Case Note & Summary
The petitioner, M/s. Bennet Coleman & Co. Ltd., issued a notice to its employees proposing four measures to maintain discipline. The fourth measure stated that all holidays including weekly holidays falling within the period of any kind of leave shall be treated as leave. The respondent union, Mumbai Mazdoor Sabha, filed a complaint under Section 28 read with Item 5 of Schedule II and Items 9 and 10 of Schedule IV of the MRTU and PULP Act, 1971, alleging that these measures amounted to unfair labour practices. The Industrial Court upheld the complaint only under Item 9 of Schedule IV, holding that the fourth measure constituted a change in service conditions requiring a notice under Section 9A of the Industrial Disputes Act, 1947. The petitioner challenged this order in the High Court under Articles 226 and 227 of the Constitution. The High Court examined the arguments, including that service conditions must be found in a reference under the Industrial Disputes Act, that standing orders are statutory and implementing them is not a change, and that standing orders supersede contract. The court rejected these arguments, noting that the standing orders did not contain any provision treating holidays as leave, and the proposal was a new condition. The court held that the Industrial Court correctly found that the proposal altered the existing practice and thus required a notice under Section 9A. The petition was dismissed.
Headnote
A) Industrial Law - Change in Service Conditions - Notice of Change - Section 9A Industrial Disputes Act, 1947 - Item 9 Schedule IV MRTU and PULP Act, 1971 - The employer issued a notice proposing to treat all holidays including weekly holidays falling within the period of any kind of leave as leave. The Industrial Court held that this amounted to a change in service conditions requiring a notice under Section 9A. The High Court upheld this finding, reasoning that the proposal altered the existing practice of treating holidays as not counting towards leave, and thus constituted a change in conditions of service. (Paras 2-10)
B) Industrial Law - Standing Orders - Supersession of Contract - The employer argued that standing orders statutorily imposed service conditions and that implementing them cannot be a change. However, the court noted that the standing orders themselves did not contain any provision treating holidays as leave; the proposal was a new condition not found in standing orders. (Paras 3, 8-9)
C) Industrial Law - Jurisdiction of Industrial Court - The court rejected the argument that service conditions must first be found in a reference under the Industrial Disputes Act, holding that the Industrial Court can determine whether a change has occurred in a complaint under Section 28 of MRTU and PULP Act. (Paras 3, 10)
Issue of Consideration
Whether the employer's proposal to treat all holidays including weekly holidays falling within the period of any kind of leave as leave amounts to a change in service conditions requiring a notice under Section 9A of the Industrial Disputes Act, 1947.
Final Decision
The High Court dismissed the writ petition, upholding the Industrial Court's order that the fourth measure (treating holidays as leave) constituted a change in service conditions requiring a notice under Section 9A of the Industrial Disputes Act, 1947.
Law Points
- Change in service conditions
- Notice of change under Section 9A
- Standing orders supersede contract
- Industrial Court jurisdiction under MRTU and PULP Act
Case Details
2016 LawText (BOM) (06) 46
WRIT PETITION NO. 5312 OF 2012
Mr.S.K. Talsania, Senior Advocate with Mr.V.P. Vaidya with Mr.Sagar Sheth for Petitioner. Mr.Arshad Shaikh I/b. Mr.Gautam Yadav for Respondent No.1.
M/s. Bennet Coleman & Co. Ltd.
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Nature of Litigation
Writ petition under Articles 226 and 227 of the Constitution challenging an order of the Industrial Court upholding a complaint of unfair labour practice under Item 9 of Schedule IV of the MRTU and PULP Act.
Remedy Sought
The petitioner sought to quash the Industrial Court's order holding that the fourth measure (treating holidays as leave) constituted a change in service conditions requiring a notice under Section 9A.
Filing Reason
The petitioner issued a notice proposing four measures to maintain discipline, including treating all holidays as leave during leave period. The respondent union alleged this was an unfair labour practice.
Previous Decisions
The Industrial Court upheld the complaint only under Item 9 of Schedule IV, dismissing other allegations.
Issues
Whether the employer's proposal to treat all holidays including weekly holidays falling within the period of any kind of leave as leave amounts to a change in service conditions requiring a notice under Section 9A of the Industrial Disputes Act, 1947.
Whether the Industrial Court can determine service conditions in a complaint under Section 28 of MRTU and PULP Act without a prior reference under the Industrial Disputes Act.
Whether standing orders supersede contractual stipulations and whether implementing standing orders constitutes a change in service conditions.
Submissions/Arguments
The petitioner argued that service conditions must be found in a reference under the Industrial Disputes Act and cannot be found for the first time by the Industrial Court.
The petitioner argued that standing orders are statutorily imposed service conditions and implementing them cannot be a change.
The petitioner argued that standing orders supersede any contractual stipulation.
The respondent union contended that the proposal altered existing practice and required a notice under Section 9A.
Ratio Decidendi
The court held that the employer's proposal to treat all holidays including weekly holidays as leave during leave period was a change in service conditions because it altered the existing practice where holidays were not counted as leave. The standing orders did not contain such a provision, and the proposal was a new condition. Therefore, a notice under Section 9A of the Industrial Disputes Act was required.
Judgment Excerpts
All holidays including the weekly holidays falling within the period of any kind of leave shall be treated as leave.
The Industrial Court upheld the Respondent’s contention of unfair labour practice only under Item No.9 of Schedule IV and dismissed the complaint as regards Item 5 of Schedule II and Item 10 of Schedule IV.
Procedural History
The respondent union filed a complaint under Section 28 of MRTU and PULP Act before the Industrial Court, Mumbai. The Industrial Court upheld the complaint under Item 9 of Schedule IV. The petitioner challenged this order by filing a writ petition under Articles 226 and 227 of the Constitution before the Bombay High Court, which dismissed the petition.
Acts & Sections
- Constitution of India: Articles 226, 227
- Industrial Disputes Act, 1947: Section 9A
- Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU and PULP Act): Section 28, Schedule II Item 5, Schedule IV Items 9 and 10
