notice of change (sections 9a & 9-b) - s d puri 1/4. chapter 2-a.pdf · notice of change...

Notice of Change(Sections 9A & 9-B)

Synopsis

A. Notice of Change - Sec. 9A . . . . . . . . . . . . . . 816

I. Applicability . . . . . . . . . . . . . . . . . . . . . 816

Fa) Applicability of Sec. 9A is a question of fact andstatutory remedy is by way of reference underIndustrial Dispute Act (S.C.2J) . . . . . . . . . . . . 816

II. Notice of change is required . . . . . . . . . . . . . 817

a) For change in compensatory andother allowances . . . . . . . . . . . . . . . . . . . . 817

F 1. For withdrawal of compensatory allowancewhich was given as an implied servicecondition (S.C.CB). . . . . . . . . . . . . . . . . 817

F 2. For withdrawal of key allowance which hadbecome condition of service (S.C.2J) . . . . . . . 817

3. For withdrawal of overtime allowance bycorporation, even if permitted under Shops& Establishment Act (Bom.DB) . . . . . . . . . . 818

4. For changing overtime allowance rates ofFCI workers as per Government notification(Bom.DB) . . . . . . . . . . . . . . . . . . . . . 818

5. For reduction in project allowance whenprovided for long (Raj.DB) . . . . . . . . . . . . 819

6. For withdrawal of project allowance bycorporation (J&K.HC) . . . . . . . . . . . . . . . 819

7. For withdrawal of nucleus allowance (Bom.HC) . . . . . . . . . . . . . . . . . . . . . 819

8. For withdrawal of construction allowancewhich is a condition of service (AP.HC) . . . . . . 819

F 9. For effecting a change in slab system ofdearness allowance which is in vogue for18 years (S.C.3J) . . . . . . . . . . . . . . . . . . 819

b) For change in working hours . . . . . . . . . . . . . 820

1. For change in commencement of workinghours (Bom.HC) . . . . . . . . . . . . . . . . . . 820

2. For working one extra hour every day thoughweekly working hours were reduced due toone less working day (Mad.HC) . . . . . . . . . . 820

3. For increasing hours of work byhalf an hour (HP.HC) . . . . . . . . . . . . . . . 820

c) For change in weekly holiday . . . . . . . . . . . . . 820

F 1. For change in weekly holiday attracting item 8of IVth Schedule (S.C.2J) . . . . . . . . . . . . . 820

2. For change in holidays fixed by long practice(Mad.DB). . . . . . . . . . . . . . . . . . . . . . 821

3. For calling supervisors on weeklyoff days (Bom.HC) . . . . . . . . . . . . . . . . . 821

d) Classification by grades . . . . . . . . . . . . . . . . 822

1. When two new posts were interposed between security guard and head security guard (AP.HC) . . . . . . . . . . . . . . 822

e) For withdrawal / reduction of medical benefits . . . . 822

F 1. For withdrawal of medical benefits to theprejudice of the employees, despite beingcovered under ESI Act (S.C.2J) . . . . . . . . . . 822

2. For reduction / discontinuation of medicalbenefits (Pat.DB) . . . . . . . . . . . . . . . . . . 823

f) For reduction in retirement age . . . . . . . . . . . . 823

1. For reducing retirement age of workers ontransfer of parent undertaking (Ker.DB). . . . . . 823

g) For discontinuance of transport facilities . . . . . . . 823

1. For amending order of State Electricity Boardregarding LTC depriving employees of benefitsof hired car journeys (Ori.DB) . . . . . . . . . . . 823

2. For discontinuance of bus facility providedunder settlement, being change in servicecondition (Bom.DB) . . . . . . . . . . . . . . . . 823

h) Rationalisation or improvement which is likelyto lead to retrenchment of workmen . . . . . . . . . . 824

F 1. Before introduction of rationalization schemelikely to cause retrenchment (S.C.2J) . . . . . . . 824

2. For retrenchment of workers due toinstallation of machine (Bom.DB) . . . . . . . . . 824

3. Whether proposed rationalisation leads toretrenchment depends on facts and circumstances based on reasonable groundsand not suspicion or gossip (Bom.HC) . . . . . . . 824

Chapter II-A – Notice of Change 814

i) For changes vide settlement . . . . . . . . . . . . . . 825

1. For change in service conditions resultingfrom settlement (Mad.DB) . . . . . . . . . . . . . 825

2. For withdrawing privileges under settlementif privileges were continued after terminationof settlement (Bom.HC) . . . . . . . . . . . . . . 825

j) Apropos of contractual appointment . . . . . . . . . 825

1. When management decides to call tenders fordoing the work of cleaning on contract basis(Mad.HC). . . . . . . . . . . . . . . . . . . . . . 825

2. For recruiting EDP operators on contractbasis (Mad.HC). . . . . . . . . . . . . . . . . . . 826

F 3. For discontinuance of system of direct paymentto contract workers, which had made them employees of the corporation (S.C.3J) . . . . . . . 826

k) With regard to Voluntary retirement scheme. . . . . . 827

1. When dispute regarding voluntary retirementschemes related to general class of workmenand individual settlements could not beentered into (Bom.HC) . . . . . . . . . . . . . . . 827

2. For implementing Voluntary Retirement Schemewhich would result in reduction of posts (Bom.HC) . . . . . . . . . . . . . . . . . . . . . 827

l) In cases of transfer . . . . . . . . . . . . . . . . . . . 827

1. For transfer, if service condition is silenton transfer (Mad.HC) . . . . . . . . . . . . . . . 827

2. When machine operators and punch card operators are transferred to serve as clerks (Mad.HC) . . . . 827

m) With regard to promotion policy of post ofSchool Clinic Organiser . . . . . . . . . . . . . . . . 828

1. With regard to promotion policy of post ofschool clinic organiser (Bom.HC) . . . . . . . . . 828

n) for reduction in wages . . . . . . . . . . . . . . . . . 828

1. For unilateral reduction in wages on employeebeing given a lighter job due to employmentinjury (Bom.HC) . . . . . . . . . . . . . . . . . . 828

o) For retrenchment of workmen on introductionof ESIS Scheme (Pat.DB) . . . . . . . . . . . . . . . 828

p) For re-organisation of service conditions ofsecurity guards leading to change in their functions (AP.HC) . . . . . . . . . . . . . . . . . . . 828

q) For withdrawal of bank circular allowing bankemployees to participate in election (AP.DB) . . . . . 829

r) For withdrawing pensionary benefits though bymeans of an agreement if such agreement is notsettlement under Proviso within the meaning of Industrial Disputes Act (Bom.HC) . . . . . . . . . . 829

III. Is not required . . . . . . . . . . . . . . . . . . . . 829

a) As regards payments / allowances . . . . . . . . . . . 829

F 1. For payment given under production incentivescheme and not settlement (S.C.3J) . . . . . . . . 829

2. For settlement of pay scales as per HPPCrecommendations and Supreme Court andCentral Government orders (HP.DB) . . . . . . . 830

F 3. For a condition of service which has been settledby a binding settlement / award but it is to besubstituted by a fresh settlement or award (S.C.2J) . . . . . . . . . . . . . . . . . . . . . . . 830

4. For alteration in eligibility to receiveconveyance allowance (Mad.DB) . . . . . . . . . 831

5. For reduction of special allowances madeby mistake (Cal.DB) . . . . . . . . . . . . . . . . 831

6. For withdrawing temporary benefit ofattendance bonus paid under settlement(Cal.HC) . . . . . . . . . . . . . . . . . . . . . . 831

7. When increments mistakenly given to employeesof Grameen Bank by sponsor bank are withdrawn (Jhar.HC) . . . . . . . . . . . . . . . . 831

b) As regards working hours . . . . . . . . . . . . . . . 832

F 1. For change in working hours within statutory limitand within management's power (S.C.3J) . . . . . 832

2. For increasing working hours of employees ofMints and Press governed by Rules (Cat.DB) . . . 833

3. When working hours were raised within thestatutory limit of the Factories Act (Cat.DB) . . . . 833

4. For change in time schedule without change inhours of work and rest intervals (Bom.DB). . . . . 833

5. For change in shift timings which included regularhours plus overtime which was not customaryprivilege of workmen (Bom.DB) . . . . . . . . . 833

6. For change in shift timings of telephoneoperators constituting only a change in periodof work but not hours of work (Bom.DB). . . . . . 834

7. For withdrawal of the concession allowingemployees to attend office half an hour later thanusual in winter months (AP.HC) . . . . . . . . . . 834

c) As regards period of service . . . . . . . . . . . . . . 834

F 1. For fixing maximum period of service or date of retirement, as it is not covered by Sch. IV(S.C.2J) . . . . . . . . . . . . . . . . . . . . . . . 834

d) As regards change in weekly rest days . . . . . . . . . 835

1. For change in weekly rest day which wasjustified through official letters (Cal.DB) . . . . . 835

e) As regards change in holidays . . . . . . . . . . . . . 835

F 1. Alteration of Diwali holiday based onrecommendation of majority workmen(S.C.2J) . . . . . . . . . . . . . . . . . . . . . . . 835

2. As to number of holidays when employeeswere transferred from Government leatherunits to Leather industries DevelopmentCorporation (AP.HC) . . . . . . . . . . . . . . . 836

3. When factory was kept working on weeklyoff day and closed on day of bandh, ona solitary occasion (Bom.HC) . . . . . . . . . . . 836

815

f) As regards increase in working days . . . . . . . . . . 836

1. For working days being 6 days instead of 5,at the workplace where workers were transferredat their own request (Cal.HC) . . . . . . . . . . . 836

g) For reduction in number of employees / departments. . . . . . . . . . . . . . . . 836

1. For reduction in number of helpers to fittersand electricians (AP.DB). . . . . . . . . . . . . . 836

F 2. For reduction in departments which does notadversely affect the workmen (S.C.3J) . . . . . . 837

h) As regards constitution of cadres / grades . . . . . . . 837

F 1. For constituting employees in posts other thanspecified into separate cadre (S.C.2J) . . . . . . . 837

2. For issuing notification on common cadres ofsecretaries in co-operative societies (Mad.DB) . . 837

3. In case of closure of cadres of superintendents (Bom.HC) . . . . . . . . . . . . . . . . . . . . . 838

4. When consent was given by workmen for absorption in another grade (All.HC) . . . . . . . 838

i) As regards promotion . . . . . . . . . . . . . . . . . 838

1. For modifying promotion scheme makingreservations for schedule caste /tribes (All.DB) . . 838

2. For introduction of written and oral test forpromotion which was to stop arbitrariness andsecure uniformity (Bom.HC). . . . . . . . . . . . 838

j) As regards transfer . . . . . . . . . . . . . . . . . . . 839

1. If transfer due to rationalisation from onedept. to another is without prejudice toservice conditions (Mad.HC) . . . . . . . . . . . 839

2. On conductor being transferred as computeroperator and again retransferred as aconductor (Mad.HC) . . . . . . . . . . . . . . . . 839

3. for transferring Belder from one post toother(Del.HC) . . . . . . . . . . . . . . . . . . . . . . 839

k) As regards retrenchment . . . . . . . . . . . . . . . . 839

F 1. For retrenchment which connotes terminationof service but does not constitute a changein service condition (S.C.2J) . . . . . . . . . . . . 839

2. For retrenchment of employee on closure of dept. and not re-organisation (Bom.DB). . . . . . 840

3. For retrenchment not directly related toinstallation of machine but non-availabilityof work (Bom.DB) . . . . . . . . . . . . . . . . . 840

4. If no workman is likely to be retrenched as aresult of proposed change (Bom.HC) . . . . . . . 840

5. Where introduction of computerisation wouldnot lead to retrenchment (Mad.HC) . . . . . . . . 841

6. When retrenchment is due to surplus (Bom.HC) . . 841

7. Notice of change was not required for terminationto be done in accordance with law (Raj.HC) . . . . 841

l) When more privileges are given . . . . . . . . . . . . 842

1. For raising age of superannuation from 55 to 60years (Bom.DB) . . . . . . . . . . . . . . . . . . 842

2. For revision of pay scales and other allowancesbeneficial to employees (Ori.DB) . . . . . . . . . 842

m) By virtue of notification under second proviso. . . . . 842

1. For changes regarding flight and duty time effected by Air India Corporation by virtue of notification (Bom.HC) . . . . . . . . 842

n) When Government has exempted u/s. 9B . . . . . . . 842

F 1. Matters under schedule IV exempted byGovernment notification u/s. 9B (S.C.2J) . . . . . 842

o) When change in conditions of service is due tooperation of law . . . . . . . . . . . . . . . . . . . . 843

1. For implementing provisions of ESI Scheme(Karn.HC) . . . . . . . . . . . . . . . . . . . . . 843

p) For matters which are not conditions of service . . . . 843

F 1. On acceptance of workers request for sale ofcertain items to them, which does not amountto alteration of service conditions (S.C.2J) . . . . . 843

2. For revising rates of food items in statutory canteenas it was not a condition of service (Bom.HC) . . . 844

q) For shifting of undertaking . . . . . . . . . . . . . . 844

1. When undertaking is shifted from one placeto another (Cal.HC) . . . . . . . . . . . . . . . . 844

r) Trade union matters . . . . . . . . . . . . . . . . . . 844

1. For granting relief from duty to office bearersof trade union (Mad.DB). . . . . . . . . . . . . . 844

2. For exclusion of unrecognised union fromnegotiation with management (Mad.DB) . . . . . 844

Fs) in respect of circular to the effect that HO toexamine if contesting of public election by awardstaff will interfere with his duties (S.C.2J) . . . . . . . 845

t) in case of settlement arrived at in course ofconciliation proceedings (Mys.DB) . . . . . . . . . . 845

u) For raising houses for employees and offeringspecified number for ex-employees (Mad.HC) . . . . 845

v) For regulations which are brought into force for thefirst time (Mad.HC) . . . . . . . . . . . . . . . . . . 846

w) For obtaining undertaking as to good conductbond (Del.HC) . . . . . . . . . . . . . . . . . . . . . 846

IV. Notice of change if given what can be done . . . . . 846

a) Conditions of service can be altered and employercannot be prevented by writ (Mad.DB) . . . . . . . . 846

Fb) Change for increasing shifts from 1 to 3 by issuingnotice u/s. 9A was allowed in this case (S.C.CB). . . . 847

V. What cannot be done by issuingNotice of change . . . . . . . . . . . . . . . . . . . 848

Synopsis

A. Notice of Change – Sec. 9A

I. Applicability

a) Applicability of Sec. 9A is a question of fact and statutory remedy is by way ofreference under Industrial Dispute Act (S.C.2J)

F 2A.1 Employees of Hindustan Steel Works Construction Ltd. contended that there wasviolation of Sec. 9A in withdrawing of construction benefits by the employer. The High Court boththe Single Judge and the Division Bench held that the withdrawal of the construction allowancewhich was being earlier allowed did amount to violation of Sec. 9A of the Act. On appeal theSupreme Court held that the employees should not have gone directly in writ petition to the HighCourt. Applicability of Sec. 9A was a question of fact and statutory remedy by reference to theappropriate tribunal was available under the Industrial Disputes Act. Hence the Supreme Courtdirected that the Appropriate Government refer the dispute to the tribunal and permitted theparties to place materials in support of their stand.

Hindustan Steel Works Construction Ltd. & Anr. v. Hindustan Steel Works Construction Ltd. EmployeesUnion, 2005 III LLJ 512 : 2005 (106) FLR 998 : 2005 IV LLN 15 : 2005 III CLR 214 : 2005 LLR 1025 :2005 SCC (L&S) 899 (S.C.2J)

“In a catena of decisions it has been held that writ petition under Article 226 of the Constitution of India,1950 (in short ‘the Constitution’) should not be entertained when the statutory remedy is available underthe Act, unless exceptional circumstances are made out.” (Page: 514, Para: 7)

Chapter II-A – Notice of Change 816 Sec. 9A

a) Service conditions determined by award cannotbe unilaterally altered by employer by issuing noticeof change u/s. 9A (Bom.DB) . . . . . . . . . . . . . 848

b) Change cannot be affected in service conditionsby issuing notice u/s. 9A until settlement is bindingand not terminated (AP.DB) . . . . . . . . . . . . . . 848

c) Service conditions cannot be altered even afternotice u/s. 9A until earlier settlement is replaced in accordance with law (Mad.HC) . . . . . . 849

d) Notice of change cannot be given to unilaterallychange the terms of settlement as to freezing ofvariable DA payable thereunder (Bom.HC) . . . . . . 849

VI. Non-compliance of Sec. 9A . . . . . . . . . . . . . 849

a) Notice of change if sent to the union only and notto each individual workman is not sufficientcompliance of Sec. 9A (P&H.HC) . . . . . . . . . . 849

Fb) Filing of writ for non compliance of Sec. 9Arejection on merits is not erroneous (S.C.2J) . . . . . . 849

Fc) Financial capacity to be considered beforegranting extra remuneration given for violationof section (S.C.2J) . . . . . . . . . . . . . . . . . . . 850

VII. What does not constitute change inconditions of Service . . . . . . . . . . . . . . . . . 850

a) Condition of service not changed if employerasked workmen to execute good conduct bond(P&H.HC) . . . . . . . . . . . . . . . . . . . . . . . 850

b) Undertaking not to involve in strike and maintaindiscipline and normal output does not amount tochange in condition of service (Guj.HC) . . . . . . . . 851

c) Acceptance of terms and conditions stated underbond of good behaviour accepted by majorityworkmen is not a change in condition of service (Mad.HC) . . . . . . . . . . . . . . . . . . . . . . . 851

d) Duty relief granted to workers who were unionoffice bearers is not a condition of service (Mad.HC) . . . . . . . . . . . . . . . . . . . . . . . 851

Fe) Rule relaxing eligibility criteria of one cadre ofemployees affecting the chances of promotion ofother cadre of employees (S.C.3J) . . . . . . . . . . . 851

VIII. When service conditions can be altered . . . . . . 852

Fa) Frequent alteration in service conditions thoughdeprecated, yet can be done where there isnecessity and justification (S.C.3J) . . . . . . . . . . 852

IX. Issuing of notice of change is independent ofscheme of amalgamation and can be contestedin industrial adjudication (Bom.DB) . . . . . . . . 852

X. Distinction between issue of notice of change under Industrial Disputes Act and BIR Act (Bom.DB) . . 853

XI. Notice of change, when given for items coveredu/Sch. IV, authority under Payment of Wages Actcannot adjudicate employees claim (Bom.DB) . . . 853

B. Power of Government to Exempt - Sec. 9B . . . . . 854

FI. When industry was exempted by Governmentnotification for matters under Sch. IV change ofweekly off without statutory notice will notrender it illegal (S.C.2J) . . . . . . . . . . . . . . . 854

C. Setting up of Grievance Settlement Authorities and reference of certain individual disputes to such Authorities – Sec. 9C . . . . . . . . . . . . . 854

“The inevitable conclusion, therefore, is that both learned Single Judge and the Division Bench havefailed to consider the basic issues. In the normal course we would have left it to the respondent to availappropriate remedy under the Act.” (Page: 516, Para: 13)

“However, because of the long passage of time (the writ petition was filed in 1997), the attendantcircumstances of the case in the background noted above and in view of the agreement that this is a matterwhich requires to be referred to the Tribunal, we direct that the Appropriate Government shall refer thefollowing question for adjudication by the appropriate Tribunal: (1) Whether there was violation ofSection 9A of the Industrial Disputes Act, 1947 as claimed by the employees? (2) Whether thewithdrawal of the construction allowance amounted to the change in the conditions of service?” (Page: 516, Para: 14)

“The parties shall jointly move the Appropriate Government with a copy of our judgment.” (Page: 516,Para: 16)

II. Notice of change is required

a) For change in compensatory and other allowances

1. For withdrawal of compensatory allowance which was given as an impliedservice condition (S.C.CB)

F 2A.2 Company granted Compensatory Allowance thinking it to be applicable to it in view of aCentral Government notification and by virtue of a subsequent notification employees were givenoption of either Compensatory Allowance or HRA and company withdrew its concession ofCompensatory Allowance but Supreme Court held that though the notification grantingCompensatory Allowance was neither binding on Company nor was it given under S.O. but beingan implied condition of service, as it was not indicated to be a stop gap arrangement till grant ofhousing subsidy which is a different benefit, therefore held withdrawal to be a change and the samecould not be done without giving a notice.

