Gujarat High Court
Cham Synthropes Industries vs Pratap Girdharlal Dhamecha on 15 June, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/7193/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7193 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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CHAM SYNTHROPES INDUSTRIES
Versus
PRATAP GIRDHARLAL DHAMECHA
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Appearance:
MR MUKESH H RATHOD(2432) for the PETITIONER(s) No. 1
MR PARITOSH CALLA(2972) for the RESPONDENT(s) No. 2
MS SANGEETA PAHWA, ADVOCATE FOR M/S THAKKAR AND PAHWA
ADVOCATES(1357) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 15/06/2018
ORAL JUDGMENT
1. Heard Mr.Rathod, learned advocate for the petitioner and Ms.Pahwa, learned advocate for the respondent.
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2. Actually, learned advocates for the parties completed their submissions on 14.6.2018, however, due to paucity of time, the order could not be dictated. Therefore, the petition is listed for dictation of the order today in view of the order passed yesterday, i.e. on 14.6.2018.
3. In present petition, the petitioner has prayed, inter alia, that:
"7(B) Your Lordships may be pleased to issue a writ of mandamus / certiorari or any other appropriate writ, order or direction in nature of mandamus / certiorari quashing and setting aside the impugned award dated 31.01.2015 passed by the learned Labour Court, Junagadh in Recovery Application No.19/2008 as it being illegal, unjust and perverse in the interest of justice."
4. The petitioner company is aggrieved by order dated 31.1.2015 passed by the learned Labour Court, Junagadh in Recovery (33C2) Application No.19 of 2008 whereby the learned Labour Court directed present petitioner company to pay Rs.55,950/ to present respondent.
5. So far as factual background, which gave rise to present petition, is concerned it has emerged from the record that the respondent herein 2 C/SCA/7193/2015 JUDGMENT (hereinafter referred to as 'the claimant') was employed as Chief Time Keeper with the petitioner company. According to his case, he worked with the petitioner company as Chief Time Keeper from 29.7.1996 to 17.7.2006 and his last drawn salary was Rs.3,735/.
5.1 With the allegation that during tenure of his service, he was eligible and entitled for payment of bonus, however, the company did not pay any amount towards bonus from 1998 to 2006, the respondent herein filed an application (by invoking section 33C(2) of the Industrial Disputes Act).
5.2 He filed such application in 2008 i.e. almost two years after he retired from the company / left the service of the company in July 2006. 5.3 In the said application, the claimant alleged that during the said period (July 1996 to July 2006) he was paid total salary to the tune of Rs.2,79,750/ and that, therefore, he was 3 C/SCA/7193/2015 JUDGMENT eligible for payment of bonus @ 20% and he was eligible and entitled to be paid Rs.55,950/ @ 20% of the salary amount, towards bonus. 5.4 With such allegation, the claimant filed application before the learned Labour Court to recover sum of Rs.55,950/ towards bonus. The learned Labour Court registered the said application as Recovery Application No.19 of 2008.
6. The opponent employer, i.e. present petitioner opposed the application on various grounds. The opponent claimed that the petitioner was not eligible for bonus. The opponent company also claimed that in any case, the company never paid bonus to any employee @ 20%. The petitioner also claimed that in view of P&L Account of the company and according to the company's balance sheet, the company never incurred obligation to pay bonus to its employees @ 20%. Besides the said contention, the company also opposed the application on the ground that the claim for 4 C/SCA/7193/2015 JUDGMENT bonus and the rate at which the bonus was claimed are disputed issues which would require adjudication and that, therefore, recovery application for such claim is not maintainable. The company also opposed the application on the ground of delay. With the said and such other contentions, the opponent opposed the application.
6.1 During the proceedings of the said recovery application, the claimant and the company placed respective evidence on record.
6.2 Upon conclusion of the evidence by both sides, the learned Labour Court heard rival submissions and after considering the material on record and submissions, the learned Labour Court passed impugned order whereby the Court allowed the application and awarded entire claim with the direction to present petitioner to pay Rs.55,590/ to the claimant.
