S.B. Sinha, J.@mdashAs both these writ petitions involve common question of law, they are being disposed of by this judgment. However, the respective facts of each case would be noticed separately. In C.W.J.C. No. 1133 of 1982 (R), the petitioner company has prayed for the following reliefs:--
(i) for a declaration that the provisions of section 3(i)(c) of the Bihar Industrial Establishments (National & Festival Holidays and Casual Leave) Act, 1977 (Act 17 of 1977 hereinafter referred to as ''the Act'') by which Ist May is declared as an International holiday and it has been provided that every employee shall be granted holiday in each calender year in such manner and in such terms and conditions as may be prescribed;
(ii) International Labour Holiday on 1st May is ultra vires, illegal and beyond the legislative competence and power of the Bihar Legislature and the scope of the Act or in the alternative the Management of the Company is not required to grant any holiday in excess and in addition to eighteen National and Festival holidays for the office and general staff and fourteen National and Festival Holidays for the factory and factory general staff as has been provided in the Article V of the Settlement dated the 14th March, 1971;
(iii) for quashing the conciliation proceeding initiated by respondent No. 2 as contained in Annexure 2 on the demand of respondent No. 3 for the grant of holiday so called International Labour Day on the 1st May in addition to the eighteen/fourteen holidays provided for in the settlement for quashing Annexure-3; and
(iv) for prohibiting the respondents No. 1 and 2 from prosecuting the Management of the Company for alleged contravention of the provisions of the Act, namely, Bihar Industrial Establishments (National & Festival Holidays and Casual Leave) Act, 1977 of the Industrial Disputes Act, 1947, as would appear from the correspondence and discussions between the respondents No. 2 and 3.
2. The facts of the case as stated in the writ petition are that the matter relating to grant of leave to the workmen employed in its Industrial Establishment is covered by the certified standing orders as also by the terms of settlement entered into by and between the Management Company and the Union at different places and in additions thereto, settlements have been arrived at therefor The petitioner stated that the case of the workmen in relation to the Industrial Establishment of the petitioner Company is covered by the terms of the settlement entered into by and between the Management of the Company and respondent No. 3 on Nth of March, 1971. It is further stated that thereafter the concerned Union submitted a charter of demands to the Management and negotiations therefor were held with the Union on 26.2.1971 and again from 8.3.1971 to 13 3.1971 and as a result whereof the aforementioned settlement dated 14th March, 1971 was arrived at.
It is further contended on behalf of the petitioner that the aforementioned settlement is a settlement within the meaning of section 2(p) of the Industrial Disputes Act. The relevant portions of the said settlement are as follows:--
Article v(c): The number of National/Festival holidays to which the factory staff and factory general staff are entitled will be enhanced from the present number of 10 to 14 days including three National holidays viz. Republic Day, Independence Day and Mahatma Gandhi''s birthday and Vishwakarma Puja day:
(d) The number of National/Festival holidays for office and office general staff will be enhanced from 11 to 18 days pay calendar year including three national holidays, viz., Republic Day, Independence Day and Mahatma Gandhi''s birthday.
(d) (i) If any National/Festival holiday falls on a sunday, staff would be entitled to choose as alternative festival holiday.
The petitioners have further stated in the writ petition that the manner of intimating to employees the periods, hours of work holidays, pay days and wages rates are covered by the standing order certified under the Industrial Employment (Standing Orders) Act, 1946.The relevant provisions of the said certified standing order is as follows:--
4(iii):-- Notices specifying the days to be observed by the factory as holidays and pay days shall be posted in a conspicuous place, as per the provisions of the Factories Act and payment of Wages Act respectively.
3. The petitioners contend that the aforementioned rights and obligations of the periods relating to number of holidays admissible under the terms of the settlement aforementioned have been affected by reason of the provisions of the Industrial Establishments (National & Festival Holidays and Casual Leave) Act, 1976 (Bihar Act No. 17 of 1977 and the rules framed thereunder) hereinafter referred to as the Act ''and '' the Rules'').
