BALDYANATH AYURVEDA BHAWAN MAZDOOR UNION, PATNA versus MANAGEMENT OF SHRI BAIDYANATH AYURVEDA BHAWAN PVT. LTD. & ORS.

•.

927

BAlDYANAtH AYURVEDA BHAWAJ'l MAZDOOR UNION, PATNA

v.

MANAGEMENT OF SHRI BAIDYANATH AYURVEDA BHAWAN PVT. LTD. & ORS.

· November 24, 1983

[D.A. DESAI, R.B. MISRA, AND RAN,GANATH MISRA, JJ.]

Paymtnt of Bonu< Act 1965

•

Act whether exhaustive on the law relating to bo11us-•Aitendance bonus'

being paid prior to Apt-Employees whether entitled to and abo'1'2 profit bonus payable under the-Act.

'attendance bonus' over ·

The 'workmen wOrking in the establislurtcnt of the first respondenl were ·being paid- 'attendance bonus'. The question \VhcilH'r the \VOrkmen were entitled to payment of boilus under the Pay1nent of Bol1us Act, 1965, over and 8.bove the 'att~nda~ce bortlls' was referred to adjudication under Section 10 of the I~dustrial ri!sputes Act 1947. The Tribunal held i~ favour of the workmen. Before the High Court the en~ploycr coritended that when . bonus was being paid under the Act· the workrnen were not entitled to separate 'attendance bonus'. . The High Court, relying on th~ decision of this Court. in·_~angki Jeeva;aj Ghewar Chand & Or.~. v. Secretary, MiJdras Chillies, Gtains Kirana Mer,nh.ants Workers' Union & Anr: (1969) 1 S.C.R. -366 held that the wOrkmen we"re npt entitled to payment of 'attendance bonus'.

Allowing the appeal,

'HELD : I. Both the Tnbunal and the High Coµrt aoncurrently lie Id· that the workineh in t11e establiShment had been receiving 'attendance bonus' , from before. 'Attendance bonus' being outsi~e the purview of the Bonus Ac_t, the High··court was not right in vacating the award of the Tribunal.

.. _

.

-

.

[928 E-F, 931 AJ

~. ln G/Jewar Chand•s case on which the High Court relied, the question was not whether after the Bonus Act can1e 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 Abdulblzai Faizullab!zai & Ors. (1976) 3 SOR 591 and held that the Act leaves untouched-customary ·bonus .. , • .

[929 A-B, 930 HJ

3~ In the illstant case, if.the employer had not chalienged the award the workn1Cn would have had the benefit of the bonus n1ore than a decilde b.1ck. T_hiit justifi'es the awarding of interest at 9% per annum.

(931 B·CJ

A

B

c

E

G

H

' _.,d

::~1

=;

~

~ I -· I , • ; ii1 j

'\.

.. "'

-(_

~ =1

~

#

)

iii '"\( ,. 1 "'1

928

. SUPRBMB COURT REPORTS

.

. .

•

.(i984) i s.c.il:

CIVIL APPELL, TB JURISOICTION : ·civil. Appeal No. 1851· of

,.1974.

Appeal by: pecial Leave.from·the Judgment and Order dated the 24th October, 1973 of the Patna High Court in C.W.J.C. No. 613 ·ofl970,

·

R.K. Garg and V.J. FrMcts for the Appellent. -

.L.C. Goya/ for the Respondents.·

•

The Judgment of the Court was delivered by

RANGA.NA TH M1SRA, J. This appeal by special leave . is directed against the decision of the Patna f;Iigh 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 adjudicatio~ under section 10 of (he 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 1". 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 l:>onu.s 1vas payable when ··bonus 1vas ·being paid under. the Act. A Division Bench of the .: High Court came to hold, concurring with the Tribunat;t~at the· workmen in the e<tablisbmenf had been receiving attendance bonus . from before and proceeded to examin.e w.bether 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 C~and ·.&. o;s. v .. Secretary, Madr(ls Chillies., Grains Kirana Merchants Worker's Union.& Anr.('), the Con.rt 9ame to the conclusion that the wo,kmen were not entitled to payment of attendance bonus for the year 1966-67 and a.ccordingly vacated tlie Award.

.

.

. . -·----· __________ .;.___;.....

A

8

c

D

E

·F

G

B

(I) •1969) I S.C.ll. 366 .

.

..

r

../

' r ' ·~

t .,

. .> ,.

\_

··~

,I f t ~ _f ...,....

r

I

-

f:

BAIOYANAT~ UNION 'v. MANAGEMENT (Ranganath Misra, J.)

. 9~.

Jn 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 bec.ai:ne 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 considere<j .the question directly.· The later case also referred to Ghewar Clwnd's case and "ultimately held :

' ...

·•

• "It is clear filrther from the long title of the: Bonus Act of 1965 that it seeks to provi<le for bonus to pprsons employed 'jn certain establishments'-not jn all ·establi shments. Moreover, customary bonus does ·not require calculation of profits, available surplus, because it is a payment founded on Jong 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 fairJy. 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."

I

"'

Referring to Ghewar Chand's cas.e, Krishna Iyer, J. ii) this latter case indicated ·:

·

··

" ... so viewed, we are able to <\iscern no impediment · in reading Ghewar Chand ·as confined to profit-bonus,· leaving room for non-statutory play of customary bonus. two sets of The case dealt with ·a bonus claim ·by · workmen, based on ·.profit of the. business but the .. workmen fell outside the. a~bit of .the legislation by . . express exclusion oi exemption. Nothing relating to any other type of bonus a'rose and· cannot be· ·impliedly, J1eld 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 !lie Industrial Disputes· Act by two sets of orkmen, employed by establishments which are· either 'The major

. exclud.ed ar exempted from the .Bonus Act.

•··.

(I)

[19761 3 s.c.R. 591.

E

G

H

930

. SUPREME ,COURT REPORTS

(1984)1 s.c.ll.

inarticulate premise of the statute is that it deals with and only withl!:..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 Jaw 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 sc:hem~, •ii is not possible to accept the construction suggested ·,on behalf of the respondents that the Act is not an exhaustive Act dealing comprehensively with subject-matter of bonus in all its . aspects or that Parliament still . left it open · to th6se to whom the · Act does not apply by reaso.n of its provisions ·either - as to exclusion or exemption to ~ai.se a dispute· with regard to bonus through industrial adjudication under the Industrial Disputes Act 'or other corres·· "ponding law'.

the .

·But this. statement, contextually construed, means that profit-bonus no( 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 conc.erned: You cannot resurrect profit-bonus by a backdoor method, viz., resort to the machinery of the Industrial Uisputes Act."

Upon a' further .analysis of Ghewar Chand's case. Iyer, J.

, concluded by sayjng : ·

''.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.

B

D

E

F

G

H

•

BAIDYANATH UNION v. MANAGEMENT (RanganathMisra, J.) . 93r

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 wa~ not right in vacating . the the Award. The appeal ·m1ist succeed and (be award on this score ruis to be restored. 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 tlie. amount found by the Tribunal for being given as attendance bonus shall carry interest at the.rat~ of 9% per. annum from the due d.ate till . disbursement. Hearillg fee is assessed at Rs. 2,000.

If the employer had not challenged the Award, ;.

N.V.K.

Appeal allowed.

A

B

c

f

~' "

l

•

•