H.P. State Electricity Board and anr. Vs. Presiding Officer and ors. - Court Judgment

D. Raju C.J.

1. This batch of writ petitions is being dealt with together since they involve identical question of law as to the maintainability of a claim petition under Section 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) for computation of the minimum bonus secured under the Payment of Bonus Act, 1965 (hereinafter referred to as the Bonus Act). The details of individual facts in each of these cases do not really matter for the appreciation and adjudication of the points raised except in two cases, namely in C.W.P. No.544 of 1993 and 647 of 1998. For the sake of record, the skeletal factual details in C.W.P. No. 4/92, C.W.P. No.544 of 1993 and C.W.P. No. 647 of 1998 alone may be adverted to.

C.W.P. No.4 of 1992

2. This writ petition has been filed seeking for the issue of a writ of certiorari to call for and quashing the order of the Presiding Officer, Labour Court dated July 6, 1991 made in application No. 1 of 1991 filed by the respondents-workers under Section 33-C(2) of the Act for computation of the minimum bonus payable under the Bonus Act and the orders passed thereon, whereunder the Labour Court held that the respective applicants are entitled to be paid minimum statutory bonus within the time stipulated therein. The various other applicants before the Labour Court who are arrayed as respondents in these writ petitions are serving in different categories either in the Himachal Pradesh State Electricity Board or the Himachal Pradesh Housing Board. They seem to fall under the categories of T/Mate, Beldars, etc. and though on daily wages basis were found serving for more than a decade. Since their claim for payment of statutorily declared minimum bonus under the Bonus Act has not been countenanced, they filed individual as well as joint applications invoking the provisions of Section 33-C (2) of the Act. These applications were opposed by the respective petitioner/managements contending that the Labour Court has no jurisdiction to try the issue for the reason that it is a matter which has to be agitated by means of raising an industrial dispute and it falls also within the purview of Industrial Tribunal in view of Section 22 of the Bonus Act read with item 5 of the Third Schedule to the Act. It was also contended that daily rated workers as also the workers who have completed 240 days but who are treated as casual workers are not entitled to the benefit of the Bonus Act and consequently, they are neither entitled to any regularisation as such nor for the benefits of the bonus.

3. On the above claims and counter-claims the Labour Court formulated the question as to whether the various applicants before the Labour Court are entitled to minimum bonus of 8.33 per cent from the date of their engagement and for that matter are further entitled to having the same computed by means of such applications under Section 33-C(2) of the Act or whether the Labour Court has no jurisdiction to entertain and deal with such applications. The further issue formulated was as to whether the minimum bonus claimed by the workers is not an existing right and the application was not competent to be entertained. The Labour Court ultimately chose to apply the decisions rendered by the Full Bench of the Andhra Pradesh High Court reported in Anand Oil Industries v. Labour Cowl, AIR 1979 A.P. 182 and that rendered by the Full Bench of the Bombay High Court in K.T.P. Pvt. Ltd. v. Presiding Officer AIR 1986 Bom 340 and held that the applications filed under Section 33-C (2) of the Act for claiming the minimum bonus is maintainable and the respective petitioners/management is bound to satisfy the claim of the workers concerned. In some of the orders it appears that an observation has been made to the extent that since the authorised representative of the workers submitted that he is only claiming minimum bonus from the date of the enforcement of the new provisions of law, namely, from March 21, 1988, hence he does not press for the past benefits. The controversy in this regard as to the concession said to have been made will be considered at a later stage. Aggrieved by the various individual orders passed by the Labour Court in each one of the applications filed by the labourers concerned, these writ petitions have been filed.

