anand oil industries vs labour court, hyderabad and ors. on 28 december, 1978

7/27/2019 Anand Oil Industries vs Labour Court, Hyderabad and Ors. on 28 December, 1978

1/29

Andhra High Court

Andhra High Court

Anand Oil Industries vs Labour Court, Hyderabad And Ors. on 28 December, 1978

Equivalent citations: AIR 1979 AP 182

Author: M Reddy

Bench: M Reddy, Amareswari, N Rao

JUDGMENT

Madhava Reddy, J.

1. This writ petition comes up before us on reference by our learned Brothers, Kondaiah, J. and Lakshmaiah J.

principally for the consideration of the question "Whether the Labour Court has jurisdiction and is competent

to entertain an application under S. 33-C (2) of the Industrial Disputes Act by a single or a group of workmen

in his or their individual capacity claiming minimum bonus under S. 10 of the Payment of Bonus Act against

his or their employer and decide the questions relating to the claim of minimum bonus in view of S. 22 of the

Payment of Bonus Act?". Our learned brothers also observed that incidentally the nature, scope and ambit of

S. 33-C (2) of the Industrial Disputes Act falls for decision.

2. M/s. Anand Oil Industries, a Partnership firm, hereinafter referred to as the employer, has filed this petitionfor the issuance of a writ of prohibition against the Labour Court Hyderabad (1st respondent herein)

prohibiting it from deciding or proceeding with M. P. No. 300/75 on its file. To that petition are impleaded 12

of its workmen as respondents 2 to 13.

3. Respondents 2 to 13 filed application M. P.No. 300/75 before the Labour Court, Hyderabad under S, 33C

(2) of the industrial Disputes Act against their employer, the petitioner herein for payment of minimum bonus

of 4% for the accounting years 1964-65 to 1970-71 and a minimum bonus of 8-1/3% for the accounting years

1971-72 to 1974-75 in terms of Payment of Bonus Act, 1965. In that petition they also claimed the difference

between the actual pay received by them and the minimum wages which they were entitled to receive every

month from 5-7-1975 onwards under the Minimum Wages Act, 1948 (Act XI of 1948). They claimed that

they were entitled to receive extra wages for having worked on eight national and festival paid holidays as perthe Holidays Act, overtime wages for working daily four hours over the normal eight hours of work and also

wages for the suspension period,

4. Even without filing a counter to the said petition, the employer has rushed to this Court invoking the

jurisdiction under Art. 226 of the Constitution of India for a writ of prohibition inter alia contending that the

Labour Court has no jurisdiction to entertain the claim of the workmen under S. 33C (2) of the Industrial

Disputes Act,

5. At the hearing of the Writ Petition Mr. V. Jagannadha Rao, learned counsel for the Employer conceded that

the claim of the workmen for holiday wages overtime wages and suspension wages was entertainable by the

Labour Court under S. 33-C (2) of the Industrial Disputes Act. He confined his contentions with reference to

the claim of the workmen for minimum bonus payable under Section 10 (2) of the Payment of Bonus Ad,

1965 (Act 21 of 1965) and to their claim for the minimum wage payable under Ss. 3 and 12 of the Minimum

Wages Act, 1848 read with G.O.Ms. No. 559 Employment and Social Welfare (T) Department dated 30th

June, 1915. Having regard to the above, we must hold that the Labour Court cannot be prohibited from

entertaining and enquiring into the present petition under S. 33-C (2) of the Industrial Disputes Act in so far as

it relates to the claim of the workmen for wages for working on holidays, for over-time wages and wages for

suspension period. The present petition for a writ of prohibition in so far as the said claim is concerned must

be held to be not maintainable. We therefore Limit our discussion to the question whether a petition under S,

33-C (2) is not maintainable with respect to a claim for minimum bonus and minimum wages payable under

the respective statutes,


Indian Kanoon - http://indiankanoon.org/doc/177058/ 1


2/29

6. The first contention of Mr. V, Jagannadha Rao, learned counsel for the petitioner is that though minimum

bonus is payable to every employee as fixed u/s. 10 (2) of the Payment of Bonus Act in view of S. 22 thereof

any dispute with respect to bonus payable under the Act. having been "deemed to be an industrial dispute'

within the meaning of the Industrial Disputes Act, the provisions of the Industrial Disputes Act, apply to such

a dispute and therefore that dispute can be adjudicated only if it is referred under S. 10 (1) of the Industrial

Disputes Act and not upon a petition under S, 33-C (2).

7. The other contention of the petitioner's counsel is that the Minimum Wages Act not only fixes under S. 5the minimum wage payable to the workmen but also prescribes under S. 20 the authority before whom a claim

for minimum wages may be made, hence a petition under S. 33-C (2) of the Industrial Disputes Act does not

lie for the payment of the difference between the actual wage paid and the statutory mini. mum wage payable

to the workmen

8. Thus the principal contention of Mr. Jagannadha Rao, learned counsel for the petitioner is that a petition

under S-33-C(2)of the Industrial Disputes Act does not lie either in respect of the respondent's claim for the

payment of Minimum Bonus or minimum wage payable respectively under the Payment of Bonus Ad of 1965

or the Minimum Wages Act, 1948 inasmuch as his right to receive the same is disputed by the

petitioner-employer,

9. Before we consider whether the petition of respondents 2 to 13 claiming minimum bonus and minimum

wages is maintainable, it is necessary to consider as to when a petition under S. 33-C (2) of the Industrial

Disputes Act lies.

10. In Central Bank of India v. Rajagopalan, AIR 1964 SC 143 the Supreme Court held (at p 748) :

"When sub-sec. (2) of S. 33C refers to any workman entitled to receive from the employer any benefit there

specified it does not mean that he must be workman whose right to receive the said benefit is not disputed by

the employer...........S. 33-C (2) takes within its purview cases of workmen who claimed that the benefit to

which they are entitled should be computed in terms of money, even though the right to the benefit on which

their claim is based is disputed by their employers. The claim under S. 33-C (2) clearly postulates that thedetermination of the question about computing the benefit in terms of money may, in some cases, have to be

proceeded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to

the main determination which has been assigned to the Labour Court by sub-s.(2)."

In East India Coal Co. v. Rameshwar. the, Supreme

Court held (at p. 220):

"It is clear that the right to the benefit which is sought to be computed must be an existing one, that is to say,

already adjudicated upon or provided for and must arise in the course of and in relation to the relationship

between an industrial workman and his employer. Since the scope of sub-sec. (2) is wider than that of sub-sec.

(1) and the subsection is not confined to cases arising under an award, settlement or under the provisions of

Chap. VA. there is no reason to hold that a benefit provided by a statute or a scheme made thereunder, without

there being anything contrary under such statute or S. 33-C (2), cannot fall within sub-sec. (2).

The Supreme Court in C.I.W.T. Corporation v. Workmen , observed (at p. 1608):

"It is now well settled that proceeding under S. 33-C (2) is a proceeding in which the Labour court calculates

the money due to a workman from his employer or if the workman is entitled to any benefit which is capable

of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money.

This calculation or computation follows upon an existing right to the money or the benefit in view of its being

previously adjudged or otherwise duly provided for."




3/29

11. A Full Bench of this Court in Divisional Engineer M. R. T. Operation City Circle, A.P.S.B, Board

Hyderabad v. Ikram Ahmed unreported Full Bench decision in W. P. No. 2503 of 1975, D/-17-11-1978. (to

which all of us are parties) considered as to when petition under S. 33C (2) lies and held:

"A petition under S. 33-C (21 is maintainable where an individual workman or workmen claim amount of

money due or amount at which the benefit should be computed. But Such a claim must be based on an

existing right. The existing right itself should have vested in them either under a settlement or an award or

under the provisions of Chap. V-A or Chap. V-B or conferred under the provisions of any statute. Once theright is shown to be existing under any of the above, the Labour Court would have jurisdiction to entertain the

petition and ascertain the money due or the amount at which the benefit may be computed. The mere denial of

such an existing right by the employer does not take away the jurisdiction of the Labour Court to entertain a

petition under Section 33-C (2) of the Industrial Disputes Act. While the right itself should be an existing right

for enabling a workman to maintain a petition under S. 33-C (2) it is not necessary that this existing right

Should have been admitted by the employer. The denial of the existing right of the workmen to receive money

or the benefit does not oust the jurisdiction of the Labour Court to entertain a petition under S. 33-C of the

Industrial Disputes Act and require the reference of the industrial dispute raised for adjudication under S. 10

of the Act. The denial of this right would only require the Labour Court to ensure into the fact whether the

rightis existing. The Labour Court, has jurisdiction to decide and determine this jurisdictional fact. The

enquiry under S. 33-C (2] in such cases would have to be preceded by an enquiry into the existence of theright and such an enquiry is incidental to the main determination which has been assigned to the Labour Court

by sub-s. (2). It cannot, by an order under S. 33-C (2) however, create a new right

....Sub-s, (2) of S. 33 applies both to the non-monetary as well as monetary benefits. In the case of monetary

benefit it applies where such benefit, though due is not calculated and there is dispute about its calculation. S.