4. The petitioners have contended that the workmen did not agree to exclude May day in the list of holidays circulated for the year 1981. A discussion held by and between the Management of the petitioner company and the Union Officials in presence of the Inspector of the factories failed. Thereafter Conciliation proceeding was initiated in terms of the provisions of section 12 of the Industrial Disputes Act. During such conciliation proceeding, it was given cut that May day could not be adjusted against the total number of holidays stipulated under the agreement. The petitioners contend that in view of the fact that the respondents insist that May day should be declared as a separate holiday in addition to the holidays already provided for by reason of the terms of the settlement, it bad to file this writ petition praying for the reliefs mentioned hereinbefore.
5. The facts involved in C.W.J.C. No. 426 of 1981 (R) are as follows:--
The petitioner alleges that it is a Government Company within the meaning of section 617 of the Companies Act, 1956 and it was formed with the main objective to "Mine, quarry, beneficiate, concentrate, dress, smelt, refine, manufacture, process, fabricate, purchase or otherwise acquire, sell or otherwise dispose of or deal in ores containing Copper, Lead, zinc or Cadmium concentrates of Copper, Lead and zinc, Copper, Lead and zinc alloys and compounds, Copper. Lead and zinc goods, wares and products of all kinds, fertilizers. Chemicals, compounds of metals and minerals or other materials of every kind needed for or resulting from the mining, production, purchase or processing of ores containing Copper, Lead and zinc or Cadmium Copper, Lead, Zinc, Cadmium metals and their products of every kind.
The petitioner further states that in the year 1972 by a Parliamentary Act known as the Indian Copper Corporation (Acquisition of Undertaking) Act, 1972, the Central Government acquired the undertaking of the Indian Copper Corporation Limited for the purpose of enabling the Central Government to conserve and exploit in a scientific and rational manner to the maximum advantage of the nation, the Copper deposits in the Singhbhum district in the State of Bihar, to utilise the Copper deposits in such a manner as to sub. serve the common good, in the context of the requirements of copper in the country for the matters connected therewith or incidental thereto.
It is further stated that by a notification dated 25th September, 1972, the Central Government in exercise of its power conferred upon it by sub-section (1) of section 6 of the aforementioned Acquisition Act directed that the Undertakings of the Indian Copper Corporation with all its properties, assets, liabilities and obligations specified in sub-section (1) of section 5 of the aforementioned Act shall vest in the petitioner Company with effect from 21st September, 1972. The petitioner further states that the share capital of the petitioner company is completely owned in the name of the President of India and other principal officers of the Government of India.
It is further alleged that the entire activities of the petitioner company is controlled by the Ministry of the Steel and Mines. The petitioner has annexed in the writ petition the relevant clauses of its Articles of Association.
The petitioner further states that by a tripartite settlement under the Industrial Disputes Act, it granted the following paid holidays and leaves for its workmen:--
26th January, 15th August and 2nd October as National Holidays and five days as restricted holidays as may be asked by the individual workman for performing the religious festivals as also 12 days casual leave besides other leaves.
The petitioner also states that 1st May was not holiday declared in the said establishment which is sought to be done by reason of the provisions of the aforementioned Bihar Act No. 17 of 1977.
The petitioner has further alleged that the Inspector of Factories, Bihar, Circle No. 1 issued a direction to the petitioner by a letter dated 27th April, 1980 to declare the holidays as given in section 3 of the aforementioned Act as otherwise it was threatened that legal action will be taken against it.
6. The petitioner, however, by a letter dated 11.12.1980 on the basis of the legal advise obtained by it submitted before the Inspector of Factories, Jamshedpur, Circle No. 1 that the said Act had no application in relation to the establishment of the petitioner company as the same is fully controlled by the Central Government as envisaged under clause ''B'' of sub-section (1) of section 12 of the said Act. The Inspector of Factories, however, by its letter dated 26.3.1981 purported to hold that exemption cannot be granted to the petitioner. The said letter is contained in Annexure-6 to the writ application. The petitioner in this connection, inter-alia, challenges the aforementioned order as contained in Annexure-6 to the writ application.
7. The aforementioned Act has been enacted by the Bihar Legislature to provide for National and Festival Holidays and casual leave to the persons employed in the Industrial Establishment of the State of Bihar.