4. K.D. Sood, S.S. Mittal and J.R. Thakur, Advocates, made submissions on behalf of the petitioners and Mr. K.D. Sood learned Counsel made the leading arguments which not only have been adopted by the other learned Counsel but they projected some additional points also in individual cases. The contention on behalf of the petitioners, in the forefront was that the application filed under Section 33-C (2) of the Act for the relief of the nature in question could not have been entertained by the Labour Court and the subject-matter in issue is one which could only form the subject-matter of an industrial dispute and that has to be adjudicated only by the Industrial Tribunal and, therefore, the orders passed by the Labour Court are liable to be set aside. In support of the said stand our attention was invited to Section 22 of the Bonus Act as also Section 7-A read with Entry 5 of the Third Schedule to the Act. The learned Counsel also invited our attention to some of the decisions on the subject including the judgments relied upon by the Labour Court. Some of the decisions which are really relevant and directly on the point, though expressing conflicting view on the ultimate results in each of such cases, would be referred to and dealt with at the appropriate stage.

5. So far as C.W.P. No.544 of 1993 is concerned, Shri S.S. Mittal learned Counsel, in addition to the general question of law raised as noticed above, contended that the claim of the respondent worker in application No. 81 of 1992 filed by him under Section 33-C (2) is not for any minimum bonus but for computation of his medical reimbursement claim in the sum of Rs. 4,156/- as per documents annexed and filed by him in the claim petition and that such claim for medical reimbursement is not permissible for a casual worker like the petitioner and under the governing regulations and standing orders it is only the regular workers who can claim for such reimbursement and inasmuch as there is no specific statutory entitlement or any such entitlement under any award or settlement for such benefit the same cannot be countenanced in an application under Section 33-C(2), having regard to the nature and scope of the powers of the Labour Court in dealing with an application filed under Section 33-C (2). Similarly it was contended by the learned Counsel that the claim which is the subject matter of C.W.P. No.647 of 1998 is equally not concerned with any payment of minimum bonus but the claim really pertains for the payment of difference in wages payable for a person working as a Beldar and that of a clerk, the claim of the worker being that though he was engaged as a Beldar he was really out in charge of and made to work as clerk and, therefore wages payable to a clerk ought to have been paid. This claim made is said to be one which cannot be countenanced in an application under Section 33-C (2) of the Act.

6. Section 33-C (2) of the Act provided that where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under the Act be decided by such Labour Court as may be specified in this behalf by the appropriate Government. Section 22 of the Bonus Act stipulates that where any dispute arises between an employer and his employees with respect to the bonus payable under the Bonus Act or with respect to the application of the said Act to establishment in public sector then such dispute shall be deemed to be an industrial dispute within the meaning of the Industrial Disputes Act, 1947 or of any corresponding law relating to investigation and settlement of industrial disputes, in force in a State and the provisions of that Act or, as the case may be, such law shall, save as otherwise expressly provided, apply accordingly. There is no controversy that nothing specific for investigation and settlement of disputes has been provided under the Bonus Act in this regard and that the avenue of remedy available under the Industrial Disputes Act alone is only to be availed of. Reference has also been made to Section 7-A of the Act which provides for constitution of one or more Industrial Tribunals for adjudication of industrial disputes relating to any of the matters specified in the Second Schedule or the Third Schedule to the Act and entry No.5 of the Third Schedule enumerating the matters within the jurisdiction of the Industrial Tribunal of which one is 'Bonus, profit sharing, provident fund and gratuity.' It is by now well settled by authoritative pronouncement of more than one decision of the Apex Court that proceedings contemplated by Section 33-C(2) are analogous to execution proceedings and the Labour Court, like the executing Court, as in the execution proceeding governed by the Code of Civil Procedure on the interpretation of the award on which the claim is made by implementing the adjudication, if any already, made by a decree and not to adjudicate any dispute the claim of which itself requires; adjudication for its enforcement in the form of a decree. The power of the Labour Court under Section 33-C(2) was to deal with by interpretation of award or settlement on which the workman's rights rest like executing Court's powers for the purpose of the execution where the basis of the claim is referable to the award or settlement and that it does not extend to determination of the dispute of the very entitlement or the basis of the claim if there be no power of adjudication or recognition of the same by the employer. In Central Inland Water Transport Corporation Ltd. v. The Workmen and Anr. (1975-II-LLJ-117) (SC), it has been held as under :

