Banerjee, J. - (1.) This appeal at the instance of the company arises out of a reference made under Sec. "10 of the Industrial Disputes Act. The issue being whether the Management is justified in refusing employment to workmen on 27.9.71 which was declared as weekly day of rest by the management the relief, if any, the workmen is entitled to. The case made of by the union is that the Jute Company has changed the terms and conditions of service of the workmen of Samnuggur Jute Factory Co. Ltd, (North Mill) inasmuch as the Sunday which was observed as a weekly holiday has been changed to Monday without any justification whatsoever. It is stated that the company instructed the workmen to work on Sunday i.e. 26. 9. 1971 by notice dated 24.9.71 and the "Monday should be taken to be the rest day. The reason according to the Union was that alleged partial load shedding which according to the Union was not a fact. It is alleged that the workers as usual came to work on Monday and they were not allowed to work and they had to go back. According to the Union the rest day as on Monday was unlawful and unjustified in order to deprive the workmen from the wages for the day as also wages for the two subsequent days on 28th and 29th of September, 1971. Thereafter, dispute was raised and the parties having failed to arrive at the settlement, the matter was referred to the Tribunal. The Tribunal held inter alia that the change of the weekly rest day did not come within the mischief of Sec. 9A of the Industrial Disputes Act, 1947 and it also did not come within the Fourth Schedule of the Act. Furthermore, it was held that the notice having been given under Sec. 52 of the Factories Act, the change made in respect of the rest day was in accordance with law. The learned Tribunal further held that this was necessitated by the instruction given by the Calcutta Electric Supply Authorities that there would be load -shedding by 40^ and disposed of the award in favour of the employers against the workmen. Being aggrieved by the aforesaid award the workmen applied under Article 226 of the Constitution of India and got a Rule. It was contended that the change of the rest day came within the mischief of Sec. 9A of the Industrial Disputes Act, 1947 and therefore it is invalid. Both the Tribunal and the Hon'ble single Judge held against the workmen on this score. This has not been argued before us that Sec. 9A of the Industrial Disputes Act applies, by either of the parties. The next question which has been argued by Mr. Deb is that change was made under Sec. 52 of the Factories Act and the order is not invalid. All conditions for exercise of the orders under Sec. 52 of the Factories Act have been complied with
(2.) Mr. Chatterjee appearing on be half - of the respondents however contended that this point was not agitated before the Hon'ble single Judge. It must be mentioned that the workmen were the petitioners before the Hon'ble single Judge. " this point was taken in Ground no. 2 of the Ground. It is for them to urge this point. More so, when it has been found that the Tribunal has held against them on this score. In our opinion, the Tribunal's finding under Sec. 52 of the Factories Act cannot be said to be invalid. It appears that notices were given for the change of weekly rest day under Sec. 52 of the Act to the authorities concerned and it was stated that henceforth it will run on Sunday and will close on Monday. As we have already said, the learned Tribunal held in favour of the employer on this score. These two points themselves would have been sufficient for disposal of the Rule. But as this point was not raised before the Hon'ble single Judge and other points were raised, the Hon'ble single Judge had no occasion to consider the point at all.
(3.) The next point argued is whether the ground is made out of change in the week days. If the power is given to the employers to change the weekly Test day in accordance with the Factories Act, it is not necessary for them to justify why this change has been made. But now they have justified the same. We will therefore consider whether there is basis for this justification.;