7. Feeling aggrieved by the said order, the 5 C/SCA/7193/2015 JUDGMENT company has taken out present petition.
8. Mr.Rathod, learned advocate for the the workman reiterated the contentions which were raised before the learned Labour Court (which are mentioned hereinabove). He submitted that the learned Labour Court committed error in not appreciating the said contentions. He would claim that the learned Labour Court ought to have rejected and dismissed the recovery application and the learned Labour Court has committed material and manifest error in allowing the claim of present respondent. According to learned advocate for the petitioner, the order deserves to be set aside. Mr.Rathod, learned advocate for the respondent workman also relied on document dated 23.7.2007 whereby the workman declared that he has received entire payment towards all claims, rights and he has no claim against the company and there is no amount due and payable to him by the company. Relying on the said document Mr.Rathod, learned advocate submitted that even 6 C/SCA/7193/2015 JUDGMENT according to the said document,t eh petitioner's claim should have been rejected.
8.1 Learned advocate for the respondent workman submitted that the learned Labour Court has not committed any error. She submitted that the company did not pay any amount towards bonus to the claimant from 1998 to 2006 and that, therefore, the claimant was constrained to file the said application. The objection raised by the company is misconceived and not maintainable. She also submitted that the application cannot be termed time barred and could not have been rejected on such ground.
9. At the outset, it would be appropriate to deal with the petitioner's contention based on the document at AnnexureD, page 23, dated 23.7.2007.
9.1 It is true that the said letter reflects the declaration of the workman that he has received entire payment of all amounts payable to him and 7 C/SCA/7193/2015 JUDGMENT he does not have any outstanding claim against the company and that therefore, any claim towards any right or demand is not now outstanding and nothing is due and payable by the company. It is also not in dispute that the said document was placed on record before the learned Labour Court (at Exh.30).
9.1 The learned Labour Court has dealt with the said document and the petitioner's submission in paragraph No.10.6.
9.2 The learned Labour Court seems to have preferred to rely on the bald contention of the workman that the company had extracted the said declaration / document under coercion. 9.3 It is, however, pertinent that the claimant did not claim and did not establish before the learned Labour Court that immediately after he signed and submitted the said letter dated 23.7.2007 or even after reasonable time, he had filed any complaint against the company / 8 C/SCA/7193/2015 JUDGMENT concerned officer and/or he had retracted the declaration mentioned in the communication dated 23.7.2007 by forwarding any letter or he had raised objection with the company. He failed to place any material on record to establish that he had, after having signed and submitted document dated 23.7.2007, retracted his declaration or opposed his declaration and had informed the company that the said declaration is not binding to him on the ground that it was extracted by force. There is also no material on record on record which would suggest that the petitioner had approached higher authority of the company with any complaint or grievance or filed any complaint against the concerned officer of the company.
9.4 In absence of such material, the learned Labour Court ought not have, so easily and mechanically, casually and lightly accepted the bald and unsubstantiated and uncorroborated allegations of the workman.
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C/SCA/7193/2015 JUDGMENT 9.5 Besides this, such bald and uncorroborated allegation by the workman which is coupled with the denial of the company, would give rise to the disputed questions and that, therefore, the learned Labour Court ought not have adjudicated such issue in the application, more particularly when there was nothing on record to establish that the claimant had any existing as well as adjudicated and crystalised right to claim and receive the amount which he demanded by means of Recovery Application No.19 of 2008.
10. Even if any credence is not to be given to the letter dated 23.7.2007, then also the impugned order passed by the learned Labour Court is not sustainable for more than one reason.
11. In this context, it is relevant and necessary to take into account the provisions under section 33C(2) of the Act of the Industrial Disputes Act. The said provision reads thus:
"(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of 10 C/SCA/7193/2015 JUDGMENT being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months:
Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit."
12. On plain reading of the said provision, it comes out that -
(a) the learned Labour Court's jurisdiction under said provision is very limited;
(b) said jurisdiction is akin to and in nature of jurisdiction of executing Court;
(c) to invoke the said provision and to maintain claim against the employer under the said provision, the workman must first establish and prima facie demonstrate that he has an existing right to claim and receive such amount from the employer and the amount claimed by him is a crystalised and adjudicated claim / right;
(d) the learned Labour Court can consider claim which can be computed in terms of money but the 11 C/SCA/7193/2015 JUDGMENT right must be crystallized and should arise from and in the course of employerandemployee relationship. The right should exist as crystallized right.
