'). The case of the employer company was that they have withdrawn the concession in compliance with the statutory provision namely Rule 86 of the Rules framed by the State Government under Section 64(2)(d) of The Factories Act. The Tribunal after consideration of the rival pleadings came to the conclusion that the denial of Compensatory off with wages to the concerned workmen with effect from 6.4.1976 was neither justified nor valid. The workmen were entitled to Compensatory off with wages since the time of its withdrawal and to get arrears of wages, if any, according to Compensatory off which had been earned by them subsequent to 6.4.1976. Thus, the award was drawn in favour of the workmen. Challenging the said award, this petition was filed in the month of February, 1989 and an interim order dated 28.2.1989 was passed to the effect that the operation of the impugned award dated 1.2.1989 shall remain stayed provided the petitioner pays future Compensatory off with wages with effect from 1.3.1989 to the workmen named in the award. In case of default this interim order shall stand automatically vacated and it will be open to the respondents to execute the award. Heard Sri Navin Sinha learned Senior Counsel assisted by Sri Rohan Gupta for the petitioner. Learned counsel invited attention of the Court to the Sections 51, 52, 54, 55 and 56 of the Factories Act, 1942. Section 51 provides for approval of weekly rest for an adult worker. Section 52 provides for weekly holidays. Section 54 provides for daily rest for an adult worker in the factory subject to provisions of Section 51. Section 55 provides for interval for rest to an adult worker in a factory each day and Section 56 provides that period of work of an adult worker in a factory shall be so arranged that inclusive of intervals for rest under Section 55, they shall not work more than ten and half hours in any day. He further invited attention to Section 64(2)(d) of the Factories Act which reads as under: - (2) "The State Government may make rules in respect of adult workers in factories providing for the exemption, to such extent and subject to such conditions as may be prescribed - (d) of workers engaged in any work which for technical reasons must be carried on continuously from the provisions of sections 51,52,54,55 and 56."
(3.) LEARNED Senior Counsel for the petitioner submits that the petitioner factory is a Continuous Process factory. The Rules are framed by the State Government in exercise of power under Section 64(2)(d) of the Factories Act. Rule 86 is relevant for Continuous Process Factories. Under Rule 86, class of factory has been mentioned and the petitioner factory falls under clause(viii) namely "Chemical Works." Class of work relating to petitioner factory covered by Rule 86 has been mentioned in column 2 of the Table appended to the rule. He further submits that in the amendment made in Rule 86 in the year 1976, condition no. (iii) appended to Rule 86 was amended. The amended condition relevant for the purpose of deciding the controversy is as follows: - "Rule 86 (iii) The total daily hours of work shall not exceed 10 with a spread over of 12 hours except in an emergency when it is necessary to employ a shift worker for more than 8 hours in any day to enable him to work whole or part of the subsequent shift. In no case shall the worker be employed for more than 16 hours in a period of 24 hours from the commencement of work, and total number of hours of overtime shall also not exceed 50 in any quarter. Provided that where subsequent shift or any part thereof during which a shift worker is employed as aforesaid falls on a weekly holiday, compensatory period of rest shall also be given on a day which is neither a festival nor a weekly holiday. Also, when a worker is so employed the Manager shall within seven days inform the Inspector in Form No. 10 and shall intimate the date of compensatory period of rest to be given. The Manager shall also enter the period of extra time worked and the extent of compensatory period of rest in the respective registers and shall note therein the time of commencement of such extra time work before its commencement." ;