8. The said Act extends to the whole of the State of Bihar. It is a common ground that the aforementioned Act has been applied to the entire State of Bihar. The provisions of the said Act which are relevant and/or material for the purpose of this writ application are as hereunder:--
2(a): "Industrial Establishment'' means......
(i) a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (Act 63 of 1948) or a place deemed to be a factory under sub-section (2) of section 85 of the said Act:
(ii) a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (Act 69 of 1951);
Section 3 of the Act provides for the holidays in each calender year in such manner as may be prescribed. Section 3 reads as follows:--
(1) Every employee shall be granted following holidays in each calender year in such manner and on such terms and conditions as may be presented:--
(a) Three National Holidays on the 26th January, 15th August and 2nd October.
(b) Four other holidays on any festival out of the festivals mentioned in the Schedule.
(c) International Labour day on Ist May. Section 9 provides for penalty which reads as follows:--
Section 9. Penalty.--Any employer who contravenes any provisions of sections 3, 4, 5 and 6 or any rule or order made under this Act, shall be punishable for the first offence with fine which may extend to rupees fifty and for every subsequent offence after the first conviction with a fine which may extend to rupees two hundred and fifty and the court while delivering judgment may order that the whole or any part of the fine realised shall be paid, as compensation to any person who in the opinion of the court has sustained any loss or injury on account of such offence.
Section 12 of the Act provides for exemption to be granted under the Act:--
Section 12 Exemptions.-- (1) Nothing contained in this Act shall apply to:--
(a) any such employee who gets monthly wages of more than five hundred rupees and is chiefly employed on a managerial, administrative or supervisory post,
(b) any industrial establishment under the control of the Central Government or the State Government; and
(c) any mine or oil field;
(2) The Government may by notification in the Official Gazette, subject to such terms and conditions as it may think fit, exempt any class of industrial establishments from all or any provisions of this Act, permanently or for a specified period.
Under section 13 of the Act, the rights and privileges granted to the employees under any other law or contract or custom or usage are not to be affected by such provisions of the said Act.
Section 13 reads as follows:--
Rights and privileges under any other law not to be affected.- Where any employee of an industrial establishment is entitled to such rights and privileges under any other law for the time being in force or under any contract or custom or usage applying to the said establishment, which are more favourable to him than any right and privileges conferred by this Act, nothing contained in this Act shall affect such rights or privileges.
Section 14 of the Act provides for power to frame rules. It reads as follows:--
Section 14.-- (1) The Government may, subject to publication by notification in the official Gazette, make rules for carrying out the purposes of the Act.
(2) In particular, and without prejudice to the generality of the forgoing power, such rules may provide for all or any of the following matters, namely:--
(a) The manner and conditions under which the employees shall be granted national and other holidays and casual leave under sections 3 and 4;
(b) the form and the manner in which the account of festival holidays and casual leave shall be maintained; and
(c) any other matter which is required to be or may be prescribed;
(3) Every rule made under this section shall be laid as soon as may be after it is made, before each House of the State Legislature, while it is in session for a period of fourteen days which may be comprised in one session or in two successive sessions and if before, the expiry of the session in which it is laid or the session immediately following the ''legislature agree in making any modification in the rule or the legislature agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
9. Under the provisions of section 3(1)(d) of the Act quoted hereinbefore, 16 days have been mentioned as holidays out of which four holidays are to be granted to the employees.
10. The State of Bihar in exercise of his power conferred upon it u/s 14 of the aforementioned Act framed the rules known as Bihar Industrial Establishment (National & Festival Holidays and Casual Leave) Rules, 1979 (the Rules). Rule 3 of the said Rules reads as follows:--
Rule 3.--National and Festival Holidays --(1) No employee shall be required to work in an industrial establishment, to which the Act applies, on a National Holiday as provided under sub-section (1)(a) of section 3 and on 1st May of each calendar year unless a notice has been served by the Management at least 48 hours in advance on such workers requiring them to work on that day. A copy of such notice shall also be displayed on the Notice Board of the establishment.
Each such industrial establishment shall also maintain a register of the employees required to work on the National Holidays or on 1st May in Form-I.