(e) While acting under Section 33C(2), the labour court cannot entertain and adjudicate a claim which is not based on existing right i.e. a claim which is required to be adjudicated upon and converted into right.
(f) While entertaining and deciding an application under Section 33C(2), the labour court cannot act as, or cannot exercise jurisdiction of, a labour Court or an industrial tribunal under Section 10 of the Act and it cannot usurp the jurisdiction of and function of the labour Court or industrial tribunal acting under Section 10 of the Act.
(g) There is substantive and material difference between money had and might have and that therefore, it is not permissible to labour court 12 C/SCA/7193/2015 JUDGMENT acting under Section 33C(2) to receive a claim and adjudicate the claimant's entitlement or to determine the base of the claim.
(h) The labour court acting under Section 33C(2) cannot first undertake the process to decide claimant's entitlement or base of the claim and, then, set down the matter for computing and quantifying the amount payable towards such claim. The jurisdiction and function to decide entitlement and base for the claim is of labour Court or industrial tribunal under Section 10 of the Act.
(i) When the entitlement for the claim and base of the claim are adjudicated, then, for the purpose of implementation of such claim or for deciding and removing any ambiguity and/or for quantifying the money value of the adjudicated right, the Court can entertain the application under said section and in that process, the learned Labour Court can decide incidental issues.
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(j) The power of the labour court acting under Section 33C(2) is akin to the power of executing court i.e. to interpret the decree for the purpose of execution.
13. In the case of Municipal Corporation of Delhi v. Ganesh Razak & Anr. [(1995) 1 SCC 235] wherein Hon'ble Apex Court observed and held that:
"9. Another decision on the point is Bombay Gas Co. Ltd. v. Gopal Bhiva2 wherein also Gajendragadkar, J., (as he then was) speaking for the Bench, referring to the above Constitution Bench decision, stated that the proceedings contemplated by Section 33C(2) are analogous to execution proceedings and the Labour Court, like the Executing Court in the execution proceedings governed by the Code of Civil Procedure, would be competent to interpret the award on which the claim is based. It is obvious that the power of the Executing Court is only to implement the adjudication already made by a decree and not to adjudicate a disputed claim which requires adjudication for its enforcement in the form of decree. The Executing Court, after the decree has been passed, is however competent to interpret the decree for the purpose of its implementation. This position was settled by the above Constitution Bench decision and has been the consistent view of this Court ever since then.
(8) Since proceedings
under Section
33C(2)
are
analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by a workman is in such cases in the position of an Executing Court, the Labour Court like the Executing Court in execution proceedings governed by the Code of Civil Procedure, is competent under Section 33C(2) to interpret the award or settlement where the benefit is claimed under such award or settlement and it would be open to it to consider the plea of nullity where the award is made without,jurisdiction." After stating the propositions, the decision proceeds to state as under:
(SCR p. 144) "It is clear that the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his 14 C/SCA/7193/2015 JUDGMENT employer."
11. In Central Inland Water Transport Corpn. Ltd. v. Workmen4 it was held with reference to the earlier decisions that a proceeding under Section 33C(2) being in the nature of an execution proceeding, it would appear that an investigation of the alleged right of re employment is outside its scope and the Labour Court exercising power under Section 33C(2) of the Act cannot arrogate to itself the functions of adjudication of the dispute relating to the claim of reemployment. Distinction between proceedings in a suit and execution proceedings thereafter was pointed out. It was indicated that the plaintiff's right to relief against the defendant involves an investigation which can be done only in a suit and once the defendant's liability had been adjudicated in the suit, the working out of such liability with a view to give 4 (1974) 4 SCC 696: 1974 SCC (L&S) 421 :(1975) 1 SCR 153 241 relief is the function of an execution proceeding. This distinction is clearly brought out in that decision as under: (SCR p. 159 : SCC pp. 70102) "In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of
(i) the plaintiff's right to relief; (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not; and
(iii) the extent of the defendant's liability, if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination No.
(iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads (i) and
(ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under Section 33C(2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations
(i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under Section 33C(2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely 'Incidental'. To call determinations (i) and ii. 'Incidental' to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief. Therefore, when a claim is made before the Labour Court under Section 33C(2) that court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functionssay of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'Incidental' to its main business of computation. In such cases, determinations (i) and (ii) 15 C/SCA/7193/2015 JUDGMENT are not 'Incidental' to the computation....The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by tile employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33 C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution." (emphasis supplied) 13.1 In the decision in case of State of U.P. & Anr. v. Brijpal Singh [(2005) 8 SCC 58], Hon'ble Apex Court observed, inter alia, that:
"10. It is well settled that the workman can proceed under Section 33C(2) only after the Tribunal has adjudicated on a complaint under Section 33A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of Punjab Beverages Pvt. Ltd. Vs. Suresh Chand, (1978) 2 SCC 144 held that a proceeding under Section 33C(2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. Proceeding further, this Court held that the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer. ...."It is not competent to the Labour Court exercising jurisdiction under Section 33C(2) to arrogate to itself the functions of an industrial tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the Act."
11. In the case of State Bank of India vs. Ram Chandra Dubey & Ors., (2001) 1 SCC 73, this Court held as under:
"8. The principles enunciated in the decisions referred by either side can be summed up as follows:
Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33 C(2) of the Act. The benefit sought to be enforced under Section 33 C(2) of the Act is necessarily a preexisting 16 C/SCA/7193/2015 JUDGMENT benefit or one flowing from a preexisting right. The difference between a preexisting right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made.......
13. .....Thereafter, the Labour Court, in the instant case, cannot arrogate to itself the functions of an Industrial Tribunal and entertain the claim made by the respondent herein which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the I.D. Act. Therefore, the Labour Court has no jurisdiction to adjudicate the claim made by the respondent herein under Section 33C(2) of the I.D. Act in an undetermined claim and until such adjudication is made by the appropriate forum, the respondentworkman cannot ask the Labour Court in an application under Section 33C(2) of the I.D. Act to disregard his dismissal as wrongful and on that basis to compute his wages. It is, therefore, impossible for us to accept the arguments of Mrs. Shymala Pappu that the respondentworkman can file application under Section 33C(2) for determination and payment of wages on the basis that he continues to be in service pursuant to the said order passed by the High Court in Writ Petition No. 15172 of 1987 dated 28.10.1987......" (emphasis supplied)
14. Before proceeding further, it is relevant to take into account the definition of the term 'wages' under section 2(rr) of the Industrial Disputes Act. The said section 2(rr) of the Act reads thus:
"(rr) "wages" means all remuneration capable of being expressed in terms of money, which would, if the terms of 17 C/SCA/7193/2015 JUDGMENT employment, express or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment, and includes
(i) such allowances (including dearness allowance) as the workman is for the time being entitled to;
(ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles;
(iii) any travelling concession;
(iv) any commission payable on the promotion of sales or business or both;] but does not include
(a) any bonus;
(b) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force;
(c) any gratuity payable on the termination of his service;"
15. From the said definition, it comes out that 'bonus' is expressly and specifically excluded from the term 'wages'. Thus, the bonus does not amount to wages under the Industrial Disputes Act. Under the circumstances, the claimant could not have claimed before the learned Labour Court that (a) employer has not paid wages and wages are due and payable but not paid and that the application is filed for claiming unpaid wages and/or wages which are due and payable. 15.1 As mentioned above, bonus does not form part of wages. Therefore, bonus could not have been 18 C/SCA/7193/2015 JUDGMENT claimed in the application filed under section 33C(2) as unpaid or due and payable wages. Even if it is assumed that the claim raised by the claimant in the said application was not for wages, it was a claim for 'money' or 'benefit' not amounting to wages, then it was necessary for the learned Court to inquire and determine as to whether the claimant established that the amount claimed was payable either under settlement or a decree / award; or the said amount is payable in light of the statutory provision / obligation or the claim amount is already adjudicated and crystalised claim - right in his favour. Without determining the said issue and without touching to the finding that the claimant demonstrated and established above mentioned requirement of anyone or more above requirement, the learned Labour Court could not have entertained and decided, much less the application filed by the respondent.
