S.K.DHAON, J. - (1.) ON 9th Aug. 1973, a settlement was arrived at between the petitioner Company and the representative of the workmen and was registered under Section 4 -F of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as 'the U.P. Act') and Rule 5(1) of the U.P. Industrial Disputes Rules (hereinafter referred to as 'the Rules'). Before the Conciliation Officer, one of the items of the settlement was 'good attendance leave'. The object of this particular settlement was to prevent heavy absenteeism. Certain incentives were given to the workmen. Under the scheme, allowance was made for 52 weekly holidays, 14 days for full paid leave, 9 days for causal leave and 11 days for festival holidays. It was provided that a workman, who had put in a minimum attendance of 268 days in the previous calendar year was entitled to 2 days leave during the subsequent calendar year, the workman who had put in a minimum attendance of 270 days in the previous calendar year was entitled to 4 days leave during the subsequent calendar year and workman who had put in 275 days during the previous calendar year was entitled to 6 days leave during the subsequent calendar year. Those workmen, who failed to attend to their duties for the minimum days referred to above, were not entitled to any good attendance leave. The settlement became effective from 1st May, 1973 and was to remain in force for three years and/or for such later period till it was terminated by a notice of termination from either side. In the Year 1973 -74 there was a lay -off in the petitioner's establishment for a number of days on account of shortage of power. In computing the good attendance leave the petitioner treated the period of lay -off as absence and deprived 1270 workmen, out of total number of 1320, of the benefit of the scheme. Dissatisfied, the workmen approached the Regional Conciliation Officer. Proceedings before that officer proved abortive, thereby necessitating a reference under Section 4 -K of the U.P. Act. The reference was decided. On 6th May, 1974, the Tribunal gave an award and held that, the lay -off notwithstanding, the workmen were entitled to the advantages given to them under the incentive scheme. Hence this petition.
(2.) SECTION 2(n) of the U.P. Act defines 'Lay - off' (with its grammatical variations and cognate expressions) to mean: The failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stock or the break down of machinery, or for other reasons, to give employment to a workman whose name is borne on muster roll of his industrial establishment and who has not been retrenched. This definition is analogous to the definition of lay -off as contained in Section 2(kkk) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Central Act'). No exception can be taken to the view that the terms of the settlement be -came a part of the contract of employment and. therefore the benefit given to the workmen under the scheme became a condition of service. The question is whether the workmen are entitled to the benefit of the scheme in addition to the payment of compensation for being laid, off. Sections 6 -K and 6 -R were inserted in the U.P. Act by Section 8 of the U.P Act No. 1 of 1957. In the former provision the right to receive lay -off compensation and the manner of computation of such a compensation was provided. The latter provision dealt with the effect of laws inconsistent with Section 6 -J to 6 -0. For the purposes of present petition we are concerned with Section 6 -J. Sub -section (1) of Section 6 -R gave an overriding effect to the provisions of S.6 -J over any other law (including standing orders made under the Industrial Employment (Standing Orders) Act, 1946. The proviso, however laid down that nothing contained in the U.P. Act shall have effect to derogate from any right which a workman has under any contract with the employer. In Sub -section (2) it was clarified that the rights and liabilities of employers and workmen, in so far as they related to lay -off, were to be determined in accordance with the provisions of Section 6 -J. It is thus evident that the provisions of Section 6 -R preserved the right of a workman under any contract with the employer. This meant that in addition to the lay -off compensation a workman was entitled to receive the benefit under any contract with the employer
(3.) IN the Central Act, Chapter V -A was inserted by Act No. 43 of 1953. Section 25J falls in that Chapter. Sub -section (1) of Section 25J has provisions analogous to those contained in Sub -section (1) of Section 6 -R of the U.P. Act. By Section 17 of Act No. 36 of 1964, the proviso to Section 25J was substituted with effect from 19th Dec. 1964 to the following effects: - Provided that where under the provisions of any other Act or rules, orders or notifications issued there under or under any standing orders or under any award, contract of service or otherwise, a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act. Sub -section (2) of Section 25I is relevant and may be extracted: (2) For the removal of doubts it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay -off and retrenchment shall be determined in accordance with the provisions of this Chapter. The Proviso, in so far as it is relevant, lays down that where under the contract of service or otherwise a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under the Central Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter. Sub -section (2) of Section 25J declares that the rights and liabilities of employers and workmen, in so far as they relate to lay -off, shall be determined in accordance with the provisions of Chapt. V -A, but the provisions of any other law for the time being in force in any State shall have full play in so far as they provide for the settlement of an industrial dispute. To put it differently, any dispute between the employer and the workmen in relation to lay -off shall be determined in accordance with the provisions of Chapt. V -A even though the machinery provided for the settlement of industrial dispute under any State law can be set in motion by the aggrieved party under the State law. It, therefore, means that the adjudication of an industrial dispute in relation to the lay -off even though initiated under a State law and pending before a forum constituted under the State law shall be adjudicated upon in accordance with the provisions of Chapter V -A of the Central Act. It, therefore, follows that the Tribunal, in the instant case, was under an obligation to adjudicate upon the dispute referred to it in accordance with the provisions of Chapter V -A, including Section 25J and the proviso thereto in particular, As already indicated, the proviso clearly preserves the contract of service and the benefit given under the incentive scheme falls in the category of a contract of service within the meaning of the proviso. To put it differently, notwithstanding the payment of lay -off compensation in accordance with Chapter V -A of the Central Act. the workmen in addition, will be entitled to the ''favourable benefits' namely, the benefit under the incentive scheme. The conclusion, therefore, is inevitable that the workmen, in the instant case, were entitled to the benefits under the incentive scheme in addition to the payment of lay -off compensation. ;