33-C (2) takes within its purview cases of workmen who claim that the benefit to which they are entitled

should be computed in terms of money even though the right to the benefit on which their claim is based is

disputed by their employers. Just as any existing Court is competent to interpret the decree so also the Labour

Court is competent to construe the settlement, award or a statute under which the right is claimed Such an

interpretation of an award, whether the workman falls within a particular class of workmen entitled to the

benefits under the section, award or the statute, the total amount due or the amount at which the benefit shouldbe computed, are all matters falling within the jurisdiction of the Labour Court under S. 33-C (2). This

enumeration of matters incidental to an enquiry under Sec, 33-C (2) is by no means exhaustive nor is it meant

to be so. They are only illustrative."

12. That being the true scope of Section 33-C (2) of the industrial Disputes Act, if a right to the payment of

Minimum Bonus and the right to the payment of a minimum wage is created under a statute then a petition

under S. 33-C (2) for the calculation and payment of the amount of minimum bonus and minimum wage due

to each of the respondents is certainty entertainable under S. 33C (2).

13. We may, therefore, now proceed to consider whether the Respondents employees have been assured the

minimum bonus and minimum wage under a statute.

14. Section 10 of the Payment of Bonus Act fixes the amount of payable by an employer to ever employee

from VI allocable surplus in respect of the accounting year, in the lowing words:

"10. Amount of Bonus:-- (1) Subject to the other provisions of this Act. where an employer has any allocable

surplus in any accounting year, then he shall be bound to pay to every employee in respect of that accounting

year a minimum bonus which shall not be less than four per cent of the salary or wage earned by the employee

during the accounting year or one hundred rupees whichever is higher, or. in a case where the allocable

surplus exceeds the said amount of minimum bonus payable to the employees, an amount in proportion to the

salary or wage earned by the employee during the accounting year subject to a maximum of twenty per cent of

such salary or wage:




4/29

Provided that where an employee has not completed fifteen years of age at the beginning of that accounting

year, the provisions of this sub-section shall have effect in relation to such employee as ii for the words "one

hundred rupees", the words "sixty rupees" were substituted.

(2) Notwithstanding anything contained in sub-section (1), every employer shall be bound to pay to every

employee in respect of the accounting year commencing on any day in the year 1974, a minimum bonus

which shall be four pee cent of the salary or wage earned by the employee during that accounting year or one

hundred rupees whichever is higher, whether, or not the employee has any allocable surplus in the accountingyear:

Provided that where an employee has not completed fifteen years of age at the beginning of that accounting

year, the provisions of this sub-section shall have effect in relation to such employee as if for the words "one

hundred rupees", the words "sixty rupees" were substituted.

(3) For the purpose of this section, the allocable surplus shall be computed taking into account the amount set

on or set off in the three immediately preceding accounting years and the accounting year in respect of which

the bonus is payable, in the manner illustrated in the Third Schedule,

The Statute thus creates a right in every employee to receive a minimum bonus of 4% of the salary or wageearned by him during that accounting pear of Rs. 100/- in case the employee has completed 15 years of age

and in cage he has not completed 15 years of age, Rs. 60/- whichever is higher. This minimum bonus was

raised to 8-1/3% of the salary or wage earned by the employee.

15. It may be noticed at the outset that the provisions of the Payment of Bonus Act in so far as they prescribe

the payment of bonus to the employees have been upheld by the Supreme Court as valid in Jalan Trading Co.

Pvt Ltd v. Mill Mazdoor Sabha, . In that case the Supreme Court inter alia held "that the Scheme of the Act

broadly stated is four dimensional (1) to impose statutory liability upon an employer of every establishment

covered by the Act to pay bonus to employees in the establishment; (2) to define the principle of payment of

bonus according to the prescribed formula: (3) to provide for payment of minimum and maximum bonus and

linking the payment of bonus with the scheme of "set off and 'set on': and (I) to provide the machinery forenforcement of the liability for Payment of bonus", In particular, the attack on Sec. 10 which enjoins payment

of minimum bonus irrespective of whether there are profits in the relevant accounting year or not, was held to

be not violative of Arts. 14 and 31 (1) of the Constitution. Some of the provisions in Sees, 33,34 and 37

though found to be invalid, were held to be severable and not affecting the validity of the other provisions of

the Act. The Court dealing with the development of the Industrial Law regarding the payment of bonus held

'"that bonus which was originally a voluntary payment out of profits to workmen to keep them contented,

acquire the character under the Bonus Formula of right to share in the surplus profits and enforceable through

the machinery of the Industrial Disputes Act, Under the Payment of Bonus Act. liability to pay bonus has

become a statutory obligation imposed upon the Employers covered by the Act." In a later case Sanghavi

Jeevaraj v. M.C.G. & K.M.W, Union, .

Shelat J, dealing with the claim of the workers represented by the Madras Chillies, Grain and Kirana

Merchants Workers' Union held that under the Payment of Bonus Ad. the liability to pay bonus has now

become a statutory obligation imposed an the Employers and "considering the history of the legislation the

background and circumstance in which the Act was enacted the object of the Act and its scheme, it is not

possible, to accept the construction that the Payment of Bonus 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". It accordingly held that inasmuch as the Payment of Bonus Act does not apply to certain

establishments, they cannot claim bonus.




5/29

16. The Supreme Court, however, in a recent case, Mumbai Kamgar Sabha v. Abdul Bhai AIR 1978 SC 1455,

declared that "the Bonus Act speaks. and speak. as a whole Code. on the sole subject of profit based bonus but

is silent, on, and cannot therefore annihilate by implication, other distinct and different kinds of bonus such as

the one oriented on custom

17. It would thus be seen that as the law now stands enunciated by the Supreme Court, the Payment of Bonus

Act is confined to the 'profit-based bonus' and not to other categories of bonus which the employees may be

entitled to claim from an employer. The Payment of Bonus Act, 1965, thus creates a statutory right in theemployees and imposed la statutory liability upon the employers covered by the Act to pay minimum.

18. The Minimum Wages Act 11 of 1948 is an Act to provide for fixing the minimum rates of wages in

certain employments. Section 3 of the Act enables the appropriate Government to fix the minimum rates of

wages to employees in an employment specified in Part I or Part II of the Schedule. There is provision for

amending the said schedule. Section 4 makes provision for revising the minimum rates of wages fixed under

S. 3 so as to accord as nearly as practicable with the variance in cost of index number or basic rate of wage.

The procedure for fixing! and revising the minimum wages is laid down in Sec. 5. The minimum wages bred

under the Act are directed to be paid in cash by S. 11 unless the Government notifies otherwise having regard

to the custom. Section 12 of the Act enjoins every employer to Day wages to the employees engaged in

scheduled employment, at a rate not less than the minimum rate of wages red by such notification for thatclass of employees in that employment without any deduction Section 20 of the Act authorises the appropriate

Government to appoint an authority to hear and decide all claims arising out of payment of less than the

minimum rates of wages, the minimum rates of wages as envisaged by the Ad have been fixed by the State of

Andhra Pradesh in G, O. Ms, No. 559 Employment and Social Welfare (T) Department dated 30-6-1975 for

employees in Oil Mills in the State of Andhra Pradesh.

19. The right to minimum wage is a statutory right and non-payment of the minimum rate of wage for a

particular class of employees or the payment of a lesser amount than the minimum wage payable to the

employee is made punishable and penalties are prescribed under S. 22 of the Minimum Wages Act. There is

also a general provision made in Section 22-A for imposition of punishments for contravention of any of the

provisions of the Act or Rules made thereunder, Section 25 of the Act expressly prohibits employees fromcontracting out of the benefits conferred under the Act. The right to receive the minimum wage is thus

constituted as a statutory right and is vested in the employee. In filing a petition under Sec. 33C (2) claiming

the amount due to him by way of a minimum wage, the employee is merely seeking the computation of the

amount due to him under the statute. He is only seeking to enforce a statutory right and not setting up a new

right calling for adjudication as to whether that right exists or not. A petition for payment of the difference in

the actual wage paid and the minimum wage payable under the statute is therefore one which is clearly

entertainable under S. 33-C (2) of the Industrial Disputes Act.

