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BAIDYANATH AYURVEDA BHAWAN MAZDOOR UNION, PATNA y
MANAGEMENT OF SHRI BAIDYANATH™ AYURVEDA BHAWAN PVT. LTD. & ORS.
- | November 24, 1983
" [D.A. Dasal, R.B. Misra, AND RaNGaNaTH Misra, JJ.]
*
Payment of Bonus Act 1965 ° , _ 1
Act whether exhaustive on the law relating to bonus—‘ Attendance bonus’ betng paid prior to Act~Employees whether entitled to ‘attendance bonus’ over and above profit bonus payable under the Act,
The workmen working in ‘the establishnicat of the first respondent were
‘being paid. ‘attendance bonus’. The question whether the workmen were entitled to payment of bonus under the Payment of Bonus Act, 1965, over
_and above the ‘attendalice borius’ was referred to adjudication under Section 10 of the Industrial Disputes Act 1947, The Tribunal held in favour of the workmen. Before the High Court the employer cotitended that when bonus - , was being paid under the Act: the workmen were not entitled to separate _
‘attendance bonus’. .The High Court, relying on the decision of this Court in: ‘Sanghi Jeevaraj Ghewar Chand & Ori. v. Secretary, Madras Chillies, Grains
Kirana Merchants Workers’ Union & Anr. (1969) 18.C.R. 366 held that the workmen were not entitled to Payment of ‘attendance bonus’. _
- «
Allowing the appeal,
HELD: 1. Both the Tribunal and the High Court’ concurrently heldthat the workmen in the establishment had been receiving ‘attendance bonus’
*. .from before. ‘Attendance bonus’ being outside the purview of the Bonus Act, the High’ Court was not right in vacating the award of the Tribunal, (928 E- F, 931 A}
2. In Ghewar Chand's case on which the High Court relied, the question was not whether after the Bonus Act came into force; the other types of -bonus hitherto paid caused to be payable. This question was directly considered in Mumbai Kamgar Sabha, Bombay y Mis Abdulbhai Faizullabhai & Ors. (1976) 3 SGR 591 and held that the Act leaves untouched. customary bonus.
- - * [929 AB, 930 H]
3. Ia the instant case, if the employer had not challenged the award, the workmen would have had the benefit of the bonus more than a decade back, That justifies the awarding of interest at *% per annum, (931 B-C}
928 St _ SUPREME COURT REPORTS - 11984) i s.c.k:
1974,
Appeal by | pecial Leave, from the Judgment and ‘Order dated
* the 24th October, 1973 of the Patna igh Court i in C.W.J.C. No, 613 ‘of 1970, -
RK, “Garg and VAS. Francis for the Appellent. ~
LL. Goyal for the Respondents.
RaNGaNatH Misra, J. This appeal by special leave is directed against the decision of the Pataa High Court quashing an award of _ the Industrial Tribunal of Bihar. in -exefcise of jurisdiction ‘under
Article: 227 of the Constitution and the workmen’ $ union has carried the appeal.
- Two disputes were referred to adjudication under section 10 of the Industrial Disputes Act but the.appeal is confined to only one,
'. viz, “‘whethtr the workmen are entitled to payment of bonus for the |
‘year 1966-67 under the Payment of Bonus Act. over and above the ‘attendance bonus’ which is being paid in this establishment ? If: so, - what should be the quantum of bonus ?” The Tribunal found that . .the workmen were entitled to attendance bonus over and above the bonus payable under the Payment of Bonus Act, 1965 (‘Act for -
. Short), and specified the amount as required under the reference.
‘ «The employer challenged the Award before the High Court and” - -- contended that no separate attendance bonus Was payable when’
-' bonus was being paid under the. Act. A Division Bench of the
.. High Court came to hold, concurring with the Tribunal, that the workmen in the establishment had been receiving ‘attendance bonus .from before’ and proceeded to examine whether such attendance bonus was included in the bonus payable to the workmen under the.
_ Act or could be claimed-over and above the statutory bonus, Relying
-0n the observations of this Court in Sanghi Jeevaraj Ghewar Chand-
-& Ors. v. Secretary, Madras Chillies, Grains Kirana Merchants Worker's Union. & Anr.(), the Court came to the conclusion that the workmen were not entitled to payment of attendance bonus: for the year 1966-67 aad accordingly vacated the Award.
(ly emTECR TR -
Civ Areattare TURISDICTION ‘Civil ' Appeal: No. 1851 Of.
The Judgment of the Court was ‘delivered by ee a
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‘BAIDYANATH UNION v. MANAGEMENT (Ranganat Misra, J) 9B.