'In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiffs right to relief ; (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not ; and (iii) the extent of the defendant's liability, if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination No.(iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads (i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under Section 33-C(2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under Section 33-C(2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely 'incidental'. To call determinations (i) and (ii) 'incidental' to an execution proceeding would, be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief. Therefore, when a claim is made before the Labour Court under Section 33-C(2) that Court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions - say of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'incidental to its main business of computation. In such cases determinations (i) and (ii) are not 'incidental' to the computation. The computation itself is consequential upon and subsidiary to determinations (i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. .L. Khandelwal, (1968-II-LLJ-589)(SC), that a workman cannot put forward a claim in an application under Section 33-C(2) in respect of a matter which is not based on an existing right and which can be appropriately the subject matter of an industrial dispute which requires a reference under Section 10 of the Act.'

7. The law being thus, declared and repeatedly reaffirmed, the area of controversy was always with respect to the applicability of those principles to the individual cases which vary from ease to case, their approach and determination depending upon peculiar facts and circumstances of each case. Mr. K.D. Sood, learned Counsel for the petitioner, placed strong reliance upon the decisions reported in (1975-II-LLJ-117) (SC) (supra) and Municipal Corporation of Delhi v. Ganesh Razak and Anr. (1995-1-LLJ-395) (SC), National Engineering Industries v. Workmen, (1968-I-LLJ-816) (SC), Major D. Aranha v. The Management of Universal Radiators, 1975 Lab IC 1180, Hafed v. Presiding Officer (1997-III-LLJ)(Supp)-353) (P&H;), Jagannath Barik v. Presiding Officer, 1.992 Lab I.C. 2363 and Union of India v. Presiding Officer 1989 (2) S.L.J. 74.

8. The decision in (1968-I-LLJ-816) (SC) (supra), though related to a claim for payment of bonus it was riot in respect of payment of minimum bonus declared by the mandate of statute itself of being payable and on the other hand it related to the very determination of the bonus to be paid and the rates to be declared. The decision in (1975-II-LLJ-117) (SC) (supra) related to a claim involving determination of a question as to whether the claim of benefit arising out of the closure of a company could be made from a successor of a different company on account of failure to re-employ some of the workers, and it is in that context the Apex Court held that in the absence of detailed investigation it cannot be determined whether the workmen had any right to a benefit which the company concerned was liable to satisfy and, therefore, such a question was not one which the Labour Court was expected to deal with in an application under Section 33-C (2).

9. In 1975 Lab. I.C. 1180 (supra), a Division Bench of the Madras High Court while dealing with the claim regarding payment of bonus observed that dispute regarding payment of bonus cannot be resolved by an application under Section 33-C(2). This decision also did not concern itself with the claim of the nature under consideration before us regarding the payment of minimum bonus and the construction placed by the learned Judges of the Division Bench of the Madras High Court on the scope of Section 22 has to be confined to a claim for payment of bonus other man the statutorily declared and ensured minimum bonus, and to a case where the very right to payment of bonus itself in case of dispute requires to be determined both as to the entitlement as well as the rate at which such bonus is payable. The payment of bonus which is normally linked with the profits can be either in the form of a customary bonus or as one forming part of a condition of service or one obligated to be payable by the employees. But, it is only on and from the accounting year 1972, when the Payment of Bonus Act was amended by the Amending Act 55 of 1973, the concept of minimum bonus and the right of an employee within the meaning of the Act to obtain such minimum bonus, came to be declared and recognised in law.