20. From the above discussion it is clear that irrespective of the fact whether an industry makes a profit or not,

the employees are assured a minimum bonus as also the minimum wage. The employers are enjoined by the

statute to pay the minimum bonus and minimum wage to its employees. These statutory rights vested in every

employee, The mere denial of this right cannot oust the jurisdiction of the Labour Court to entertain a petition

under S. 33-C (2) of the Act,

21. It was however contended that with respect to minimum bonus a specific provision is contained in S. 22 of

the Payment of Bonus Act that it is an industrial dispute and therefore unless the matter is adjudicated upon a

reference, a petition under S. 33-C (2) does not lie. With respect to payment of Minimum Bonus it is

contended that as an authority is constituted under the Minimum Wages Act itself to adjudicate upon all

claims under the Said Act, a petition under S. 33-C (2) does not lie. We may. therefore, rat address ourselves

to the contention raised with regard to the claim for minimum bonus.




6/29

22. It is this statutory minimum bonus that respondents 2 to 13 are now claiming by way of a petition under

Section 33-C (2) of the Industrial Disputes Act.

23. It is common ground that the minimum bonus has not been paid to respondents 2 to 13 herein, But the

contention is that in view of S. 22 of the Payment of Bonus Act the claim for the payment of minimum bonus

which is denied by the employer constitutes ''a dispute between the employer and his employees" with respect

to the bonus payable under this Act. In view of Section 22 of the -'Payment of Bonus Act" such dispute shall

be deemed to be an industrial dispute within the meaning of the Industrial Disputes Act...... and the provisionsof that Act shall, save. as otherwise expressly provided apply accordingly''. Section 22 of the Payment of

Bonus Act reads as follows.

"Section 22. Reference of disputes under the Act -- Where any dispute arises between any dispute arises

between the employer and his employees with respect to the bonus payable under this Act or with respect to

the application of this Act to an establishment in public Sector, then, such dispute shall be deemed to be an

industrial dispute within the meaning of the Industrial Disputes Act, 1947 (14 of 1947) or Of any

corresponding law relating to investigation and Settlement of the industrial dispute 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.

24. The employer is opposing the Petition on the ground that it constitutes an industrial dispute in view of Sec.

22 of the Payment of Bonus Act and as such a petition under S. 33C (2) is not maintainable. It may be

clarified even at this state that the petitioner employer did not assert that it is not an "establishment" to which

the Payment of Bonus Act does not apply: nor did it assert that the respondents were not employees of the

petitioner-firm, nor that they had not put in the requisite length of service. Even in this Writ Petition these

contentions were not raised. Hence if the petition filed by the respondents-employees under S. 33-C (2) is held

entertainable by the Labour Court, we must find that the respondents employees would be entitled to receive

the minimum bonus declared under Section 10 (2) of the Act.

25. In order to determine whether a claim far payment of minimum bonus statutorily fixed under the Payment

of Bonus Act could be entertained by the Labour Court by way of a petition under Sec. 33-C (2) or only upona reference under S, 10 of the Industrial Dispute Act, it is necessary to examine the true scope of S. 22 of the

Payment of Bonus Act. In other words what are the disputes which fall within the ambit of S.22 of the

payment of Bonus Act. So that those disputes may be deemed to be industrial disputes and referred for

adjudication under S. 10 of the Industrial Disputes Act. If we analyze S. 22 it would be seen that the first

essential requisite for the application of Sec 22 and before any dispute could be deemed to be an industrial

dispute, such a dispute should have arisen between the employer and his "employees" and not a dispute

between an employer and ''Individual employee". It should be remembered that in the context of the Industrial

Disputes Act a clear distinction is drawn between an individual dispute and a dispute of a group of employees

A dispute of an individual workman would not constitute an industrial dispute unless a body of workmen

either acting through their union or otherwise has espoused the individual workman's cause. Vide Workmen

V. M/s. Dharampal Premchand, . It is immaterial whether an individual workman was a member of the union

or not when the dispute arose; the only condition that must be satisfied for an individual dispute turning into

an industrial dispute is the existence of a community of interest as laid down by the Supreme Court in

Workman of Dimakuchi Tea Estate v. Dimakuchi Tea State, . In Workmen of Indian Express Newspaper (P.)

Ltd. v. The Management of Indian Express Newspaper (p.) Ltd., , where an individual dispute was espoused

by an

outside union having 25 per cent of the workmen concerned as its members, the Supreme Court held that the

union could be said to have a representative character and that the dispute raised by the individual workman

was transformed into an industrial Dispute. Thus only a dispute between plurality of workmen on the one

hand and the employer on the other, or the dispute of an individual workman espoused by a body of workmen

through their union or otherwise constitutes an industrial dispute under the Industrial Disputes Act. Otherwise




7/29

under the Industrial Disputes Act, no individual dispute of workman with his employer

constituted an industrial dispute until S. 2-A was introduced in the Industrial Disputes Act. That provision

reads as follows:

"2-A. Dismissal. etc. individual workman to be deemed to be in industrial dispute- Where any employer

discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute

difference between that workman and his employer connected with, or arising out of such discharge, dismissalretrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other

workman nor any union of workmen is party to the dispute."

It would be seen that even after the introduction of S. 2-A, it is not every dispute of an individual workman,

not sponsored by a body of workmen or union of workmen, that is deemed to be an industrial dispute. Under

Sec. 2-A only a dispute or difference between the workman and his employer "arising out of discharge,

dismissal, retrenchment or termination of the workman by the employer which is deemed to be an industrial

dispute even though such dispute is not sponsored by other workmen or union of workmen. An individual

dispute of a workman and his employer unconnected with workman's discharge. dismissal retrenchment .,

termination from service is not declared under any provision of the Industrial Disputes Act to be an industrial

dispute, When that is the position under the Industrial Disputes Act, 1947 and the Legislature in enacting S.22 of the Payment of Bonus Act in the year 1965 declared certain disputes between an "Employer and his

Employees'' to be deemed to be Industrial Disputes" within the meaning of the Industrial Disputes Act and

deliberately employed the plural word, "Employees'' and not the singular, it must be assumed that the

legislature intended to bring within the ambit of Section 22 of the Payment of Bonus Act only such disputes as

were raised by more than one employee and not an individual employee. It could not have been the intention

of the Parliament to make an individual dispute with respect to a claim arising under the Payment of Bonus

Act, an industrial dispute al, though such a dispute was not between the employer and more than one

employee and could not be an industrial dispute under the industrial Disputes Act itself. under the provisions

of the Industrial Disputes Act until Sec. 2-A which was inserted by S. 3 of the Amendment Act 35 of 1965

with effect from 1-12-1965, . dispute of an individual workman and his employer could not be treated as an

individual dispute and it could not be referred for adjudication under S. 10 (1) of the Industrial Disputes ActOnly by virtue of Sec, 2-A of the Industrial Disputes Act, a limited category Of disputes raised by an

individual workman though not sponsored by other workmen or union of workmen were "deemed to be an

industrial dispute" although they were not in fact, industrial disputes as envisaged by the Industrial Disputes

Act. These individual disputes or differences were those connected with or arising out of discharge, dismissal

retrenchment or termination. Any other dispute of an individual workman and his employer is not deemed

even after the introduction of S. 2-A to be an industrial dispute. So also S. 22 of the Payment of Bonus Act

declares only certain disputes arising "between an employer and his employees are deemed to be industrial

Disputes" within the meaning of the Industrial Disputes Act. 1947. Since what are not "Industrial Disputes"

under the Industrial Disputes Act are deemed to be industrial disputes only by virtue of Sec. 22 of the

Payment of Bonus Act, it is not open to the Court to enlarge the scope of the expression "Industrial Disputes"

itself. When the Industrial Disputes Act declares that an industrial dispute means any dispute or difference

between employers and employers, or between employers and workmen or between workmen and workmen,

which is connected with the employment non-employment or the terms of employment or with the conditions,

of any person and that is construed as meaning a 'collective dispute's a dispute of an individual workman or

espoused by the other workmen sponsored or espoused by the Union of Workmen". obviously an individual

dispute of any other kind is not included within the ambit of the expression "industrial Dispute" as envisaged

by the Industrial Disputes Act, only by a legal fiction under S. 2-A of the Industrial Disputes Act, certain

categories of individual disputes are declared to be 'Industrial Disputes'. Likewise certain categories of

disputes which are not industrial disputes otherwise are deemed to be industrial disputes under S.22 of the

