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Judgment
Honourable Mr. K. Chandru, J.—The petitioner is a trade union registered under the Trade Union Act, 1926 with registration No.
1107/TRY. The claim of the petitioner was that they are functioning in the second respondent Company. In the second respondent company, more
than 51% of the shares are held by the Government of Tamil Nadu. It is a Government company within the meaning of Section 617 of the
Companies Act. It is the claim of the petitioner union that they along with various other unions were constantly requesting for a holiday to be
declared for their factory at Pugalur on account of the birth anniversary of Dr. B.R. Ambedkar, which was celebrated by both State and Central
Governments. The State Government had issued G.O.Ms. No. 911, Public Department, dated 20.10.2011 declaring 14.04.2012 as a public
holiday on account of the birth anniversary of Dr. B.R. Ambedkar. The Central Government through the Ministry of Personnel, Public Grievances
and Pensions, Department of Personnel & Training vide their Office memorandum dated 21.3.2011 had also declared 14.04.2011 as a closed
holiday for all Central Government offices including Industrial Establishments throughout India. Notwithstanding the same, by not declaring a public
holiday on 14.04.2012 as well as for all these years, the second respondent is showing disrespect to the sentiments of the people. Therefore, the
petitioner union sent a representation on 03.04.2012 just 10 days before the birth anniversary of Dr. B.R. Ambedkar requesting the Chief Minister
of Tamil Nadu to declare 14.04.2012 as a national holiday including the factory run by the second respondent at Kagithapuram, Karur District.
Thereafter, they filed the present writ petition seeking for a direction to the respondent to celebrate the birth anniversary of Dr. B.R. Ambedkar
falling on 14.04.2012 and in subsequent years by providing holiday to all employees and workers of the second respondent company in terms of
the G.O.Ms. No. 911, Public (Misc) Department, dated 20.10.2011 under the Negotiable Instruments Act, 1881. Subsequently, they filed M.P.
No. 1 of 2011 amending the prayer seeking for a direction to the respondent to provide a public holiday to all employees and workers in the
TNPL on the birth anniversary of Dr. B.R. Ambedkar falling on 14th April every year in accordance with the annual list of public holidays notified
every year by both the Central Government and the Government of Tamil Nadu under the Negotiable Instruments Act, 1881.
When the writ petition came up for admission on 12.04.2012, this court directed the learned Government Advocate to get instructions from the
respondents. Mr. S. Muthuraj, learned Standing Counsel for the second respondent company, on taking notice in the writ petition, has filed a
counter affidavit dated 21.12.2012 sworn to by the Officer-HR (Legal) working in the second respondent company. It has to be seen whether the
petitioner union has made out a case for granting the relief sought in the writ petition.
The first contention that the second respondent company is a Government company within the meaning of Section 617 of the Companies Act is
squarely denied by the respondents. In paragraph 12 of the counter affidavit, it was averred as follows:
12...The averment made in para 3 that TNPL is a Government Company in which more than 51% share is held by various government
undertakings both central and state and the Government of Tamil Nadu itself which qualifies it as a Government Company as per Sec. 617 of the
Companies Act, 1956 is denied as false. It is submitted that it is incorrect to state that the Respondent is a Government Company as per Sec. 617
of the Companies Act, 1956. Further it is submitted that presently, the Government of Tamil Nadu is holding only 35.32% of the total equity
capital of the Respondent company and the remaining 64.68% of the equity is held by Indian Financial Institutions, Insurance Companies, Indian
Public, Non-Resident Indians, Overseas Corporate bodies and the employees of the respondent company. It will thus be seen that the direct
equity holding of Government of Tamil Nadu being far less than that laid down in Sec. 617 of the Companies Act, 1956, the respondent Company
is not a Government Company within the meaning of Sec. 617 of the Companies Act, 1956. Hence, the respondent Company is neither owned by
the Central nor by the State Government. It is submitted that this Respondent is not a Government Company and it is only a Public Limited
Company registered under the provisions of the Companies Act 1956. Since shareholding by Government is only 35.32%, the Government of
Tamil Nadu has clarified vide letter no. 3007/BPE/97 dated 22.10.1997 of Finance (BPE) Department that this respondent is not a Government
Company or a Public Sector Undertaking and hence advised TUFIDCO not to deposit its surplus fund in this Respondent Company. The Govt. of
Tamil Nadu in its letter Ms. No. 0301/MIV1/2003-2, dated 27.6.2003 of Industries (MIB1) Department had clarified that this Respondent is not
a State Public Sector Undertaking and informed that approval from Government for expansion and incurring of capital expenditure is not required.