10. In (1997-III-LLJ-(Suppl)-353) (P&H;) (supra) a learned single Judge of the Punjab and Haryana High Court while dealing with the claim made under Section 33-C(2) by a worker demanding from the management regular pay scale on the principle of 'equal pay for equal work', held that in the absence of any pre-existing or previously adjudicated recognised rights, the claim for higher pay scale cannot be determined in an application under Section 33-C(2). As a matter of fact, even the Apex Court in the decision reported in (1995-I-LLJ-395) (SC) (supra), relied upon for the petitioners also, dealt with the same issue and their Lordships of the Apex Court held that the workmen's claim of doing the same kind of work and entitlement to be paid wages at the same rate as the regular worker on the principle of 'equal pay for equal work', in the absence of any adjudication of such dispute resulting in acceptance of their claim to that effect, there could be no conviction for computation of benefit on that basis to attract Section 33-C(2). In 1992 Lab. I.C. 2363 (supra), the claim to bonus and differential house rent allowance made in an application filed under Section 33-C(2) of the Act came to be rejected on the ground that the employer from the beginning disputed the liability and claimed exemption under Section 32 of the Bonus Act and for the reason that in such cases the Labour Court could have no jurisdiction to adjudicate the said claim, the same being one envisaged for adjudication by the Tribunal in terms of the provisions contained in the Third Schedule to the Act. Consequently, this decision cannot be of any assistance to the petitioners in this case.

11. The question directly on point concerning a similar claim for minimum bonus payable under Section 10 of the Bonus Act was the subject-matter of two decisions, one that of the Andhra Pradesh High Court and another that of the Bombay High Court. In AIR 1979 A.P. 182 (supra), it was held that since Section 10 of the Payment of Bonus Act fixes the amount of bonus payable by an employer to every employee and creates a statutory right in the employee correspondingly imposing statutory liability upon the employer covered by the Act to pay minimum bonus at the rate specified therein such claim can be the subject-matter of an application under Section 33-C(2) of the Act. The Full Bench of the Bombay High Court in AIR 1986 Bom 340 (supra), while following the decision of the Full Bench of the Andhra Pradesh High Court held that an application under Section 33-C(2) of the Act for claiming minimum bonus under Section 10 of the Bonus Act is maintainable. In G. Venkataramanappa v. C. Kotappa 1988 LIC 958 a Division Bench of the Karnataka High Court observed while dealing with the claim for minimum bonus in an application under Section 33-C(2) of the Act that the claim for money that can be enforced under the Act need not necessarily arise out of the Industrial Disputes Act itself, and inasmuch as the Payment of Bonus Act, 1965 is not a self contained code in respect of investigation and determination of disputes and so far as the rates and liability created under the said Act, the Labour Court can deal with the claim, if need be even going into the question of the existence of the rates disputed by an employer in a private sector as an incidental power available while exercising the main power. In Pappu and Anr. v. Raja Tile and Match Works, (1989-I-LLJ-14) a Division Bench of the Kerala High Court also held that where there is no dispute regarding the liability to pay bonus and the dispute was only with regard to the quantum, the only remedy available under the Industrial Disputes Act would be under Section 33-C(2) of the Act.

12. Per contra, Mr. A.K. Gupta, learned Counsel for the workmen, while adopting the reasons given by the Labour Court and also the ratio of the decisions rendered by the Full Bench of the Andhra Pradesh High Court and the Bombay High Court, contended that the orders of the Labour Court call for no interference and no exception can be taken to the principles laid down therein.

13. On a careful consideration of the various decisions noticed supra, we are of the view that so far as the claim relating to the payment of minimum bonus declared under Section 10 of the Bonus Act is concerned, it is not only a statutory right and entitlement declared by the statute itself but a corresponding liability imposed upon the employer and in such cases of indisputable and indefeasible existence of a right, as such, except where a claim is projected by an establishment/industry in a Public Sector of a claim of exemption, there is hardly any scope for disputing the liability to pay minimum bonus. It is not the claim of the petitioners that the Act itself does not apply to them. In such cases, there is no need for the Labour Court to undertake any adjudication of the entitlement as such which has been declared by the statute itself and what requires and remains to be done by the Labour Court is to decide the due quantum payable or the period for which it is payable if need be incidentally deciding any issue raised by the parties, in effectively giving the relief, in exercise of its undoubted powers and it is not that any and every dispute raised that frustrates an application under Section 33-C(2). In our view the Labour Court in this case has only purported to do what is legitimately within its competency and the applications filed by the workers except in respect of those claims to be separately considered in C. W.P No. 544 of 1993 and C.W.P. No. 647 of 1998, are for relief which are well within the purview of an application under Section 33-C(2) and consequently well within the competence of the Labour Court to go into and accord relief for payment of minimum bonus.