Payment of Bonus Act. In so creating a legal fiction, S. 22 of the Payment of! Bonus Act does not enlarge the

definition of the industrial; Dispute as Such so as to include a dispute raised by an individual workman with

regard to payment of Bonus also Industrial Dispute". It is that that is made abundantly clear by use of the term




8/29

"Employees" instead the term 'EMPLOYEE". Only certain disputes which were not the industrial disputes

having regard to the nature of the claim were declared by Sec, 22 of Payment of Bonus Act to be industrial

disputes, If it were the intention of the Parliament to make the claim of an individual employee for bonus also

an industrial dispute, it would certainly have used the word "Employee" having regard to the distinction made

under the

Industrial Disputes Act itself with regard to Individual disputes and disputes of group of employees or

disputes sponsored by the union of employees, Though under the provisions of the General Clauses Act asingular would include the plural and plural would include singular, having regard to the distinction clearly

drawn In the Industrial Disputes Act with respect to disputes of individual workman and body of workmen the

use of the word "employee" in S. 22 of the Payment of Bonus Act must be held to be deliberate so as to

exclude individual disputes with regard to payment of minimum bonus from out of the purview of disputes

which are deemed to be Industrial Disputes under Sec. 22 of that Act. Viewed in the context of the definition

of "industrial Dispute" contained in S.2(k) of the Act, where the expression "Employers and Employers,

Employers and Workmen and Workmen and Workmen" are used, the intention of the Legislature appears to

be very clear that individual disputes raised with respect to a claim for statutory minimum bonus payable by

the Employer to the Employee under the Payment of Bonus Act was not to be made an 'Industrial Dispute'

even fictionally A similar view was taken by the High Court of Bombay in Allahabad Labour Supply Agency

v. First Labour Court, Nagpur, AIR 1970 Bom 490, Chandurkar, J, speaking for the Court said:

"....If the sole object of enacting S. 33-C (2) was to provide a speedy remedy to an individual employee to

enforce his right, then unless it can positively be established that the employee Is prohibited from invoking the

jurisdiction under S. 33C (2) it wil l not be possible to hold that an application for recover of statutory

minimum bonus under Sec. 10 of the Payment of Bonus Act cannot be made by an individual employees. It is

true that a dispute between tin employer and employees with respect to the Bonus payable under the Payment

of Bonus Act is fictionally made an industrial dispute by S. 22 of the Act. If an Industrial dispute within the

meaning of the Industrial Disputes Act, 1947 would be a collective dispute. then ii the fiction is to be given its

full effect Sec, 22 mill have to be so construed as to refer only to a collective dispute between an employer

and his employees This construction is also supported by the use of the words "employer and employees" in

S. 22. The use of the word "employees" is not without significance and is clearly intended that a reference of adispute raised by an individual employee is not contemplated by Sec. 22 of the Act, There is also no

machinery under the Bombay Industrial Relations Act whereby an individual employee could also seek a

direction from the Labour Court regarding the payment of Bonus or for resolving the dispute which arises

between him and the employer as a result of non-payment of the bonus by the employer... ... ... Thus if the

Provisions of industrial Disputes Act. 1947, contemplate machinery for settlement of a collective dispute as

pointed out above and there is no provision in the Bombay Industrial Relations Act 1946, which the employee

would avail of for the recovery of the bonus amount and only a collective dispute only be referred to the

Labour Court then the proper construction of Sec. 22 of the Act would be to restrict its operation only to cases

of collective disputes between the employer and employees. Sec. 22 of the Payment of Bonus Act 1965, must

therefore, be held to be not applicable in the case of an Individual dispute"

26. Before the Punjab and Haryana High Court in Bawa Singh v. State of Punjab, 1974 Lab IC 425, Placing

reliance upon the decision in Allahabad Labour Supply Agency v. First Labour Court Nagpur, AIR (1970)

Bom 490 it was contended that an individual dispute as to the payment of minimum bonus under the Payment

of Bonus Act cannot be termed as an "Industrial Dispute" and that in respect of such a claim a petition under

S. 33-C (2) lies. Though that aspect, was not specifically discussed at length, the Court proceeded to hold that

a petition under S. 33-C (2) was not barred and accordingly upheld the order of the Labour Court allowing the

claim of the workman for the payment of minimum bonus.

27. However, the Madras High Court took a contrary view in Aranha v. Universal Radiators, 1975 Lab IC

1180. Veeraswamy, C J. speaking for the Court expressed (dissent?) from the view taken in the aforesaid two

cases in the following words (at p. 1181):--




9/29

"With respect we are not inclined to share this view, for apart from the fact that a plural includes a singular

after the Amendment of the Industrial Disputes Act so as to attract individual disputes too within the scope of

an industrial dispute it does not appear to us to be reasonable that Section 22 of the Payment of Bonus Act

will be inapplicable to individual disputes."

We are unable to concur with the view expressed by the Madras High Court in Aranha v Universal Radiators,

1975 Lab IC 1180 for although, ordinarily a singular includes plural and plural is necessarily an

agglomeration, that principle of interpretation cannot be mechanically applied to every situation. It must giveway to the subject and context in which the particular term is employed. That apart, when under the Industrial

disputes Act, as already discussed above, an Individual dispute of a workman do, not constitute an industrial

dispute, except in regard to discharge, dismissal retrenchment or termination of service, it must necessarily

follow that other individual disputes cannot constitute industrial dispute. Only a limited class of individual

disputes referred to in Sec 2-A of the Industrial Disputes Act are deemed to be industrial disputes by

Legislative fiction, Thereby the scope of the definition of Industrial dispute as contained " S. 2 (b) of the

Industrial Disputes itself is not enlarged What Sec. 22 declares is merely that the disputes referred to in S. 22

of the Payment of Bonus Act shall be deemed to be industrial disputes". So merely because certain disputes

specified in S. 22 of the Pay of Bonus Act are deemed to be industrial disputes, an individual dispute by an

employee against the employer with respect to Payment of minimum bonus under Payment of Bonus Act also

does not become an industrial dispute, for, in respect of such an industrial dispute no fiction is created underS. 22 that it shall be deemed to be an industrial dispute. In the absence of a provision in the Payment of Bonus

Act similar to S. 2-A of the Industrial Disputes Act, making a dispute raised by an individual employee with

regard to Payment of bonus also an industrial dispute, it cannot be deemed to be an industrial dispute by virtue

of S. 22 of the Payment of Bonus Act only.

28. We are therefore clearly of the view that a dispute raised by an dual employee with regard to the Payment

of minimum bonus under the Payment of Bonus Act cannot be deemed to be an industrial dispute within the

meaning of S. 22 of the Payment Bonus Act.

29. Further under Section 22 it is not every dispute between an employer and employee as to bonus that is

deemed to be an industrial dispute within the meaning of the Industrial Disputes Act. It is only a dispute" withrespect to the bonus payable under this Act or with respect to the application of this Act to an establishment in

a Public Sector" which is deemed to be an 'Industrial Dispute'. In order that S. 22 may be attracted the dispute

should not only have been "between an employer and his employees" but the dispute should have arisen "with

respect to the Bonus payable under this Act". No doubt, the expression" with respect to the bonus payable" is

of wide amplitude. But S. 8 of the Payment of Bonus Act declared that "every employee shall be entitled to be

paid by the employer in an accounting year bonus in accordance with the provisions of this Act, provided had

he worried in the establishment for not less than 30 working days in that year." S, 9 declares that

"notwithstanding anything contained in this Act, an employee shall be disqualified from receiving bonus

under this Act, if he is dismissed from service for-- (a) fraud: or (b) riotous or violent behavior while on the

premises of the establishment: or (c) theft, misappropriation or sabotage of any property of the

establishment."' Section 20 specifies the amount of bonus to which an employee is entitled. Sub-section (2) of

Sec, 10 of the Payment of Bonus Act declares the amount of minimum bonus to which an employee is entitled

The maximum bonus payable under the Act is stated to be 20% of the salary or wage earned by the employee

during the accounting rear. Thus every employee who has worked in the establishment for not less than 30

working days in an accounting year and is not subject to any of the disqualification's indicated in S. 9 of the

