LINGARAJA RATH, J.

( 1 ) THE question that falls for decision in these appeals and the Writ Petition is whether a newly set up establishment for production of goods is liable to pay bonus to its workmen, even though it has not started selling its manufactured goods and its infancy period of five years from the setting up is not over but has otherwise earned some income in a different venture during that period, for the sixth and successive accounting years commencing from the year when the income was made.

( 2 ) A narration of the facts is necessary to go into the question of law raised.

( 3 ) WRIT Appeal No. 247 of 1989 and Writ Petition No. 7897 of 1994 have been preferred by Mishra Dhatu Nigam Limited, commonly referred as Midhani. The company is a Defence establishment set up for manufacturing of Missiles and special type alloys for which there is collaboration agreement, so far as technical know how is concerned, with a French Company Creusot-Loire. Though Midhani was set up in 1977-78 yet production had not been started till 24-4-1981. But even before the starting of production, it is the case of the workmen the industry functioned from 1976-77 as Commission Agent of the sister concerns of the French Company when certain Indian Companies imported the special type alloy from them, and received commission on account of the sales. The workmen raised a dispute of being entitled to bonus in terms of Section 16 (1-B) of the Payment of Bonus Act, 1965 (referred hereinafter as "the Act") from the sixth year onwards when the commission was first earned. The Industrial Tribunal having given the award in favour of the workmen, it was challenged before this Court in W. P. No. 17439 of 1986 by the management. During the pendency of the case, the workmen also filed W. P. No. 6735 of 1987 seeking mandamus to the Management to act according to law and pay the minimum Bonus for the accounting year 1985-86 as per Section 10 of the payment of Bonus Act. Both the cases were disposed of by a common judgment allowing W. P. No. 17439 of 1986 and dismissing the other case, setting aside the award and remitting me case to the Tribunal to consider whether the Marketing department of the Industry was a separate establishment under Section 16 (2) of the Act. As against the order of remand the workmen have preferred Writ appeal No. 1199 of 1988. Writ Appeal No. 247 of 1989 has been preferred by the management against the same judgment complaining the question of their liability or otherwise to pay the bonus as claimed of not having been decided. Writ Appeal No. 1200 of 1988 has been preferred by the Union against the dismissal of Writ Petition No. 6735 of 1987. After remand the Tribunal, on evidence, held the Marketing Department to be not a separate establishment of the Company. Writ Petition No. 7897 of 1994 has been filed by the Management against the fresh award.

( 4 ) FOR an appreciation of the questions urged Section 16 (1), (1-A) and (1-B) of the Act needs to be extracted:"16. Special provision with respect to certain establishments (1) Where an establishment is newly set up, whether before or after the commencement of this Act, the employees of such establishment shall be entitled to be paid bonus under this Act in accordance with the provisions of sub-sections (1-A), (1-B) and (1-C ). (1-A) In the first five accounting yedrs following the accounting year in which me employer sells the goods produced or manufactured by him or renders services, as the case may be, from such establishment, bonus shall be payable only in respect of the accounting year in which the employer derives profit from such establishment and such bonus shall be calculated in accordance with the provisions of this Act in relation to that year but without applying the provisions of Section 15. (1-B) For the sixth and seventh accounting years following the accounting year in which the employer sells the goods produced or manufactured by him or renders services, as the case

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