The Management of Indian Oil Corporation Ltd. v. Its Workmen, 1975 II LLJ 319 : 1977 (51) FJR 1 :1975 (31) FLR 178 : 1975 II LLN 338 : 1975 LIC 1429 : 1975 SCC (L&S) 453 : 1975 AIR (SC) 1856 :1976 (1) SCC 63 (S.C.4J)

“By virtue of a notification dated September 3, 1957. the Central Government granted compensatoryallowance according to certain rates to all Central Government employees posted throughout Assam. The appellant set up the refinery some time in the year 1959……….” (Page: 320, Para: 2)

“……….There is no evidence to show that the management before granting the concession of thecompensatory allowance had in any way indicated to the workers that this was only a stop-gaparrangement which could be withdrawn after the housing subsidy was granted. Even before the unilateralwithdrawal of the concession granted by the appellant no notice was given to the workers nor were theytaken into confidence, nor any attempt was made to open a dialogue with them on this question. Indeed ifthe circulars of the Central Government are admittedly not binding on the Corporation then we are unableto appreciate the stand taken by the appellant that the management unilaterally withdrew the concessionmerely because of the Central Government circulars……….In these circumstances we have no hesitation in holding that the grant of compensatory allowance was undoubtedly an implied condition of service soas to attract the mandatory provisions of S. 9A of the Act……….” (Page: 322, Para: 5)

2. For withdrawal of key allowance which had become condition of service(S.C.2J)

F 2A.3 After matter was raised before regional labour commissioner, payment of “keyallowance” to head cashiers as a gesture of goodwill by bank became a term and condition ofservice and also since this allowance was not a part of special allowances as per Desai Award,withdrawal of the same should necessarily be preceded by notice of change in absence of whichallowance continues to be payable.

Indian Overseas Bank Ltd. v. Their Workmen, 1969 (18) FLR 108 : 1967-68 (33) FJR 457 (S.C.2J)

817 Sec. 9A Notice of change is required

“……….Mr. Desai did not include the “Key Allowance” in the special allowance admissible to thecashiers. His opinion is quite categoric that he did not wish to give any direction in regard to thisallowance. This special allowance was, therefore, quite distinct and apart from the “Key Allowance” asindeed it was even under the Sastry Award. It was, therefore, quite clear that the option did not cover the“Key Allowance”. In fact, paragraphs 19-18 and 19-20, which we have quoted above, quite clearly limitthe option to the scales of pay and the allowances specifically mentioned there. Since none of thoseallowance can be said to cover the “Key Allowance” it is quite obvious that the matter of “KeyAllowance” was at large. It rested therefore with the bank to continue or to discontinue it. But since thisallowance came into existence in the Indian Overseas Bank after the matter was raised by the IndianOverseas Bank Employees Union before the Regional Labour Commissioner at Madras and was accepted by the bank as a gesture of goodwill it must be treated as a term and condition of the service of OmPrakash Gupta to whom it was admissible. Once we reach this position it is clear that u/s. 9A of theIndustrial Disputes Act, read with rule 34 of the Industrial Disputes (Cental) Rules, 1957, a notice ofchange in the conditions of service applicable to Om Prakash Gupta had to be given in Form E appendedto the Rules……….The bank has not proved that this was done. It has relied upon a notice which wasissued to the employees of the bank conveying to them the option which the Desai Award had given in thematter of selecting the existing pays and emoluments or the benefits under the Award. That cannot take theplace of the notice required u/s. 9-A because the “Key Allowance” was never a part of the Desai Award butwas left completely out of it and to the discretion of the management.” (Page: 461/462, Para: 2)

“……….the Tribunal was right in deciding that the “Key Allowance” was payable even after the DesaiAward and that Om Prakash Gupta was entitled to receive it till it was stopped in accordance withlaw……….” (Page: 462, Para: 2)

3. For withdrawal of overtime allowance by corporation, even if permittedunder Shops & Establishment Act (Bom.DB)

¥ 2A.4 Subsequent to exemption granted from the provisions of Goa Shops and EstablishmentsAct and thereby which enabled the Corporation to bring about change in service condition likewithdrawal of overtime allowance does not ipso facto mean that change in service condition couldbe made by Corporation without issuing notice u/s. 9A of the Act. Once the corporation voluntarilyimbibed the provisions of Shops Act, it has become a condition of service which cannot beabandoned unilaterally without notice merely because it has now been exempted from theprovisions of Shops Act.

Food Corporation of India Employees’ Association & Anr. v. Food Corporation of India & Ors., 1991 IILLJ 562 : 1990 (76) FJR 310 : 1990 II LLN 85 (Bom.DB)

“It, therefore……….notwithstanding” (Page: 1991, Para: 22)

4. For changing overtime allowance rates of FCI workers as per Governmentnotification (Bom.DB)

¥ 2A.5 Government issued notification exempting Food Corporation of India from provisions ofBombay Shops and Establishments Act and FCI Authorities issued direction for paying over timeallowance not as per Shops Act but as per new rates specified in directions, this being alteration ofworkers long established rights, notice u/s. 9A is necessary and hence in absence of such notice FCIwas directed to pay over time allowance as per Shops Act.

Transport & Dock Workers Union & Ors. v. Food Corporation of India & Anr., 1986 (53) FLR 47 : 1986II LLN 681 : 1986 LIC 1393 (Bom.DB)

“As said earlier……….FCI workmen.”(Page: 10, Para: 53)

“This is that………..Industrial Dispute Act.” (Page: 53, Para: 11)

“Surely if……….the petitioners.” (Page: 54/55, Para: 13)


5. For reduction in project allowance when provided for long (Raj.DB)

¥ 2A.6 Even if unions were heard by the pay commission before its recommendations forreduction in project allowance and as these amenities were provided to workmen since long andproject allowance being a part of wages, reduction in the said allowance from 10% to 8% is achange in service conditions, hence requiring compliance of the mandatory Sec. 9A of the Act.

Director, State Farms Corporation of India Ltd. v. Industrial Tribunal & Labour Court, Bikaner & Ors.,2003 III LLJ 81 : 2003 (97) FLR 1110 : 2003 III LLN 471 : 2003 LLR 801 (Raj.DB)

“……….The fact that……….be sustained.” (Page: 1113, Para: 11)

“Moreover……….be affected.” (Page: 1113, Para: 13)

6. For withdrawal of project allowance by corporation (J&K.HC)

¥ 2A.7 Union challenged the order issued by corporation withdrawing project allowance paid toworkers. Held that compensatory and other allowances are dealt with under schedule IV and hence notice of change is required to be given.

Bhartiya Coal Khan Mazdoor Union Welfare v. J & K Minerals Ltd. & Ors., 2003 III LLJ 725 : 2003 (99)FLR 1143 : 2003 IV LLN 713 : 2003 LIC 2210 (J&K.HC)

7. For withdrawal of nucleus allowance (Bom.HC)

¥ 2A.8 The term, condition of service includes pay and allowances. Therefore, withdrawal ofgrant of nucleus allowances amounts to change in conditions of service. This cannot be effectedwithout serving a notice u/s. 9A.

Mazgaon Dock Ltd. v. Ratnakar Sadashiv Vatare & Anr., 1998 (79) FLR 479 : 1998 LLR 589 (Bom.HC)

8. For withdrawal of construction allowance which is a condition of service(AP.HC)

¥ 2A.9 The employer had withdrawn the construction allowances vide a circular without anynotice u/s. 9A. Being aggrieved, workmen moved High Court. Employer contended that there wasa settlement between employer and workmen to withdraw construction allowances and producedrecords of minutes of the meeting held between employer and union. High Court held that minutesof the meeting could not be equated with settlement and set aside the impugned circular ascondition of service specified in Fourth Schedule could only be changed by following Sec. 9A within 42 days of giving such notice.

Hindustan Steel Works Construction Ltd. Employees Union, Visakhapatnam v. Hindustan Steel WorksConstrucion Ltd., Vizag & Anr., 2001 III LLJ 192 (AP.HC)

9. For effecting a change in slab system of dearness allowance which is invogue for 18 years (S.C.3J)

F2A.10 Notice by employer for change in slab system if dearness allowance is in vogue for 18 yearsin respect of Head Office Staff and monthly rated factory staff. Held, that, the system of dearnessallowance which had worked for a long period (i.e. 18 years) cannot be changed to the deriment ofworkmen without compelling reasons. In view of “rise” in price of essential commodities no ceilingon quantum of dearness allowance, can be imposed.

The Monthly-Rated workmen of Indian Hume Pipe Co. Ltd., Wadala Factory v. Indian Hume Pipe Co.Ltd. Bombay, 1986 I LLJ 520 : 1986 (53) FLR 74 : 1986 II LLN 49 : 1986 LIC 1644 : 1986 SCC (L&S)278 : 1986 AIR (SC) 1794 : 1986 SuppL. SCC 79 (S.C.3J)


“……….The appellant - Union pleaded that the award of the Tribunal was defective both in law and onfacts. The Tribunal did not have any material before it compelling it to change a system that hadsatisfactorily worked for 18 years and in effect had become part and parcel of the service conditions of the workmen. The findings of the Tribunal that the slab system had become unscientific and improper, thatcontinuance of the system was not in national interest or in public interest, that ever since slab system wasintroduced neutralisation had become more than 100 per cent and that the slab system confined to theappellant alone would create disparity and discontent among workmen are according to the appellants not based on evidence……….” (Page: 523, Para: 12)

“……….The management had not produced before the Tribunal sufficient evidence to persuade it tochange the existing system. It may be that the slab system did not find favour with some other Tribunals.But that is no reason why a system that had existed for a long period of time should be stopped to thedetriment of the workmen without compelling reasons……….” (Page: 526, Para: 19)

b) For change in working hours

1. For change in commencement of working hours (Bom.HC)

¥ 2A.11 The dispute was regarding change in commencement of the working hours withoutconsulting the workers. The workers continue to come at 8.30 am and refused to give anundertaking to conform the change due to which employer terminated their services. TheIndustrial Tribunal held that change of working hours was illegal and the same was upheld by theHigh Court stating that it cannot be effected without following the procedure prescribed u/s. 9A.

Shakti Electro Mechanical Industries Pvt. Ltd. v. F.H. Lala, 1974 II LLJ 1 : 1974 (29) FLR 180 : 1974 ILLN 131 (Bom.HC)

2. For working one extra hour every day though weekly working hours werereduced due to one less working day (Mad.HC)

¥ 2A.12 Daily wage NMR employees were paid for 8 hours work/ day for 6 days a week. Thereafterthey were made to work for 9 hours a day but for 5 days. Held that though weekly hours werereduced from 48 to 45 but they were working for extra one hour, they were entitled to notice ofchange u/s. 9A of the Act.

Divisional Engineer (Highways) Transport & Machinery Division, Guindy & Anr. v. Secretary, TamilNadu Highways & Rural Welfare Department & Anr., 2001 I LLJ 950 : 2001 I LLN 1000 : 2001 LIC 185: 2001 LLR 521(Sum) (Mad.HC)

3. For increasing hours of work by half an hour (HP.HC)

¥ 2A.13 Increasing half-an-hour work daily, of the workers, will amount to change in conditions ofservice and as such statutory notice u/s. 9A of Industrial Disputes Act would be imperative and inthe absence of such notice, the employer will have to pay full wages for that period.

Director of Agriculture v. Dev Raj & Ors., 2006 LIC 1758 : 2006 II CLR 1045 : 2006 LLR 1019 (HP.HC)

c) For change in weekly holiday

1. For change in weekly holiday attracting item 8 of IVth Schedule (S.C.2J)

F 2A.14 Change of weekly holiday from Sunday to some other day of the week attracts ItemNo. 8 of IVth schedule as it assumes special significance for the workmen due to its long usage andtherefore the change in weekly rest days from Sunday to Wednesday and Thursday in Sijuacolliery and Bhalat and colliery respectively, having been effected without issuing notice was heldto be ineffective and consequent to employers contention that non-reporting of the workmen onSeptember 22 and 29 of 1963 as amounting to illegal strike is rejected and employees contentionthat refusal of the employer to provide work on 25 and 26 in September 1963 as amounting toillegal lock out was upheld.


M/s. Tata Iron and Steel Co. Ltd. (In all the appeals), Appellant v. Workmen of M/s. Tata Iron and SteelCo. Ltd. and others, (In All the appeals), 1972 II LLJ 259 : 1973 (43) FJR 1 : 1972 (24) FLR 399 : 1972LIC 1128 : 1972 LLN 581 : 1973 SCC (L&S) 113 : 1972 AIR (SC) 1917 : 1972 (2) SCC 383 (S.C.2J)

“……….The main argument raised on behalf of the appellant centres round the construction to be placedon S. 9A of the Industrial Disputes Act, No. XIV of 1947……….which deals with the notice of change inthe conditions of service applicable to a workmen in respect of matters specified in the Fourth Schedule to the Act. If notice contemplated by this section was necessary, which admittedly was not given, then thechange in the new schedule of rest days was not according to law and the workers were justified inignoring the change……….” (Page: 261, Para: 5)

“We now come to the main contention. Section 9-A which has already been reproduced, lays down thatchange in the conditions of service in respect of any matter specified in the Fourth Schedule shall not have effect unless a notice is given to the workmen likely to be affected by such change. The relevant entries ofthe Fourth Schedule have already been reproduced. It appears to us that entries dealing with “hours ofwork and rest intervals” and “leave with wages and holidays” are wide enough to cover the case of illegalstrikes and rest days. Indeed, entry no. 8 dealing with “withdrawal of customary concession or privilegeor change in usage” is also wide enough to take within its fold the change of weekly holidays fromSunday to some other day of the week, because it seems to us to be a plausible argument to urge thatfixation of Sundays as weekly rest days is founded on usage and/or is treated as a customary privilege andany change in such weekly holidays would fall within the expressions “change in usage” or “customaryprivilege.” (Page: 265, Para: 12)

“……….In this connection it must not be ignored that due to long usage and other factors Sunday as aholiday may for conceivable reasons have assumed importance for workmen. ….. … If that be so, then,notice for effecting such a change would be within the contemplation of Section 9-A. Further the realobject and purpose of enacting Section 9-A seems to be to afford an opportunity to the workmen toconsider the effect of the proposed change and if necessary to present their point of view on theproposal……….” (Page: 266, Para: 13)

“……….The appellant having thus effected a change in the weekly days of rest without complying withSec. 9A read with the Fourth Schedule this change must be held to be ineffective and the previousschedule of weekly days of rest must be held to be still operative……….” (Page: 266, Para: 15)

“The result then is that the appellant’s contention that the workmen concerned had resorted to illegalstrike on September 22 and 29, 1963 must be rejected. On this view the respondents’ contention that theappellant had illegally declined to give work to the respondents on September 25 and 26, 1963 and thatthe appellant had declared lock-out on those two days which was illegal has also to be upheld……….”(Page: 266, Para: 16)

2. For change in holidays fixed by long practice (Mad.DB)

¥ 2A.15 Holidays fixed by long practice, being part of service condition, any change withoutcompliance u/s. 9A is illegal.

Voltas Volkart Employees Union, Madras v. Voltas Limited, Madras, 2000 I LLJ 969 : 1999 IV LLN1107 : 2000 LIC 917 : 2000 I LLR 409 (Mad.DB)

“……….Therefore,……….are protected.” (Page: 974, Para: 10)

“In this……….of holidays.” (Page: 975, Para: 14)

“The next……….to deviate.” (Page: 975, Para: 12)

3. For calling supervisors on weekly off days (Bom.HC)

¥ 2A.16 Calling supervisors on weekly off days requires notice of change u/s. 9A of the Act.

