Madras High Court

The Station Director vs The Central Government ... on 7 March, 2022

                                                                                     W.P.No.23599 of 2004


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 07.03.2022

                                                         CORAM:

                                  THE HONOURABLE MR.JUSTICE M.S.RAMESH

                                               W.P.No.23599 of 2004
                                                       and
                                              W.M.P.No.28575 of 2004

                    The Station Director,
                    Madras Atomic Power Station,
                    Kalpakkam.                                                 ...Petitioner

                                                          -Vs-

                    1.The Central Government Industrial
                      Tribunal cum Labour Court,
                      Shastri Bhavan, Chennai.

                    2.The General Secretary,
                      Tamil Nadu Atomic Power
                          Employees Union,
                      Kalpakkam.                                               ...Respondents

                    PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
                    praying to issue a Writ of Certiorari, by calling for the proceedings of the 1 st
                    respondent Labour Court in its impugned Award I.D.No.147 of 2001 dated
                    13.02.2004 and quash the same.

                                        For Petitioner     : Mr.V.Vijayashankar
                                        For R2             : Mr.V.Ajoy Khose


                    1/8

https://www.mhc.tn.gov.in/judis
                                                                                       W.P.No.23599 of 2004


                                                          ORDER

With the consent of both the parties, this writ petition is taken up for

final disposal.

2. Under a rice loan scheme, that was prevailing in the petitioner-

Industrial Establishment for more than two decades, the management

sanctions loan to the Society, which in turn, distributes the rice at subsidized

price to the workmen. The scheme was discontinued, without prior notice in

the year 1997. Aggrieved against the withdrawal of this rice loan scheme, the

second respondent-Trade Union raised a dispute before the Central

Government Industrial Tribunal cum Labour Court, Chennai and by an

Award dated 13.02.2004, the unilateral withdrawal, without notice, was held

to be in violation of Section 9-A of the Industrial Disputes Act, 1947

(hereinafter referred to as 'the Act'). This Award is under challenge in the

present Writ Petition.

3. Section 9-A of the Act mandates that, whenever an employer

intended to effect any change in the conditions of service applicable to any

workman, in respect of any matters specified in the Fourth Schedule, a prior

https://www.mhc.tn.gov.in/judis W.P.No.23599 of 2004

notice, for such proposal to effect the change, requires to be given to the

workman. Among various conditions of service prescribed under the Fourth

Schedule of the Act, Clause 8 pertains to withdrawal of any customary

concession or withdrawal of any change in usage.

4. It is not in dispute that the rice loan scheme was in continuous usage

for more than 20 years, at the time when the management decided to drop the

scheme. Thus, it requires to be held that the rice loan scheme by itself was a

customary privilege granted to the workers, which they had been utilising

over a long period of time. Withdrawal of such a privilege would squarely

fall under Clause 8 of the Fourth Schedule and therefore, would amount to

change in the conditions of service of the workmen. While that being so,

when the management intended to change its conditions of service, they were

required to issue a notice in writing to the workmen on the proposed change,

in the absence of which, the mandate under Section 9-A is deemed to have

been violated. It is under this legal ratio that the Industrial Tribunal had

allowed the claim made by the Trade Union, by holding that since the claim

was in vogue and in practice for more than 25 years, it is deemed to be a

condition of service and in the absence of a notice under Section 9-A of the

https://www.mhc.tn.gov.in/judis W.P.No.23599 of 2004

Act, withdrawal of the scheme of rice loan was illegal and arbitrary.

5. The learned counsel for the second respondent placed reliance on

the following judgments of the Hon'ble Supreme Court in support of his

claim and submitted that withdrawal of a customary privilege or usage is

deemed to be a change in conditions of service, for which, a prior notice is

mandatory.

6. In the case of M/s. Tata Iron and Steel Co. Ltd., Vs. The Workmen

and others reported in (1972) 2 SCC 383, the Hon'ble Supreme Court held

that, when the weekly days of rest, which the workers were enjoying for a

long period of time, was unilaterally changed without prior notice, it is

deemed to be a change in the conditions of service. By holding so, it was

pointed out that such change in the conditions of service, without prior

notice, is violative of Section 9-A. The relevant portion of the judgment reads

as follows:-

"12. We are not unmindful of the force of the argument pressed on behalf of the appellant that if a holiday is changed from Sunday to some other week

https://www.mhc.tn.gov.in/judis W.P.No.23599 of 2004

days it would not affect the material gain or financial benefit available to the workmen because the workmen would nonetheless get one day off with pay in a week. Whether the paid day of rest is a Sunday or some other week days would no doubt cause no financial loss to the workmen. But the financial benefit cannot be the sole criterion in considering this question. In this connection it must not be ignored that due to long usage and other factors Sunday as a holiday may for conceivable reasons have assumed importance for workmen. For certain classes of workmen Sunday as a weekly rest day may also have special significance.

Workmen may, for example, also generally like to have weekly rest day on a Sunday when their school-going children have a holiday so that the entire family may be able to take part in recreational or other social activities. This consideration has its own importance. If that be so, then, notice for effecting such a change would be within the contemplation of Section 9-A. The real object and purpose of enacting Section 9-A seems to be to afford an opportunity to the workmen to consider the effect of the proposed change and, if necessary, to represent their point of view on the proposal. Such consultation further serves to stimulate a feeling of common joint interest of the management

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and workmen in the industrial progress and increased productivity. This approach on the part of the industrial employer would reflect his harmonious and sympathetic co-operation in improving the status and dignity of the industrial employee in accordance with the egalitarian and progressive trend of our industrial jurisprudence, which strives to treat the capital and labour as co-sharers and to break away from the tradition of labour's subservience to capital.

13. ......

14. In our opinion, in order to effectively achieve the object underlying Section 9-A, it would be more appropriate to place on the Fourth Schedule read with Section 9-A a construction liberal enough to include change of weekly rest days from Sunday to some other week day. The appellant having thus effected a change in the weekly days of rest without complying with Section 9-A read with the Fourth Schedule this change must be held to be ineffective and the previous schedule of weekly days of rest must be held to be still operative. Reference was made at the bar to certain decisions but they are of little assistance in construing the statutory provisions with which we are concerned and which, as

https://www.mhc.tn.gov.in/judis W.P.No.23599 of 2004

already observed have to be construed on their own language and scheme. We, therefore, do not consider it necessary to refer to those decisions."

A similar view was also taken in the case of The Management of Indian Oil

Corporation Ltd. Vs. Worken reported in (1976) 1 SCC 63. Thus, I do not

find any infirmity in the findings of the Industrial Tribunal.

7. Now that this Court is of the view that the withdrawal of the rice

loan scheme to be illegal, the petitioner-Industrial Establishment is directed

to restore the rice loan scheme forthwith to the workers. In case the

management is of the view that such loan scheme is not feasible for

continuance, they are at liberty to issue notice under Section 9-A of the Act

and thereafter proceed further in the matter in accordance with law.

8. With the above liberty, the Writ Petition stands dismissed. No costs.