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1997 Supreme(Raj) 51
Rajasthan High Court, Jaipur Bench
Honble M.G.MUKHERJI C.J & J.C. VERMA, J.
M/s. J.K. Acrylics - Appellant
Versus
Union of India - Respondents
D.B.Civil Writ Petition No. 3523 and 3524 of 1995
Decided On : January 13, 1997
Paras Kuhad for Petitioner Sures Kasyap and B.L. Samdariya , for Respondents V.S. Gujar, for Union of India
Headnote:(a) Payment of Bonus Act, 1965, As Amended by Ordinance of 1993 and Amendment Act 34 of 1995, Sec. 2 (13), Sec. 12; Interpretation of Statute – Amending Bonus Act made retrospectively applicable – Bonus already paid for the accounting year 1993-94 as per the terms of settlement arrived at between the employer and the employees – There are no vested right of the employers which might have accured to him and violated – No such right has been taken away by the amended Act by retrospective effect – Where the amendment effects the vested right that normally be operative prospectively unless it is expressly made retrospectively or the some follows as a matter or necessary implications. (Para 22, 25 & 32)(b) Payment of Bonus Act, 1965 and Amendment Act 34 of 1995, Sec. 2 (13), Sec. 12 , Sec. 34 read with Sec. 31-A – Payment of Ex gratia amount – Settlement arrived at between the employer and the employee and more bonus paid under the settlement – The provisions of statute will prevail over the settlement – Employers are bound to comply the provisions of amending Act – Ex gratia payment of some amount is at the option of the employer – It is paid to the employees as a grace and not as wages, where as bonus has been termed as wages – Ex gratia payment is paid to the employee as a award, as an incentive for their past productive activities. (para 23, 29 & 30)
The Parliament has power to legislate with retrospective effect and create fiscal liabilities.In this respect, the only safeguard is that the law should be reasonable. In the present case, it has been invariably held that the Payment of Bonus Act itself is intra vires. Making the law applicable to certain set of employees, drawing salary upto certain limit is for the consideration of the Parliament to Judge.The Parliament was well a ware of the fact that because of the rise of the price and living index and because of the revision of the pay scales, and high cost of living, the salary is being increased in the governmental and non-governmental establishments. (Para 22)
No vested right of the petitioners have been violated, which might have accrued to him, and is being taken away by the amended Act by retrospective effect. It is also settled law that if a bonus is made applicable retrospectively by way of Notification, no prosecution could be made or have been launched against the petitioners for non payment of the bonus or for delayed payment of the bonus when the amending Bonus Act had not even seen the light of the day nor can they be prosecuted for period of 1993-94 on the ground payment of delayed bonus.This apprehension has no basis for the petitioners to challenge the amending Act from retrospective effect. (Para 22)
(2) The President of India had promulgated an Ordinance.The Payment of Bonus Amendment Ordinance 1995 (No. 8 of 1995) published in the Gazette of India, Extra-ordinary Part II, dated 9th July, 1995. The Ordinance has been promulgated in exercise of the powers conferred upon the President of India under Article 123(1) of the Constitution of India and was made effective from Ist April,93 and whereby certain amendments have been made in Section 2 and section 12. The figures ``2500/- have been substituted by the figures ``3500/- by the amending Ordinance and the figures ``1600/- have been substituted by ``2500/-
(3) The principle Act had been amended by the Ordinance w.e.f. Ist April, 93 and all those employees drawing salary up to Rs. 3500/- were brought under the purview of the Act to receive the benefit of bonus by taxing the maximum limit of salary of Rs. 2500/- instead of Rs. 1600/- meaning thereby, earlier to the amendment, employees drawing salary up to Rs. 2500/- per month were entitled to receive the bonus at a salary of Rs. 1600/- per month and this clause has been enlarged and
made applicable to the employees drawing salary upto Rs. 3500/- per month and the wage limit for payment of bonus have been extended up to Rs. 2500/- to be calculated for the purpose of payment of bonus.
(4) This amendment in ordinance has been promulgatedon 19th July , 95 w.e.f. Ist April, 93, and therefore, all those employees who had been benefited by
this amendment, were entitled to ask for the bonus as per the Statute and made a demand on the petitioner. Being aggrieved by the demand, the petitioner filed the above two writ petitions challenging the Ordinance 8 of 1995. During the pendency of the writ petition, the Parliament had passed the payment of Bonus (Amendment) Act, 1995 (hereincalled amending Act) and the Ordinance was replaced by
Act 34 of 1995.The petitioners were allowed to amend the writ petition andby way of amendment, the petitioners have challenged the Act 34 of 1995, the amending Act which replaced the Ordinance with all its provisions. The amending Act was published on 30th August, 95. Section 2(13), the definition of the ``employee and also section 12, whereby the applicability had been raised upto the employees dra- wing monthly salary of Rs. 3500/- but the benefits will be calculated at Rs. 2500/- of the Ordinanc