Mukund Staff & Officers Association v. Mukund Ltd. & Ors., 1999 II LLJ 500 : 1999 III LLN 952 : 1999LIC 1924 : 1999 I CLR 987 (Bom.HC)


d) Classification by grades

1. When two new posts were interposed between security guard and headsecurity guard (AP.HC)

¥ 2A.17 Where two new posts were interposed between the security guard and Head SecurityGuard, it signifies classification by grades, and it also means and includes classification into andcreation of new categories and classes. So classification of such grades is a change in condition ofservice particularly when new higher minimum educational qualification was prescribed even forinitial appointment.

G. Maruthaiah & Ors. v. The A.P.S.E.B. & Ors., 1986 LIC 1161 (AP.HC)

“Thus when……….grades.” (Page: 1164, Para: 15)

e) For withdrawal / reduction of medical benefits

1. For withdrawal of medical benefits to the prejudice of the employees,despite being covered under ESI Act (S.C.2J)

F 2A.18 Despite coverage of employees under the Employees State Insurance Act, withdrawalof medical benefit available to employees under service conditions was held illegal in the absence ofnotice u/s. 9A since such withdrawal was prejudicial to workers as it deprived them ofhospitalization in a private nursing home which was not available under Employees StateInsurance Act and also since continuance of the benefits u/service rules was not prohibited by theAct.

Calcutta Electric Supply Corporation, Ltd. v. Calcutta Electric Supply Workers’ Union & Ors., 1995 ILLJ 874 : 1995 I LLN 1154 : 1995 SCC (L&S) 7 : 1994 (6) SCC 548 (S.C.2J)

“These are appeals against the award dated February 5, 1993 made by the Third Industrial Tribunal,Calcutta, West Bengal. Two questions arose for consideration before the Tribunal, viz., (1) Whether thechange effected by the appellant employer was in contravention of Section 9-A of the Industrial DisputeAct, 1947 (the ‘Act’) ; and (2) whether the employer was entitled to withdraw the medical benefits whichwere already given by it to the employees prior to the coming into force of the “Employees” StateInsurance Act, 1948 (the ‘ESI Act).” (Page: 875, Para: 1)

“……….In fact, it was the case of the employer that there was no change in the service conditionsprejudicial to the workers and hence no notice u/s. 9-A of the Act was necessary. The Tribunal held thatthe withdrawal of the medical benefits was prejudicial to the workers and therefore, the notice wasnecessary and since no such notice was given, the withdrawal of the benefits was illegal. We are inagreement with the said finding for the reason given below………” (Page: 875, Para: 2)

“The medical benefits available to the employees under the employer have been enumerated in anannexure to the appeal-memo. It is not necessary to discuss each of the said benefits. It suffices to pointout that one of the major benefits available to the employees is hospitalization in a private nursing homein case of illness and reimbursement of the medical expenses incurred for such hospitalization. There isno such benefits available under the ESI Act. A reference of the patient to a private nursing home ispossible only if no facility for the treatment of the aliment is available at the hospitals run by the ESICorporation and the Medical Officer concerned certifies to that effect. We have taken this instance onlyto point out that Dr. Ghosh’s contention that the benefits under the ESI Act are more generous orbeneficial, is not borne out by facts.” (Page: 875, Para: 5)


2. For reduction / discontinuation of medical benefits (Pat.DB) ¥ 2A.19 The management could not discontinue or reduce the medical benefits forming part ofcustomary concession which has become a condition of service of workmen and there is noprovision in the ESI Act which entitles them to do so. Such change in the condition of service, couldonly be made by taking recourse to Sec. 9A of the Industrial Dispute Act, which was not done andso its action is unjustified.

Workmen of Rohtas Industries, Ltd. v. H.K. Choudhuri & Ors., 1966 I LLJ 181 (Pat.DB)

“The Management cannot……….getting them.” (Page: 187, Para: 5)

“It can only do so……….dispute Act.” (Page: 187, Para: 5)

f) For reduction in retirement age

1. For reducing retirement age of workers on transfer of parent undertaking(Ker.DB)

¥ 2A.20 The age of retirement of workmen of Kottayam Electric Supply Agency cannot beunilaterally reduced by Kerala Electricity Board on the transfer of the former to the latter from 58years to 55 years without issuing notice, since it is a condition of service stipulated in a settlementprior to transfer and protected by Sec. 11 of the Electricity Act even after transfer.

P. Gopalakrishnan Nair & Ors. v. Kerala State Electricity Board & Ors., 1987 LIC 954 (Ker.DB)

“The petitioners were workmen……….illegal.” (Page: 958, Para: 15)

“The fourth Schedule……….validity.” (Page: 959, Para: 19)

g) For discontinuance of transport facilities

1. For amending order of State Electricity Board regarding LTC deprivingemployees of benefits of hired car journeys (Ori.DB)

¥ 2A.21 When the order of the State Electricity Board regarding Leave Travel Concession wasamended depriving employees of benefit of hired car journeys, it was held to be invalid since theprovisions of Sec. 9A were not complied with. The order of amendment is quashed.

Purna Chandra Das & Ors. v. Orissa State Electricity Board, 1990 LIC 1349 (Ori.DB)

“Sec. 9A……….prejudicially.” (Page: 1353, Para: 6)

“In the present……….prejudicially.” (Page: 1353, Para: 7)

“Considering all……….and invalid.” (Page: 1355/1356, Para: 13)

2. For discontinuance of bus facility provided under settlement, being changein service condition (Bom.DB)

¥ 2A.22 Discontinuance of Bus facility provided under settlement, being a change in servicecondition compliance of section is necessary.

Jaysynth Dyechem Ltd. v. Dyes & Chemical Workers Union & Anr., 2000 I LLJ 210 (Bom.DB)

“Even a……….bus facility.” (Page: 210, Para: 2)

“……….The Appellant………are proper.” (Page: 211, Para: 2)


h) Rationalisation or improvement which is likely to lead to retrenchment ofworkmen

1. Before introduction of rationalization scheme likely to cause retrenchment(S.C.2J)

F 2A.23 Notice u/s. 9A is a necessary requisite before installing scheme of rationalizationhaving likelihood of rendering existing workmen surplus and liable for retrenchment.

Lokmat Newspapers (P.) Ltd., v. Shankarprasad, 1999 II LLJ 600 : 1999 (95) FJR 676 : 1999 (83) FLR684 : 1999 III LLN 538 : 1999 LIC 2826 : 1999 II CLR 433 : 1999 II LLR 849 : 1999 SCC (L&S) 1090 :1999 AIR (SC) 2423 : 1999 (6) SCC 275 (S.C.2J)

“In view of the aforesaid settled legal position, there is no escape from the conclusion that the impugnednotice dated 25th March, 1982 u/s. 9-A which was issued long after the actual installation of the photocomposing machine had fallen foul on the touchstone of Sec. 9-A read with Schedule IV item No. 10.Such a notice in order to become valid and legal must have preceded introduction of such a machine andcould not have followed the actual installation and effective commission of such a machine. The decisionrendered by the Division Bench in this connection is found to be perfectly justified both on facts and inlaw. It must, therefore, be held that the impugned termination or discharge of the respondent wasviolative of the provisions of Section 9-A of the I.D. Act and he was discharged from service without theappellant’s following the mandatory requirements of Section 9-A of the I.D. Act. Effect ofnon-compliance of Section 9-A of the I.D. Act renders the change in conditions of service voidab-initio……….” (Page:625, Para: 37/38)

2. For retrenchment of workers due to installation of machine (Bom.DB) ¥ 2A.24 Retrenchment of 13 hand compositors as a result of installation of mono composingmachine in printing press attracts Item 10 Schedule IV, and as no mandatory notice of changeu/s. 9A was given, retrenchment is vitiated and hence finding of Tribunal that retrenchment wasmala fide, unjustified and illegal and workmen entitled to reinstatement was upheld.

Navbharat, Hindi Daily, Nagpur v. Navbharat Shramik Sangha, 1984 II LLN 132 : 1984 LIC 445(Bom.DB)

“……….the Industrial……….reinstated in service……….” (Page: 135, Para: 4)

“Needless to say……….on this count.” (Page: 136, Para: 9)

“……….Sec. 9A was enacted……….are not mandatory……….” (Page: 137, Para: 13)

$ - The following case/s may also be referred to in the context of the above decisions :

Karnal Co-op. Sugar Mills Ltd. v. Labour Court, Rohtak, Haryana & Ors., 2003 LIC 1602 (P&H.HC)K.S. Ramaratnam v. Labour Court & Anr., 2002 II LLJ 1166 : 2002 (94) FLR 431 : 2002 LLR 761 : 2002(100) FJR 872 (Mad.HC)

3. Whether proposed rationalisation leads to retrenchment depends on factsand circumstances based on reasonable grounds and not suspicion orgossip (Bom.HC)

¥ 2A.25 Whether proposed rationalization would lead to retrenchment would depend on facts andcircumstances of each case. If facts and circumstances are based on reasonable grounds and leadsto believe that there is probability of retrenchment, then the case will fall under Sch. IV, Item 10and not mere suspicion based on gossip or rumour cannot justify an inference of likelihood.

Gulf Air, Bombay v. S.M. VAZE, Member, Industrial Court, Maharashtra, Bombay & Ors., 1995 I LLJ246 : 1994 (69) FLR 615 : 1994 II LLN 321 : 1994 LIC 1579 : 1994 I CLR 292 (Bom.HC)


$ - Also refer :Rajasthan State Road Transport Corporation & Anr. v. Mohan Singh, 1995 I LLN 617 (Raj.DB)

i) For changes vide settlement

1. For change in service conditions resulting from settlement (Mad.DB) ¥ 2A.26 Settlement even after its termination on expiry continues to bind the parties hence anychange in relation to it being change in service condition without compliance of Sec. 9A isunsustainable.

Chemplast Sanmar Limited v. Mettur Chemicals Podhu Thozhilalar Sangam & Anr., 2000 I LLJ 1335 :1999 (95) FJR 527 : 2000 (84) FLR 116 (Mad.DB)

“Consequently……….Act also.” (Page: 1339, Para: 9)

2. For withdrawing privileges under settlement if privileges were continuedafter termination of settlement (Bom.HC)

¥ 2A.27 Where the federation of the union was recognized by the company as sole bargaining agent of employees even after termination of settlement for 7 long years, the Act of employer could betermed to be a privilege conferred to employees as a part of their condition of service and cannot bewithdrawn without a notice u/s. 9A of the Act.

Blue Star Workers Union & Anr. v. B.S. Bhadange & Ors., 1998 LIC 2880 (Bom.HC)

j) Apropos of contractual appointment

1. When management decides to call tenders for doing the work of cleaningon contract basis (Mad.HC)

¥ 2A.28 Workmen who are regular employees of Temple engaged in cleaning the premises ofTemple have filed this petition against the action of management calling tenders for doing the work of cleaning the temple on contract basis on the ground that even if the temple is connected with theactivities of the charity and religion, it is governed by the provisions of the Industrial Disputes Actand without following Sec. 9A of the Act, no change in condition of service is permissible. HighCourt dismissed the petition on the ground that it is too premature to assume that these employeesengaged in sweeping and scavenging will be retrenched since management is bound by the Act andRules and it cannot unilaterally change the condition of service of its employees without followingthe provisions of the Act and condition of service is fully secured by the statutory rules.

Workmen of Palani Dandayuthapani Swamy Temple, Palani. v. Commissioner Hindu Religious &Charitable Endowments Board, Chennai., Joint Commissioner/Executive Officer, ArulmighuDandayuthapani Swamy Thirukovil, Palani, 2001 IV LLN 963 (Mad.HC)

“……….According to the petitioners……….on contract……….” (Page: 963, Para: 3)

“It is too premature……….the statutory rules.” (Page: 967, Para: 21)

“Consequently……….is also dismissed……….” (Page: 967, Para: 25)


2. For recruiting EDP operators on contract basis (Mad.HC) ¥ 2A.29 Workmen were appointed as conductors. Subsequently, some of them who were foundsuitable after undergoing tests were appointed as ‘electronic data entry operators-cum-processors(EDP). However, after some time they were reverted to the post of conductors on the ground thatEDP operators would be appointed on contract basis. Being aggrieved, workmen challenged thedecision on the ground that it amounts to change in conditions of service and seek continuance inthe post of EDP operators. High Court held that workmen are entitled to benefit of clause (11) ofsettlement, since they are working for more than five years as data entry operators and thedecision to revert them as conductors is in violation of Articles 14 and 19 of the Constitution and itis further held that the decision to recruit persons on contract or otherwise as EDP operators willamount to change in conditions of service and is permissible only by following procedurecontemplated u/s. 9A.

M. Madhanraj & Ors. (2) M. Gurunathan & Ors. (3) R.Thiagarajan & Ors. (4) D. Sundaram (5) P.Namdakumar & Ors. (6) P. Vijayakumar & Ors. (7) G. Rajagopal v. Managing Director & GeneralManager, (Operation), S. Sekar Staff No. 14844, Metropolitan Transport, 2004 II LLN 1081 (Mad.HC)

“It is further……….as conductors.” (Page: 1085, Para: 4.2)

“According to……….sustainable in law.” (Page: 1085, Para: 4.3)

“There is no……….to be payment.” (Page: 1085, Para: 6.2)

“In view of……….B. D. P section.” (Page: 1085, Para: 6.5)

“Therefore, the……….of the Act.” (Page: 1085-1086, Para: 6.6)

3. For discontinuance of system of direct payment to contract workers, whichhad made them employees of the corporation (S.C.3J)

F 2A.30 When the corporation introduced direct payment system to the workmen of thecontractor they became the employees of the corporation and subsequently its unilateral act ofdiscontinuing it and reintroducing contract system will amount to termination of these employeesin violation of 25F as well as non-compliance of Sec. 9A and hence Supreme Court set asideTribunal’s award and ordered continuance of workmen.

The Workmen of the Food Corporation of India v. M/s. Food Corporation of India, 1985 II LLJ 4 : 1985(66) FJR 453 : 1985 (50) FLR 442 : 1985 II LLN 20 : 1985 LIC 876 : 1985 SCC (L&S) 420 : 1985 AIR(SC) 670 : 1985 (2) SCC 136 (S.C.3J)

“……….Therefore, the abolition of the contract system and the introduction of direct payment systemhereinbefore discussed brought about a basic qualitative change in the relationship between theCorporation and the workmen engaged for handling food grains in that on the disappearance of theintermediary contractor, a direct relationship of master and servant came into existence between thecontractor and the workmen………..” (Page: 10, Para: 15)

“……….whether once on the introduction of the direct payment system, the workmen acquired the statusof the workmen of the Corporation, was it open to the Corporation of unilaterally discontinue the systemwithout the consent of the workmen and reinduct contractor so as to again introduce a smoke-screenwhich may on paper effectively deny the status of being the workmen of the Corporation, acquired bythese workmen. And on discontinuance of the system of direct payment, without ordering retrenchmentof their services by the Corporation, they obtained a fresh employment under theContractor……….When workmen working under an employer are told that they have ceased to be theworkmen of that employer, and have become workmen of another employer namely, the contractor in this case, in legal parlance such an act of the first employer constitutes discharge, termination of service orretrenchment by whatsoever name called and a fresh employment by another employer namely, thecontractor………….the action of introducing so as to displace the contract of service between theCorporation and the workmen would be illegal and invalid and ab-initio void and such action would notalter, charge or have any effect on the status of the afore-mentioned 464 workmen who had become theworkmen of the Corporation.” (Page: 11, Para: 17)


“………the award of the Tribunal rejecting the reference and denying the benefit must be quashed and set aside and an award be made that the aforementioned 464 workmen who had become the workmen of theCorporation continued to be the workmen employed by the Corporation and shall be entitled to all therights, liabilities, obligations and duties as prescribed for the workmen by the Corporation. A formalaward to that effect shall be made by the Tribunal.” (Page: 13, Para: 22)

k) With regard to Voluntary retirement scheme

1. When dispute regarding voluntary retirement schemes related to generalclass of workmen and individual settlements could not be entered into(Bom.HC)

¥ 2A.31 Employer entered into individual settlements with surplus workmen and a few workmenaccepted voluntary retirement schemes. A dispute was raised by workmen’s union alleging unfairlabour practice. Industrial Court recorded a finding that the employer effected a change in theconditions of service without notice of change as required by Sec. 9A of Industrial Disputes Act. Onchallenge it was held that individual settlement as opposed to that made with union u/s. 2(p) wasnot recognized in a matter where the dispute related to the general class of workmen and thedispute was obviously not an individual type like discharge, dismissal, retrenchment ortermination. High Court upholding the order of industrial Court held that change was illegal.

Hindustan Lever Ltd. v. Hindustan Limited Employees’ Union & Ors., 1999 II LLJ 804 : 1999 I LLN 930: 1999 I CLR 56 (Bom.HC)

2. For implementing Voluntary Retirement Scheme which would result inreduction of posts (Bom.HC)

¥ 2A.32 Notice u/s. 9A of the Act was mandatory before implementing the Voluntary RetirementScheme for employees, since it would result in reduction of posts and it would not only attract Item11 of Sch. IV but also Item 10 of the schedule.

KEC International Ltd. v. Kamani Employees’ Union & Anr., 1999 III LLJ (Sum) 1552 : 1998 (79) FLR547 : 1998 II LLN 707 : 1998 LIC 2604 : 1998 I CLR 975 : 1998 LLR 598 (Bom.HC)

l) In cases of transfer

1. For transfer, if service condition is silent on transfer (Mad.HC)

¥ 2A.33 Corporation want to transfer the workmen by issuing notice u/s. 9A of the Act. Union filedwrit petition on the ground that Sch. IV of the Act did not deal with transfer and hence notice wasincompetent and not sustainable in view of pending proceedings u/s. 33 of the Act. The High Courtobserved that the existing conditions of service of workmen did not contemplate transfer andtherefore subjecting the workers to such a new conditions of service certainly required compliancewith Sec. 9A. Pending proceedings were regarding absorption and was not a bar to issuing notice.Petition dismissed.

