Banerjee, J.:— This appeal at the instance of the company arises out of a reference made under S. 10 of the Industrial Disputes Act. The issue being whether the Management is justified in refusing employment to workmen on 27.9.1971 which was declared as weekly day of rest by the management the relief, if any, the workmen is entitled to. The case made out 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 loadshedding which according to the Union is 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, cording to the Union the rest day as on Monday was unlawful and unjustified in order to deprive the wormen 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 does not come within the mischief of S. 9A of the Industrial Disputes Act, 1947 and it also does not come within the Fourth Schedule of the Act. Furthermore, it has been stated that the notice having been given under S. 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 loadshedding by 40% and disposed of the award in favour of the employers against the workmen.
2. 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 comes within the mischief of S. 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 S. 9A of the Industrial Dispute Act applies, by either of the parties. The next question which has been argued by Mr. Deb is that change was made under S. 52 of the Factories Act and the order is not invalid. All conditions for exercise of the orders under S. 52 of the Factories Act have been complied with.
3. Mr. Chatterjee appearing on behalf 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 Grounds. 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 S. 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 S. 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 he 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.
4. The next point urged is whether the ground is made out for change in the week days. If the power is given to the employer to change the weekly rest 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. The Hon'ble single Judge held that they had produced Exts. A and B before the Tribunal. But they were not properly proved in accordance with the basic principle of Evidence Act. Mr. Chatterjee contended that thoguh the Evidence Act does not apply, the basic principale of Evidence Act is applicable. Mr. Chatterjee relied upon a judgment reported in 1969 (2) Labour and Industrial cases of page 1380 where their Lordships of the Supreme Court have held that technical rules of evidence do not apply to domestic enquiry. Substantive rules, which form part of principles of natural justice, cannot, however, be ignored by domestic tribunals. This was a case where a person was hauled up for charge of defalcation of money. It appears that the enquiry officer held that the charge was proved on the basis of a statement of a person who was not produced at the time of enquiry. The Hon'ble Supreme Court held in that matter that the principles of natural justice have been violated. In the present case, in our opinion, no such principles have been violated. Exts. A and B are letters received by the company in due course of business and produced by the company's officer before the Tribunal and it is not necessary to import the technical rules of the Evidence Act for the purpose of accepting that evidence. In our opinion, it was not proper for holding that the substantive rules of natural justice have been violated in the present case. The question of onus etc. is not relevant in the facts and circumstances of this case inasmuch as the letters which were produced, were obtained by the company in due course of its business and should have been taken note of.
5. In the circumstances therefore the Hon'ble single Judge's order quashing the Tribunal's order cannot be sustained. Accordingly, we allow this appeal and set aside the judgment and order passed by the Hon'ble single Judge and restore those of the Industrial Tribunal.
6. There will be no order as to cost.
7. No formal decree need be drawn in this appeal.
8. B.N Maitra J.:— I agree.
Appeal allowed.
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