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IN THE HIGH COURT OF BOMBAY
D.R. Dhanuka, J.
Rashtriya Hair Cutting Saloon.... Petitioner.
Versus
Maharashtra Kamgar Sabha and others.... Respondents.
Writ Petition No. 3233 of 1987, decided on 16-1-1991.
Advocates appeared :
Shamrao S. Patil, for the petitioner.
Dr. R.S. Kulkarni with R.J. Kochar, for the respondent No. 1.
Court does not agree that Section 17-A of the industrial Disputes Act, 1947, read with other enabling provisions confer full powers on the Tribunal to grant the relief to the workmen from a particular dale. The Tribunal has acted within its jurisdiction while fixing different dales from which the reliefs granted would become operative.
PAYMENT OF GRATUITY ACT, 1972
Section 1 (3) (b)-Payment of Bonus Act, 1965-Section 1 (3)-Bonus and Gratuity-Concepts of-Difference between.
It will have to be held that Section 7-A of the Industrial Disputes Act, 1947 read with Item No.5 in Schedule Third appended to the said Act merely provides machinery for adjudication under the said Act and the said machinery could not be invoked in the situation where the payment of Gratuity Act, 1972 did not apply to the establishment concerned.
All the pronouncements made by the Industrial Adjudicators and by the courts prior to passing of the payment of Gratuity Act, 1972, highlight the distinction between the concept of bonus and the concept of gratuity. The concept of bonus is connected with the concept of profit sharing between the employers and the workmen and the concept of gratuity is in the nature of retirement benefit in lieu of long continuous service rendered by the workmen to his employer.
Section 4 (5)-Industrial Disputes Act, 1947-Section 7-A-Industrial Tribunal bas no jurisdiction to entertain demand for gratuity and award the same.
The Payment of Gratuity Act is a self-contained Act. The Industrial Tribunal had no jurisdiction to entertain the demand for gratuity and award the same in this case as petitioners establishment was excluded from applicability of the Payment of Gratuity Act, 1972 and it was not even alleged that the petitioners were bound to pay gratuity to a workman/employee under a contract/settlement or an existing award. The impugned award suffers from total lack of jurisdiction in so far as it provides for payment of gratuity.
2. By its letter dated 23rd October, 1978, the respondent No. 1 -Union sent a Charter of demands to the petitioner and 34 other Hair Cutting Saloons making a demand for fixation of scales of pay, annual increments, dearness allowance, gratuity, bonus etc. in respect of the workmen employed in various Hair Cutting Saloons. On 21st January, 1979, the said demands were admitted in conciliation. By its order dated 22nd June, 1979, the Government of Maharashtra made the order of reference in respect of all these demands to the Industrial Tribunal in exercise of the powers conferred on it under Clause (d) of sub-section (1) of section 10 read with sub-section (5) of section 12 of the Industrial Disputes Act, 1947. A copy of the said order of reference is appended to this judgment for the sake of ready reference in view of it being contended by the employees that the impugned Award is beyond the scope and ambit of order of reference. The parties filed their respective pleadings' and led oral and documentary evidence.
3. Pending the reference, the respondent No. 1-Union entered into settlements with some of the employers and pursis were filed to the effect that the respondent No. 1-Union did not want to prosecute the reference as regards some of the employers whose names are to be found in para 6 of the Award. The Saloons are registered under the Bombay Shops and Establishments Act, 1948. Very very few workmen are employed in these establishment. In some of these establishments, the workmen employed are only two. The sole proprietor or partners of Saloons also work in most of the Saloons. In most of the cases, employers and workmen, both, belong to the weaker section of the society.
4. Before I summarise the contents of the impugned Award, it would be convenient to refer to certain Notifications issued by the Government of Maharashtra under the Minimum Wages Act, 1948, as one of the demands adjudicated upon the impugned Award pertains to wages. On 24th March, 1971, the Government of Maharashtra issued Notification No. MWA/4268/90053/Lab-III fixing minimum rate of wages in respect of the employees working in any shop or commercial establishment other than any Bank or in any employment included in the Schedule to the relevant Act. By the said Notification, the basic rates of minimum wages were prescribed for skilled workman at Rs. 200/- per month in zone I and for semi-skilled workman at the rate of Rs. 160/- per month in the said Zone-I. By the said Notification, expressions "skilled", "semi-skilled", and "unskilled" were defined. Zone-I, as defined under the said Notification, comprises under the area within the limits of Municipal Corporation of Greater Bombay and Thana Municipal Corporation. In respect of Hair Cutting Saloons, Hair Dressing Saloons, or Hamamkhana, a separate Notification was issued by the Government of Maharashtra in pursuance of powers conferred on it under the relevant provisions of the Minimum Wages Act, 1948, on 11th August, 1982. The said Notification was brought into force with effect from 15th August, 1982. The Schedule to the said Notification reads as under :
Sr. Class of Employees Basic rate per month as No. specified in this
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