Point of Law: Service matter - Appointment of an assessor - Labour Court /tribunal has power to appoint an assessor in terms of Section 11(5) of the Industrial Disputes Act read with Section 11-A(4) of the Industrial Disputes Act

JUDGMENT :

[1.0] By way of this petition under Articles 226 and 227 of the Constitution of India the petitioner challenges the order passed by the Presiding Officer, Labour Court No.4, Vadodara dated 03.09.2016 in Reference (Demand) No.16 of 1995 whereby the Labour Court has directed the petitioner to pay an amount of bonus at the rate of 11.67% for the Financial Years 1992-93 and 1993-94 with 9% simple interest from the date of filing of the Reference as also to pay cost of Rs.1500/- to the respondent no.1.

[2.0] Respondent no.1 – Union vide Exh.3 filed its statement of claim claiming that the workmen were working with the petitioner – Company since the beginning and the workmen were being paid the bonus at the rate of 20% by the petitioner - Company. It is further the case of respondent no.1 – Union that the petitioner – Company has never provided the accounts, never published set-on, set-off of the petitioner - Company or has provided them with the Forms as provided under the Payment of Bonus Act, 1965 (hereinafter referred to as ‘the Act’) to the respondent no.1 - Union. It is further the case of respondent no.1 – Union that since last four years, without publishing Form ‘A’ and Form ‘B’ under ‘the Act’, the petitioner – Company is paying minimum bonus at the rate of 8.33% arbitrarily to the workmen and they have been deprived of higher rate of bonus. It is further the case that the petitioner – Company has shown wrong loss despite they earned huge profit running into crores of rupees so as to deprive the workmen of the bonus. According to the case of respondent no.1 – Union, though there is huge surplus with the petitioner – Company, they are not paying the bonus at the required rate and thereby the petitioner – Company has committed breach of provisions of ‘the Act’. It is the case of respondent no.1 – Union that despite repeated demands of calculation of bonus, working loss and profits, it has not been satisfactorily replied by the petitioner - Company. Similarly in the year 1993-94, Form ‘A’, ‘B’ and ‘C’ have not been produced, and therefore, the workmen have claimed for difference of bonus at the rate of 11.67%, for the years as aforesaid. Over and above that they have demanded diwali gift at the rate of Rs.1001/-. The petitioner – Company on issuance of notice of the Reference appeared and filed written reply, Exh.9. According to the case of the petitioner – Company, it has paid bonus to the workmen at the rate of 8.33% and demand for 20% of bonus is illegal and unreasonable. It is also the case of the petitioner that no demand is raised against Sarabhai Common Services, and therefore, they prayed for rejection of the Reference. Respondent no.1 – Union examined two witnesses in support of their case. During the course of proceedings before the Labour Court on behalf of respondent no.1 – Union, an application Exh.5, which is at page 29 for production of certain documents from the petitioner – Company as enlisted therein, was made. Though it has been endorsed over the same seeking time to file reply, despite the order passed below Exh.5, it has not been produced in time. The order below Exh.5 is at page 33 of the compilation. Despite time was sought for to reply Exh.5 application, no such reply came to be filed nor at the relevant time of hearing that application, neither the petitioner nor its representative was present before the Court for hearing. Since the documents, asked for to be produced, contained profit and loss account, balance sheet of the Company as also the schedule annexed with it for five years alongwith a calculation under section 4(b) of ‘the Act’ for the years 1991 to 1995, calculating gross profit with the signature of the auditor, the Labour Court found that the documents, as demanded vide Exh.5, are useful for the purpose of determination of the proceedings before it, and therefore, the petitioner was asked to produce the said documents on the next date. The said order came to be passed on 04.05.200