- In Ghewar Chand’s case (supra) as rightly observed by the
High Court the question for consideration was not whether after -the- ~" Act came into force and statutory bonus became payable, other types of bonus hitherto paid ceased'to be‘payable.- On the other hand, in a later case Mumbai Kamgar Sabha, Bombay v. M/s. Abdulbhai. Faizullabhai & Ors.(*). this Court considered .the question directly.
The later case also referred to Ghewar Chand’s case and “ultimately held :
“
“Tt i is clear further from the long title of the: Bonus “Act of 1965 that it seeks to provide for bonus to persons employed ‘in certain establishments’—not ‘in all ‘establi-
’ shments. Moreover, customary bonus does not require calculation of profits, available surplus, because itisa .~ payment founded on long usage. and justified often by:
_ Spending on-festivals and the Act “gives no- guidance to
’ fix the quantum df festival bonus; nor does it. expressly _ wish such a usage. The. conclusion’ seems to be fairly, clear, unless’ we ‘Strain judicial sympathy contrarywise,
> that the Bonus Act dealt with only profit bonus and matters connected therewith and did not govern: custo~’ mary; traditional or contractual bonus.” Referting to -Ghewar Chand" s case, Krishna yer, li in iis latter case indicated : ; .
_ 9.80 viewed, we are able to discern no impediment ” in reading Ghewar Chand -as confined to profit-bonus, leaving room for non-statutory play of customary bonus, ~~ The case dealt with’a bonus: claim by two -sets of
~ - workmen, based on profit of ‘the business but the
- workmen fell outside the ambit of the legislation by” _express exclusion OF exemption. Nothing © relating to any other type of bonus arose and cannot be’ impliedly held to have been. decided. The governing principle we. have to appreciate as.a key to the understanding of + | Ghewar Chand: is that it relates to a case of profit: bonus urged under the Industrial Disputes: Act by two sets of |
- - orkmen, employed by establishments which are- either excluded or exempted. from the Bonus Act. The major
(dd) (Sd SCR, 491. a 7 - oN
930 ce ; ; SUPREME COURT REPORTS [1984] t 8.C.R inarticulate premise of the statute is that it- deals with— vs ‘and only with*-profit*based bonus as has been. explained
. at some length earlier. There is no categorical provision — 4 o in the Bonus Act nullifying all other Kinds of bonus, nor © » does such a conclusion arise by necessary implication, my
The ruling undoubtedly lays down the Jaw thus: . :
oa ‘Considering the history of the legislation, the background and the circumstances in which the Act — as was enacted, the object of the Act and its scheme, dt is not possible to accept the construction suggested an .on behalf of the respondents that the Act is not an _— exhaustive Act dealing comprehensively with the. subject-matter of bonus in all its aspects or that Parliament still left it open to those to whom the ~ Act does not apply by reason of its provisions ‘dither
.> as to exclusion or exemption to raise a dispute with regard to bonus through industrial adjudication under the Industrial Disputes Act | or other corres- “ponding law,
But this, statement, contextually construed, means =°= «# that profit-bonus not. founded on the provisions of the
Bonus Act and by resort to an adventure ‘in industrial a a dispute under the Industrial Disputes Act is no longer . ‘permissible. When Parliament has expressly excluded or exempted certain categories from the, Bonus Act, they are bowled out so far as profit-based bonus is concerned. ;
You cannot resurrect profit-bonus by a backdoor method, a 4 viz., resort to the machinery of the Industrial ‘Disputes *
Act.”
Upon a. a further analysis of Ghewar Chand's case. Iyer, J. _ concluded by saying : me,
“A discerning ahd concrete analysis of the scheme of the Act and the reasoning of the Court leaves us in no_ doubt that it leaves untouched customary bonus.”
‘
~ Weconcur with this conclusion, a, _ q
BAIDYANATH UNION Y. MANAGEMENT (Ranganath. Misra, J.) - 931
On the finding by the Tribunal as also the High Court that attendance bonus was being paid from before and it being outside the purview of the Act, the High Court was not right in vacating the the Award. The appeal must succeed and the award on this score has to be restored. If the employer had not challenged the Award, s. the workmen would have had the benefit of the bonus more thana — decade back. That justifies awarding of interest. While allowing the appeal of the workmen with costs, we direct that the. amount found by the Tribunal for being given as attendance bonus shall carry interest at the-rate of 9% per. annum from the due date till disbursement. Hearing fee is assessed at Rs. 2,000.
N.V.K, an _°.> Appeal allowed.