Act. is declared statutorily entitled to receive the minimum bonus, The rate at which the employee is entitled

to claim bonus over and above the minimum bonus declared under S. 10 (2) of the Payment of Bonus Act

would depend upon a number of other factors like gross profits as computed under S. 4 of the Act, the

available sources as determined under Sec. 6, the sums deductible from gross profits as laid done under S. 6

and the amount of direct taxes payable by the employer as envisaged by S. 7. The amount of bonus payable

would be in proportion to the salary or wage earned by the employee during the accounting year subject to a

maximum of 20% of such salary or wage. whatever may be the position with respect to the claim for bonus




10/29

over and above the minimum bonus so far as the rate at which the minimum bonus is payable with respect to a

particular accounting year, does not fluctuate with reference to any of the factors mentioned above, the right

cannot be denied and is not subject to adjudication by any authority. The minimum bonus is statutorily fixed

and the right to receive the same is a statutory right vested in the employee. Hence no dispute could arise or be

raised with respect to the minimum bonus payable under the Act. if the employer fails to pay the amount or

refuses to pay the amount of minimum bonus, it does not constitute "a dispute with respect to the bonus

payable under this Act" requiring adjudication by way of a reference under S. 10 of the Act. It would only be

a refusal to pay the amount statutorily due to the employee. If therefore in regard to claim for the payment ofminimum bonus the employer contends that he has paid the amount wholly or in part or that the employee is

not eligible to receive the amount or is disqualified from receiving the amount or that certain amounts are

deductible, those would be matters relating to the computation of the amount of minimum bonus which the

employee is entitled to receive and not a dispute with respect to the bonus payable under the Act. The dispute

in other words would not be with respect to bonus payable under the Act but only with respect to quantum of

bonus to which a particular employee is entitled to receive under the Ad. It is not the right of the employee to

the minimum bonus or the rate at which the minimum bonus payable under the Act that is in dispute. but the

actual amount Payable to the employee. Such a dispute not being a dispute which has arisen between the

employer and the employees "with respect to the bonus payable under the Act", Section 22 is not applicable. It

cannot, therefore, be deemed to be an industrial dispute to which the provisions of the Industrial Disputes Act,

1947 apply.

30. In Bawa Singh v. State of Punjab, 1974 Lab IC 425 a Bench of Punjab and Haryana High Court observed

(at p. 427) :-

"We are unable to construe Sec. 22 of the Payment of Bonus Act, 1965, in the manner that every minor

dispute regarding the payment of bonus, even then there is no dispute regarding the exact it is to be paid and

the only dispute is regarding the exact amount to be Paid should be termed as industrial dispute."

No doubt. as contended by Mr.Jaganadha Rao, learned counsel, for the petitioner in Aranha v. Universal

Radiators, 1975 Lab IC 1180 a Division Bench of the Madras High Court considering the words "any dispute

with respect to bonus payable under the Act" occurring in S. 22 of the Payment of Bonus Act observed .

"they are wide enough to cover not merely the question relating to entitlement but also the quantum and a plea

of discharge."

We are unable to agree with this view, in so far as it relates to the claim far payment of minimum bonus which

la statutorily filed. Under the Act, every employee is declared entitled to a minimum bonus of 4% up to

1-4-1974 and 8.33% thereafter. In respect of this minimum bonus, as the dispute could only be with respect to

the actual amount payable to the employee, any claim made for the ascertainment of that amount, cannot be

deemed to be a "dispute" with respect to bonus payable under the Act.

31. We are therefore, of the view that when a claim for the payment minimum bonus is made by an employee

of an establishment to which the Act applies, such a claim does not fall within S. 22 of the Payment of Bonus

Act so as to be deemed to be an "Industrial dispute", requiring reference under S. 10 of the industrial Disputes

Act, Such a claim can be investigated and the necessary relief awarded by the Labour Court upon a petition

filed by the employee under S. 33-C(2) of the industrial Disputes Act.

32. Mr. Jaganadha Rao, learned Counsel for the petitioner relying upon the decision in State of Bombay v.

Pandurang, ,

wherein it as held that "when a statute enacts that something shall be deemed to have been done, which in fact

and truth was not done. the Court is entitled and bound to ascertain for what purpose and between what

persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it




11/29

should be carried to its Logical conclusion" contended that all claims with respect to payment of minimum

bonus should be deemed to be "industrial Disputes" in view of S. 22 of the Payment 'of Bonus Act. It must,

however, be noticed that in that decision the Supreme Court while holding that full effect must be given to the

statutory fiction declared that the Court is bound to ascertain as to "between what persons statutory fiction is

to be resorted to." Thus in resorting to the statutory fiction that the dispute referred to under S. 22 of the

Payment of Bonus Act, shall be deemed to be an "Industrial Dispute" within the meaning of the Industrial

Disputes Act. the court is not entitled to enlarge the scope of S. 22 itself so as to bring within its ambit the

disputes not overhead by S. 22 and deem such disputes also to be industrial disputes Hence on the wording ofS. 22 of the Payment or Bonus Act itself we hold that the claim of an individual employee for the payment of

minimum bonus in respect of which statutory right is vested in an employee under S. 10 of the Act could not

be deemed to be an "industrial Dispute''.

33. This conclusion , further fortified by S. 39 of the Payment of Bonus Act which reads as follows:-

"S. 39. Application of certain laws not barred-- Save as otherwise expressly provided, the provision of this

Act shall be in addition to and not in derogation of the Industrial Disputes Act, 1947 (14 of 1947). or any

corresponding law relating to investigation and settlement of industrial disputes in force in a State." This

provision is evidently intended to meet any contention such as is one raised before the Court that the Payment

of Bonus Act being a special provision and certain disputes being deemed to be industrial disputes by virtueof Sec. 22 of the Payment of Bonus Act, the rest of the provisions of the Industrial Disputes " would not apply

for any claim made under the provisions of the Payment of Bonus Act. There is no express provision in the

Payment of Bonus Act which excludes the application of the provisions of the Industrial Disputes Act. If a

workman is entitled to receive from the employer Any money or any benefit which is capable of being

confuted in terms of money and if any question is raised as to the amount of money due or as to the amount at

which such benefit should be computed those questions may properly be adjudicated under S. 33-C (2) of the

Industrial Disputes Act. The minimum bonus payable under the Payment of Bonus Act is certainly an amount

which a workman is entitled to receive from his employer and when such a claim is made it is undoubtedly

entertainable under S. 33-C(2). Since there is no express provision excluding the operation of the Provision of

S. 33-C (2), the fact that under S. 22 ,the Payment of Bonus Act certain disputes with respect to a claim for

bonus are deemed to be Industrial Disputes the other provisions of the Industrial Disputes Act cannot beexcluded.

34. Further S. 39 of the Payment of. Bonus Act expressly saves the application of the provisions of the

Disputes Act to such claims by declaring that the provisions of the Payment of Bonus Act shall be in addition

to and not in derogation of the Industrial Disputes Act. Section 33-C (2) of the Industrial Disputes Act must

therefore be held applicable to such claims in as much as no provision of the Industrial Disputes Act expressly

provides otherwise. In other words, the Provision contained "S. 33-C (2) cannot be deemed to be excluded by

necessary implication or by any fiction of law.

35. When a Statutory right to a minimum bonus is created and a petition under S. 33-C. (2) is maintainable for

computing the amount as per the statute, it could not have been the intention of the legislature in enacting S 22

to make such dispute an 'Industrial Dispute". No question of an adjudication or ,, award " respect of such a

right could arise. In making provision under S. 22 of the Payment of Bonus Act. that any claim "with respect

to the Payment of Bonus under this Act" would be deemed t, be an "Industrial Dispute" the legislature could

never have intended that even where a right created under a statute merely upon the employer denying such

right should necessarily be referred for adjudication under S. 10 of the Industrial Disputes Act as an Industrial

Dispute. By enacting S 39 of the Payment of Bonus Act, the legislature made its intention very clear that it

never intended to take away the right of the workman to apply under S. 33-C (2) of the Industrial Disputes Act

seeking determination of the money due to him by virtue of the statutory right vested in him.

36. In Allahabad Labour Supply Agency v. First Labour Court, Nagpur AIR (1970) Bom 490), the Bombay

High Court held:




12/29

"That a remedy under S. 33-C (2) is not barred is also clear from the provisions of Sec. 39 of the Payment of

Bonus Act ...... Section 39 expressly provides that the provisions of the payment of Bonus Act. 1965, are not

in derogation of the provisions of the Industrial Disputes Act, 1947. or the corresponding State Ad. Thus the

right of an employee to approach the Labour Court under S. 33-C (2) for recovery of the amount of minimum

bonus is unaffected by S. 22 of the Payment of Bonus Act 1965".

