PETITIONER:
BAIDYANATH AYURVEDA BHAWAN MAZDOOR UNION, PATNA
Vs.
RESPONDENT:
MANAGEMENT OF SHRI BAIDYANATH AYURVEDA BHAWAN PVT. LTD. &ORS
DATE OF JUDGMENT24/11/1983
BENCH:
MISRA RANGNATH
DESAI, D.A.
MISRA, R.B. (J)
CITATION:
1984 AIR 457 1984 SCR (1) 927
1984 SCC (1) 279 1983 SCALE (2)814
ACT
Payment of Bonus Act 1965
Act whether exhaustive on the law relating to bonus- ‘Attendance bonus’ being paid prior to Act-Employees whether entitled to ‘attendance bonus’ over and above profit bonus payable under the Act.
HEADNOTE
The workmen working in the establishment 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 ‘attendance bonus’ 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 contended 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 & Ors. v. Secretary, Madras Chillies, Grains Kirana Merchants Workers’ Union & Anr. (1969) 1 S.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 held that 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 v M/s Abdulbhai Faizullabhai & Ors.(1976) 3 SCR 591 and held that the Act leaves untouched customary bonus. [929 A-B, 930 H]
3. In 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 9% per annum. [931 B-C]
JUDGMENT
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1851 of 1974.
Appeal by Special Leave from the Judgment and Order dated the 24th October, 1973 of the Patna High Court in C.W.J.C. No. 613 of 1970.
R.K. Garg and V.J. Francis for the Appellant.
L.C. Goyal for the Respondents.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. This appeal by special leave is directed against the decision of the Patna High Court quashing an award of the Industrial Tribunal of Bihar in exercise of jurisdiction under Article 227 of the Constitution and the workmen’s 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., "whether 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 on the observations of this Court in Sanghi Jeevaraj Ghewar Chand & Ors. v. Secretary, Madras Chillies, Grains Kirana Merchants Worker’s Union & Anr.(1), the Court came to the conclusion that the workmen were not entitled to payment of attendance bonus for the year 1966-67 and accordingly vacated the Award. 929
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.(2). this Court considered the question directly. The later case also referred to Ghewar Chand’s case and ultimately held:
"It 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
establishments. Moreover, customary bonus does not
require calculation of profits, available surplus,
because it is a payment founded on long usage and
justified often by spending on festivals and the Act
gives no guidance to fix the quantum of festival bonus;
nor does it expressly wish such a usage. The conclusion
seems to be fairly clear, unless we strain judicial
sympathy contrariwise, that the Bonus Act dealt with
only profit bonus and matters connected therewith and
did not govern customary, traditional or contractual
bonus." Referring to Ghewar Chand’s case, Krishna Iyer, J. in this latter case indicated :
"...so 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 or 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 workmen, employed by
establishments which are either excluded or exempted
from the Bonus Act. The major 930
inarticulate premise of the statute is that it deals
with-and only with-profit-based bonus as has been
explained at some length earlier. There is no
categorical provision in the Bonus Act nullifying all
other kinds of bonus, nor does such a conclusion arise
by necessary implication, The ruling undoubtedly lays
down the law thus:
‘Considering the history of the legislation,
the background and the circumstances in which the
Act was enacted, the object of the Act and its
scheme, it is not possible to accept the
construction suggested 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 either as to
exclusion or exemption to raise a dispute with
regard to bonus through industrial adjudication
under the Industrial Disputes Act or other
corresponding 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 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, viz., resort to the machinery of the
Industrial Disputes Act."
Upon a further analysis of Ghewar Chand’s case. Iyer, J. concluded by saying:
"A discerning and 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."
We concur with this conclusion. 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 Award. The appeal must succeed and the award on this score has to be restored. 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 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. Appeal allowed. 932