The other shareholders like Insurance Companies are in possession of the respondent Shares purchased from the Stock Market for gains as
business transaction. Earlier IDBI, a Government of India Institution held shares but later disposed off the shares. Hence, the shareholding by such
companies/corporates cannot be treated as investment by Govt. or the Govt. is the stakeholder of such company. The petitioner is put to strict
proof of the share holding pattern of the respondent company shown in para 3.
Even otherwise, it must be noted that the Central and State Governments in respect of holidays to be declared for various Government offices
every year held a consultative meeting with the recognised service associations and thereafter declared the holidays. Since those holidays may
hamper the commercial transactions, necessary resort is made to declare those holidays as public holidays in terms of Section 25 of the Negotiable
Instruments Act, 1881. A reading of Section 25 of the N.I. Act, 1881 will make the position very clear, which reads as follows;
When day of maturity is a holiday. ""When the day on which a promissory note or bill of exchange is at maturity is a public holiday, the
instrument shall be deemed to be due on the next preceding business day.
Explanation. ""The expression public holiday"" includes Sunday 1[***] and any other day declared by the 2[Central Government], by notification in
the Official Gazette, to be a public holiday.
Therefore, it is irrelevant whether holidays are declared under the N.I. Act or after consultation with joint consultative machineries (JCM).
Insofar as the second respondent factory at Karur is concerned, it is now claimed by the respondents that the factory is working round the year in
all 365 days. The Festival and National Holidays in respect of such industrial establishments are covered by the provisions of the Tamil Nadu
Industrial Establishments (National and Festival Holidays) Act, 1958. Section 2(e)(ii) of the Act applies to any factory registered under the
Factories Act, 1948. Section 3 of the Act reads as follows:
Grant of National and Festival Holidays.-Every employee shall be allowed in each calendar year a holiday of one whole day on [the 26th
January, the first May, the 15th August and the 2nd October] and five other holidays each of one whole day for such festivals as the Inspector
may, in consultation with the employer and the employees, specify in respect of any industrial establishment.
(Emphasis added)
The procedure under which the list of festival holidays can be finalized is set out in terms of the Tamil Nadu Industrial Establishments (National
and Festival Holidays) Rules, 1959. Rule 3 of the said rule provides that the employer shall within 30 days from the date on which the Act comes
into force, in the case of an industrial establishment existing on such date and within 30 days from the date of commencement of work in the case
any of new industrial establishment, send in duplicate together with a copy of the notice mentioned in sub-rule (2) to the Inspector having
jurisdiction over the area in which the industrial establishment is situated, his proposal for the specification of festivals in Form No. I. It is thereafter
under sub rule (2), it is published by the employer in the manner where employees can take notice in terms of Form No. II. Before doing so, the
employer can consult the employees before formulating the proposal and that the Inspector can receive the objections and suggestions with
reference to the proposal sent by the employer to the Inspector within 15 days from the date on which notice under sub-rule (2) is displayed. The
Inspector after considering the proposal of the employer and the objections and suggestions if any received from the employee can specify five
festival holidays u/s 3. u/s 11 of the Act, the right and privileges under any other law of employees in terms of any law, contract, custom or usage
are fully protected. Therefore, in the present case, insofar as the national holidays are concerned, Section 3 itself indicates 29th January ""Republic
Day, 1st May"" May Day, 15th August ""Independence day and 2nd October"" Gandhi Jayanthi alone are compulsory holidays. In respect of other 5
holidays, the choice is left to the employer and employee with the final decision of the Inspector having jurisdiction.