The Punjab and Haryana High Court in Bawa Singh v. State of Punjab (1974 Lab IC 425) referring to S. 39 of

the Payment of Bonus Act held (at p. 427):

"It is also clear that according to the provisions of Section 39 of the Payment of Bonus Act, until and unless

specifically provided in this Ad overriding the provisions of Industrial Disputes Act, the provisions of the

Industrial Disputes Act have been made applicable. Section 22 of the Payment of Bonus Act, in our opinion

does not exclude filing of an application under 5. 33-C (2) of the Industrial Disputes Act, for the payment of

Bonus." No doubt in E.E. C. of India v. Labour Court Madras (1975 Lab IC: 1181), (Aranha v. Universal

Radiators, 1973 Lab IC 1180?) the Madras High Court has held that S. 22 of the Payment of Bonus Act

excludes a petition u/s. 33-C (a) of the Industrial Disputes Act. But in so holding the Madras High Court did

not take into account the provisions of S. 39 of the Payment of Bonus Act, or the observations of the Supreme

Court in Sanghvi Jeevraj v. M.C.G. & K.M.W. Union

which are as follows (at p 539 of AIR):--

".....It is thus clear that by providing in Sec. 38 that the provisions of this Ad shall be in addition to and net in

derogation of those Acts. Parliament wanted to avail of those Acts for investigation and settlement of disputes

which may arise under this Act. The distention between S. 22 and S. 39, therefore. is that whereas S, 22 by

fiction makes the disputes referred to therein industrial disputes and applies the provisions of the industrial

Disputes Act and other corresponding laws for the investigation and settlement thereof, Sec. 39 makes

available for the rest of the disputes, the machinery provided in that Act and other corresponding laws for

adjudication of disputes arising under this Act......" We are, therefore, unable to persuade ourselves to accept

the said view.

37. It is next contended on behalf of the petitioner that the definition of "Workman" under S. 2 (s) of the

Industrial Disputes Ad is somewhat restricted as compared to the definition of an "employee" under S. 2 (13)

of the Payment of Bonus Act and as such S. 33-C (2) cannot in terms apply to a claim for Payment of Bonus

under the said Act.

S. 2 (s) Of the industrial Disputes Ace defines "Workman" as follows:-

"2(s). 'Workman' means any person (including an apprentice) employed in any industry to do any skilled or,

unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment

be express or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute,

includes any such person who has been dismissed, discharged or retrenched in connection with, or as a

consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute." Section

13 (2) of the Payment of Bonus Act defines an "employee" as under:--

" 'employee' means any person (other than an apprentice) employed on a salary or wage not exceeding one

thousand and six hundred rupees per mensem in any 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" It cannot be gainsaid that the ambit of these two definitions is not

identical All employees under the Payment of Bonus Act are not "workmen" within the meaning of the

Industrial Disputes Act. It is, therefore, argued that a petition under S. 33-C (2) could not lie. No doubt, S.

33-C (2) refers to a 'Workman' who is entitled to receive on the employer any money or any benefit which in

capable of being computed in terms Of money and by its terms applies only to 'workman' as defines under the




13/29

Industrial Disputes Act. But what S. 39 declares is that the provisions shah be in addition to and not in

derogation of the industrial Disputes Act. Certainly there cannot be any objection to an employee" as defined

under the Payment of Bonus Act who also satisfied the definition of 'Workman' under the Industrial Disputes

Act enforcing his claim to minimum bonus under S. 33-C (2) of the Industrial Disputes Act, However, it is not

the case of the petitioner employer herein that the respondents do not also satisfy the definition of 'Workman'

as contained in the Industrial Disputes Act. Such a contention was not raised either before the Labour Court or

in this Writ Petition. We cannot allow it to be raised now for the first time in this writ petition.

38. Further it was held by the Supreme Court in Sanghvi Jeevraj V.M.C.G, & K.M.W. Union (1989 Lab IC

854) (A41 1989 SC 530) as follows (at pp. 538 539 of AIR):--

'It will be noticed that S. 22 provides that where a dispute arises between an employer and his employee (1)

with respect to the bonus payable under the Act, or (2) with respect to the application of the Ad such a dispute

shall be deemed to be an industrial dispute within the meaning of the Industrial Disputes Act 1947 or any

corresponding law relating to investigation and settlement of industrial dispute in force in a State and the

provisions of that Act and such law, as the case may be. shall save as otherwise expressly provided, apply

accordingly. An industrial dispute under the Industrial Disputes Act would be between a workman as defined

in that Act and his employer and the dispute can be an industrial dispute if it is one as defined therein But the

definition of an 'employee' under S, 2 (13) of the Act is wider than that of a 'workman' under the IndustrialDisputes Act. A dispute between an employer and an employee, therefore, may not fell under the Industrial

Disputes Act and in such a case the Act would not apply and its machinery for investigation and settlement

would not be available That being so, and in order that such machinery for investigation and settlement may

be available, Section 22 has been enacted to create a legal fiction where under such disputes are deemed to be

industrial disputes under the Industrial Disputes Act or any other corresponding law, For the purpose of such

disputes the provisions of the Industrial Disputes Act or such other law are made applicable. The effect of S.

22 thus is (i) to make the disputes referred to therein industrial disputes within the meaning of the Industrial

Disputes Act or other corresponding law and (2) having so done to apply the provisions of that Act or other

corresponding law for investigation and settlement of such disputes. But the application of S. 22 is limited

only to the two types of disputes referred to therein and not to others, Section 39, on the other hand, provides

that gave as otherwise express iv provided' the provisions of the Ad shall be in addition to and not inderogation of the industrial Disputes Act or any corresponding law relating to investigation and settlement of

industrial disputes in force in a State. Except for providing for recovery of bonus due under a settlement,

award or agreement as an arrear of land revenue as laid down in S. 21, the Act does not provide any

machinery for the investigation and settlement of dispute between an employer and an employee. If a dispute,

for instance, were to arise as regards the quantum of available surplus, such a dispute not being one falling

under Sec. 22, Parliament had to make a provision for Investigation and settlement thereof. Though such a

dispute would not be an industrial dispute as defined by the Industrial Disputes Act or other corresponding

Act in force in a State, S. 39 by providing that the Provisions of this Act Shall be in addition to and not in

derogation of the Industrial Disputes Act or such corresponding law makes available the machinery in that Act

or the corresponding Act available for investigation and settlement of industrial disputes thereunder for

deciding the disputes arising! under this Act As already seen Section 22 artificially makes two kinds of

disputes therein referred to industrial disputes and having done so applies the provisions of the Industrial

Disputes Act and other corresponding law in force for their investigation and settlement. But what about the

remaining disputes?. As the Act does not provide any machinery for their investigation and settlement,

Parliament by enacting S. 39 has sought to apply the provisions of those Acts for investigation and settlement

of the remaining disputes though such disputes are not industrial disputes as defined in those Acts Though the

words 'in force in a State' after the words 'or any corresponding law relating to investigation and settlement of

industrial disputes' appear to qualify the words "any corresponding law" and not the Industrial Disputes Act,

the Industrial Disputes Act is primarily a law relating to investigation and settlement of industrial disputes and

provides machinery therefor. Therefore the distinction there made between that Act and the laws does "Of

seem to be of much point, It is thus clear that by providing in S. 34 that the Parisians of this Act shall be in

addition to and not in derogation of those Acts, Parliament wanted to avail of those Acts for investigation and




14/29

settlement of disputes which may arise under this Act. The distinction between S. 22 and S. 39 therefore, is

that whereas S. 22 by fiction makes the disputes referred to therein industrial disputes and applies the

Provisions of the Industrial Disputes Act and other corresponding laws for the investigation and settlement

thereof, S. 38 makes available for the rest of the disputes the machinery provided in that Act and other

corresponding laws for adjudication of disputes arising under this Act. Therefore, there is no question of a

right to bonus under the Industrial Disputes Act or other corresponding Acts having been retained or saved by

S. 39. Neither the Industrial Disputes Ad nor any or the other corresponding laws Provides for a right to

bonus. Item 5 in Such. 3 to the Industrial Disputes Act deals with jurisdiction of tribunals set up under Ss. 7,7-A and 7-B of that Act but does provide for any right to bonus. Such a right is statutory provided for the first

time by this Act.

