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1979 Supreme(All) 680
IN THE HIGH COURT OF ALLAHABAD
Yashoda Nandan and N. Seth, JJ.
KALE KHAN MOHD.HANIF - Appellant
Versus
JHANSI BIDI MAZDOOR UNION - Respondents
. . Of .
Decided On : 12/03/1979
The packers, who were claiming payment of bonus, did not constitute a casual, heterogeneous, miscellaneous and irregular group but were irregularly working as packers in the premises of the petitioner. The dispute which had been referred for adjudication under Section 4k of the U. P. Industrial Disputes Act would be referred for adjudication only under the Central Act in view of Section 39 (1) of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966.
Headnote:
BONUS ACT - PAYMENT OF BONUS - SECTION 2, 22 - THE PACKERS, WHO WERE CLAIMING PAYMENT OF BONUS DID NOT CONSTITUTE CASUAL, HETEROGENEOUS, MISCELLANEOUS AND IRREGULAR GROUP BUT WERE IRREGULARLY WORKING AS PACKERS IN THE PREMISES OF THE PETITIONER. THE DISPUTE WHICH HAD BEEN REFERRED FOR ADJUDICATION UNDER SECTION 4K OF THE U. P. INDUSTRIAL DISPUTES ACT WOULD BE REFERRED FOR ADJUDICATION ONLY UNDER THE CENTRAL ACT IN VIEW OF SECTION 39 (1) OF THE BEEDI AND CIGAR WORKERS (CONDITIONS OF EMPLOYMENT) ACT, 1966.
Fact of the Case:
The petitioner, a beedi manufacturer, challenged the validity of a reference made by the State Government under Section 4k of the Industrial Disputes Act, 1947, to the Industrial Tribunal for adjudication of two disputes relating to payment of bonus to its employees. The petitioner contended that the packers, who were found by the Tribunal to be employees for the purposes of the Bonus Act, were not employees and consequently not entitled to bonus. It was also contended that the dispute should have been referred to a Tribunal constituted under the Industrial Disputes Act, 1947, by reason of Section 39 of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966.
Finding of the Court:
The court held that the packers were employees of the petitioner within the meaning of the Bonus Act since on those days on which they did work, they worked under the control and supervision of the petitioner, and the mere fact that the payment was on daily wages did not affect their status as employees. The court also held that Section 39 (1) of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966, did not apply to the dispute since the Act did not deal with payment of bonus to the workmen at all. The court further held that the petitioner was estopped from challenging the validity of the reference since it had not challenged the legality of the order dated 22nd February, 1973, by which the Industrial Court had held that the reference was valid.
Issues: 1. Whether the packers were employees of the petitioner within the meaning of the Bonus Act? 2. Whether the dispute should have been referred to a Tribunal constituted under the Industrial Disputes Act, 1947, by reason of Section 39 of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966?
Ratio Decidendi: 1. The court held that the packers were employees of the petitioner within the meaning of the Bonus Act since on those days on which they did work, they worked under the control and supervision of the petitioner, and the mere fact that the payment was on daily wages did not affect their status as employees. The court relied on the definition of "employees" in Section 2 of the Bonus Act, which includes "any person (other than an apprentice) employed on a salary or wage not exceeding one thousand and six hundred rupees permanent in any industry to do any skilled or unskilled manual, supervisory, managerial, administrative, technical or clerical work for hire or reward, whether the terms of employment be express or implied." 2. The court held that Section 39 (1) of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966, did not apply to the dispute since the Act did not deal with payment of bonus to the workmen at all. The court observed that the Act provided the conditions of employment of Beedi and Cigar Workers and that Section 39 (1) only meant that in the event of any dispute arising between the workers and the employer in respect of any working condition provided by the Act, it shall be adjudicated upon under the provisions of the Central Act.
Final Decision: The court partly allowed the petition. The court upheld the rest of the award, but quashed the directions contained in paragraphs 10 and 11 thereof. The court directed the respondent to determine the rate at which bonus was to be paid by the petitioner to the workmen concerned.
( 1 ) BY means of a notification dated 28th November, 1972 the State Government under Section 4k of the Industrial Disputes Act referred the following two disputes for adjudication to the Industrial Tribunal, respondent No. 2;
(1) Kya Sevayojkon Dwara parishist ka me ullikhit shramikon ko arthik varsh 1970-71 ka bonus bhugtan na kiya jana uchit tatha/athwa vaidhanik hai? Yadi nahi to, we kis dar evam anya kis vibran sahit bonus pane ke (2) Kya sevayoikon dawara parshist kha me ullikhit shramikon ko 1970-71 ka vibhinna daron par bonus vitarit karna uchit tatha Vaidhanik hai? Yadi nahi, to sambandhit sabhi shramik kis dar se bonus pane ke adhikari hain evam anya kis vivran sahit?
( 2 ) WRITTEN statements were exchanged between the employer, the petitioner, and the union representing the workmen concerned which has been impleaded as respondent No. 1 to the writ petition. The validity of the reference was challenged by the employer on the ground that by reason of Section 39 of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966, the dispute which had been raised should have been referred to a Tribunal constituted under Industrial Disputes Act, 1947. This contention was repelled by the presiding officer of respondent No. 2 by an order dated 22nd February, 1973. The award impugned was given by the Tribunal that the persons who were engaged by the concern for packing of beedis were merely Thekedars and not the employers of the concern within the meaning of the Payment of Bonus Act, 1965 (hereinafter referred to as the Bonus Act.) While discussing this question the Tribunal held as follows: evidence shows that they were receiving payment of their wages directly from the employer and not through any intermediary and also getting weekly off-day. They worked in the premises of the concern as they worked for the concern, even if they had no fixed hours of duty So long as there was middlemen or intermediary between the employer and the packers, the relationship of employer and employee would be deemed to exist between them and they would be entitled to receive bonus like all other employees.
( 3 ) THE Tribunal found that bonus had not been paid to the workmen in accordance with the provisions of the Bonus Act and that the action of the employer in paying the bonus to the workmen named in Annexure (kha) at varying rates, therefore, improper and also illegal. It was held that "all the persons named in Annexure (kha) were the employees of the concern at its two Branches at Jhansi and Garish Pathak and were entitled to get bonus for the accounting year. " In the award it was observed that the employer had not disclosed its profit for the year in question although he was called upon to file the profit and loss account and the computation chart. This, according to the Tribunal, was deliberate on the part of the employer. It was observed in the award that the presiding officer had consequently no material before him on the basis of which the available surplus of the concern could be worked out. The operative part of the award is in the following terms: My award, in the circumstances, is that the employer shall calculate the available and allocable surplus for the accounting year 1970-71 in accordance with the provisions of the Payment of Bonus Act, 1965 and distribute bonus at uniform rate to all the employees named in the two Annexures. The amount of bonus which has already been paid to some of the employees, shall be suitably adjusted against the amount found payable to them after the computation of the available and allocable surplus. The required action must be completed by the employer within on e month and the payments made within six weeks from the date of publication of the award in the Official Gazette.
( 4 ) AGGRIEVED by the award the employer has filed this writ petition and prays for a writ of certiorari or any other similar order or direction quashing the reference made by the State Government under the