14. The claim of the workers also came to be questioned on the ground that the contesting workers could not be considered to be the regularly employed workers and inasmuch as they were engaged on daily rated basis or wages they will not fall under the definition of employee within the meaning of Clause (13) of Section 2 of the Bonus Act. It is not in dispute that every one of the workers has been in the employment of the petitioner-employers for a decade and even more continuously and in such cases it is futile for the petitioners to contend that they cannot fall within the definition of employee as defined under Section 2(13) of the Bonus Act. The word 'employee' has been defined under the Bonus Act to mean any person (other than an apprentice) employed on a salary or wage not exceeding the amount specified as a minimum per mensem in an industry to do any skilled or unskilled, manual, supervisory, managerial administrative, technical or clerical work for hire or reward whether the terms of employment be express or implied. In Singhvi Jeevaraj v. M.C.G. & K. M.W. Union, AIR 1969 SC 530 the Supreme Court held this definition to be wider than that of a workman under the Industrial Disputes Act. In our view the Act has deliberately and conspicuously omitted to incorporate the concept of 'workmen' and instead has chosen to use the word 'employee' and that too in contrast with an 'apprentice' meaning to indicate thereby that every employee who is other than an apprentice is encompassed in the definition. Section 8 entitling every employee who has worked for not less than thirty working days in a year in the establishment to be paid bonus under the Act would lend support to such liberal and wider interpretation. Consequently, we see no merit whatsoever in the said claim on behalf of the petitioners.

15. Yet another contention generally raised for the petitioners is about the belated nature of the claim projecting a plea of limitation contending that the Labour Court could not have countenanced the claim from the date of coming into force of the Central Act 66 of 1980. It is in this context a further issue has been raised relying upon the statement recorded in the order of the Labour Court stating that the authorised representative of the workers submitted that he has only claimed minimum bonus on and from the date of enforcement of the new provisions of law, that is, from March 21, 1988 and does not press for the past benefits. Mr. A.K. Gupta, learned counsel for the workers has pointed out that only in some of the orders such a mistake has crept in and it should be treated to be a typographical mistake for the year 1980 failing which the very statement would read contradictory in terms and also as redundant. The learned Counsel also contended that what was conveyed was that the workers concerned were not asserting their claim from the date of their engagement but from the date of the coming into force of the amending Act, namely, Central Act 66 of 1980 and therefore, nothing substantial could be made out to defeat the claim of the workers from the date of their entitlement from the year 1980 onwards. It appears to us also that the reference to the date as 1988 is an obvious mistake which could have crept in either due to oversight or typographical error, left unnoticed. That apart, so far as the belated nature of the claim is concerned, we are unable to agree with the learned Counsel for the petitioners that there is any period of limitation envisaged for filing an application under Section 33-C(2) of the Act and that the claim of the workers concerned could be neither be denied nor rejected on such grounds of limitation. Such a view has been taken by the Apex Court even as early as in the decision reported in Central Bank of India v. P.S. Rajagopalan, (1963-II-LLJ-89) (SC) wherein the Constitution Bench held that since no limitation is prescribed for an application under Section 33-C(2), it would not be right to refuse an opportunity to the workmen to prove their case only on the ground that they moved the Labour Court after considerable delay. A similar view has also been taken in The Bombay Gas Co. v. Gopal Bhiva, (1963-II-LLJ-608) observing that the failure of the Legislature to make any provision for limitation cannot be deemed to be an act of omission and it would be legitimate on the other hand to infer that the Legislature deliberately provided no limitation under Section 33-C(2) and the provisions of the Limitation Act cannot be applied to such a case. In Town Municipal Council v. The Presiding Officer, (1969-II-LLJ-651) (SC) the applicability or otherwise of the Limitation Act to proceedings under Section 33-C(2) of the Act came to be considered once again in the context of the provisions contained in the Limitation Act, 1963 particularly with reference to the residuary Article 137 of the Schedule to the said Act. The Apex Court once again after adverting to the earlier decision in (1963-II-LLJ-608) (supra) and even inspite of the difference in language adopted by the new Limitation Act, held that their Lordships were Unable to find any provision in the new Limitation Act which should justify holding that the alterations in the Article of the new Act were intended to make the Limitation Act applicable to proceedings before bodies other than Courts and ultimately came to the conclusion that Article 137 of the Schedule to the Limitation Act, 1963 will not apply to applications under Section 33-C(2) of the Act. Consequently, we see no merit whatsoever in this contention raised, as well.