39. There observations though made by the Supreme Court while dealing with the question whether any right

to bonus exists de hers the Payment of Bonus Act either under the Industrial Disputes Act or under any other

law, make tire legal position with regard to Sec. 39 of the Payment of Bonus Act clear. It therefore follows

that with reaped to matters not covered by S. 22 of the Payment of Bonus Act, S. 39 of the Payment of Bonus

Ad makes applicable the other provisions of the Industrial Disputes Act including. S. 33-C (2) of the

Industrial Disputes Act with respect to rights secured to an 'employee' under the Payment of Bonus Act.

40. The claim of the respondents the payment of minimum bonus not being one falling under S. 22 of thepayment of Bonus Act and the right to the minimum bonus having been created a by a statute, the decision on

all other objections the payment of minimum bonus would only be incidental to the computation of the actual

amount due to the employees and can be adjudicated under S. 33-C (2) of the Industrial disputes Act.

41. We, have, therefore, no hesitation in holding that the claim for payment of minimum bonus by an

individual workman is not covered by S. 22 of the Payment of Bonus Act. It cannot be deemed to be an

'industrial Dispute' within the meaning of the Industrial Disputes Act by virtue of anything contained S. 22 of

the Payment of Bonus Act. The right to minimum bonus is a statutory right which vests in the employee and

no further adjudication of the right the payment of minimum bonus (is) called for. It constitutes an existing

statutory right, The denial of this right by the employer does not render it an Industrial dispute calling for any

adjudication by way of reference under S. 10 of the Industrial Disputes Act read with S.22 of the Payment ofBonus Act. A petition under S. 33-C (a) of the Industrial Disputes Act for ascertaining and awarding the

amount of minimum bonus due to the workman is, therefore, maintainable

42. The objection to the jurisdiction of the Labour Court to entertain a petition by an employee for the

ascertainment and payment of minimum bonus denied to him by the employer therefore fails and is

accordingly rejected. No writ of prohibition could therefore be issued against the Labour Court from

proceeding with M-P. 300 of 1975,

43. Another claim made by the respondents in their petition under S. 33C (2)before the Labour Court is for the

payment of the difference in the contracted wage which was paid to them and the minimum wage payable to

them under the Minimum Wages Act. It is common ground that exercise of the power vested in it under Sec.

12 of the Minimum Wages Act, the Government has in G.O.Ms. No. 559 Employment and Special Welfare

(T) Department dated 30-5-1975 prescribed the minimum rate of wages for employees in oil mills in the State

of Andhra Pradesh. The validity Of the said Notification fixing the minimum wage under S. 5 of the

Minimum Wages Act is not questioned It is also not in dispute that employment in oil mills is a "scheduled

employment', as defined under S; 2 (g) and as envisaged by S. 27 of the Minimum Wages Act, and that the

petitioner is an "Employer:' as defined under S. 2 (e) of the minimum Wages Act of the respondent

employees. The contention of the petitioner in this behalf is that the Minimum Wages Act not only creates the

right to a minimum wage notified by the Government but also constitutes a forum before which a claim for

minimum wage "arising out of the payment of less than the minimum rates of wages ....to the employees

employed or paid in that area", may be made. The Act also empowers the State Government to notify the

appointment of an Authority an before whom the claim referred to above could be made. The Act while




15/29

prescribing a period of six months within which an application may be made empowers the Authority an

being satisfied that there was sufficient cause for not making an application within the prescribed period to

admit the application beyond the said period of six months. The Act thus having created a "statutory right to a

minimum wage under S. 20 lays down the procedure for enquiring into and disposing of an application for

payment of the minimum wage under S. 20 of the Act The Minimum Wages Act is thus a complete Code in

itself which creates both the right as well as the forum for the enforcement of that right and lays down the

procedure to be followed by the forum for adjudication of that claim. As such no petition under S. 33C (2) of

the Industrial Disputes Act is maintainable.

44. According to the learned counsel for the petitioner Sri V. Jegannadha Rao, the Minimum Wages Act is a

special enactment which overrides the provisions of the Industrial Disputes Act which is said to be a general

enactment. In this regard he places reliance mainly on the judgment of the Supreme Court in Premier

Automobiles v. K. S. Wadke, AIR 1875 SC 2238. That matter arose out of a suit instituted by the Union of

Workmen of the Motor Production Department of the Premier Automobiles. In that suit the Plaintiffs prayed

for a declaration that the settlement dated 9-1-1971 was not binding on the plaintiffs and the other concerned

daily rated and monthly rated workmen of the Motor Production Department who were not members or the

Association Union. Another relief claimed therein was for a Permanent injunction restraining the premier'

Automobiles from enforcing or implementing the terms of the said settlement. The appellant-company and

other respondents inter alia pleaded that the Civil Court had no jurisdiction to entertain the suit. The trialCourt negative that plea and held that the Civil Court had jurisdiction to try the suit as it was of a "Civil

Nature for enforcement of common and general law rights" and accordingly granted a sort of conditional

decree of injunction restraining the appellant from enforcing or implementing the terms of the settlement

dated 9-1-1971 against such of those workmen of its Motor Production Department who were not the

members of the Association Union The Company preferred an appeal to the High Court of Bombay which

upheld the Jurisdiction of the Civil Court to entertain the suit and refused to interfere with the trial Court's

decree an merits. Dealing with the appeal against the said Judgment. The Supreme Court enunciated the

principles determining the jurisdiction of Civil Court with respect to an industrial dispute thus:--

"(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the

Act, the remedy lies only in the Civil Court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and

not under the Act, the Jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor

concerned to choose his remedy for the relief which is competent to be granted in a Particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then

the only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right which is sought to be enforced is B right created under the Act such as Chap. VA then the

remedy for its enforcement is either S. 33-C or the raising of an industrial dispute a. the case may be."

45. On the strength Of this judgment Mr. Jagannadharao, learned counsel for the petitioner-employer contends

that upon a parity of reasoning since the right to the payment of a minimum wage as also the forum for the

enforcement of that right are both created under the Minimum Wages Act a special enactment the general

provision contained in Section 33-C (2) of the Industrial Disputes Act cannot be invoked. According to the

learned counsel for the petitioner, it is a case which falls under the third category of cases referred to by the

Supreme Court in the Premier Automobiles v. K. S. Wadke, .

46. It would be seen that so far as the decision of the Supreme Court in Premier Automobiles v. K.S.Wadke, is

concerned it deals with the jurisdiction of the Civil Court to adjudicate a claim entertainable under the

Industrial Disputes Act and enunciates the principles applicable in this behalf. It does not deal with the

question as to whether the Industrial Disputes Act itself is a general law or special enactment in relation to




16/29

either the Payment of Bonus Act or the Minimum Wages Act The Supreme Court also did not lay down in

that case that if a forum is created for the enforcement of any right conferred on an employee under any of the

above referred two special enactments, the jurisdiction of the Industrial Tribunal under S. 33C. (2) to entertain

a Claim for the enforcement of that right is barred. The above decision of the Supreme Court cannot therefore

be taken as an authority for the proposition that since the right to minimum wage is created under the

Minimum Wages Act which is a special enactment and an authority is also constituted under the said

enactment, a petition under S. 33-C (2) of the industrial Disputes Act is barred. On the other hand principle

No. 4 enunciated by the Supreme Court is that if the right which is sought to be enforced is a right createdunder the Act such as Chap. V-A then the remedy for its enforcement is either S. 33-C or the raisins of an

industrial dispute as the case may be. The decision clearly recognised that if right is created under an

enactment for the enforcement of that right and for computation of the benefit, a petition under S. 33-C may

lie. That is what a Full Bench of this Court also held in W. P. No. 2503 of 1977 Judgment, D/17-11-1978 to

which detailed reference has been made earlier.

47. It was also not contented before us that there is anything in S. 33-C (2) which by itself debars an employee

from filing petition claiming minimum wage. There is no provision either the Industrial Disputes Act or in the

Minimum Wages Act which specifically prohibits a Labour Court from entertaining a petition under S.33-C

(2) in respect of a claim for minimum wage. already noticed the contention was merely that the Industrial

Disputes Act was a general law and that S. 33C (2) being a provision of a general Law is excluded by theMinimum Wages Act which creates the right as well as the forum for the enforcement of that right. We may

therefore examine how far this basic assumption of the learned counsel for the petitioner that the Industrial

Disputes Act is a general enactment is correct and then proceed to consider how far the Minimum Wages Act

while creating a right to minimum wage also prescribes a forum for the enforcement of that right and as such

excludes the jurisdiction of the Labour Court under S. 33-C (2) to entertain a petition for minimum wage.