11. Mr. B.C. Ghosh, learned senior counsel appearing on behalf of the petitioner in C.W.J.C. No. 1133 of 1982(R) has raised three fold contention. Firstly, he submitted that in view of the fact that the petitioner company has been providing 14 days holidays including three national holidays, i.e. Republic day, Independence day and Mahatma Gandhi''s birth day, the number of holidays cannot be increased by inclusion of the May day as the petitioner company has been providing for more holidays than contemplated under the provision of the aforementioned Act. He further contended that from the perusal of section 3 of the Act it would appear that the same provides for grant of 6 holidays as compulsory holidays. The petitioner under the terms of the settlement had provided for so far as the workmen working in the factory is concerned, 11 days holidays and 18 days holidays has been provided so far as the general staff thereof are concerned. He further submitted that if May day is to be considered to be a holiday, the same would give rise to an anamolous situation inasmuch as the petitioner has different Industrial Establishments in different parts in India. He submitted that as for example Netajee''s Birthday i.e. 23rd January is a holiday in the State of West Bengal and similarly Rath Yatra and Karma are the holidays in the establishment of the petitioner at Jamshedpur and Ranchi. He submitted that as only four days holidays are to be taken into consideration out of various holidays mentioned in the schedule, the same standard cannot be applied in respect of each and every establishment of the petitioner which may give rise to Industrial disputes.
12. Mr. Ghosh has further contended that the Supreme Court in the case of petitioner Itself reported in AIR SC, 306 has held that the leave granted by the petitioner company to its workmen are sufficient and the same need not be extended. Mr. Ghosh further referred to the decisions reported in the case of
13. The aforementioned contentions of Mr. Ghosh, in my opinion, have no substances. From a perusal of the decisions of the Supreme Court referred to hereinbefore it would appear that the Supreme Court was considering the cases which occurred in absolutely different situations than the situation obtaining in the case which arises in view of the provisions of the said Act.
14. It is true that the production in the factory should be increased and there should be better distribution of the wealth produced. It may also be true that the number of holidays may be found to be necessary in a given circumstances to be allowed to be decreased than increased, but, in my opinion, such considerations are not at all relevant for the propose of interpretation of a statute. The considerations which weighed for the purpose of entering into the settlement by and between the Management and the Union with regards to the number of holidays and the considerations which weighed with the legislature in making provisions with regard to the number of compulsory holiday and other holidays are absolutely different and, in my opinion, the said considerations have got nothing to do so far as the interpretation of an enactment is concerned.
While interpreting the provisions of the statutes one has to remember that the Courts can neither legislate nor can amend the statutes having regard to the rights and obligations of the parties or having regard to the social considerations in mind. The statute has to be interpreted as it is keeping of course in view the nature thereof as also the purpose and object reflected thereby. It is also well settled that while interpreting the provisions of a statute, although in certain circumstances it is permissible for the Court to iron out the creases but where the statute is plain and unambiguous, a literal meaning has got to be given in relation thereto. The Court while interpreting the provisions of the statute cannot add or substract from the words of the statutes which may amount to making a legislation by itself nor the Court can consider itself wiser than the Parliament. It is a well known cannon of the interpretation of the statute that the same has to be interpreted taking into consideration the purpose of the legislation, the objects and reasons underlying the same but while doing so, the Court can neither question the policy behind such legislation nor can take into account the motive. Therefore, unless and until the statute is declared ultra vires, the same has got to be given effect to and, in my opinion, for the purpose of interpretation, the report of the National Commission on Labour or for that matter, any other observations of the Supreme Court which were made in the facts and circumstances of a particular case are wholly irrelevant and cannot be looked into.
15. So far the other aspects of Mr. Ghosh argument''s is concerned, i.e. in view of the fact that different days are treated to be holidays in different areas and/or different States have also no relevance in the context of interpretation of a statute. The said Act applies only in the State of Bihar. If the legislature thought it fit to declare first May as a holiday, the validity thereof cannot be challenged on the ground that 1st May is cot a compulsory statutory holiday in the other States. The fact that the legislature of the other States provided for other days as holiday is also a matter of little or no consequence. The validity of an Act has to be judged only on the touchstone of the provisions of the Constitution and not on the basis that similar legislation have not been enacted by other States or in any other legislation the first May has not been declared as a compulsory holiday.