It is not the case of the petitioner union that they are not enjoying the holidays in terms of the National and Festival Holidays Act, 1958. On the
contrary, in the counter affidavit, it is stated that apart from four compulsory national holidays, the company has already declared Pongal, Ayudha
Pooja, Bakrid, Deepavali and Christmas as festival holidays for the year 2012 and those holidays represents different religions followed by the
workmen. It is also stated by them that the holidays declared by the Government in terms of G.O.Ms. No. 911 were not applicable to the second
respondent factory and it will only apply to the State Government officers and commercial banks including cooperative banks. There is no
grievance that the second respondent had not followed the provisions of the Act, more particularly Section 4 of the Act read with Rule 3 of the
Rules. When once the second respondent complies with the provisions of the Tamil Nadu Industrial Establishments (National and Festival
Holidays) Act, 1958, there is no other right open to the employees to seek for different holidays than what was already agreed to between the
parties.
The petitioner Union has nowhere stated that they had objected to the proposal put up by the employer before the start of the year 2012 in
terms of Rule 3 and took up the issue before the Inspector and got their right finalized by him, failing which taken the issue before the adjudicating
forum provided under the Industrial Disputes Act. If the petitioner wants more than four national holidays and five festival holidays, the remedy is to
raise the dispute or seek the Government to amend the provisions of Section 3 and increase the number of holidays.
It is needless to state that the State legislature has power to amend and increase the number of holidays. Such an issue came to be considered
by the Supreme Court vide its judgment in M.R.F. Ltd. Vs. Inspector Kerala Govt. and Others, . The objections raised by the employer for
extending the number of holidays by amending the Act was rejected by the Supreme Court and in paragraphs 21 and 22, the Supreme Court had
observed as follows:
Having regard to the factors enumerated in the counter-affidavit as also to the Directive Principles of State Policy contained in Article 43, we
are of the opinion that the Act by which the national and festival holidays have been increased is fully constitutional and does not, in any way,
infringe the right of the appellants to carry on their trade or business under Article 19(1)(g). The compulsory closure of the industrial concern on
national and festival holidays cannot be treated as unreasonable. It is protected by clause (6) of Article 19 and, therefore, cannot be treated to be
violative of the Fundamental Right under Article 19(1)(g).
The plea under Article 14 also cannot be entertained. The decision by legislative amendment to raise the national and festival holidays is based
upon relevant material considered by the Government, including the fact that the holidays allowed by the Central Government and other public
sector undertakings were far greater in number than those prescribed under the Act. As pointed out earlier, the Act is a social legislation to give
effect to the Directive Principles of State Policy contained in Article 43 of the Constitution. The law so made cannot be said to be arbitrary nor can
it be struck down for being violative of Article 14 of the Constitution.
The remedy open to the employees in terms of the provisions of the Act or to seek for adjudication for extra holidays also came to be
considered by the Supreme Court in The Tata Oil Mills Co. Ltd. Vs. K.V. Gopalan and Others, and in paragraph 8, the Supreme Court had
observed as follows:
That takes us to Section 11 of the Act, because this section has to be read along with Section 3 in determining the validity of the conclusion
recorded by the Tribunal on the main point of dispute between the parties. Section 11 reads thus:
Rights and privileges under other laws, etc., not affected"" Nothing contained in this Act shall adversely affect any rights or privileges which any
employee is entitled to with respect to national and festival holidays on the date on which this Act comes into force under any other law, contract,
custom or usage, if such rights or privileges are more favourable to him than those to which he would be entitled under this Act.
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 26th
January, 15th August and 1st May have to be taken as three holidays. That 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....