16. So far as C.W.P. No.544 of 1993 is concerned, we have gone through the nature of the claim made under Section 33-C(2) in this case by the respondent worker claiming; for reimbursement of medical expenses said to have been incurred in the sum of Rs. 4159.19. The applicant before the Labour Court was unable to substantiate the source of his right and his entitlement in law either on the basis of any award or standing orders or any binding settlement between the parties providing for such a claim being made or countenanced. In the absence of any proof of such pre-existing right and in the teeth of a serious dispute raised by the petitioner management about the very entitlement, the application could not have been entertained for grant of such relief under Section 33-C(2) of the Act. The principles laid down by the Courts noticed supra would also not come to the rescue of the worker in the matter of such a claim where a dispute about the entitlement itself has been raised and which goes to the root of the very right of the worker to make the claim. The conclusion arrived at by the Tribunal mechanically in this case to grant relief without even sufficient or proper proof of the pre-existing right if any in the worker for the benefit or the claim, and readily allowing the same without any objective consideration in the order of the Labour Court dated March 31, 1993 in application No. 81 of 1992 cannot be sustained in law and therefore stand seriously vitiated and consequently is liable to be and is hereby set aside. The worker concerned is left with liberty to vindicate his rights, if any, otherwise if he so desires, in accordance with law and the dismissal of the claim by our order in this writ petition shall not stand in the way of any such rights of the respondent worker in this writ petition.

17. Equally, the order passed by the Labour Court dated June 26, 1998 in application No. 80/ 97 which is the subject-matter of C.W.P. No. 647 of 1998 cannot be sustained. This is a claim by the worker concerned made under Section 33-C(2) for computation and payment of difference in the salary on the ground that though he was engaged as a daily rated Beldar he was really deployed to discharge duties and made to work as a clerk and, therefore, he is entitled to be paid the difference in salary between the one admissible for the clerk and the one payable to a Beldar which alone was said to have been paid to him. Thus class, nature and category of a claim has been held not to be admissible or permissible to be dealt with and countenanced in an application under Section 33-C(2) in the decision of the Apex Court reported in (1992-I-LLJ-395) (supra) as also the decision of the Apex Court in P.K. Singh and Ors. v. Presiding Officer Labour Court and Ors., (1988-1I-LLJ-363) (SC) and 1997 (11) SCC 363, wherein it has been held that the remedy under Section 33-C(2) was available only in those cases where there is no dispute about the entitlement of the workman itself, and the relief claimed by way of difference in salary in an application under Section 33-C(2) of the Act on the basis of 'equal pay for equal work' formula was held not permissible and such relief depending upon re-classification of workmen could be granted or obtained only on a reference made to the competent authority under Section 10 of the Act. On this ground alone the order of the Labour Court dated June 26, 1998 in Application No. 80 of 1997 is liable to be and is hereby set aside. The dismissal of the claim and the application on account of our allowing this writ petition shall not stand in the way of the workman concerned, if he so desires, to vindicate his right in an appropriate forum, in the manner known to and in accordance with law.

18. For all the reasons stated above, C. W.P. No.544 of 1993 and C.W.P. No.647 of 1998 are allowed and the impugned orders of the Labour Court therein are hereby quashed with liberty to the workmen concerned as noticed earlier. C.W.P. Nos. 4/92, 5/92, 6/92, 541/93, 542/93, 545/93, 546/93, 547/93, 548/93, 549/ 93, 761/93 and 762/93 shall stand dismissed. No costs.