Deduction for loss of pay to be made only on actual pay.

V.S. SIRPURKAR, J.

This writ appeal challenges the judgment of the learned single Judge whereby, the learned single Judge has allowed the writ petition filed by the employer quashing the order passed in a claim petition made by the employees under the provisions of Section 33-C(2) of the Industrial Disputes Act.

The appellant-employees are admittedly the workmen of the respondent-employer Simpson and Company Limited. The employer, for the accounting year June 1981 - May 1982, declared a bonus of 20% on the annual earnings of the employees under the Payment of Bonus Act. It was claimed that though all the petitioners were drawing a salary of Rs. 1000/- and more and even alter calculating the deductions on account of their absence on loss of pay, their salary was more than Rs. 750/- per month. They further claimed that the calculation by the employer of their bonus was wholly incorrect inasmuch as instead of deducting the amount attributable to their absence or loss of pay from the total wages, the employer sought to deduct it from Rs. 750/-, which was then the maximum limit provided by Section 12 of the Payment of Bonus Act. They pointed out that this could not be done and that they were entitled to the bonus calculating their salary to be Rs. 750/- because they had admittedly earned more than that even after deducting the amount on account of leave on loss of pay.

This claim was opposed by the employer firstly on the ground that the claim petition under Section 33-C(2) of the Industrial Disputes Act was not tenable and secondly that the calculation made by the company was correct.

The Labour Court did not accept the case of the employer and came to the conclusion that the petition under Section 33-C(2) of the Industrial Disputes Act was in order and that it had jurisdiction to entertain the same. As regards the calculation of bonus, the Labour Court held that the calculation made by the employer and more particularly the exercise by the employer of deducting the amount on account of the leave on loss of pay not from the total wages earned by the employees but from the amount of Rs. 750/- which was the limit provided by Section 12 of the Payment of Bonus Act, was wholly incorrect. The claims were, therefore, granted. The learned single Judge of this Court, however, predominantly relying upon a decision in Major D. Aranha's case 1975-I-LLJ-254 (Mad-DB) as also on Sivagnanam's case 1980 I MLJ 441 and some other cases held that the claim under Section 33-C(2) was not maintainable and that the employees should have proceeded only by way of an industrial dispute in terms of Section 22 of the Payment of Bonus Act, 1965. The employees now challenge the dismissal of their petition or, the tenability before usMr. N. G. R. Prasad, learned counsel appearing on behalf of the appellants vehemently argued that the scope of Section 33-C(2) of the Industrial Disputes Act was no more res integra and was decided even on the backdrop of Section 22 of the Payment of Bonus Act. His contention was that the dispute as referred to in Section 22 of the Payment of Bonus Act would take into its fold only the question of liability of payment of bonus but, according to the learned counsel, where the payment of bonus or even the percentage at which it was to be paid were not in dispute, there would be no question of there being any dispute respecting the bonus payable under the Act. He argues that in the present case, there was no question of the applicability of the Act and the dispute did not touch to that aspect. He further argued, where the employer had agreed to pay the bonus at the rate of 20% of the wages earned then, the relevance of Section 12 of the Act would be only so far as the calculation of the bonus was concerned. He, therefore, argues that the calculation could always be made under the provisions of Section 33-C(2) of the Industrial Disputes Act.

On the other handy Mr. Reddy, learned counsel appearing on behalf of the employer strenu