Chennai Port & Dock Workers Congress (INTUC) v. Union of India & Ors., 2002 III LLJ 194 : 2002(101) FJR 148 : 2002 (94) FLR 1072 : 2003 I LLN 406 : 2002 LLR 1090 (Mad.HC)

2. When machine operators and punch card operators are transferred toserve as clerks (Mad.HC)

¥ 2A.34 A bank appointed employees as machine operators and punch-card operators for its dataprocessing section in the bank, but subsequently transferred their services as clerks as the saidwork of data processing was given on contract basis. High Court in a writ petition held that beforeeffecting any change in service conditions it was mandatory for the bank to give notice to affectedworkmen. Thus matter remanded to Tribunal for fresh decision.

Lakshmi Vikas Bank Employees Union v. P.O. Industrial Tribunal, Madras, Lakshmi Vikas Bank, Ltd.,Karur., 2003 I LLJ 735 : 2002 IV LLN 1118 (Mad.HC)


m) With regard to promotion policy of post of School Clinic Organiser

1. With regard to promotion policy of post of school clinic organiser(Bom.HC)

¥ 2A.35 With regard to the promotion policy in respect of promotion to the post of School ClinicOrganiser an agreement was reached between the Municipal Corporation and one of its severalunions of employees but notice of change was not given. It was held that the agreement arrived atbetween the parties was in contravention of Sec. 9A of ID Act, 1947 and was not enforceable.

Bombay Municipal Executive Staff Union & Ors. v. The Municipal Commissioner & Ors., 1993 III LLJ135 (Sum) : 1992 (64) FLR 68 : 1991 II CLR 716 : 1991 II LLN 1130 (Bom.HC)

n) for reduction in wages

1. For unilateral reduction in wages on employee being given a lighter job due to employment injury (Bom.HC)

¥ 2A.36 Employee sustained an employment injury and as a result he requested for a lighter jobwithout affecting his wages scale and other benefits, employer gave him a lighter job but on lowerwages applicable to lower level job. High Court held that unilateral reduction in wages byemployer will clearly be contrary to the provision of Sec. 9A of Industrial Disputes Act and alsoconsidering that the employee had suffered employment injury, it directed employer to pay 50% ofthe total differential benefits to which the employee would have been entitled.

S.N. Kedare v. Ceat Tyres of India Ltd. & Ors., 2001 (91) FLR 922 : 2002 LIC 852 : 2001 III CLR 291 :2002 LLR 143 (Bom.HC)

o) For retrenchment of workmen on introduction of ESIS Scheme (Pat.DB)

¥ 2A.37 The managements proposal to retrench 15 workmen on the grounds that introduction ofthe ESIS covering 83% of the employees would result in the medical staff becoming partiallysuperfluous, is unjustified. It was not right to hold that their retrenchment would not reduce thequantum and quality of medical benefits received by the employees. Such retrenchment wouldaffect the service conditions of the workmen and doing so without recourse to Sec. 9A is unjustified.

Workmen of Rohtas Industries, Ltd. v. H.K. Choudhuri & Ors., 1966 I LLJ 181 (Pat.DB)

“Coming to the……… of the employees” (Page: 188, Para: 1)

“In my judgement……….their service conditions.” (Page: 188, Para: 2)

“In the result……….of respondent 1.” (Page: 189, Para: 1)

p) For re-organisation of service conditions of security guards leading to changein their functions (AP.HC)

¥ 2A.38 Workmen were appointed as Security Guards in 1972 and their services were regularizedwhich was later amended and completely reorganized due to which the functions and services ofthe guards underwent a change. Workmen urged that notice of change was required against whichthe respondents submitted that such change in qualification or in the channels of promotion doesnot fall within fourth schedule nor does it attract Sec. 9A as no person has vested right topromotion. High Court was of the view that a perusal of Sec. 9A discloses that it is mandatory togive 21 days notice and it is not a mere formality which can be avoided.

G. Maruthaiah & Ors. v. The A.P.S.E.B. & Ors., 1986 LIC 1161 (AP.HC)

“The petitioner……….under went a change.” (Page: 1161, Para: 3/4)


“Contention of learned……….promotion.” (Page: 1163, Para: 11A)

“A perusal……….mandatory.” (Page: 1164, Para: 14)

q) For withdrawal of bank circular allowing bank employees to participate inelection (AP.DB)

¥ 2A.39 Bank allowed its employees to participate in election etc by issuing circular, subsequentlyit was withdrawn. Held that this being withdrawal of concession under item 8 of Sch. IV, madewithout issuing notice of change u/s. 9A was held to be unsustainable. State Bank of India Staff Union, Hyderabad Circle & Anr. v. Chairman, State Bank of India, CentralOfficer, Bombay & Ors., 1992 LIC 2078 (AP.DB)

“We are of……….natural justice.” (Page: 2081, Para: 11)

r) For withdrawing pensionary benefits though by means of an agreement if suchagreement is not settlement under Proviso within the meaning of IndustrialDisputes Act (Bom.HC)

¥ 2A.40 The term “agreement” cannot be read into the proviso of Sec. 9A of the Act, because theterm “Settlement” which is defined in Industrial Disputes Act has a different connotation andevery agreement signed between the parties need not therefore be a settlement. The legislature has, therefore, with purpose, excluded the word “agreement” from the proviso. The Court said that toread into the proviso the word “agreement” would be doing violence to the proviso. It is thereforeclear that unlike “settlement “ and “award” which are defined under Industrial Disputes Act whenany change is to be effected in pursuance of agreement, notice of change is required to be givenu/s. 9A. The Court therefore held that in the instant case, reserving a right to withdrew thepensionary benefits the right accrued to the workmen due to passage of time having assumed thecharacter of condition of service can not be withdrawn unilaterally with out taking recourse to theprovisions of Sec. 9A of the Act.

Tata Tea Ltd. (Bombay) Employees’ Union v. Tata Tea Ltd. & Anr., 2007 III CLR 724 : 2008 (1) Mah.LJ328 (Bom.HC)

III. Is not required

a) As regards payments / allowances

1. For payment given under production incentive scheme and not settlement(S.C.3J)

F 2A.41 Payment under the production incentive scheme which was paid quarterly, not beinga payment under a settlement as per Industrial Disputes Act does not amount to a condition ofservice requiring compliance of Sec. 9A for effecting any change. Whirlpool of India Ltd. v. Employees’ State Insurance Corporation, 2000 I LLJ 1101 : 2000 (96) FJR 404 : 2000 (85) FLR 171 : 2000 II LLN 72 : 2000 LIC 1023 : 2000 AIR (SC) 1190 : 2000 (3) SCC 185(S.C.3J)

“……….As already noticed, none of the Courts has held that the amount in question was paid or waspayable on fulfilment of terms of contract of employment. Further learned counsel fairly conceded thatthe payment under the scheme cannot be termed a payment under settlement as contemplated by Sec. 2(p) of the Industrial Disputes Act. It also cannot be held that the payment in question under the scheme wouldamount to a condition of service requiring compliance of Sec. 9A of the Industrial Disputes Act foreffecting any change in the conditions of service. ……………….” (Page: 1104, Para: 13)

829 Sec. 9A Is not required

2. For settlement of pay scales as per HPPC recommendations and SupremeCourt and Central Government orders (HP.DB)

¥ 2A.42 Where letter of appointment sufficiently indicated that pay scales will be finally settled asper recommendations by HPPC, and changes are made in accordance with direction of Apex Court and pursuant to orders by Central Government it would not imply alteration of service conditionrequiring compliance u/s. 9A.

Indrajit Boral & Anr. v. Union of India & Ors., 2000 I LLJ 57 : 1999 LIC 2491 (HP.DB)

“So far as……….whatsoever.” (Page: 63, Para: 7)

3. For a condition of service which has been settled by a binding settlement /award but it is to be substituted by a fresh settlement or award (S.C.2J)

F 2A.43 A condition of service which has been settled by a binding settlement / award cannotbe changed by executive order. It can be substituted only by a fresh settlement or award or byamendment of regulations. Therefore it is contended that by a mere executive resolution, thechanges in pension rules cannot be made so as to take away rights accrued under the pensionscheme. The Court held that the clause 15(iii) of the settlement merely exempts the requirement ofissuing 15 days notice u/s. 9A of Industrial Disptues Act. But it cannot be contended that theemployer cannot change by an executive action even those conditions of service that were not thesubject matter of regulations, a settlement or an award. Therefore reduction of maximumpermissible commutation from 40% to 331/3% is held valid because what was granted by a mereBoard proceeding could be validly altered by another Board proceeding in as much as what wasgranted by a board proceeding without mending regulations is sought to be taken away by another Board proceeding and in this view amending the regulations does not arise. Central Organisation of T.N. Electricity Employees v. T.N. Electricity Board, 2006 SCC (L&S) 19 (S.C.2J)

“In our view, Clause 15(iii) of the Settlement (dated 8.7.1998) merely mollifies the rigour of requirementof advance notice of 15 days under Section 9A of the Industrial Disputes Act, 1947. Ms. Jaisingcontended that the conditions of service once settled can never be changed except by being substituted bya fresh settlement or award. This may be true with regard to conditions of service, which have been settled by a binding settlement/ award. With regard to matters which are in the realm of virgin territory, we areafraid that this may not be the rule. In fact, we called upon Ms. Jaising to show as to which provision ofthe Industrial Disputes Act, other than Section 9A, prohibits the change by an employer of a condition ofservice that it was not brought about by a settlement or award. No such provision was cited before us.”(Page: 29, Para: 32)

“We need to, however, draw a distinction between two different situations which have arisen, namely: (i)an attempt by the Board to withdraw certain benefits granted by a decision of the Board (withoutamending the applicable regulations) by another Board decision, (ii) the other situation is where a benefitgranted under the 1960 Regulations was sought to be taken away by a Board’s decision (withoutamending the applicable regulations). As have seen in the previous situations discussed, the latter isclearly impermissible. We, however, need to consider the former issue.” (Page: 32, Para: 46)

“A change brought about by the Board that has also been impugned is with regard to the decrease in themaximum permissible commutation of pension from 40% to 331/3% by following G.O. No. 74 (dated19.3.2003) issued by the Government of Tamil Nadu. As far as this change is concerned, it would appearthat Regulation 7 as framed in 1960 permitted a maximum commutation of one-third. By a BoardProceeding B.P.(Ch) No. 208 (dated 18.8.1998), the commutation percentage was increased to 40%. This has now been reduced to 331/3% by another Board Proceeding B.P. (Ch) No. 66 (dated 31.3.2003). Inother words, what was granted by a Board Proceeding, without amending the Regulations, is sought to betaken away by another Board Proceeding with a view to following G.O.Ms. No. 74 (dated 19.3.2003)issued by the State Government in respect of its own employees. As far as this change is concerned, theargument of not following the proper procedure (i.e. amending the Regulations) does not apply. In fact, thechange made by B.P.(Ch) No. 66 (dated 31.3.2003) actually brings the level of commutation to what wasoriginally given by the 1960 Regulations. In our view, what was granted by a mere Board Proceeding couldbe validly altered by another Board Proceeding. Therefore, the challenge to the change in the commutationpercentage brought about by B.P.(Ch) No. 66 fails by the same token.” (Page: 32/33, Para: 47)


“The reduction in the maximum permissible commutation of pension from 40% to 331/3% brought aboutby B.P.(Ch) No. 66 (dated 31.03.2003), without amendment of the 1960 Regulations is not liable to beinterfered with.” (Page: 34, Para: 51(3))

4. For alteration in eligibility to receive conveyance allowance (Mad.DB)

¥ 2A.44 Alteration in condition of eligibility to receive conveyance allowance from Rs. 350 to 400, is not a change in service condition requiring notice u/s. 9A and violation of Sec. 33, as payment ofconveyance allowance was discretionary and subject to availability of funds and hence not a part of service condition.

Workmen of Hindustan Teleprinters Ltd., Madras, & Ors. v. Hindustan Teleprinters Ltd., & Madras, &Anr., 1983 I LLJ 429 : 1983 I LLN 805 (Mad.DB)

“The Tribunal………..be dismissal.” (Page: 432, Para: 11)

5. For reduction of special allowances made by mistake (Cal.DB) ¥ 2A.45 Under a mistake the employer paid special allowance of machine operators to the telexoperators. To rectify the mistake the employer started giving reduced special allowances to theworkmen i.e. telex operators. Challenging the alteration, the workmen moved Tribunal whichresulted in an award in their favour since Sec. 9A was not complied with. Single Judge upheld theTribunal’s order. Being aggrieved, employer moved Division Bench, which set aside Tribunal’sorder and held that higher payment made by a mistake could not mature into a service condition.Therefore, reduction does not require notice u/s. 9A.

Allahabad Bank v. Presiding Officer, Central Government Industrial Tribunal & Anr., 2005 III LLJ 297(Cal.DB)

6. For withdrawing temporary benefit of attendance bonus paid undersettlement (Cal.HC)

¥ 2A.46 There was a settlement between employer and union, which provided that the workmenwould get the benefit of attendance bonus yet the employer withdrew the said benefit without anynotice. Being aggrieved workmen moved High Court contending that it was change in condition ofservice without any notice. High Court observed that as per settlement the benefit was available for a temporary period only as such it held that the settlement had not conferred any permanent rightto the workmen hence, notice of change would not be required.

Biecco Lawrie Sramik Karmachari Union & Ors. v. Biecco Lawrie Ltd. & Ors., 1988 LIC 1448 (Cal.HC)

7. When increments mistakenly given to employees of Grameen Bank bysponsor bank are withdrawn (Jhar.HC)

¥ 2A.47 Certain employees of the Gramin Bank were granted increment but this was subsequentlywithdrawn. The employees of all branches of sponsor Bank, the State Bank of India, in whichcomputerization was done or was to be done, additional annual increments was allowed. Tribunalheld that the withdrawal of increment to the employees of the Gramin Bank was not justified but High Court held that the employees of the Gramin Bank could not be equated with the employeesof the sponsor Bank, the State Bank of India, who were given such increment pursuant to the policy for computerization. Also, the High Court held that the instant case was not one where there was achange in the conditions of service of the employees in violation of Sec. 9A of the IndustrialDisputes Act 1947. As the increment in question was given by mistake the Bank was justified inwithdrawing the same. Hence, the impugned award of the Tribunal was set aside.

Samastipur Kshetriya Gramin Bank, Head Office, Samastipur thro’ its Chairman v. Union of India &Ors., 2006 II LLJ 557 : 2006 II CLR 888 (Jhar.HC)


$ - The following case/s may also be referred to in the context of the above decisions :Tamilnad Electricity Workers’ Federation & Anr. v. Madras State Electricity Board, 1962 II LLJ 136(Mad.HC) 45 of 1962 dt. 1st March 1962

b) As regards working hours

1. For change in working hours within statutory limit and withinmanagement’s power (S.C.3J)

F 2A.48 Working hours of administrative staff were fixed at 6½ hours, per day when thefactory was under construction. Subsequently after completion of construction work theadministrative staff attached to it were shifted to its own building and their working hours werefixed at 8 hours. It is held that since the change was within management’s power and it was withinthe statute and there being no condition of service or terms in letter of appointment, in support of6½ hours work, fixing of working hours at 8 hours per day was held to be proper and does notviolate Sec. 9A of the Act and therefore set aside the award of the Tribunal which reduced theworking hours to 6½ hours with overtime to 10% of wages and restored the working hours to 8hours fixed by the management.

The ONGC v. The workmen of ONGC, 1973 I LLJ 18 : 1972 (42) FJR 551 : 1972 (25) FLR 344 : 1972LLN 659 : 1973 LIC 233 : 1973 AIR (SC) 968 : 1973 (3) SCC 535 (S.C.3J)

“In our opinion, on the facts and circumstances of this case it cannot be said that 6½ working hours a daywas a term of service, for the simple reason that it was only during a period of the first six months. whenthe factory was being constructed at the site of the workshop that due to shortage of accommodation, theadministrative office was, as an interim arrangement, temporarily located in tents at a place about 2 k.m.away, that the staff in this office was not required to work for more than 6½ hours per day. There is noevidence that 6½ hours per day was a condition of service : neither is there any such term of service intheir letters of appointment, nor is such a term of service otherwise discernible from other materials on the record. As soon as the construction at the site of the factory was complete and the workshop was ready tostart its normal and regular working, the administrative office was shifted to its permanent abode at thesite of the factory. It was then that the proper regular working of the administrative office and its staffstarted at the site of the factory with working hours being appropriately fixed at 8 hours per day so as tofacilitate efficient functioning of the workshop to the expected capacity.” (Page: 22, Para: 9)

“……….The management must in our opinion, have full power and discretion in fixing the workinghours of the administrative staff within the limits prescribed by the statute. When the change in theworking hours is covered by Sec. 9-A read with the Fourth Schedule of the Act, compliance with the saidsection would undoubtedly be necessary for its sustenance. In the present case, as already observed.Section 9-A is not attracted. When the administrative office at Baroda was temporarily located about acouple of kilometres away awaiting completion of its permanent abode, the factory was in the process ofbeing constructed and there was no question of fixing the working hours of the administrative office on apermanent basis. Perhaps there was not even enough work for the office staff to keep them occupied formore than 6½ hours per day. It was only when the factory was completed and the administrative staffattached to it shifted to its own building at the factory site, that the management apparently on an overallassessment of its requirements fixed 8 working hours per day. This, in our opinion, was within thecompetence of the management.……….” (Page: 24, Para: 16)

“……….The office at Baroda being the controlling office its requirements and exigencies of work aresuch that fixing of 8 hours work a day is, in our opinion, fully justified, and the Tribunal was wrong inreducing its working hours to 6½ hours a day. The mere fact that the staff at Baroda is liable to transfer toother projects is, in our view, of little importance. Assuming that by transfer to some other projects theemployee concerned would have to work for 6½ hours a day, that would not render the fixation of 8 hours a day for the administrative office at Baroda objectionable or open to interference by the Tribunal. TheTribunal has itself already observed that in the other projects the working hours in the administrativeoffices vary. If that is so then this could not be a cogent ground for reducing the working hours from 8 to 6 ½ in the Central Office at Baroda. Once it is found that 8 hours a day has been properly fixed for workin the administrative office there can be no question of payment of any compensation, for working for 8hours a day in the past.” (Page: 25, Para: 18)


2. For increasing working hours of employees of Mints and Press governed by Rules (Cat.DB)

¥ 2A.49 Since the employees of Mints and Press are governed by fundamental Rules, no notice washeld required in terms of the proviso for increasing the hours of work of the employees ofHyderabad Mint from 37½ hours to 44 hours.

