JUDGMENT

DESAI, J. :— Bonus has a tantalizing influence on industrial workers. They look forward to it with a craving, the degree of which is immeasurable. And for the employees any form of bonus has such a tremendous attraction that the time honoured concept of its being a profit sharing formula to fill in the gap between the fair wage and the living wage in the case of industrial workmen has been for all practical purposes displaced by the Payment of Bonus Act and bonus telescoping into Government service where there being no production and therefore it cannot be an incentive for higher production. And yet the management of the Model Mills, Nagpur (Employer for short) has most successfully thwarted the meagre expectation of minimum bonus to its workmen for full two decades.

2. Rashtriya Mill Mazdoor Sangh, appellant herein. (Union for short) as an approved Union made four independent references under Sec. 73A of the Bombay Industrial Relations Act, 1946 (Act for short) against Model Mills, Nagpur for grant of bonus for the period 1964-65 to 1967-68. A separate reference was made in respect of each accounting year. The Union as representative Union of the employees served a notice of change making the demand for bonus. The matter was taken into conciliation. The Conciliation Officer recorded a failure on June 23, 1969 and issued a certificate under Sec. 73A of the Act certifying that the dispute was not capable of being settled by conciliation. Armed with the power of an approved Union, the Union made the aforementioned four references to the Industrial Court. The Union demanded bonus for each of the four accounting periods according to the provisions of the Payment of Bonus Act, 1965 (Bonus Act for short). The Union could not make a specific demand for bonus calculated at a certain percentage of the salary alleging that as it has not got the requisite information about financial position and balance sheet of the employer, the Industrial Court should compute, the bonus which becomes payable under the Bonus Act, and award the same to the workmen of the employer.

3. The employer resisted the references on diverse grounds. It was contended that once a notified order is issued under Sec. 18A of the Industries (Development and Regulation) Act, 1951 (IDR Act for short) appointing an authorised controller in respect of an industrial undertaking it is run by the authorised controller under the authority of a Department of the Central Government and, therefore, in view of the provision contained in Sec. 32(iv) of the Bonus Act its employees are excluded from the application of Bonus Act and the references must accordingly be rejected.

4. This contention found favour with the Industrial Court. The learned Member with the consent of the parties directed that the issue with regard to the application of the Bonus Act may be tried as a preliminary issue. The learned Member upheld that contention on behalf of the employer observing that having regard to the provision contained in Sec. 32(iv) of the Bonus Act read with Sec. 18 A of the IDR Act, the workmen employed by the employer are excluded from the operation of the Bonus Act as it is not applicable to the employer. The learned Member rejected the alternative contention that even if the workmen employed by the employer are not entitled to bonus under the Bonus Act, they are yet entitled to claim bonus apart from the Bonus Act as a norm of industrial relation observing that as the demand was made for bonus under the Bonus Act and the alternative demand was not made before the Conciliator, the scope of the references cannot be extended to cover the same. Accordingly, all the four references were rejected. Hence these appeals by special leave.

5. On the rival contentions following questions arise in these appeals :

(1) On the appointment of an authorised controller under Sec. 18A of the IDR Act by the Central Government in respect of an industrial undertaking, does it acquire the status of an est