16. Mr. Ghosh thereafter submitted that in view of the aforementioned settlement dated 14.3.1971 the petitioner need not declare 1st May as a holiday as envisaged u/s 3 of the Act inasmuch as the employees are covered by the aforementioned settlement. He further submitted that upon a true and proper construction of sections 3 and 13 of the said Act, it would appear that the provision of the Act has no application whatsoever in relation to Industrial establishments where more holidays have been granted by reason of the provision of the said Act. In this connection Mr. Ghosh has put strong reliance upon the case in
Paragraph-8 of the said decision reads as follows:--
This section gives an option to the employees, they can choose to have the paid holidays either as prescribed by section 3 or as are available to them under any other law, contract, custom or usage. In exercising this choice, it must, however, be borne in mind by the employees that the 26th January, the 15th August and the 1st May have to be taken as three holidays. This is the direction of section 3. In regard to the remaining 4, the Inspector decides which days should be paid holidays. In other words, the statutory requirement is 7 paid holidays If under the existing arrangement the employees are entitled to have more than 7 paid holidays, that right will not be defeated by section 3 because section 11 expressly provides that if the rights or privileges in respect of paid holidays enjoyed by the employees are more favourable than are prescribed by section 3, their existing rights and privileges as to the total number of holidays will not be prejudiced by section 3. The scheme of section 11 thus clearly shows that section 3 is not intended to prescribe a minimum number of paid holidays in addition to the existing ones, so that the respondents should be entitled to claim the seven holidays prescribed by section 3 plus the six holidays to which they are entitled under the existing arrangement. If in addition to the three holidays which are compulsory u/s 3, the employees are getting say 3 other paid holidays, then section 3 would step in and would require the employer to give his employees one more paid holiday, so as to make the number of paid holidays 7. In our opinion, if sections 3 and 11 are read together, there can be no doubt that the respondents'' claim that they should have 7 holidays as prescribed by section 3 plus 6 holidays as are available to them under the present arrangement is clearly untenable. In the present case, the respondents were having 6 paid holidays. The statute has fixed the minimum number at 7 paid holidays, and so, since the existing arrangement was less favourable to the employees, the statutory provision will come to their help and they will be entitled to claim 7 paid holidays in a year, and that means section 3 will be operative.
17. There cannot be any doubt that the provisions of the Act and Kerala Industrial Establishment (Nationalization and Festival Holidays) Act (Act 47 of 1938) are in pari materia.
18. The aforementioned decision appears to have been followed in the case of Bhandari v. Madras State (1970 Lab. I.C. 464) and N.G.E.F. Ltd v. L.O. & Inspector, Banglore (1976 Lab. I.C. 1762). From the perusal of the aforesaid decision of the Supreme Court, it would appear that construing the provisions of Kerala Act-it has been held that the holidays mentioned in the Act are compulsory in nature and if in addition to those holidays which are compulsory in nature, the employees are getting less number of holidays, Section 3 would step in and would require the employer to give his employees more paid holidays as contemplated by the statute. The decision of the Madras High Court was rendered in a different situation. The provisions of the Madras Shops and Establishment Act which fell for consideration in that case, the Act was not to be applied absolutely and it was held that only in respect of grant of sick leave, the employee was to exercise an option and such option of the employee was final. In N.G.E.F.''s Case (supra) it has been also held that under the Act it was obligatory for the employer to declare every year three National holidays and five festival holidays, but the same does not come in the way of a generous employer to give more holidays to his employees.
19. From a perusal of the aforementioned Supreme Court decision in Tata Oil Mills Case (supra) and also the decision of N.G.E.F.''s case (supra), to me, it appears that these decisions do not in any way advance the submissions of Mr. Ghosh, but really goes against the same.
20. From a perusal of the aforementioned Act it would appear that three National Holidays and the International Labour day on the 1st day of May are compulsory in nature. The said holidays have got to be given under the provisions of the said Act besides four other holidays on any festivals out of festivals mentioned in the schedule. Section 13 of the said Act protects only the rights and privileges of the employees under the Act or other law for the time being in force or under any contract or custom or usage applying to the said establishment which are more favourable to the workmen. Section 13 applies only in such case where after grant of four compulsory holidays as mentioned in clauses (a) and (c) of sub-section (1) of section 3 and 4 other holidays as mentioned in clause (b) of sub-section (1) of section 3, any further holidays if to be granted by the employer under any law, contract or custom or usage then the same has to be granted to the workmen in the event the option therefor is exercised by them.