John Deveprian & Anr. v. The General Manager, India Government Mint & Anr., 1989 LIC 494(Cat.DB)

“……….In the light……….work……….” (Page: 501, Para: 13)

“……….On any event……….illegal……….Thus……….satisfied……….The factories Act……….I.D. Act ……….” (Page: 501, Para: 13)

“……….He application……….dismissed……….” (Page: 501, Para: 14)

3. When working hours were raised within the statutory limit of the FactoriesAct (Cat.DB)

¥ 2A.50 There was no violation of the section as the employer issued in the prescribed form noticeon 16-1-1988 increasing the working hours of employees of the mint from 37½ hours to 44 hourswith effect from 8-2-1988 and also as it is within the statutory limit of 48 hours under Factories Act.

John Deveprian & Anr. v. The General Manager, India Government Mint & Anr., 1989 LIC 494(Cat.DB)

“Thus……….satisfied……….the factories Act……….I.D. Act………” (Page: 50, Para: 13)

4. For change in time schedule without change in hours of work and restintervals (Bom.DB)

¥ 2A.51 Considering provisions in Sec. 51, 55 and 56 of Factories Act, it was held change in periodsof work i.e. Time schedule without any change in hours of work and intervals of rest would not fallunder item (4) of fourth schedule of Industrial Disputes Act and therefore Sec. 9A of IndustrialDisputes Act would not be attracted and hence appeal of the union was dismissed.

Transport & Dock Workers Union Bombay & Anr. v. Chowgule Steamships Ltd., Bombay & Anr., 1997(76) FLR 968 : 1997 II LLN 434 : 1997 LIC 928 : 1998 II CLR 45 (Bom.DB)

“It is clear……….interval for rest……….obviously period……….for that purpose……….” (Page: 973, Para: 2)

“In view of……….was not attracted.” (Page: 973, Para: 3)

5. For change in shift timings which included regular hours plus overtimewhich was not customary privilege of workmen (Bom.DB)

¥ 2A.52 Current shift timing which included not only regular hours of work but also overtimehours of work does not confer right upon workman for overtime work and its being not acustomary concession or privilege or usage since it is dictated by exigencies of work which variesfrom time to time, does not require notice of change.

India Security Press Mazdoor Sangh v. Currency Note Press, Nasik Road, & Ors., 1993 III LLJ 58 : 1988(56) FLR 229 : 1987 II LLN 740 : 1987 II CLR 310 (Bom.DB)

“We are of……….action.” (Page: 60, Para: 5)

“The current……….of change.” (Page: 59, Para: 5)


6. For change in shift timings of telephone operators constituting only achange in period of work but not hours of work (Bom.DB)

¥ 2A.53 Change in the shift timings of telephone operators constitutes only a change in the periodof work but not hours of work within the meaning item 4 of schedule IV.

Transport & Dock Workers Union Bombay & Anr. v. Chowgule Steamships Ltd., Bombay & Anr., 1997(76) FLR 968 : 1997 II LLN 434 : 1997 LIC 928 : 1998 II CLR 45 (Bom.DB)

“……….Sec. 9–A……….hours of work.” (Page: 50, Para: 10)

7. For withdrawal of the concession allowing employees to attend office halfan hour later than usual in winter months (AP.HC)

¥ 2A.54 Where a concession in attending office half an hour later than usual in the winter monthswas granted by the employer at the request of concerned staff, withdrawal of such concessionwhich was referred for adjudication was held to be justified. Industrial Tribunal found that theaction of the management was justified on merits and hence the provisions of S. 9A of the Act didnot apply.

Workmen of Hindustan Shipyard Pvt. Ltd. v. Industrial Tribunal, Hyderabad & Ors., 1961 II LLJ 526(AP.HC)

c) As regards period of service

1. For fixing maximum period of service or date of retirement, as it is notcovered by Sch. IV (S.C.2J)

F 2A.55 Application of Sec. 9A is subject to the 3 preconditions firstly there must be a changeduring the service of the employee, secondly the change must be such that it would adversely effectthe workmen and thirdly the charge must be in respect of matter provided in Sch. IV of the Act andsince in the present case Schedule does not include the matter of fixation of maximum period ofservice or date of retirement, it cannot be said that by introducing above said change in standingorder, notice is required to be given and also held that introduction of maximum period of servicewould not operate to the detriment of the employee who was otherwise entitled to serve only for sixmonths does not attract the service of notice to the employees.

Harmohinder Singh v. Kharga Canteen, 2001 (99) FJR 416 : 2001 (90) FLR 548 : 2001 III LLN 715 :2001 LIC 2391 : 2001 II CLR 927 : 2001 LLR 849 : 2001 SCC (5) 540 : 2001 AIR (SC) 2681 (S.C.2J)

“Sec. 9A of the Act relied upon by the appellant only provides that an employer proposing to effect anychange in the conditions of service applicable to any workman in respect of any matter specified in the 4th Schedule to the Act cannot affect such change without giving to the workmen notice in the prescribedmanner. The provisions of the Section are no doubt mandatory. But the preconditions to theirapplicability are, (i) there must be a change in the conditions of service. (ii) the change must be such thatit adversely affects the workmen;……….and (iii) The change must be in respect of any matter providedin the Fourth Schedule to the Act.………In other words, not all changes are required to be notified. TheFourth Schedule provides for eleven conditions of service for change of which notice is to be given. Apart from the express conditions, there may be conditions which by a process of interpretation can be includedwithin one or other of the eleven listed.” (Page: 420, Para: 7)

“The conditions of service for change of which notice is to be given under the 4th Schedule does not interms include the subject matter of para 3-A namely, the fixation of a period of service or date ofretirement. No argument has been advanced as to which of the eleven items could, even by a process ofinterpretation include para 3-A. There is nothing on record to show that prior to the introduction of Para3-A, the workmen of the Canteen continued as a matter of right till they reached the age of superannuation applicable to Government servants. On the contrary the Standing Orders expressly provide that theservices of canteen workers were temporary and for a period of six months. It cannot be said that theintroduction of a maximum period of service would operate to the detriment of the employee who was


otherwise entitled to serve only for six months and was liable to be dismissed merely upon service of amonth’s notice. …….. It was not necessary, therefore, to give any notice to the workmen u/s. 9A of theAct before introducing para 3-A in the Standing Orders. Besides, the respondent’s averment that theamended Standing Orders were duly intimated to all its employees who had also signed the same has notbeen controverted by the appellant.” (Page: 421, Para: 3)

d) As regards change in weekly rest days

1. For change in weekly rest day which was justified through official letters(Cal.DB)

¥ 2A.56 Where the company in support of its contention that change in weekly rest day wasjustified had produced through its officers letters received by the company in due course ofbusiness, Order of the Single Judge that the aforesaid letters were not properly proved inaccordance with the basic principle of Evidence Act cannot be sustained and hence finding ofTribunal that change of weekly rest day will not attract Sec. 9A or Schedule IV which was quashedby Single Judge was restored.

Samnuggur Jute Factory Co. Ltd, (North Mill) v. Workmen of Samnuggur Jute Factory Co .Ltd, (NorthMill) & Ors., 1982 LIC 1354 (Cal.DB)

“……….The Tribunal held……….of the Act……….” (Page: 1354, Para: 1)

“……….If the power……….Act is applicable……….Exts A & B……….taken note of.” (Page: 1355,Para: 4)

“……….Hon’ble Single Judge’s……….cannot be sustained……….” (Page: 1355, Para: 5)

e) As regards change in holidays

1. Alteration of Diwali holiday based on recommendation of majorityworkmen (S.C.2J)

F 2A.57 Alteration of Diwali holiday from 11th November to 12th November on therecommendation by majority workmen was held to be within employer’s right and does notrequire notice u/s. 9A even if it is considered to be change in service condition as it was effected onrequest of majority workmen.

Assam Match Co. Ltd. v. Bijoy Lal Sen & Ors., 1973 II LLJ 149 : 1973 (43) FJR 461 : 1973 (27) FLR 61 :1973 II LLN 56 : 1973 LIC 1158 : 1973 SCC (L&S) 455 : 1973 AIR (SC) 2155 : 1974 (3) SCC 163(S.C.2J)

“……….The fact is that the workmen have not been deprived of a holiday for Diwali. Even assuming that the workmen have got a right to get a holiday for Diwali and that it has become a condition of service, inthis case the workmen did have a holiday for Diwali. The holiday for the said festival is to be given on thedate when the majority of the workmen claim that they are celebrating Diwali. It has been emphasised in(1972) 2 LLJ 259 = (AIR 1972 SC 1917) that the real object and purpose of Section 9A is to afford anopportunity to the workmen to consider the effect of a proposed change and, if necessary, to representtheir view on the proposal. Even assuming that the alteration of the date of the holiday for Diwali willamount to a condition of service (sic), there is no question, in this case, of a contravention of Section 9-A,when the majority of the workmen themselves requested the employer to make the alteration. Theemployer was within its rights u/s. 33 (2) (a). The evidence on the side of the respondents shows that theworkmen actually celebrated Diwali on the 12th November, which was declared to be a holiday.” (Page: 153, Para: 12)

“In our opinion, the alteration of the date regarding the holiday for Diwali from 11th to the next day,cannot be considered to be an alteration in the conditions of service. The workmen may be entitled to have a holiday for Diwali. But on what particular day Diwali falls or it is being, observed and a holiday is to bedeclared, is a matter to be decided by the management in consultation with the workmen. If a large body


of the workmen require a change in the date of the holiday on the ground that the festival is not beingobserved on the day originally fixed and the management changes the date, it cannot be stated that there is an alteration in the conditions of service. The workmen are not being deprived of a holiday at all forDiwali. In fact they have got it on the 12th November, 1966.” (Page: 152, Para: 9)

2. As to number of holidays when employees were transferred fromGovernment leather units to Leather industries Development Corporation(AP.HC)

¥ 2A.58 Employees of Government leather units were transferred on deputation to the Leatherindustries Development Corporation. A dispute was raised regarding reduction in the number ofholidays available to them. Labour Court held that even after the transfer they were entitled to thesame number of holidays which they had before as Government servants. High Court held that“holidays” cannot be treated as service condition. The Corporation cannot have two set of holidaysfor its workers as it would amount to discrimination. Sec. 9A of the Act is not attracted as theCorporation tried for the first time to stipulate the number of holidays workers were entitled tounder the Factories Act, 1948 and the Andhra Pradesh Factories and Establishments (Nationalfestival and Holidays) Act, 1974.

Leather Industries Development Corporation of Andhra Pradesh, Ltd, (by Managing Director) v.Leather Goods Production Centre Employees’ Union, Hyderabad (by Secretary), & Ors., 1983 II LLN743 (AP.HC)

3. When factory was kept working on weekly off day and closed on day ofbandh, on a solitary occasion (Bom.HC)

¥ 2A.59 A mere one time decision of the employer to keep the factory closed on the Bandh day andinstead keep it working on weekly off day without due notice to workmen u/s. 9A for only on asolitary occasion being an isolated change is held as an exception for one occasion unlike as apermanent feature cannot be considered as would materially or adversely affecting the workmenin order to attract sec. 9A of the Act.

M/s. Mistry Lallubhoy & Co. v. Engineering & Metal Workers’ Union & Anr., 1978 (53) FJR 100 : 1978II LLN 76 : 1979 LIC 196 (Bom.HC)

f) As regards increase in working days

1. For working days being 6 days instead of 5, at the workplace whereworkers were transferred at their own request (Cal.HC)

¥ 2A.60 Workmen challenged the order that they were asked to work for 6 days a week, when theirservice condition stated that they had to work for 5 days a week. It was held that as workers weretransferred to guesthouse on their own request where the number of working days was uniformly 6 days a week. There was no violation of Sec. 9A.

Coal Employees’ Union & Ors. v. Coal India Ltd., & Ors., 1993 I LLJ 646 : 1993 I LLN 146 : 1992 (65)FLR 922 : 1992 LLR 923 : 1993 I CLR 218 (Cal.HC)

g) For reduction in number of employees / departments

1. For reduction in number of helpers to fitters and electricians (AP.DB) ¥ 2A.61 Since providing helpers to fitters and electricians depends upon the exigencies of thesituation, it may or may not be a condition of service and hence the reduction in their number is notviolative of Sec. 9A.

Singareni Collieries Workers Union & Anr. v. Singareni Collieries Co. Ltd., Kothagudem, 2002 IV LLN83 (AP.DB)


“From the……….grievance.” (Page: 86, Para: 17)

2. For reduction in departments which does not adversely affect the workmen (S.C.3J)

F 2A.62 Therefore a reduction of departments from 3 to 2 by re-organisation of business willnot said to fall within the ambit of items 8, 10 and 11 of IVth Schedule of the Act and that the sec. 9A will not be applicable unless it could be shown that the abolition of one department has adverselyeffected the workers by such abolition because the expression ‘affected’ appearing therein wouldmean that the workers should be adversely affected by such change. Hindustan Lever Ltd. & Workmen of HLL v. Ram Ray & HLL, 1973 I LLJ 427 : 1973 (43) FJR 391 : 1973(26) FLR 408 : 1973 LIC 784 : 1973 SCC (L&S) 309 : 1973 AIR (SC) 1156 : 1973 (4) SCC 141 (S.C.3J)

“He also urged that rationalisation and standardisation per se would fall under item 10 even if they werenot likely to lead to retrenchment of workmen and only improvement of plant or technique would requirethat they should lead to retrenchment of workmen in order to fall under item 10. …We are not able toaccept this argument. It appears to us that the arrangement of words and phrases in that item shows thatonly rationalisation or standardisation or improvement of plant or technique, which is likely to lead toretrenchment of workmen would fall under that item. In other words, rationalisation or standardisation by itself would not fall under item 10 unless it is likely to lead to retrenchment of workmen.……….” (Page: 430, Para: 8 )

h) As regards constitution of cadres / grades

1. For constituting employees in posts other than specified into separate cadre (S.C.2J)

F 2A.63 Since under amended staff regulations no new categories or posts were created butposts other than ones specifically mentioned in regulations were constituted into separate cadre, itwas held that creation of such cadre was not related to item 7 of Sch. 4 and hence not hit by Sec. 9A.

Orissa State Warehousing Corpn. Ltd. v. Orissa State Warehousing Corpn. Employees Union & Anr.,1995 I LLJ 429 : 1994 SCC (L&S) 1031 : 1994 (2) SCC 488 (S.C.2J)

“……….The High Court by its impugned decision dealt with the challenge based on Sec. 9-A of the Actand came to the conclusion that inasmuch as the amendment related to Item 7 of Schedule 4 of the Act, itwas hit by the provisions of Section 9-A and hence a notice of change was necessary before theamendment was effected. For coming to this conclusion, the High Court held that the proposed changerelated to the “Classification and Grades”. We are afraid that the High Court has misconstrued the saidamendment. We have already quoted the amendment which shows that all that was sought to be done byit was to constitute the employees holding posts other than those specifically mentioned therein in thecategory of Grades-II, III and IV, into a separate cadre each and to make the employees holding the postsin the said cadre, transferable to the other posts in the same cadre. No new categories or grades werebeing created. The High Court is, therefore, clearly wrong in its construction of the amendment……….”(Page: 430, Para: 3)

2. For issuing notification on common cadres of secretaries in co-operativesocieties (Mad.DB)

¥ 2A.64 As there is no alteration in service conditions and also as secretaries are not workmen nonotice under the section is required before issuing notification regarding common cadres ofSecretaries in Co–operative Society.

P. Baluchamy v. State (Represented by Secretary to Government co-op., Food & Consumer ProtectionDepartment, Chennai) & Ors., 2003 III LLN 337 (Mad.DB)

“Even……….not workmen.” (Page: 344, Para: 26)


3. In case of closure of cadres of superintendents (Bom.HC)

¥ 2A.65 Notice is required only when the matter relates to fourth schedule. Thus, in case closure ofcadre of superintendents was announced, no notice of change is needed to be given, as what ischanged is merely the channel of promotion.

Life Insurance Corporation of India v. All India Insurance Employees’ Association & Ors., 1995 III LLJ797 (Sum) : 1989 (58) FLR 149 : 1989 LIC 1493 : 1988 II LLN 1019 : 1988 II CLR 558 (Bom.HC)

4. When consent was given by workmen for absorption in another grade(All.HC)

¥ 2A.66 The workmen were appointed temporarily in Grade-C (Rs. 85-110) but as a result ofreduction of workload the employer instead of retrenching them, had absorbed them in Grade-B(Rs. 70-85) in 1966. However when the said grade was revised in 1973 as Grade-C (Rs. 210-290) and Grade B (Rs. 176-232), the workmen moved Labour Court contending that they were originallyappointed in Grade-C as such entitled to pay scale of Grade-C from 1966. Labour Court’s orderallowing the claim of workmen and holding the absorption as a change of condition of servicewithout statutory notice was held bad by High Court since the workmen had expressed their choice in writing that they want to be taken as Grade-B labourers instead of being retrenched, even if nosettlement was entered between the parties.

