1976 PLP 213 (PLC)

Thursday & Friday 17th & 18th October. Eid-ul-Azha and Birth- day of Quaid-e-Azam Tuesday & Wednesday 24th & 25th December. **Optional holidays selected by the Union.

5. It may be noted that the three optional holidays i.e. New Year's Day falling on 1st January 1974, one additional holiday for Eidul-Azha falling on 7th January 1971 and one holiday which was for Shab-e-Barat falling on 3rd September 1974 were selected by the Union and were included in the above list of holidays in addition to those declared under the Negoti able Instruments Act.

6. On expiry of the Settlement, another charter of demands was served by the Union. One of the demands related to leave and holidays. The relevant clause relating to festival holidays reads as under :- Festival Holidays.-All festival holidays declared by the Provincial Government of Sind should be allowed to all workers in addition to (4) optional holidays in a year. Provided that if any festival holiday falls on a Sunday or off-day, compensatory hol.day should be allowed in continuation thereof.

7. The Settlement was reached on 27th September, 1974 and wag to remain in force for a period of two years from 1st July, 1974 to 30th June 1976. Clause 8 of the Settlement relates to the Festival Holidays and it reads as under Festival Holidays.-Festival holidays will be allowed to the workers as declared by the Provincial Government of Sind under the statute. In addition the workers will have a festival holiday for Shab-e-Barat.

8. In persuance of this Settlement the holidays were notified by the Management on 17th December 1975. Sub: List of Holidays for 1976.-In accordance with Clause 8 of the Memorandum of Settlement signed on 27th September 19-4 and as per the notification of the Government of Sind under section 49-I of the Factories Act, 1934 (Sind Government Gazette dated 11-12-1975)- (i) the following days shall be observed as festival holidays by all the workers during the year 1976 :-

1. Muharram (Ashura) Monday 12th January.

2. Eid-e-Milad-un-Nabi Monday 15th March (In lieu of a single holiday falling on Sunday the 14th March).

3. Pakistan Day Tuesday 23rd March.

4. May Day Saturday 1st May.

5. Shab-e-Barat Thursday 12th August.

6. Independence Day Saturday 14th August.

7. Defence of Pakistan Day Monday 6th September.

8. Death Anniversary of Quaid-e-Azam Saturday 11th September.

9. Jumat-ul-Wida Friday 24th September.

10. Eid-ul-Fitr (Eid day and Sunday 26th and 27th September. following day) Monday

11. Birthday of Allama Tuesday 9th November. Iqbal

12. Eid-ul-Azha (Eid day and Thursday 2nd and 3rd December. following day) & Friday

13. Birthday of Quaid-e- Saturday 25th December. Azam/Christmas (ii) the following days shall also be observe as festival holidays by the workers belonging to the communities shown against each:-

1. Holi Monday 15th March 1976}

2. Dussehra/Durgapuja Saturday 2nd October 1976} Hindu

3. Divali Friday 22nd October 1976}

4. Good Friday Friday 16th April 1976} Christian

5. Easter Monday Monday 19th April 1976} 6.Birthday of Gurubalmik Friday 8th October 1976} Balmiki Swamiji

9. It may also be noted that `Iqbal Day' falling on 9th November 1975 was declared as a holiday by the Central as well as Provincial Governments and, therefore, this was too allowed to the workers, in addition to the holidays notified above.

10. The saving clause No. 15 which had been relied upon by the Union has already been reproduced in the beginning. Relying upon this clause the Union entertained the view that three optional holidays allowed by the previous settlement could still be enjoyed by them according to their choice. Consequently, the Union wrote a letter dated 31st December 1975 to the Management that the workers were entitled to observe three optional holidays during the year 1976 and one of them would be the 1st January 1976 while the other two holidays would be mutually decided with the Management. This was not accepted by the Management and it was asserted that no holiday in addition to the holidays already notified could be availed of by the workers in view of Clause 8 of the Settlement which included the festival as well as optional holidays and the previous settlement was modified terms of it.

11. Since there was no agreement between the parties the Union made the present application for the interpretation of the Settlement. This has been opposed by the Management maintaining the position as was already adopted.