Similarly, the right of employees to ask for more number of holidays than what has been provided under the Act in terms of Section 3 read
with Section 11 also came to be considered by the Karnataka High Court in N.G.E.F. Limited, Bangalore Vs. The Labour Officer and Inspector,
Bangalore and others reported in 1976 Lab.I.C. 1762 and in paragraph 9, it was observed as follows:
This takes me to the scope of Rule 7. Rule 7 provides,
Approval of Inspector "" Where objections or suggestions about the festival holidays proposed by the employer are received by the trade union or
the workmen, as the case may be, the Inspector shall, after giving an opportunity to the employer to make any representation in respect of such
objections or suggestions, and after considering the objections or suggestions, and the representation of the employer, approve the list with such
alterations as he deems necessary. The approved list of the festival holidays shall be communicated to the employer and the union or the workmen,
as the case may be within five days of the approval of the list.
This rule, no doubt, confers power on the Inspector to alter and approve the list of holidays submitted by the Company. But that power appears to
be highly limited and limited to see that the provisions of the Act are properly implemented. The Inspector has to see first whether the employer has
given the minimum number of holidays prescribed by Section 3. If he finds that the employer''s list is not according to Section 3, he could add to
the list, to make good the deficiency. If he finds the list satisfying the requirements of Section 3, then he could consider the claim of the employees,
if any, based on Section 11. If Section 11 is attracted to a given case, he may ask the employer to give such other holidays that have been
consistently enjoyed by the employees when the Act came into force. In either case, he should consider the objections or suggestions, if any, from
the employees and the representations, if any, by the employer, before approving the list of holidays. If the list is in conformity with the provisions
of the Act, he cannot alter it by way of addition or deletion. He may, however, rearrange the festival holidays as suggested or mutually agreed
upon. It must be borne in mind that he is not an adjudicating authority to determine any dispute of the employer and employees. He is only a
statutory authority to enforce the provisions of the Act. If there is any dispute, falling outside the scope of the Act, he may direct the parties to get it
adjudicated by having recourse to the remedies provided under the Industrial Disputes Act.
In the instant case, the list submitted by the Company was in accordance with the provisions of Section 3, and S. 11 being not applicable to the
facts of the case, the Inspector was clearly in error in including Mahashivarathri day in the list of paid holidays.
If it is seen in this context, the petitioner union has not availed the statutory remedy open to them to have the birth anniversary of Dr. B.R.
Ambedkar declared as a holiday. They have also not moved the adjudicating machinery for having any right created in their favour by increasing
the total number of holidays from 9 to 10 as desired by them in this writ petition. As can be seen from the records, they had raised a dispute with
reference to declaration of the holiday only 10 days before the birth anniversary of Dr. B.R. Ambedkar, which falls in the month of April. They
have not taken any steps to object Form No. I notice sent in terms of Rule 3 of the Rules. The present writ petition is solely based upon the G.O.,
which is not applicable to the second respondent and cannot become the basis for the petitioner seeking for such a relief. Very many times, neither
the State Government nor the Central Government can declare 14th April as the Government holiday under the Negotiable Instruments Act if the
said day happen to fall on a Sunday, which is otherwise a public holiday. Significantly, for the year 2013, the birth anniversary of Dr. B.R.
Ambedkar, i.e., 14.04.2013 falls on a Sunday.
Therefore, the petitioner cannot seek for any relief in terms of the holidays declared by the State Government in respect of its Government
offices and not to industrial establishments run by various companies including the second respondent. The second respondent has correctly
claimed that it is not a Government company and that the State Government is not having dominant share in the said company. The present writ
petition seeking for a direction to the respondents to declare a particular day as a holiday cannot be brought under the writ jurisdiction of this court
under Article 226 of the Constitution. This court cannot give any direction contrary to the statutes covering the field. In the light of the above, the
writ petition will stand dismissed. No costs. Consequently connected miscellaneous petition stands closed.