The General Manager, Ordnance Parachute Factory, Kanpur v. P.O. Central Government IndustrialTribunal-cum-Labour Court, Kanpur & Anr., 1987 LIC 365 (All.HC)

“……….As a consequence……….executed herein.” (Page: 377, Para: 37)

i) As regards promotion

1. For modifying promotion scheme making reservations for schedule caste/tribes (All.DB)

¥ 2A.67 Modifications in Scheme of Promotion by making reservation in favour of schedule casteand schedule tribes being not covered by entries in Schedule IV, notice u/s. 9A held to be notnecessary.

G.P. Wahal & Ors. v. Reserve Bank of India (by Manager) Kanpur & Anr., 1983 I LLN 331 : 1983 LIC738 (All.DB)

“Section 9A……….Act 1947.” (Page: 336, Para: 12)

2. For introduction of written and oral test for promotion which was to stoparbitrariness and secure uniformity (Bom.HC)

¥ 2A.68 Where the Corporation through a circular introduced written and oral test for eligibilityfor promotion, workmen contended that the circular introduced change in the conditions ofservice. High Court rejected the contention on ground that the test was introduced to stoparbitrariness and to secure uniformity in the promotion and it was applicable to all. Therefore, itwas held that the circular was not invalid.

Municipal Corporation of Greater Bombay & Anr. v. Pandurang Dinkar Katkar & Ors., 1999 (81) FLR499 : 1998 (79) FLR 36 (Sum) : 1998 IV LLN 174 : 1998 LIC 2333 : 1998 I CLR 1178 (Bom.HC)


j) As regards transfer

1. If transfer due to rationalisation from one dept. to another is withoutprejudice to service conditions (Mad.HC)

¥ 2A.69 Company undergoing financial stringency and taking measures for Rationalizationtransferred workers from one department to another without prejudice to service conditions,hence, no question of notice u/s. 9A of Industrial Disputes Act.

J. Kalidasan & Ors. v. General Manager, Sri Bharathi Mills, 1999 (94) FJR 461 : 1999 (82) FLR 20(Sum) (Mad.HC)

2. On conductor being transferred as computer operator and againretransferred as a conductor (Mad.HC)

¥ 2A.70 A conductor in a corporation was transferred and posted as computer operator withspecial allowances, but later he was retransferred to the said post of conductor. High Court was ofthe view that such transfer will not attract provisions of Sec. 9A.

N. Yadavakrishnan v. General Manager, Tamil Nadu State Transport Corporation, Ltd., Kovai DivisionSuperintendent, Tamil Nadu State Transport Corporation (Division I), Ooty, 2002 I LLN 1034(Mad.HC)

3. for transferring Belder from one post to other (Del.HC)

¥ 2A.71 Where the services of a Beldar was transferred from one post to another he contended that the employer had violated Sec. 9A of the Act. It is held that there are no conditions of serviceattached to the post of Beldars and therefore there could be no change in any conditions of serviceand hence Sec. 9A does not apply. Even otherwise, it is held that employer was required to givenotice only in cases where such condition of service are specified in IV Schedule of IndustrialDispute Act, 1947 and as in this case the employee was merely transferred from one post to anotherand this transfer is not covered by the IV Schedule of Industrial Disputes Act, there could be noviolation of Sec. 9A of the Act.

Balram & Anr. v. M.C.D., 2007 LIC 1187 : 2007 LLR 775 (Del.HC)

k) As regards retrenchment

1. For retrenchment which connotes termination of service but does notconstitute a change in service condition (S.C.2J)

F 2A.72 Retrenchment by railway, which connotes termination of service does not constitute achange in service condition since not covered by any item, under Sch. IV therefore, neither sec. 9Anor its proviso exempting railway management to give prior notice will be attracted but in S. 25Fwhich is independent of S. 9A, notice is necessary for valid retrenchment.

L.Robert D’souza v. Executive engineer southern Railway & Anr., 1982 I LLJ 330 : 1982 (60) FJR 144 :1982 (44) FLR 250 : 1982 I LLN 257 : 1982 LIC 811 : 1982 SCC (L&S) 124 : 1982 AIR (SC) 854(S.C.2J)

“……….Thus if S. 9-A is not attracted, the question of seeking exemption from it in the case falling under the proviso would hardly arise. Therefore, neither Section 9-A nor the proviso is attracted in this case.The basic fallacy in the submission is that notice of change contemplated by Section 9-A and notice for avalid retrenchment under S. 25-F are two different aspects of notice, one having no correlation with theother. It is, therefore, futile to urge that even if termination of the service of the petitioner constitutesretrenchment it would nevertheless be valid because file notice contemplated by S. 25-F would bedispensed with in view of the provision contained in S. 9-A, proviso (b)……….” (Page: 336, Para: 7)


“It was obligatory upon the employer, who wants to retrench the workmen to give notice as contemplatedby clause (a) of Section 25. When a workman is retrenched it cannot be said that change in his conditionsof service is effected. The conditions of service are set out in Fourth Schedule. No item in FourthSchedule covers the case of retrenchment. In fact, retrenchment is specifically covered by Item 10 of theThird Schedule. Now, if retrenchment which connotes termination of service, cannot constitute change in conditions of service in respect of any item mentioned in Fourth Schedule, S. 9-A would not be attracted.In order to attract S. 9-A, the employer must be desirous of effecting a change in conditions of service inrespect of any matter specified in Fourth Schedule. If the change Proposed does not cover any matter inFourth Schedule S. 9-A is not attracted and no notice is necessary……….” (Page: 336, Para: 7)

2. For retrenchment of employee on closure of dept. and not re-organisation(Bom.DB)

¥ 2A.73 Where employer closes down a Department and has not done any reorganization, a noticeu/s. 9A is not required before retrenching an employee of the aforesaid closed department.

Arvind Anand Gaikwad v. Uni Abex Alloy Products, Ltd., & Ors., 1994 III LLJ 684 : 1988 I LLN 239 :1988 I CLR 26 (Bom.DB)

“In our judgement……….retrench the employee……….” (Page: 688, Para: 9)

3. For retrenchment not directly related to installation of machine butnon-availability of work (Bom.DB)

¥ 2A.74 Retrenchment of 19 workers engaged in hand composing was not a direct result ofinstallation of photo–composing machine as workmen had continued in service for years afterinstallation of machine and actually the reason behind their retrenchment was non availability ofhand composing work, hence notice of change u/s. 9A was not required and also their retrenchment as such is not covered by any item of Sch. IV of the Act and it was also observed that notice ofchange u/s. 9A and notice u/s. 25F for effecting retrenchment are entirely different and notco-related aspects.

Narkeshari Prakashan Ltd. v. Nagpur Press Kamgar Sangh & Anr., 1994 II LLJ 530 : 1994 (68) FLR 462 : 1994 II LLN 870 : 1994 LIC 114 : 1993 II CLR 1110 (Bom.DB)

“It is thus……….in June, 1989……….” (Page: 539, Para: 40)

“Even other wise……….with each other.” (Page: 539, Para: 41)

“……….we do not……….illegal and void.” (Page: 540, Para: 42)

4. If no workman is likely to be retrenched as a result of proposed change(Bom.HC)

¥ 2A.75 A conjoint reading of Sec. 9A of Industrial Disputes Act and Item 10 of 4th schedule makes it clear that Sec. 9A of Industrial Disputes Act is applicable only in cases of proposed change incondition of service and Item 10 of 4th schedule deals with rationalization, standardization, orimprovement of plant which deals with retrenchment and thus, more emphasis is on the effect onemployment. So, when there is no likelihood of retrenchment and no workman would be affectedby such change notice u/s. 9A of Industrial Disputes Act is not required.

Gulf Air, Bombay v. S.M. VAZE, Member, Industrial Court, Maharashtra, Bombay & Ors., 1995 I LLJ246 : 1994 (69) FLR 615 : 1994 II LLN 321 : 1994 LIC 1579 : 1994 I CLR 292 (Bom.HC)


5. Where introduction of computerisation would not lead to retrenchment(Mad.HC)

¥ 2A.76 Union filed petition challenging the decision of the Board to introduce computerization inviolation of agreement and without notice u/s. 9A. Held that, agreement nowhere provides thatunion should be consulted before computerization is introduced. Circular issued by one of theofficers regarding consultation with the Union cannot have effect of adding to the agreement under the Industrial Disputes Act. Notice would be applicable only in the cases where introduction oftechnique would lead to retrenchment and cannot be considered as a ban on improving theefficiency. Petition dismissed with option to approach appropriate authorities under the IndustrialDispute Act.

Tamil Nadu Electricity Board Accounts & Executive Staff Union (represented by its General Secretary,S.V. Angappan), (2) Tamil Nadu Electricity Board Federation (represented by its General Secretary,S.C. Krishnan) v. Tamil Nadu Electricity Board., 2003 III LLN 696 (Mad.HC)

6. When retrenchment is due to surplus (Bom.HC)

¥ 2A.77 The workmen had not received any notice of closure of the mailing section. Labour Courtheld that there was no need to give notice as retrenchment was due to surplus. High Court alsoupheld the finding of Labour Court as there was no introduction of any new process or method and it was not a case of rationalization or standardization.

Alarsin & Alarsin Marketing Employees’ Union v. Alarsin Pharmaceuticals & Alarsin Marketing (P)Ltd. & Anr., 2004 III LLN 952 : 2004 III LLJ 870 : 2004 (102) FLR 1069 : 2004 LIC 2661 : 2004 II CLR888 : 2004 LLR 869 (Bom.HC)

“……….It was……….of the act.” (Page: 953, Para: 2)

“By the……….of the act……….” (Page: 953, Para: 3)

“……….The Labour Court……….S. 9A notice……….” (Page: 953, Para: 4)

“……….In the present……….standardisation……….” (Page: 956, Para: 13)

7. Notice of change was not required for termination to be done in accordance with law (Raj.HC)

¥ 2A.78 Employee’s Union filed a writ petition for restraining the employer from engagingcontract labour and for reinstating the helper and other workers if their services were terminatedduring the pendency of the petition. Against the said petition employer contended that employment of contract labour does not affect the service conditions of any workman. And termination ofservice in accordance with law does not attract the provisions of Sec. 9A of the Act. High Courtfound no force in petition and it was dismissed.

The Oil Seed Mills Karamchari Mazdoor Union v. The State of Rajasthan & Ors., 1994 III LLJ 544(Sum) : 1992 (64) FLR 210 : 1992 I LLN 678 : 1992 I CLR 503 : 1992 LLR 399 (Raj.HC)

$ - The following case/s may also be referred to in the context of the above decisions :

Association of Engineering Workers v. Air Worders (India) Engineering Pvt. Ltd. & Ors., 1994 I LLJ1136 : 1993 (67) FLR 1190 : 1994 II LLN 819 : 1993 II CLR 869 (Bom.HC)


l) When more privileges are given

1. For raising age of superannuation from 55 to 60 years (Bom.DB) ¥ 2A.79 Notice of change is necessary only when management proposes to do somethingderogatory to employee’s interest such as withdrawal of any privilege or concession enjoyed bythem, no such notice is required when more privileges or concessions are conferred as in instantcase where superannuation age was raised from 55 to 60 years.

Rashtriya Motor Karmachari Congress Union (INTUC), Madhya Pradesh State Road TransportCorporation, Nagpur, & Ors. v. Madhya Pradesh State Road Transport Corporation, Bhopal, & Anr.,1985 I LLN 520 : 1985 LIC 220 (Bom.DB)

“……….learned advocate for……….condition of service……….A plain reading……….to sixtyyears……….” (Page: 528, Para: 16)

2. For revision of pay scales and other allowances beneficial to employees(Ori.DB)

¥ 2A.80 Notice of change is not necessary where change in service conditions do not prejudiciallyaffect workmen and hence when revising scales of pay and other allowances by way of package deal requiring the employees to exercise their option and they so exercised their option for revised scaleof pay which is beneficial to them and does not affect them prejudicially it was held they cannotcomplain non compliance with S. 9A and award of Tribunal declaring the same as unjustified wasquashed.

Management of Orissa Mining Corporation Ltd. v. Workmen, Orissa Mining Workers Federation, 2003IV LLN 1223 : 2004 I LLJ 1 : 2004 LIC 1121 : 2004 I CLR 336 : 2004 LLR 148 (Ori.DB)

“The limited……….to be given……….” (Page: 1225, Para: 5)

“……….The office order……….as unjustified……….” (Page: 1226, Para: 5)

m) By virtue of notification under second proviso

1. For changes regarding flight and duty time effected by Air IndiaCorporation by virtue of notification (Bom.HC)

¥ 2A.81 By virtue of notification under second proviso of Sec. 9A of the Act, Air India Corporationeffecting changes regarding flight time and duty time need not give notice of change u/s. 9A of theAct.

Indian Pilots Guild & Ors. v. Union of India & Ors., 1995 III LLJ 784 (Sum) : 1988 II LLN 1037 : 1988 II CLR 542 (Bom.HC)

n) When Government has exempted u/s. 9B

1. Matters under schedule IV exempted by Government notification u/s. 9B(S.C.2J)

F 2A.82 When the Government by notification u/s. 9B exempts an industry from issuing notice in respect of any matter specified in items 4, 6 & 11 of IVth schedule, the change of weekly-off fromSunday to Saturday without issuing notice u/s. 9A does not render the change illegal andconsequently it was held that the abstention of workmen from work on Sunday which was aworking day amounted to illegal strike and therefore the lock-out by the company was justified and hence the award of the Tribunal given against the workmen was upheld.

The workmen of M/s Sur Iron & Steel Company (P) Ltd., v. M/s Sur Iron & Steel Company (P) Ltd., &Anr., 1971 I LLJ 570 : 1969 (18) FLR 223 : 1970 (3) SCC 618 (S.C.2J)


“……….The Factory used to observe every Sunday as the weekly off-day. On the 19th April, 1962, theCompany received a letter from the Calcutta Electronic Supply Corporation conveying the informationthat certain restrictions had been imposed on the use of electricity by the State Government , as a result of which the supply of electricity on every Saturday was to be curtailed , so that there would be no supply ofelectricity for running the factory from 7 a.m. to 10 p.m. on Saturdays. The letter further started that theco, should observed every Saturday as the off-day instead of Sunday. Thereupon, the Company issued anotice on 20th April, 1962 , informing all the Workmen that, with the effect form 21 April 1962, Saturday instead of Sunday would be the off day in the factory until further orders………. It appears that, inpursuance of this notice , the Workmen did not attend the factory on Saturday, the 21 April, 1962 . Thetext day, on 22nd April 1962, which was Sunday and which , according to the notice, was to be a workingday, the Workmen again did not attend the factory to joint their duties………. Some of them actuallycollected near the gates………. but the other Workmen did not permit their going in to do thework………As a result of this step taken by the Workmen, the factory declared the lock-out the same dayon 22nd April, 1962 , because the work in the factory came to a complete standstill on account of theillegal strike restored to by the Workmen.” (Page: 573, Para: 2)

o) When change in conditions of service is due to operation of law

1. For implementing provisions of ESI Scheme (Karn.HC)

¥ 2A.83 The opening words of Sec. 9A of the Industrial Disputes Act, 1947 indicate that the noticeto be given under the section would apply if the employer proposes to effect changes in theconditions of service and not to a case where certain conditions of service become applicable to theworkmen by operation of law. Therefore, where the provision of the Employees State InsuranceScheme became applicable to the workmen by operation of law and the employer is onlyimplementing the same, it cannot be contended that notice u/s. 9A is necessary especially when theexisting rules are expressly stated to be operative only till the factory is brought under the coverageof the Employees State Insurance Act, 1948.

All India ITDC Employees’ Union-Unit Hotel Ashok Bangalore v. Hotel Ashok, Bangalore & Anr., 1984(64) FJR 184 (Karn.HC)

p) For matters which are not conditions of service

1. On acceptance of workers request for sale of certain items to them, whichdoes not amount to alteration of service conditions (S.C.2J)

F 2A.84 Where in the meeting of worker committee, management acceded to the request made by workers representative to sell carbide drums to its employees at concessional rate once afortnight subject to the availability of drum, court held that it does not impose any obligation on the management to sell nor provide any right to the workmen to compel the management to sell hencedo not form part of the condition of service hence there is no alteration of the condition of serviceattracting Sec. 33A & 9A on refusal of company to sell the drums.

Indian Oxygen Ltd. v. Uday Nath Singh & Ors., 1970 II LLJ 413 : 1970 (38) FJR 389 : 1970 (21) FLR 350 (S.C.2J)

“……….It cannot, in the case before us, be held that the management, by acceding to a request made bythe workmen, and evidenced by Ext. C-2, in any manner intended that the sale of carbide drums on aconcessional basis, to the workmen should from part of the conditions of service of the workmen. Exhibits C-2 and B-2 Clearly show that the management was only considering a request, made by theworkmen, for sale of drums, as and when available, at concessional rates, and at reasonable intervals. There is no indication in these two exhibits that any obligation was, as such, imposed on the Management, or of any right being vested in the workmen to compel the management to sell the drums tothem……….Once it is held that the matters, referred to in Exts. C-2 and B-2 do not form part of theconditions of service, it follows that, by the management declining to sell drums, it cannot be consideredto have committed any alteration in the conditions of service, which is the very basis for a complaintunder S. 33 A. Sec. 9A of the Act does not apply, as wrongly assumed by the Tribunal, because there is noalteration of a condition of service. Even assuming that the sale of carbide drums in the manner pleadedby the workmen is part of the condition of service, in this case the Tribunal has itself held that the said


condition of service is not connected with I.D. No. 32/63. On this finding, the proper thing would havebeen for the Tribunal to dismiss, as not maintainable, the complaint, filed by the workmen, under S.33 Aof the Act.” (Page: 415, Para: 9 /11)

2. For revising rates of food items in statutory canteen as it was not acondition of service (Bom.HC)

¥ 2A.85 Company runs a statutory canteen wherein it revised rates of food item. Held that canteenfacility and the rates to be charged for food items were not a condition of service. No notice ofchange was required.

