JUDGMENT
Narasimham, C.J.
1. These tour writ applications arise out of one judgment delivered by the Central Government Industrial Tribunal Dhanbad in four Bonus Appeals under sub-paragraph (4) of paragraph 8 of the Coal Mines Bonus Scheme (hereafter referred to as the Scheme), against I he order of the Regional Labour Commissioner (Central), Dhanbad, dated the 14th November. 1963. As the points in controversy are the same, all the four writ petitions are disposed of in one judgment.
2. The petitioner is the owner (if the two collieries, namely. Bhelaland Colliery and Sijua Colliery In both the collieries, according to well established usage, Sundays were observed as weekly days of rest But on the fifth September 1963, due to power shortage, the petitioner emplover desired to stagger the days of the weekly holidays in all its collieries. Accordingly, a notice was issued on the 10th September. 1963, to all the workmen concerned, informing them that in Sijua Colliery Wednesdays will be treated as the weekly clays of rest and Sundays will be treated as working days. In Bhelatand Colliery the weekly day of rest was fixed as a Friday, bill on the representation of the parties concerned it was changed to every Thursday it was alleged that the employees did not attend the collieries on the 22nd September, 1963, which was a Sunday. The petitioner-employer thought that the workmen had committed au illegal strike, and hence applied to the Regional Labour Commissioner under sub-paragraph (1) of paragraph 8 of the Scheme for a declaration that there was an illegal strike by the workers of the two colliers on the 22nd September. 1963. The decision of the Regional Commissioner went against the employer He held that there was no strike at all inasmuch as the employer did not comply with the provisions either of Sub-section .(4) of Section 36 of the-Mines Act or of the provisions of Section 9A of the Industrial Disputes Act in changing the weekly day of rest from a Sunday to a Wednesday or Thursday, as the case may be. Hence, according to him the employees were justified in refusing to work on Sunday, the 22nd September, 1963, and as there wag no strike, the question as to whether the strike was legal or illegal for the purpose of paragraph 8 of the Scheme did not arise. His decision was upheld in appeal by the learned Industrial Tribunal. C. W J. C.s 346 and 347 of 1965 relate to Bhelatand and Sijua Collieries, respectively in respect of the a hence of the employees from work on Sunday, the 22nd September. 1963.
3. The petitioner-employer further gave notice to his employees that Sunday the 29th September, 1963, should he treated as a working day inasmuch as the 2nd October, 1963, was declared a holiday being Mahatma Gandhi’s birthday. On this occasion also the employees did not attend at the collieries for work and in respect of their non-attendance the employer raised a dispute before the Regional Labour Commissioner under paragraph 8(1) of the Scheme for a declaration that there was an illegal strike. This application was also rejected by the Regional Labour Commissioner and also by the appellate authority namely, the Industrial Tribunal, C. W. J. C. 348 and 349 of 1965 deal with the question about the absence of workmen on Sunday, the 29th September 1963 in Sijua and Bhelatand Collieries, respectively.
4. The crucial question for consideration now is whether in exercise of our writ jurisdiction we should interfere with the appellate order of the Industrial Tribunal confirming the order of the Regional Labour Commissioner passed under sub-paragraph (1) of paragraph 8 of the Scheme. Admittedly the workmen did not attend to their work in the collieries either on Sunday the 2’2nd September, 1963, or on Sunday the 29th September. 1963. But mere cessation of work will not come within the definition of “strike” as given in Clause (q) of Section 2 of the Industrial Disputes Act, unless it can be further shown that such cessation of work was a concerted action for the purpose of enforcing an industrial demand. Formerly Sundays were invariably treated as weekly days of rest as required by Section 28 of the Mines Act. Unless the employer could first satisfy the Tribunal concerned that the change in the weekly holiday from a Sunday to a Wednesday or a Thursday or the declaration of Sunday the 29th September 1963, as a working day in lieu of the declaration of holiday on Mahatma Gandhi’s birthday (2nd October. 1963) was done by him in accordance with law the omission of the workmen to attend to work on those two Sundays will not amount to strike The Regional Labour Commissioner therefore rightly addressed himself to the question as to whether proper notice of the change in the weekly holiday was given. He thought that the employer had contravened Sub-section (4) of Section 36 of the Mines Act and also Section 9A of the Industrial Disputes Act, and the Tribunal has endorsed his findings on these matters. So far as Sub-section (4) of Section 36 of the Mines Act is concerned there may he some room for argument. That Sub-section refers to alteration in the “rest intervals” Section 28 of that Act refers to weekly day of rest and it is to the effect that “no person shall he allowed to work in a mine on more than six days in any one week.” Section 30 deals with hours for work above ground and Sub-section (2) of that section says:
“The periods of work of any such adult shall be so arranged that along with his interval for rest they shall not in any day spread over more than twelve hours and that he shall not work for more than five hours continuously before he has had an interval for rest of at least half an hour”
The words “interval for rest” occur in Sub-section (2) of Section 30, and they deal with daily intervals Sub-section (4) of Section 36 also refers to ‘rest intervals” which may he construed to refer to daily rest intervals as referred to in Sub-section (2) of Section 30. The weekly holiday referred to in Section 28 as ”weekly day of rest” may not strictly speaking, come within the scope of “rest interval” Some support for this view is found in the language of sub-paragraph (3) of paragraph 6 of the Scheme, which refers to ”weekly holiday” There seems to be, therefore some force in the contention of Mr. Balbhadra Prasad Singh for the petitioner that the learned lower Tribunals were not Justified in examining whether there was compliance with Sub-section (4) of Section 36 of the Mines Act It is, however, not necessary to decide this question finally here in view of my holding that there was non-compliance with Section 9A of the Industrial Disputes Act.
5. In my opinion both the Tribunals were justified in holding that there was non-compliance with Section 9A of the Industrial Disputes Act. That section says that if any of the conditions in the service of workmen specified in the Fourth Schedule of that Act is intended to be changed the employer must comply with the provisions of that section. Eleven items arc included in the Fourth Schedule Item 4 deals with hours of work and rest intervals Item 5 deals with leave with wages and holidays Hem 8 refers to withdrawal of any customary concession or privilege or change in usage Hence even if I accept the contention of Mr Balbhadra Prasad Singh that weekly day of rest is not “rest interval” if will undoubtedlly come within “holidays” referred to in item 5 of the Fourth Schedule Then again it is not denied that until the present change was made Sundays were always treated as weekly days of rest and if workers were required to work on that day they were entitled to extra overtime allowance Hence by changing the weekly day of rest from Sunday to Wednesday or Thursday there was a change in usage referred to in item 8 of the Fourth Schedule I must therefore hold that by changing the day of rest the employer altered the conditions of service of the workmen described in items 5 and 8 of the Fourth Schedule and as this was done without complying with the provisions of Section 9A of the Industrial Disputes Act the employer’s action in making the change was unlawful. If, therefore the workmen refused to obey such an unlawful order, it cannot be said that there was any strike, and the question of illegality of strike does not arise There is therefore no ground for interference with the orders under challenge These four writ petitions are dismissed with costs There will he one consolidated hearing fee of Rs. 200 to be divided equally between respondents 1 and 2 who are the same in all the four writs.
Anwar Ahmad, J.
6. I agree.