15.2 Now, so far as the expression 'benefit' in 19 C/SCA/7193/2015 JUDGMENT section 33C(2) is concerned, it is necessary to note that so far as bonus is concerned, 'benefit' is not available under common Civil Law or even under Industrial Disputes Act. It is a special benefit conferred by special statute viz. Payment of Bonus Act. The said benefit would be payable in accordance with the formula prescribed under the said special Act and the benefit can be claimed under and in accordance with the said special statute. The Court would grant such benefit only if it is proved by appropriate and sufficient cogent and relevant evidence that during the period in question the company had allocable surplus (calculated in accordance with the formula prescribed under the Act) and such allocable surplus was sufficient to pay bonus at rate higher than 8.33% (in present case at 20% that being the rate at which the claimant raised the demand) and that during the period in question the company had actually paid bonus to other employees at such rate. Besides this, in view of the provisions under the Act, such claim 20 C/SCA/7193/2015 JUDGMENT can be raised within time limit prescribed under the Act and before the learned Court where the jurisdiction to decide the disputes related to claim for bonus is concerned. When special remedy is provided and special forum is created for adjudicating disputes related to bonus, the application under section 33C even otherwise should not have been entertained.
15.3 Thus, question of maintaining an application and entertaining such application for claim for unpaid or due and payable wages did not arise in present case.
16. It is true that the provision under section 33C(2) does not employ the term 'wages' but the expression used in section 33C(2) is 'any money or any benefit'.
17. Now, so far as the expression 'any money' is concerned, to claim 'any money' from the employer, the workman should, at the outset, establish that (a) money claimed is under an 21 C/SCA/7193/2015 JUDGMENT agreement or award and that (b) the employer is obliged to pay the same by virtue of such agreement or award or that (c) 'money' is due and payable by the opponent and the claim is already adjudicated and crystalised.
18. The learned Labour Court does not have any jurisdiction under section 33C(2) to adjudicate and create / grant any right in favour of a workman and/or to adjudicate and decide any dispute or any lis. The limited jurisdiction of the Court under said provision is in nature of and akin to execution proceedings / jurisdiction of executing Court.
19. Other avenue is to claim 'any money' under said provision on the premise that the 'money' is towards some 'benefit. However, it would be necessary to show and demonstrate that such 'benefit' is available under and by way of some agreement / settlement or granted by virtue of an award or conferred by law.
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20. The learned Labour Court, under said provision, cannot create / grant - by adjudication (of dispute or demand / lis) or otherwise - any benefit in favour of workman. The Court can only determine 'money value' of any existing (or already executed and crystalised right / benefit e.g. backwages) under this provision.
21. In present case, the petitioner, by invoking the expression 'any money', claimed that the money, i.e. Rs.55,950/ is due and payable by the company towards 'bonus'. When the claimant raised such claim, it was for the claimant to establish that (a) bonus was a right / benefit available under any settlement / agreement or was granted by virtue of award or it was a benefit conferred by law; (b) he was entitled for bonus; (c) during the period in question the company had declared bonus and paid bonus to other employees;
(d) the company had paid bonus to other employees @ 20%; and that (e) his case was similar to the 23 C/SCA/7193/2015 JUDGMENT case of such other employees and covered under the settlement / award or some provision under the Act.
22. In present case, it has emerged from the record that the claimant failed to establish the said aspects. There is nothing on record to show that the said benefit was available under any settlement or agreement or it was granted under any award. The claimant failed to place on record any settlement / agreement or award on strength of which claim was based. Actually, it was not the case of the petitioner that said benefit was available under some agreement or award.
23. It is, however, true that said benefit is conferred - in certain cases (e.g. factories or establishment employing 20 or more employees and where allocable surplus is available) under the Payment of Bonus Act. However, even to claim said benefit - on the premise that said benefit is existing right because it is conferred by law the 24 C/SCA/7193/2015 JUDGMENT claimant must prove that (i) the respondent company had declared and paid bonus during the said period and/or that (ii) the company had paid bonus to other workmen of the company but had not paid bonus to him; (iii) that under provisions of the Bonus Act he was entitled for bonus @ 20% of his wages.
24. In present case it was also necessary to demonstrate that bonus had become payable @ 20% under and in accordance with provisions under the Act and thereby it was a statutory obligation. The respondent, in present case, failed to place on record and to demonstrate any relevant and necessary factor / ingredient - existence of which is sine qua non for accepting claim under the Act.
