P L D 1969 Dacca 567 (PLP)

SIDDIKY, C. J.‑This is an application made by Adamjee Jute Mills Ltd., under Article 98 of the Constitution challenging the correctness of interpretations given by the 2nd Industrial Court of East Pakistan, of certain provisions of the Factories, Act, 1934 (hereinafter referred to as the Act). Short facts necessary for disposal of this Rule are that the employees of the Adamjee Jute Mills Ltd., went on strike from 15th July to 4th August 1964 and from 12th October to 5th December 1964. Both these strikes were declared to be illegal by the Government of East Pakistan. In the meantime, reference was made to the Industrial Court. Pending the reference, a settlement was arrived at between the employers and the employees by which it was agreed that the 67 days covering the two periods of strike was agreed to be treated as leave without pay. The employees were first given 10 days' time to resume their duties but the period was extended to 17 days from the 6th December 1964. This period of 17 days was to be treated as joining time for resumption of duties. The agreement between the parties was incorporated in an Award which was published in the official Gazette. Subsequently controversy arose between the Union of employees and the employer as to whether these two periods of absence of employees should be treated as leave as contemplat ed in the Explanation given to section 49‑B of the Factories Act, 1934. Controversy arose between the parties, namely, the Union of the .employees and the employer, as to whether these periods should be treated for the purpose of annual leave of the employees. We may mention that the Company and the Union of the employees had agreed to grant 17 days' leave with pay and/or wages to each worker for complete one year's service. A reference under section 35 of the Industrial Disputes Ordinance, 1959 was, therefore, made to the Second Industrial Court for interpretation of section 49‑B of the Factories Act. The Second Industrial Court held in its judgment that the periods of strike from 15th July to 4th August 1964 and from 12th October to 5th December 1964 should be calculated for the total minimum number of working days for the purpose of annual leave and with regard to the 17 days beginning from 6th December 1964, within which the workers were asked to resume their duties, should be treated as involuntary unemployment and should be taken into account for calculating the total number of working days for the purpose of annual leave. The Company took exception to these two awards given by the Industrial Court by way of interpretation of explanation to subsection (3) of section 49‑B of the Factories Act. According to the learned Advocate for the petitioner, the period of strike totalling 67 days should be deducted from the 90 days allowable to workers on the ground of sickness, accident or authorised leave as contemplated in the Explanation to section .49‑B of the Act. He then conceded this point and submitted that this period of 67 days should be treated as authorised leave as agreed to by the Company in the agreement arrived at between the Union and the employer. His only objection is to the Industrial Court having termed this period as working days. A worker, according to the learned Advocate for the petitioner, is entitled to 12 days leave in the course of a year with wages if he works for at least 183 days out of 365 days. The basis for taking 183 days to be the minimum working days for the purpose, according to the learned Advocate, is arrived at by deducting the 90 days as contemplated in the first part of the Explanation appended to section 49‑B (3) of the Act and. 30 days as contemplated by the Second Part of the same Explanation, 52 weekly holidays and 10 festival holidays totalling 182 days. He, therefore, submitted that if a worker has put in 183 days' work he will be entitled to 12 days' holidays with pay or wages. In the year 1964, because of the strike the workers did not work for 67. days which period must come out of the 90 days contemplated in the Explanation to section 49‑B (3) of the Act and the period of 17 days granted by the employer to the workers for resumption of duties and whatever period had been enjoyed by each of the workers for resuming his duties after cessation of the strike out of these 17 days should also come out of the said 90 days and the number of days for which the workers could not work not due to strike which was not declared illegal and by stoppage of the work, due to circumstances outside the control of the workers should be deducted from the 30 days mentioned in the Second Part of the said Explanation. After deducting the two categories of the periods mentioned in the Explanation, i.e. 90 days and 30 days, if a worker had put in 183 days' , work, he will be entitled to 12 days' holidays with full pay or wages. This calculation will be for the year 1964. For any other year a worker may absent up to a period of 90 days on account of sickness, accident or authorised leave and for 30 days on account of lock‑out, legal strike or involuntary unemployment due to power or machine failure or for some other cause which is outside the control of the worker. Beyond this absence, i.e. if he absents himself for more than 120 days plus 52 weekly holidays plus 10 festival' holidays, then he will not be entitled to 12 days' holidays with full wages or pay. The learned Advocate's contention seems to be correct in view of the provisions of the Explanation to section 49‑B of the Act. Now, as to the question whether the Second Industrial Court was right in determining this 67 days' absence of the worker in the year 1964 as working days, we think, it was wholly wrong in so saying. This period of 67 days, cannot, under any stretch of imagination, be termed as working days. This period can be covered by 90 days' authorised absence contemplated in the Explanation to section 49‑B. Similarly the period of 17 days which was granted by the employer to the workers for resumption of their duties after the cessation of the strike on the 5th of December 1964, cannot be termed to be involuntary unemployment with the meaning of last part of the Explanation to section 49‑B (3) o the Act which reads as follows: ‑ " . . . . . . . . or by a lock‑out, or by a strike which is not an illegal strike, or by intermittent period of involuntary unemployment not exceeding thirty days in the aggregate ; Involuntary unemployment has been categorised to mean the inability of the worker to work due to lock‑out by the employer or as a result of the strike which is not an illegal strike or by intermittent period of involuntary unemployment which means power or machine failure or civil commotion, over which neither the employer nor the employee has any control. The 17 days given by the employer for resumption of duty by the workers after cessation of the strike in 1964 must, therefore, come out of the 90 days of authorised leave under the First Part of the Explanation and cannot, under any stretch of imagination, be termed as involuntary unemployment. We, therefore, agree with the learned Advocate for the petitioner that the Second Industrial Court was wrong in giving interpretations of "working days" to the 67 days covered by the strike and "involuntary unemploy ment" to the 17 days allowed to the workers for resumption of duties. So that in future no further complications may arise, we would like to make it clear that on the admission of the learned Advocate for the petitioner. If in the year 1964 any worker has worked for at least 183 days after deducting the 84 days of strike and joining time, 52 weekly holidays, 10 festival holidays and such period for which the factory was closed due to civil commotion of January 1964 and/or power or machine failure, he will be entitled to 12 days' holidays for that year with full wages or pay, as the case may be. Mr. Mozammel Haq, learned Advocate for the respondent Union, has agreed to the calculation we have given above and has no objection to our setting aside the award of the Second Industrial Court with regard to the two interpretations given by it to the 87 days and 17 days concerned. In the result, therefore, this Rule is made absolute and the award of ‑ the Second Industrial Court dated 9‑10‑1965 is modified to the extent of the interpretations given by it to the 67 days of the strike‑period as working days and to the 17 days of the joining time as involuntary unemployment. There will be no order as to costs of this Rule. NURUL ISLAM, J.-I agree. Rule made absolute.