Voltas Switchgear Plant Employees Union v. Voltas Switchgear Limited Thane, 2001 (89) FLR 268 :2001 I LLN 1135 : 2001 LIC 550 : 2001 I CLR 734 : 2001 LLR 373 (Bom.HC)

q) For shifting of undertaking

1. When undertaking is shifted from one place to another (Cal.HC)

¥ 2A.86 The company shifted its entire undertaking from one place to another and workmanclaimed extra travelling allowance. On reference Industrial Tribunal passed an award in favour ofworkman. High Court held that shifting place of business by employer does not empower employee to contend that it amounts to alteration of condition of service requiring notice u/s. 9A. Therefore,they were not entitled to claim extra travelling allowance.

Shalimar Paints Ltd. v. Third Industrial Tribunal of West Bengal & Ors., 1971 II LLJ 58 : 1971 LIC 164(Cal.HC)

r) Trade union matters

1. For granting relief from duty to office bearers of trade union (Mad.DB)

¥ 2A.87 Customary concession or privilege shall be understood to be granted to a workman forrendering services to the employer but not absolving him from service and hence granting relieffrom duty to the officer bearers of the Trade Union is not customary concession and thereforewithdrawal of the same does not attract the section.

Secretary, Tamil Nadu Electricity Board Accounts Subordinates Union v. Tamil Nadu Electricity Board,1994 I LLJ 1128 : 1998 III LLN 838 (Mad.DB)

“……….Sec. 9–A……….rendered etc……….As rightly……….Writ Appeal……….” (Page: 1129,Para:3)

2. For exclusion of unrecognised union from negotiation with management(Mad.DB)

¥ 2A.88 Merely on the grounds that management had indulged into negotiations with a union notrecognised under Code of Discipline, such union cannot claim a right to represent workmen inmatters of negotiation with the management and Court upheld decision of Single Judge thatexclusion of such union would not amount to change in conditions of service within mischief of Sec. 9A.

Neyveli Lignite Corporation Labour & Staff Union v. Neyveli Lignite Corporation, Ltd., Neyveli, 1985 ILLN 189 : 1984 LIC 1865 (Mad.DB)

“……….The petitioner–union……….by the respondent……….A sporadic or……….eye oflaw……….” (Page: 191, Para: 3)

“……….As rightly pointed……….same in dismissed.” (Page: 191, Para: 4)


s) in respect of circular to the effect that HO to examine if contesting of publicelection by award staff will interfere with his duties (S.C.2J)

F 2A.89 Bank Circular to the effect that local HO has to examine whether or not the contesting of public / civic election by award staff will interfere with his duties was not held to beviolative of Sec. 9-A as the same is not a privilege/custom under Sch. IV Cl. 8, and therefore setaside the High Court’s order which held the circulars as amounting to change.

General Manager (Operations), State Bank of India & Ors. v. State Bank of India Staff Union & Anr.,1998 I LLJ 1063 : 1998 (93) FJR 236 : 1998 (79) FLR 94 : 1998 III LLN 5 : 1998 LIC 1390 : 1998 I CLR897 : 1998 LLR 402 : 1998 SCC (L&S) 912 : 1998 (3) SCC 506 (S.C.2J)

“According to the appellants – bank, cases to their notice where employees been elected to public/ civicoffice had not been performing their normal day’s work, causing inconvenience to the bank and itscustomers……….The appellant – bank, therefore, issued a circular on January 28, 1987 to the effect thatthe local head offices will, in future, while considering the request of an Award employee to seek electionto any public/ civic body, first thoroughly examine whether his contesting the election will interfere orwould be likely to interfere with his duties in the bank. …………..” (Page: 1065, Para: 3)

“……….U/s. 9-A no employer who proposes to effect any change in the conditions of service applicableto any workman in respect of any matter specified in the Fourth Schedule, shall effect such changewithout notice as prescribed in that Section. Schedule Four sets out the conditions of service for changeof which notice is required to be given u/s. 9-A. The conditions of service prescribed in the fourthSchedule include, inter alia wages, contribution to any provident fund or pension fund, compensatory and other allowance, hours of work, leave etc. Condition 8 is, Withdrawal of any customary concession orprivilege or change in usage, These customary concessions or privileges clearly relate to conditions ofservice or work. Participating in an election to a Municipal Council or local body is not a customaryprivilege connected with conditions of service or work. The Circulars of January 28, 1987 and March 7,1987, therefore, do not bring about any change in the conditions of service of a workman. The Rules ofConduct of the Award staff have always included a Rule to the effect that the employees of the bank maynot accept office on Municipal Council or other public body without prior sanction of the bank. Thecirculars, therefore, do not bring about any change in this policy. ……….” (Page: 1065/1066, Para: 5)

t) in case of settlement arrived at in course of conciliation proceedings (Mys.DB)

¥ 2A.90 Notice u/s. 9A is not required to be given in respect of settlement, which was arrived at inthe course of conciliation proceedings.

Krishnarjendra Mills Workers’ Union v. Assistant Labour Commissioner & Conciliation Officer,Mysore, & Ors., 1968 I LLJ 504 : 1968 (34) FJR 1 : 1967 (15) FLR 232 : 1968 LIC 153 (Mys.DB)

“In our opinion……….a conciliation proceeding.” (Page: 512, Col.: 2, B.L.: 20)

u) For raising houses for employees and offering specified number forex-employees (Mad.HC)

¥ 2A.91 Company introduced a scheme for raising houses to employees. The company made adecision to offer specified number of houses to its ex-employees, spouses or legal heirs of deceased.Held that the scheme is fair and reasonable and it is not in violation of Sec. 9A of the Act.

Steel Plant Employees Union, Salem & Ors. v. Steel Authority of India Ltd., New Delhi & Ors., 2003 IILLN 878 (Mad.HC)


v) For regulations which are brought into force for the first time (Mad.HC)

¥ 2A.92 The effect of sec. 9A read along with the item 9 of the fourth schedule is that no new rules of discipline shall be introduced or the existing rules altered without giving the prescribed notice tothe workman. However, Sec. 9A of the ID Act, 1947 would not be applicable to the Rules of serviceof the employees of Employee’s State Insurance Corporation 1959 which came into force for thefirst time in 1959. The conditions of service in force at the time when a workman entered serviceshould not be changed to the prejudice of the workman without giving a notice. The prohibition inSec. 9A is not applicable to the regulations which are brought into force for the first time unless itcould be shown that since the employee entered service the conditions of service are changed.

C.I. Kannan v. Employees’ State Insurance Corporation & Anr., 1967-68 (32) FJR 270 : 1968 (16) FLR124 : 1968 LIC 945 (Mad.HC)

w) For obtaining undertaking as to good conduct bond (Del.HC)

¥ 2A.93 Obtaining of an undertaking of good conduct by the Management cannot be described as a change in the conditions of service within the meaning of Sec. 9-A. Management required eachworkman to execute undertaking that he will not go on strike during his shift and would maintaindiscipline if they fail, it cannot be termed as lockout.

M/s. Ajay Enterprises Ltd. v. Secretary & Ors., 2007 LIC 755 : 2007 LLR 86 (Del.HC)

IV. Notice of change if given what can be done

a) Conditions of service can be altered and employer cannot be prevented by writ(Mad.DB)

¥ 2A.94 Settlement was terminated by union and fresh demand was admitted in conciliationproceeding and in the meanwhile management gave notice of change for altering service conditions upon which union filed writ of mandamus for prohibiting the employer to make a change Benchupheld the decision of Single judge that there is no provision prohibiting alteration of conditions ofservice by management and after following prescribed procedure management does not owe apublic duty.

Gordon Woodroffe Employees Union v. State of Tamil Nadu, 1990 (61) FLR (Sum) 78 : 1988 I LLN 196 :1990 LIC (Sum) 148 (Mad.DB)

“……….The last settlement……….failure report……….The management……….changesproposed……….the union……….mandamus as aforesaid……….” (Page: 198, Para: 1)

“……….Sec. 33 of the……….of the Act.” (Page: 199, Para: 6)

“……….The enforcement……….third respondent……….” (Page: 199, Para: 7)

“Find……….is, therefore dismissed……….” (Page: 202, Para: 14)

$ Upheld –Gordon Woodroffe Employee’s Union v. State of Tamil Nadu, 1990 (61) FLR (Sum) 78 : 1988 I LLN 196: 1990 LIC (Sum) 148 (Mad.DB)


b) Change for increasing shifts from 1 to 3 by issuing notice u/s. 9A was allowed in this case (S.C.CB)

F 2A.95 Despite Standing Order making provision for the introduction of three shifts, if adispute is raised u/s. 9A of the Act the tribunal can scrutinize the reasonableness of the change andin doing so the prevailing relevant factors like national emergency, inability to utilize theproduction at another factory, outstanding number of orders, loss of business, increased demandfor drugs in times of national emergency and as the very processes which involved in production ofdrug being a continuous one extending to 20 hours required to be considered therefore the changesought for increasing from 1 shift to 3 was allowed by the Supreme Court which held the decision of Labour Court, rejecting the proposal on the facts and circumstances, was erroneous.

Pfizer Private Ltd., Bombay, Appellant v. The Workmen, 1963 AIR (SC) 1103 : 1963 I LLJ 543 : 1963-64(24) FJR 283 : 1963 (6) FLR 240 (S.C.CB)

“……….The second item of dispute was in regard to refixation of the hours of work. The appellantdesired to introduce three shifts in most of its departments and accordingly it had given a notice of changeunder S.9A of the Industrial Disputes Act……….” (Page: 1105, Para: 1)

“In dealing with the merits of the dispute in the present appeals, it is essential to bear in mind that in theface of the present national emergency, the complexion of the problem has completely changed. Thewhole economy of the country is now being put on a war basis and inevitably, industrial production mustbe geared up to meet the requirements of the nation……….” (Page: 1107, Para: 13)

“……….it appears from the record that the appellant was willing to pay for night work and was preparedto consider extra payment for third shift, but the respondents were not agreeable to consider that proposalbecause they were, on principle, opposed to the introduction of three shifts. Indeed, the learnedAttorney-General has stated before us that in case we allow the appellant to introduce three shifts, theappellant is willing to go before the Tribunal and obtain its decision on the question as to the additionalpayment which should be made to the employees consequent upon the introduction of 3 shifts. Therefore, the grievance that the respondents would be wholly denied the overtime wages to which they would beentitled under the present arrangements loses much of its validity……….” (Page: 1107, Para: 14)

“……….in order to improve its quality and to avoid rejection of a large percentage of the product it isnecessary that three shifts must be introduced in the session dealing with it. In fact the finding made by the Tribunal in this behalf shows that the Tribunal did not really consider seriously the value of Dr. Joshi’sevidence and was prepared to accept Mr. Pillai’s statements though they are plainly partisan statementsmade by a person without any technical knowledge. Therefore, there can be no doubt whatever that theappellant is entitled to start 3 shifts in the P.A.S. section and produce P.A.S. in larger quantities and of abetter quality.” (Page: 1109, Para: 18)

“Mr. Treharne has also stated that a large number of orders are outstanding because the productioncapacity in Bombay is not adequate; and that means that the appellant is continually losing businessthrough its lack of production facility and is unable to meet the demand of needy patients. This factor alsoadversely affects the appellant’s position vis-a-vis its competitors; and the witness added that theappellant some times finds that it is unable to quote for substantial Government and hospital tenders.Under these circumstances, particularly at the present time when the need for production of beneficentdrugs is so great, it is difficult to resist the appellant’s claim that it should he allowed to introduce 3 shiftsin order to produce more drugs and thus meet the requirements of the community. If the two departmentsare allowed to work 3 shifts. it would not be reasonable to hold that the department dealing in packing,filling, washing, tablet and capsules should not keep pace. The activities of these departments areintegrated, and if the object in allowing the appellant to start 3 shifts in its rnanufacturing departmentsboth chemical and pharmaceutical, is to encourage and enable it to produce more goods, then that objectwould be assisted if the subsidiary department is also allowed to work 3 shifts. Therefore, we are inclinedto take the view that the claim of the appellant to introduce 3 shifts cannot today be rejected.” (Page: 1109, Para: 20)

847 Sec. 9A Notice of change if given what can be done

“……….the Standing Orders framed by the appellant clearly provides that more than one shift may beworked in any department or a section of a department at the discretion of the Manager; and it adds that insuch cases, workmen shall be liable to he transferred from one shift to another. There is no doubt that theStanding Orders sanctioned by The Industrial Employment (Standing Orders) Act, l946 (No. 20 of 1946)constitute statutory terms and conditions of service between the employer and his employees, and so, it isopen to the appellant to suggest that when the respondents took up their employment with it, they knowthat more shifts than one can be started by the management in its discretion………..We cannot hold thatbecause the standing order contemplates the adoption of more than one shift, it is entirely and absolutelyin the discretion of the management to make the change without due scrutiny by industrial adjudication,and so, the extreme stand taken by the appellant cannot be upheld; similarly, we cannot accept thecontention that because the introduction of 3 shifts would mark a departure from the pattern prevailing inthe pharmaceutical industry, the chance cannot be permitted. After all, the question must be considered inthe light of relevant facts adduced before the Court, and in doing so, the importance and the necessity ofmore production must be borne in mind. We are therefore, satisfied that the Tribunal was in error inrejecting the appellant’s case for the introduction of three shifts.” (Page: 1111, Para: 27)

V. What cannot be done by issuing Notice of change

a) Service conditions determined by award cannot be unilaterally altered byemployer by issuing notice of change u/s. 9A (Bom.DB)

¥ 2A.96 Where once the service conditions were adjudicated and determined by an award, thesame can be altered only either by a contract or settlement or by an award made on reference u/s.10 and the employer does not acquire unilateral right to alter them either by issuing a notice ofchange u/s. 9A or by seeking approval of the appropriate authority u/s. 33(1) pending disputebefore the Labour Court/Tribunal on the same matter and hence the D.B upheld the contention ofthe union that the application made by the company for permission to reduce Dearness Allowanceby 40% before the Tribunal before whom the reference of the union’s demand for increase inDearness allowance was pending, was misconceived and rejected the tribunal’s order ofadjourning the decision on the company’s application till the hearing of the main reference.

Haribhau Shinde & Anr. v. F.H. Lala Industrial Tribunal, Bombay & Anr., 1970 LIC 664 (Bom.DB)

“By what……….Industrial Tribunal.” (Page: 666, Para: 2)

“The company……….October 1, 1967……….By impugned order……….” (Page: 667, Para: 3)

“……….Now……….position.” (Page: 671, Para: 15)

“The submission……….justified.” (Page: 672, Para: 17)

b) Change cannot be affected in service conditions by issuing notice u/s. 9A untilsettlement is binding and not terminated (AP.DB)

¥ 2A.97 Where the subsisting award provides for 7 days paid leave and 11 days unpaid leave,transfer of employee entitling him 7 days paid leave and 3 days unpaid leave, being change inservice condition cannot be effected by issuing notice u/s. 9A until settlement is binding and notterminated as per Sec. 19(6).

Singareni Collieries Co. Ltd. v. Industrial Tribunal (Central), Hyderbad & Anr., 1978 (53) FJR 460(AP.DB)

“Under these circumstances, since the transfer could have affected one of the conditions of service of the2nd respondent (petitioner in writ Petition No. 1032 of 1973), viz., the number of paid and unpaidholidays, which he was entitled to enjoy each year, standing order No. 15 would come into play as layingdown the conditions of service and notice u/s. 9–A cannot affect these conditions of service so long asSalim Merchant’s award is binding.” (Page: 466, Para: 2)


“In the instant case, no such notice u/s. 19(6) appears to have been given. We may point out that, thoughthe learned single Judge has referred to the Salim Merchant’s award and also relied upon the fact that nonotice u/s. 19(6) has been given terminating that award, no contention has been taken in the memorandum of appeal that the learned single Judge had erroneously arrived at the conclusion that Salim Merchant’saward had not been terminated by giving notice u/s. 19(6). In the absence of any such ground being takenin the memorandum of appeal, it is not open to the appellant herein to contend merely on a technicalground, that there is no material on record to show that Salim Merchant’s award had not been terminatedby giving notice u/s. 19(6). Under these circumstances, it must be held that, since the award given bySalim Merchant as far back as 1962 has not been terminated by a notice u/s. 19(6), the conditionregarding holidays could not be altered by a notice u/s. 9–A……….” (Page: 465/466, Para: 3)

c) Service conditions cannot be altered even after notice u/s. 9A until earliersettlement is replaced in accordance with law (Mad.HC)

¥ 2A.98 Employer cannot alter service conditions even after issuing notice u/s. 9A, until the earliersettlement is replaced by another settlement or in accordance with law.

South Arcot District Central Co-operative Bank Ltd. Employees’s Association v. Deputy Commissionerof Labour & Ors., 2001 (98) FJR 312 : 1999 IV LLN 1102 (Mad.HC)

d) Notice of change cannot be given to unilaterally change the terms of settlement as to freezing of variable DA payable thereunder (Bom.HC)

¥ 2A.99 Company gave notice of change u/s. 9A of the Act to freeze variable dearness allowance(VDA) payable to workman, as VDA was payable under the settlement. Held that companyunilaterally cannot change the terms of settlement by giving notice of change u/s. 9A of the Act.