21. In the instant case, reading the provisions of sections 3 and 13 of the said Act together and upon a harmonious construction of the said provisions to me it appears that section 13 does not in any way come in aid of the employer but the same merely provides a right upon the workmen to exercise the option for getting more holidays than what is contemplated under the provisions of the said Act. In my opinion, the three national holidays i.e. 26th January, 15th August and 2nd October as also the International Labour day of first May are compulsory in nature and every employer has got to give the aforementioned compulsory holidays to its employees without any reservation whatsoever, 1st May being one of the compulsory holidays which right having been conferred upon the employees by the statute, the same cannot be taken away by reason of any settlement.
22. The said Act has been enacted by the State Legislature, in terms of Entry No. 24 of List III of 7th Schedule of the Constitution of India which reads as follows:--
Welfare of labour including the conditions of work, provident fund, employers'' liability, workmen''s compensation invalidity and old age pension and maternity benefits.
It is not disputed nor car. it be that grant of leave to a workman is a condition of work. The very fact that Item No. 24 of the List III of the 7th Schedule of the Constitution begin with the words "Welfare of Labour" goes to show that the same is welfare statute so far as the workmen are concerned. In
Welfare statutes must of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make in-roads by making a etymological excursions.
23. Apart from the aforementioned fact that the Act providing for grant of leave is a welfare legislation so far as the workmen are concerned, in my opinion, the provision of section 13 is absolutely unambiguous.
Reading the provisions of sections 3 and 13 together I do not find any conflict therein nor do I find that the same in any way comes in conflict with any settlement that might have been arrived at by and between the employer and the employee under the provisions of the said Act. Only four days are compulsory holidays under the Act and other holidays are optional. The very fact that three national holidays have also been declared as holidays under the settlement as contained in Annexure-1 to the petition goes to show that it is possible to enter into a settlement by and between the employer and the employer so as to include first May also as a holiday; even otherwise the 1st May has to be declared to be a holiday being compulsory in nature.
24. That fact that 1st May is a holiday, which is mandatory in nature, can also be gathered from a perusal of Rule 3 of the Rules. u/s 14(3) of the Act, the rules made are to be laid before the State legislature for a period of 15 days. It is now a well settled principle of law that when rules framed by the State in exercise of its rule making power are to be laid before the legislature for a period of 14 days and if and when the said provisions are complied with, the rules become a part of the Act. From a perusal of Rule 3 it would be evident that 1st May has been kept: at par with the other national holidays as referred to in sub-section (1)(a) of section 3 of the Act. Both for the National holidays as also for the 1st of May, in the event, the employee is required to work in an industrial establishment the Management is required to give at least 48 hours notice in advance to the workmen Such industrial establishments are also required to maintain a register of such employees who required to work on national holiday or in the 1st May, in form-I.
25. Further, section 13 is a beneficient provision for the employees only. Such beneficient provision, has therefore, in case of an uncertainty, if there be any, has to be interpreted in favour of the workmen. As seen hereinbefore by reason of the provisions of section 13 of the Act only the workmen have been conferred with the benefit of exercising the option as to whether they would have more holidays than provided for in the Act in terms of settlement or not. In the instant case, such option has been exercised and in that view of the matter, the privileges granted to the employees by reason of section 13 have got to be given effect to. In any event, the holidays mentioned in the Act being compulsory in nature, in my opinion the same, shall prevail over the settlement.
26. learned counsel appearing for the petitioners also submitted that the aforementioned Act is ultra vires the Constitution. Firstly, it was submitted that the said Act is hit by Article 14 of the Constitution inasumch as the establishments which fall within the purview of the Bihar Shops and Establishment Act do not have to observe 1st May as a compulsory holiday. In this connection reference was made to the provisions of section 12A of the Bihar Shops and Establishment Act which was inserted in the statute book in the year 1972 Secondly, my attention was also drawn to a notification dated 31.9.1972 wherefrom it would appear that a list of holidays have been mentioned therein and the 1st May has been treated to be an optional holiday and not a compulsory one.