48. The Industrial Disputes Act does not deal with all disputes It deals only with disputes of workmen and

employers as defined therein They must be industrial disputes. Even in this limited sphere it is not only

dispute of every individual workman that is entertainable under the said Act. By virtue of Section 2 A of the

Industrial Disputes Act, disputes raised by individual workman relating to dismissal, removal or retrenchment

from service only are deemed to be industrial disputes. Any other dispute raised by an individual workman isnot deemed to be an industrial dispute. Unless claims of individual workman other than those referred to

under S. 2-A are sponsored by union of workmen or substantial members of workman it cannot be deemed to

be an industrial dispute. Further under S. 33-C (2) of the industrial Disputes Act claims made by workmen

that are entertainable against their employers are claims with respect to existing rights based on a settlement,

award, or Chap. V-A or Chap. V-B are conferred by statute. Any other right to which a workman or class of

workmen may be entitled but which does not constitute an industrial dispute can be adjudicated only by a

Civil Court. It is only industrial disputes that can be adjudicated under the Industrial Disputes Act and the

existing rights referred to above that are entertainable under S. 33-C of the said Act, Thus the Industrial

Disputes Act itself is not a general enactment as is commonly understood. In a sense the industrial Disputes

Act itself is a special enactment applicable to certain class of employers and workmen and certain classes of

disputes. Consequently the Industrial Tribunal or the Labour Court created for the adjudication of those

disputes cannot be regarded as Courts of general jurisdiction they are Tribunals conferred with special

jurisdiction with regard to matters specified under the said enactment. So also, the Minimum Wages deals

with specific rights created under that Act , They are special enactments relating to certain class of employees

and certain class of employments or establishments. The Minimum Wage, Act also creates a special forum for

certain matters covered by S. 20 of the Act but it does not bar the jurisdiction of the Labour Court to entertain

claims covered by the Minimum Wages Act.S. 33-C (2) may be wide enough to include claims of workmen in

respect of rights conferred under various enactments. May be, certain matters entertainable under S. 20 of the

Minimum Wages Act may be entertained under 33-C (2) of the Industrial Disputes Act also. But on account

of that fact the Industrial Disputes Act as a whole or S. 33-C (2) of the Act in particular does not become a

general law in relation to the Minimum Wages Act. Though the Industrial Disputes Act is in certain respects

wider in its scope and ambit than the Minimum Wages Act both the enactments nonetheless are Special




17/29

enactments. As the industrial Disputes Act is thus not general enactment the Principle generalia Specialibus

non derogant cannot apply.

49. Considering the question whether in relation to the Andhra Pradesh Shops and Establishments Act, the

Industrial Disputes Act is a general or a special enactment, the Andhra Pradesh High Court in Krishnaswamy

v. Assam Tea Depot. 1977 Lab IC 432, held (at pp. 436, 437):

"...the procedure provided by the State Act (Andhra Pradesh Shops and Establishments Act) is as much aspecial procedure prescribed by a special Act as the one provided by the L D. Act Ordinarily, these remedies

will have to be worked out in a Civil Court but having regard to the circumstances in which the workmen are

placed, and their difficulties and helplessness the legislature thought it fit to create special forums like the one

under S. 33-C (2) of the L D. Act as well as those under Section 43 and S. 41 of the State Act..." The Mysore

High Court especially with reference to the Minimum Wages Act had to consider a similar question in Athani

Municipality v. Presiding Officer, 1968 Lab IC 797 : (AIR 1968 Mysore 150] and expressed the view that (at

p. 152 of AIR)

"...the Labour Court cannot be regarded as a Court of general jurisdiction. It is as much a special Tribunal as

the Authority appointed under S. 20 of the Minimum Wages Act. Each of these Special Tribunals has

jurisdiction in respect of matters specified in the enactments constituting them and in any other enactment......"

In Ambika Tobacco Company v Labour Court, (1988] 2 Lab W 353, the Bombay High Court was directly

concerned with the question with which we are now dealing. The Bombay High Court held:

"......The Principle that the special excludes the general will also nor be applicable in this case for the simple

reason that when the Minimum Wages Act was put on the statute book there was no such provision like S. 33

(1) or Sec .33-C (2) in its present form in any other statute. The history of industrial relations in this country

shows that various aspects of giving protection to workers and making provisions for enforcement on the

privileges granted to industrial workers are attempted in different legislation's both by the Central and the

State Governments. But the distinguishing feature of a provision like Sees. 33-C (1) and 33-C (2) of the

Industrial Disputes Act passed by the Parliament is that it Covers the case of every workman against hisemployer irrespective of the Provision of law under which the right arises or is claimed.''

50. These decisions, in our view, rightly declared that the Labour Court constituted under the Industrial

Disputes Act is not Court of general jurisdiction. The Industrial Disputes which provides for the constitution

the Labour Court for deciding the claims of workmen against their employer is therefore, not a general Act

and consequently the principle generalia speciliabus non derogant cannot be applied to determine if the

jurisdiction conferred upon a Labour Court under S. 33-C (2) taken away with respect to the enforcement of

the right to a minimum wage conferred under the Minimum Wages Act.

51. Mr. Jagannadharao, learned counsel for the petitioner also alternatively contends that a petition claiming

minimum wage is not entertainable by Labour Court under S. 33-C (2) also on the ground that the Authority

constituted under S. 20 of the Minimum Wages Act has exclusive jurisdiction in this behalf.

52. In this behalf, Mr. Jagannadha Rao, learned counsel for the petitioner apart from referring to the judgment

of the Supreme Court in Premier Auto mobiles v. R. S. Wadke, placed very

strong reliance upon a decision of the Division Bench of this Court in W. P. No.1686 of 1976 and batch

(Executive Engineer, Panchayat Raj v. Syed Zarruddin) D/-31-7-1978 Which held with particular reference to

the Minimum Wages Act that.

"...claims arising under the Minimum Wages Act particularly those contemplated under S. 20 are entirely

outside the purview of and are not intended to be entertainable under S. 33-C (2) of the Industrial Disputes




18/29

Act,

A claimant under S. 20 of the Minimum Wages Act has no right to file an application under

S. 33-C (2) of the Industrial Disputes Act, 1947, nor the Labour Court under S. 33-C (2) has jurisdiction to

entertain and adjudicate upon such a claim petition as the jurisdiction of the Authority is exclusive"

Unfortunately. the earlier decision of this Court in Kilaru Gopala Rao v. Labour Court, Hyderabad. 50 FJR201 (1977 Lab IC 410) which dealt with a claim for minimum wages payable under the Minimum Wages Act

made beyond a period of six months from the date on which the wages became payable was not brought to the

notice of this latter Division Bench which heard and disposed of W. P. No. 1686 of 1976 and batch (The

Executive Engineer, Panchayat Raj v. Syed Zarruddin) referred to above. In Kilaru Gopala Rao v. Labour

Court, 50 FJR 20: (1977 Lab IC 410) the Division Bench of this Court held (at p. 111 of Lab IC):

'....that since the workman in the present case could not hew resorted to the remedy provided by Sec. 20 of the

Minimum Wages Act at the time when he filed the application under S.33-C(2) of the Industrial Disputes Act

that application is maintainable."

The Bench, however, observed (at p. 411 of Lab IC):

''Following the course adopted by the Supreme Court in Athani Municipality's case we also find it

unnecessary to decide the wider question as to whether an application under S.33-C (2) of the Industrial

Disputes Act could be entertained by the Labour Court, if the remedy under S. 20 (1) of the Minimum Wages

Act is still available to the workman concerned."

It, therefore, becomes necessary to consider whether the present claim of the respondents for the payment of

the difference in the actual wage paid and the minimum wages payable under the Act for a period beyond six

months of the petition which is not entertainable under S. 20 of the Act may be entertained by a Labour Court

under S. 33-C(2) of the Industrial Disputes Act

53. The Supreme Court in Athani Municipality v. Labour Court. Hubli , considered the question "Whether the

jurisdiction of the Labour Court to deal with the claims of the workmen under S. 33-C (2) of the Industrial

Disputes Act was barred by the fart that the same relief could have been claimed by the workmen under S

anand oil industries vs labour court, hyderabad and ors. on 28 december, 1978

Documents