Christine Hoden (India) (Private), Ltd. v. State of Goa & Ors., 2001 (99) FJR 463 : 2001 (91) FLR 1233 :2002 I LLN 943 (Bom.HC)

VI. Non-compliance of Sec. 9A

a) Notice of change if sent to the union only and not to each individual workman is not sufficient compliance of Sec. 9A (P&H.HC)

¥ 2A.100 Notice, stating that change in service condition, u/s. 9A was sent to the union and notindividually to the workman. Held that this cannot be treated as sufficient compliance withmandatory requirement of Sec. 9A.

Punjab State Co-op. Supply & Marketing Federation v. P.O. Labour Court & Anr., 2003 LLR 463(P&H.HC)

b) Filing of writ for non compliance of Sec. 9A rejection on merits is noterroneous (S.C.2J)

F 2A.101 Where union itself has chosen remedy of writ under Article 226 to raise non-complianceof mandatory provision of Sec. 9A of Industrial Disputes Act instead of seeking reference u/s.25N(6) challenging the approval for termination of 19 workmen granted by the Government thenrejection by High Court on the plea of non-compliance on merits cannot be said to be erroneous.

Narkesari Prakashan Karamchari Sangh v. Narkesari Prakashan Ltd. 1999 II LLJ 145 : 1998 III LLJ711 : 1999 (81) FLR 149 : 1999 I CLR 22 : 1998 SCC (L&S) 472 : 1998 (9) SCC 187 (S.C.2J)

“……….The submission of the learned counsel is that as a result of the said decision of the High Courtthe appellant would be prejudiced before the Tribunal when it seeks a reference against retrenchment ofthe Workmen. We find no merits in this contention. The appellant could have availed if the remedy of areference as provided in sub-section (6) of section 25 -N of the Act. against the order granting permissionu/s. 25-N. The appellant did not choose to do so. They choose the remedy of moving the High Courtunder article 226 of the constitution and raised the question about non-compliance with the mandatory

849 Sec. 9A Non-compliance of Sec. 9A

provision of section 9-A of the Act. Since the contention was raised it had to be dealt with by the HighCourt in the writ petition filed by the appellant. The appellant cannot be heard to make a grievance thatthe High Court should not have gone into the merits of the said contention. We therefore, find no merit inthis appeal.” (Page : 146/147, Para : 3)

c) Financial capacity to be considered before granting extra remuneration givenfor violation of section (S.C.2J)

F 2A.102 Textile mill observed Sunday as a weekly off for a long time for entire establishmentsubsequently required workmen to work on Sundays in batches without complying with sec. 9Aand tribunal awarded 20% extra remuneration on grounds of social justice but setting asidetribunal’s award it was held that tribunal erred by not considering financial capacity of theemployer to bear an extra burden.

Bhiwani Textile Mills v. Their Workmen & Ors., 1969 II LLJ 739 : 1969 (19) FLR 146 (S.C.2J)

“……….question that remains for decision by us is whether the tribunal was right in directing thatworkmen, who do duty on any Sunday, will be entitled to an extra payment of 20 per cent of theirconsolidated wages for that Sunday. This direction was made by the tribunal on its view that the workmen who had never previously been called to work on Sundays and were now likely to be deprived of someamenities of social gatherings and union meetings, etc., did deserve some compensation……….Itappears to us that, in giving this decision, the tribunal did not follow the principles that should have beenapplied when deciding such a dispute. Payment of extra amount for work on Sundays affects wagespayable to the workmen, and the question of wages, as has been laid down by this Court in a number ofcases, must always be decided on the basis of the capacity of the industry to pay and on practice prevailing in the industry in the region. The tribunal has completely ignored both these factors……….” (Page: 741, Para:1)

“……….we cannot uphold the order of the tribunal directing extra payment of 20 per cent of consolidated wages to workmen doing duties on Sundays. That part of the award, is therefore, set aside……….”(Page: 743, Para: 1)

$ - The following case/s may also be referred to in the context of the above decisions :CONCOR Employees Union v. Management of Container Corporation of India Ltd. & Anr., 2000 II LLJ262 : 2001 (98) FJR 133 : 2000 I CLR 595 (Del.HC)Egmore Benefit Society Employees Union v. Government of Tamil Nadu (rep. By Secretary, Labour &Employment Department), Madras (2) Labour Officer II, Kuralagam, Madras (3) Egmore BenefitSociety, Ltd., Madras., 2005 II LLJ 254 : 2005 I LLN 561 (Mad.HC)National Seeds Corporation Employees’ Union v. National Seeds Corporation, 1972 (42) FJR 45 : 1972LLN 439 (Del.DB)

VII. What does not constitute change in conditions of Service

a) Condition of service not changed if employer asked workmen to execute goodconduct bond (P&H.HC)

¥ 2A.103 The workers were disappointed because of the non-implementation of the pensionscheme and the incentive scheme as per the settlement. Due to persistent refusal the workers gaveits intention to go on strike. On which management prevented the entry of the workers and directed to sign a “Good Conduct undertaking” before entering the factory. The union filed petition in High Court. It was held that, there is no change of any condition of service of the workmen, themanagement wanting to sign an undertaking in order to see that no untoward incident takes place.When there is allegation of violence in the factory premises, it cannot be overlooked. If the workersare not on strike, then they can be allowed to enter the factory but at the same time there should notbe any agitation, speeches or any violence in the factory premises. Moreover, if the workmen areon strike, the question to enter the factory does not arise.

Maruti Udyog Employees Union (registered Gurgaon) & Anr. v. State of Haryana & Ors., 2002 I LLN428 (P&H.HC)


b) Undertaking not to involve in strike and maintain discipline and normaloutput does not amount to change in condition of service (Guj.HC)

¥ 2A.104 The issue was whether an undertaking that workmen will not go on strike during theirshift and will maintain discipline and normal output, amounts to change in condition of service ofthe workman. It was held that there was no change in condition of service as the undertaking was in a form of assurance to do normal work in a disciplined manner.

Glaxo Laboratories Employees Union v. M/s. Glaxo India Ltd., 1996 III LLJ 266 (Sum) : 1996 III LLN153: 1995 LIC 2696: 1996 II CLR 270: 1996 LLR 885 (Guj.HC)

c) Acceptance of terms and conditions stated under bond of good behaviouraccepted by majority workmen is not a change in condition of service (Mad.HC)

¥ 2A.105 Employer imposed a condition on workmen to sign an undertaking of good behaviour and those who refused to sign were not allowed entry. As such, the employees filed a writ petitionchallenging the same. The High Court refused to entertain the writ petition on the ground thatwhen majority of the workmen have accepted the new terms and conditions stated under bond ofgood behaviour, it is not open to the minority workmen to contend that there is a change inconditions of service. And the question whether the demand of the employer to execute a bond ofgood behaviour is valid or not has to be tested on the facts of each case, High Court is not inclined to entertain the writ petition, matter referred to Tribunal.

Sundaram Industries Employees Union (Coach Division), Madurai v. Management of SundarmaIndustries Ltd. (Coach Division), Madurai & Ors., 2000 II LLJ 990 : 2000 II LLN 744 (Mad.HC)

d) Duty relief granted to workers who were union office bearers is not a conditionof service (Mad.HC)

¥ 2A.106 The Banks notified u/s. 9A of Industrial Disputes Act to withdraw ‘duty relief’ granted tocertain employees who were office bearers of union to do union work during office hours.Aggrieved, union raised an industrial dispute which the Appropriate Government refused to referfor adjudication. It was contended by union that Government should have made a reference foradjudication. It was held that relief which was granted to the employees was not a part of conditionof service but a concession so no writ can be enforced for such condition. Also the dispute whicharose as a result of alleged notice u/s. 9A is an Industrial Dispute and can be settled by adjudication.

Workmen of Indian Bank represented by Federation of Indian Bank Employees Union v. Indian Bank,1994 II LLJ 497 : 1994 II LLN 1124 : 1994 II CLR 935 : 1995 LLR 355 (Mad.HC)

e) Rule relaxing eligibility criteria of one cadre of employees affecting thechances of promotion of other cadre of employees (S.C.3J)

F 2A.107 If a rule relaxing eligibility criteria of one cadre of employees affects the chances ofpromotion of certain other cadre of employees by depriving few places in the panel it cannot besaid to affect their service condition and since the complaint by the clerks is about the circular byRBI affecting their chances of promotion, it was held not to affect their service condition and hence the order of the tribunal was set aside.

Reserve Bank of India, Bombay v. C.T. Dighe, 1981 II LLJ 223 : 1981 (59) FJR 41 : 1981 (43) FLR 278 :1981 II LLN 446 : 1981 LIC 1103 : 1981 SCC (L&S) 534 : 1981 AIR (SC) 1699 : 1981 (3) SCC 546(S.C.3J)

“What Circular No. 6 did was to relax for stenographers and personal assistants the conditions they had to satisfy to be able to sit for the test. If they passed the test, they would get into the penal along withemployees belonging to the clerical cadre who also had passed the test. Vacancies in the post of staffofficer Grade A are filled by recruiting employees from the panel. The panel, it appears from the award, is a permanent one. How those who come out successful in the test are to be fitted in the panel has beenstated earlier. The panel is made up of employees belonging to different cadres. It is difficult to see how

851 Sec. 9A What does not constitute change in conditions of Service

alteration of the conditions of eligibility governing employees belonging to a particular cadre can amountto changing the conditions of service of employees who belonged to another cadre, assuming for thepresent that the said conditions were conditions of service. The changes introduced in respect of thestenographers and personal assistants may have an impact on the promotional prospects of employeesfrom another cadre who are already in the panel or even of those who were expecting to be included in thepanel, but it is not possible to agree that this would amount to changing their conditions of service. It isdifficult to think of the conditions of service of an employee as including an implied right to prevent theemployer from altering the conditions of service of other employees.” (Page: 228, Para: 11)

VIII. When service conditions can be altered

a) Frequent alteration in service conditions though deprecated, yet can be donewhere there is necessity and justification (S.C.3J)

F 2A.108 Too frequent alteration of condition of service by Industrial adjudication is generallydeprecated but where there is necessity and justification for changing the service conditions whichwas although introduced only a few years back yet fresh change is permissible hence consideringthe major changes taking place in the economy and need for increased production and the fact thatfrom 1950 there was no change in working hours upto 1960, working hours extended upto 36 hourswas held to be justified.

The Associated Cement Staff Union & The Associated Cement Co. Ltd. Bombay v. The AssociatedCement Co. Ltd. Bombay, & The Workmen employed & The Workmen, 1964 AIR (SC) 914 : 1964 I LLJ12 : 1963-64 (25) FJR 305 : 1964 (8) FLR 108 (S.C.3J)

“It was next urged that the existing working hours having been found reasonable by the IndustrialTribunal in 1950 there was no sufficient justification for changing them in the present Reference. Thereis, in our opinion, no substance in this argument. It is true that too frequent alterations of conditions ofservice by industrial adjudication have been generally deprecated by this Court for the reasons that is itlikely to disturb industrial peace and equilibrium. At the same time the Court has more than once pointedout the importance of remembering the dynamic nature of industrial relations. That is why the Court has,specially in the more recent decisions, refused to apply to industrial adjudications principles of resjudicata that are meant and suited for ordinary civil litigation. Even where conditions of service have been changed only a few years before, industrial adjudication has allowed fresh changes if convinced of thenecessity and justification of these by the existing conditions and circumstances. Where, as in the presentcase, in a previous Reference the Tribunal had refused the demand for change, there is, even less reasonfor saying that refusal should have any such binding effect. It is important to remember in this connectionthat working hours remained unchanged for many years in this concern and during these years,considerable changes have taken place in the country’s economic position and expectations. With thegrowing realisation of need for better distribution of national wealth has also come an understanding ofthe need for increase in production as an essential pre-requisite of which greater efforts on the part of thelabour force are necessary. That itself is sufficient reason against accepting it argument against anychange in working hours if found justified on relevant considerations that have been indicated above. Weare satisfied that in arriving at the figure of 36 working hours in a week the Tribunal has given properweight to all relevant considerations.” (Page: 917, Para: 5)

IX. Issuing of notice of change is independent of scheme of amalgamation and canbe contested in industrial adjudication (Bom.DB)

¥ 2A.109 Union opposing amalgamation contended that after the scheme of amalgamation wasapproved by Single Judge, company issued notice of change u/s. 9A proposing to prejudiciallychange some of the conditions of service of existing workmen but bench held that Single Judge wasright in rejecting the contention as issuance of notice u/s. 9A is not part of the Scheme and is anindependent act altogether and even if it is assumed that approval of scheme gave managementsome ground for issuing notice u/s. 9A that matter is independently capable of being contested onits own merits in industrial adjudication and hence appeal filed by union against the order of Single judge approving the amalgamation was dismissed.

All India Blue Star Employees Federation & Anr. v. Blue Star, Ltd., 2001 I LLN 129 (Bom.DB)


“The appellant is a ………….(B.S.L.)…………..The scheme of………….in certain ratio……….Thescheme was………by the appellant……..” (Page: 131, Para: 6)

“………the learned Judge………..approved the scheme………” (Page: 132, Para: 8)

“It is also ………of B.S.L.” (Page: 132, Para: 12)

“………agreeing with the………..as without merit……” (Page: 136, Para: 20)

X. Distinction between issue of notice of change under Industrial Disputes Actand BIR Act (Bom.DB)

¥ 2A.110 Sec. 42(1) of BIR Act is not Pari materia with Sec. 9A of the Industrial Disputes Act inthat the former is preventive, the latter is curative and hence while a notice is required to be givenunder the Disputes Act to a workman who is likely to be adversely affected by a change in respect of any matter specified in Schedule IV, the notice under BIR Act is required to be given to therepresentative of employees whether or not such change adversely affects the workman.

Co-operative Bank Employees’ Union v. Yeshwant Sahakari Bank Ltd. & Ors., 1993 LIC 1059(Bom.DB)

“The object……….Dispute Act……….concept……….brought about” (Page: 1066, Para: 25)

“We are……….Disputes Act.” (Page: 1066, Para: 26)

“Correspondingly……….BIR Act.” (Page: 1067, Para: 28)

XI. Notice of change, when given for items covered u/Sch. IV, authority underPayment of Wages Act cannot adjudicate employees claim (Bom.DB)

¥ 2A.111 Employer gave notice of change u/s. 9A whereby number of working days were reducedfrom six to five days a week, converting sixth working day into day of leave without wages inaccordance with the said notice and Court while giving a liberal meaning to items of IV Schedule itwas held that notice of change in instant case was fully covered by items (1), (4) and (5) of ScheduleIV therefore Authority under Payment of Wages Act had no jurisdiction to deal with theapplications of employees alleging that their wages were unlawfully withheld and directingpayment.

Cooper Engineering Ltd. Satara v. B.B. Vagyani, Civil Judge, Junior Division, Koregaon, & Ors., 1980 ILLN 441 : 1981 LIC 45 (Bom.DB)

“The petitioner–company……….were unlawfully withheld.” (Page: 443, Para: 3)

“……….The learned Judge……….to the employees……….” (Page: 444, Para: 5)

“……….the proper interpretation……….the fourth Schedule.” (Page: 446, Para: 15)

“……….Therefore, the learned……….with the matter.” (Page: 446, Para: 18)

“……….we do not……….on the point……….” (Page: 446, Para: 19)

853 Sec. 9A When Notice of change given Payment of Wages authority not to adjudicate claims

B. Power of Government to Exempt – Sec. 9B

I. When industry was exempted by Government notification for matters underSch. IV change of weekly off without statutory notice will not render it illegal(S.C.2J)

F 2A.112 When the Government by notification u/s. 9-B exempts an industry from issuing noticein respect of any matter specified in IVth schedule, the change of weekly-off from Sunday toSaturday without issuing notice u/s. 9-A does not render the change illegal. Management wascompelled to change weekly off from Sunday to Saturday and compliance with requirements ofSec. 9A was not required on account of the exemption granted by the notification issued by stateGovernment u/s. 9B, and consequently it was held that the abstention of workmen from work onSunday which was a working day amounted to illegal strike and therefore the lock-out by thecompany was held justified.

The workmen of M/s Sur Iron & Steel Company (P) Ltd. v. M/s Sur Iron & Steel Company (P) Ltd., &Anr., 1971 I LLJ 570 : 1969 (18) FLR 223 : 1970 (3) SCC 618 (S.C.2J)

“……….On these facts, the only point that was argued before us on behalf of the Workmen was that thechange in the weekly off-day from Sunday to Saturday without complying with the requirements of s. 9A of the Industrial Disputes Act. (hereinafter referred to as “the Act”) was illegal,……….The Tribunal hasspecifically found that the Government of the state of West Bengal in the Labour Department had issued a notification in the Calcutta Gazette……….Consequently, even if it be held that the alteration of weeklyoff-day form Sunday to Saturday was one of the condition of service governed by S. 9A as falling underitem no. 4 of the Fourth Schedule, compliance with the requirement of S. 9 A was not required to becarried out by the Company because of the exemption granted by this notification issued by the StateGovernment under S. 9B of the Act. It is clear that the Workmen went to a strike quite illegallycontending that management changed the weekly off-day to suit its own convenience. It had beencompelled to do so because of the Calcutta Electricity Supply Corporation under the orders of the State.Government. On Sunday the 22nd April, 1962 the Workmen not only refrained from doing work andthus went on a strike, but even prevented other Workmen, who were persuaded to do the work, formdoing their duty. The Company, therefore, could not possibly carry on its work and that situation wasbrought about by the Workmen themselves by their illegal acts. In the circumstances, the Tribunal wasquite right in holding that the lock-out was fully justified.” (Page: 573, Para: 3)

CHAPTER II-BReference of certain individual disputes to Grievance Settlement Authorities

C. Setting up of Grievance Settlement Authorities and reference of certainindividual disputes to such Authorities – Sec. 9C

Chapter II-A – Notice of Change 854 Sec. 9B

notice of change (sections 9a & 9-b) - s d puri 1/4. chapter 2-a.pdf · notice of change...

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