27. Learned counsels, therefore, submit that whereas in respect of the industrial establishments which come within the purview of the said Act, 1st May has been declared to be the compulsory holiday but the same is not the case with the other establishments which come within the purview of Bihar Shops and Establishment Act. The submissions of the learned counsels, in my opinion, is devoid of any merit. As the industrial establishments defined u/s 2(d) of the Act are a class by themselves, the same cannot be equated with other establishments which come within the purview of other statutes.
28. From a perusal of the provisions of the said Act it would appear that certain establishments have been exempted from the purview of the said Act and that does not mean that the said establishments as also the other establishments which are governed by the provisions of the other Acts including the Bihar Shops and Establishment Act would constitute the same class. For the purpose of invoking the provision of Article 14 of the Constitution it must be shown that there has been a discrimination between the persons similarly situated. In other words, equality amongst equals is the rule as envisaged under Article 14 and not equality amongst the unequals.
29. It was further submitted that the said Act is ultra vires Article 19(1)(g) of the Constitution inasmuch as thereby it takes away a citizen''s fundamental rights to carry on business. Apart from the fact that no foundational facts have been pleaded in respect of the said plea, in both these writ applications only the companies which are registered under the Companies Act, 1956 are the petitioners. The said companies being not the citizen of India, Article 19 of the Constitution are not available to them. In any event, the legislation whereby and whereunder holidays for the workmen have been prescribed cannot be said to be ultra vires Article 19 of the Constitution inasmuch as the restriction imposed upon the owner of such industrial undertaking, if any, is a reasonable one. The legislature in exercise of its legislative power conferred upon it in terms of the entry 26 list III of the 7th schedule of the Constitution of India is entitled to make legislation laying down the conditions of service of the workmen or a class of workmen. I do not therefore find any merit in this contention of the counsels appearing for the petitioner.
30. However, so far as the case in C.W.J.C. No. 426 of 1981(R) is concerned, the plea with regard to the applicability of the Act in relation to the establishment of the petitioner requires consideration, section 12 of the Act in no uncertain terms provide for statutory exemption. The application of the provisions of the Act, inter-alia, in relation to such establishment have not been extended which is controlled by the Central Government or the State Government.
31. The petitioner of C.W.J.C. No. 426 of 1981(R) has furnished enough materials to show that it is a company controlled by the Central Government. There cannot be any doubt nor the learned counsel appearing on behalf of the State raised that if the petitioner-company is an establishment controlled by the Central Government, the provisions of the said Act would have no application whatsover in relation thereto Although, the facts necessary for the purpose of establishing the said plea were placed before the Inspector of Factories Jameshedpur, Circle No. 1 by the petitioner in its aforementioned letter dated 11.12.1980 as contained in Annexure-4 to the writ application; but the Inspector of Factories by letter dated 26.3.1981 as contained in Annexure-6 to the writ application rejected the said contention of the petitioner-company without assigning any reason whatsoever. It is now well known that the statutory power while exercising their jurisdiction must pass a speaking order.
The order as contained in Annexure-6 to the writ application being not an speaking order, the same is liable to be quashed on that ground alone. Reference in this connection may be made to the decisions reported in Management of Limestone Quarries, Baulia Co. Ltd. v. Deputy Secretary, Ministry of Labour, Government of India and others (1979 B.L.J.R., 602) and Nanipat Sah and others v. State of Bihar and others (1980 B.B.C.J., 173).
32. It is, therefore, necessary that the respondent No. 1 must consider the representation of the petitioner on its own merit and pass a speaking order. The respondent No. 1 before passing an order shall give an opportunity of hearing to the petitioner and shall also give it an opportunity to place all the materials before it for the purpose of showing that the petitioner company is an industrial establishment controlled by the Central Government. In the result, C.W.J.C. No. 1133 of 1982(R) is dismissed, whereas, C.W.J.C. No. 426 of 1981(R) is allowed in part and the order dated 26.3.1981 as contained in Annexure-6 to that petition is hereby quashed. In the circumstances of the case, there will be no order as to costs.