12. Having considered the demands and the terms of the Settlements in the light of the arguments advanced on behalf of the parties I am of the view that the contention of the Union cannot be entertained. Saving Clause No. 15 which has been mainly relied upon by the Union cannot be availed of

13. In the earlier Settlement three optional holidays at the choice of the Union in addition to the holidays declared under the Negotiable Instru ments Act were agreed upon. It is an admitted position that holidays declared under the Negotiable Instruments Act did not include any holiday for New Year and Shab-e-Barat. There was no sectional holidays for Hindus, Christians and Balmikies. Subsequently an option was exercised by the Union in respect of the New Year, Shab-e-Barat and Eid-ul-Azha as already stated. These three holidays were enjoyed by all the workers, irrespective of their religion. On the second occasion the Union desired to enjoy the same holidays as were sanctioned by the Government of Sind and in addition there was a demand for four optional holidays instead of three allowed previously. A settlement was reached with regard to the holidays declared by the Government in addition to holidays for Shab-e-Barat

14. It may be noted that six optional holidays are allowed by the Government of Sind to the communities other than Muslims unlike the holidays allowed under the Negotiable Instruments Act. It may be further noted that no holiday for Shab-e-Barat is allowed by the Government but this was conceded by the Management and was included in the general list. No thing was said with regard to the claim for four optional holidays.

15. It appears to me that since the list of holidays notified by the government and agreed to by the Management, contain Sectional Holidays for Hindus and Christians while Shab-e-8arat previously enjoyed as optional Holiday was agreed to be included in the general list, the demand for four optional holidays was abandoned by the Union. Of course, nothing has been expressly stated but it is to be presumed that the provision for holidays according to the option or choice of the Union was eliminated. Evidently the fresh settlement was beneficial to all the communities. It is an admitted position that the m6mbers of the various communities are in the employment of the Company. In view of my presumption the saving clause relied upon by the Union has no relevancy and cannot be invoked.

16. It was, however, urged on behalf the Union that the benefits once allowed could not be curtailed in view of section 4 of the Standing Orders ordinance read with Standing Order No. 8 appearing in the Schedule. Section 4 reads as under: - "The Standing Order may be modified by means of a collective agree ment and not otherwise Provided that no such agreement shall have the effect of taking away or dismissing any right or benefit available to the workman under the provisions of the schedule." Standing Order No. 8 reads as under: -

8. Leave.-(1) Holidays and leave with pay shall be allowed as herein after specified :- (a) Manual holidays, festival holidays casual leave and sick leave as pro vided for fn Chapter IV-A of the Factories Act, 1934 (XXV of 1934); and (b) Other holidays in accordance with the law, contract, custom and usage. (2) A workman who desires to obtain leave of absence shall apply to the employer, who shall issue orders on the application within a week of its submission or two days prior to the commencement of the leave applied for, whichever is earlier, provided that if the leave applied for is to commence on the date of the application or within three days thereof, the order shall be given on the same. If the leave asked for is granted, a leave pass shall be issued to the workman. If the leave is refused or postponed, the fact of such postponement or refusal and the reasons therefor shall be recorded in writing in a register to be maintained for the purpose, and if the workman so desires, a copy of the entry in the register shall be supplied to him. If the workman after proceeding on leave desires an extension thereof he shall apply to the employer who shall send a written reply either granting or refusing extension of leave to the workman if his address is available, and if such reply is likely to reach him before the expiry of the leave originally granted to him.

17. In my view the aforesaid two provisions have been misread. What is intended is that the benefits allowed and expressly stated by the Standing Orders Ordinance cannot be modified to the dis-advantage of the workman. Standing Order No 8 guarantees pay for holidays and leave as specified therein. There can be no valid settlement if the workers are debarred from claiming pay for those holidays and leave. In other words the provision relating to pay cannot be altered or modified to the dis-advantage of the workers. This restriction has no bearing on present case as the optional were allowed under a settlement and not fixed by the Standing holiday Orders Ordinance. There is no bar to modify the previous settlement. More over, as I have already pointed out, the fresh settlement was reached con sidering the claim of the minorities and, therefore, the list of holidays notified by the Government was adopted in preference to the holidays notified under Negotiable Instruments Act.

18. In the result I reject the claim of the Union.