25. The claimant failed to demonstrate and establish that (a) in light of the provisions (viz. sections 4, 5, 6, 8, 9, 10, 11, 14 and 15 of Bonus Act) under the Act the company was obliged to declare and pay bonus; and that (b) 25 C/SCA/7193/2015 JUDGMENT such bonus accrued and was payable @ 20% of wages; (c) that the respondent company had actually declared bonus @ 20%; and that (d) bonus @ 20% was paid to other employees and that though he was similarly placed and was eligible for bonus it was not paid to him despite the fact that he fulfilled all conditions. Therefore, there could not have been any presumption that the petitioner was entitled for bonus. Entire claim necessitated adjudication and determination of various aspects including disputed factual aspects.
26. At this stage, it is relevant and necessary to take into account the provisions under sections 4, 5 and 6 of the Bonus Act. The said provisions bring out that the Act provides, in detail, as to how bonus is to be calculated and the amount payable towards bonus is to be derived / arrived at. The said Bonus Act does not contemplate that in all cases, all factories / employers have to mechanically pay bonus every 26 C/SCA/7193/2015 JUDGMENT year @ 20%. The quantification and payment of bonus depends upon the gross profit and allocable surplus calculated in accordance with sections 4, 5 and 6 of the Bonus Act. The eligibility of bonus is to be determined in accordance with sections 8 and 9. Section 10 of the Bonus Act prescribes the obligation to pay minimum bonus. Section 11 of the Bonus Act prescribes the payment of maximum bonus. Section 10 does not provide for minimum bonus @ 20%.
27. Moreover, the provision under section 19 prescribes time limit to claim bonus.
28. The obligation to pay minimum bonus (in case where the Act is applicable) is subject to the provision under the Act and the prescribed rate for payment of Minimum Bonus - in such cases is only 8.33% (and not 20%). The obligation to pay bonus at rate more than 8.33% depends on the gross profit and allocation surplus in a particular year. Further, entitlement of bonus also depends upon the computation of working 27 C/SCA/7193/2015 JUDGMENT days, set on and set off of allocable surplus as prescribed by sections 14 and 15 of the Bonus Act.
29. Above mentioned provisions bring out that the claim for bonus is a disputed issue and involves several questions of facts and law. Thus, it must be established by the claimant in accordance with above mentioned provisions of the Act and has to be adjudicated upon by the Court. For supporting and justifying his claim the claimant, who demands bonus at rate at more than 8.33%, must not only establish that after complying the provision with regard to set on and set off, the company had allocable surplus on its hand and therefore, it was required to pay bonus at higher rate but he must also establish that in present case company had allocable surplus to pay bonus @ 20% during all those years for which he raised claim and during all those years the company had actually paid to all employees @ 20%. These aspects and related disputed issues cannot be 28 C/SCA/7193/2015 JUDGMENT determined in the proceedings under section 33C(2). Besides this, even if it is assumed, only for the sake of examining legality and propriety of impugned order, that such issues can be examined under said proceedings, then also in present case, on examining impugned order it emerges that neither the workman placed any material nor established any single aspect nor the court called upon him to place on record relevant material nor the learned Labour Court addressed the said issues and the Court has not decided any issue in accordance with law. The learned Court decided and allowed the application in casual and mechanical manner and without evidence. Actually, the order passed by the Court is without jurisdiction and unsustainable.
30. In nutshell, the said provisions establish that the entire process in determining the eligibility and entitlement of an employee of the bonus and determine the rate at which the bonus would be payable, is a long drawn and 29 C/SCA/7193/2015 JUDGMENT detailed adjudicatory process. That cannot be undertaken in exercise of powers under section 33C which are of limited nature and in nature of execution proceedings. Further, sections 21 and 22 of the Bonus Act provide remedy for claiming bonus. Under the circumstances, when a special statutory remedy is created and thereby affirmed for adjudication of claim for bonus is provided for, because such claim involves process of adjudication, the demand or claim for bonus is, even otherwise, not maintainable and could not have been entertained in the recovery proceedings under section 33C(2) of the Act.
31. When above mentioned aspects are taken into account in juxtaposition with the order impugned challenged in present petition, it becomes clear that the learned Labour Court passed the impugned award without jurisdiction and even without considering relevant aspects and the learned Labour Court exercised jurisdiction arbitrarily and with material irregularity. Not only this, 30 C/SCA/7193/2015 JUDGMENT the learned Labour Court actually exercised jurisdiction not vested to it and usurped the jurisdiction of the learned Labour Court which can either be exercised under section 10 of the Industrial Disputes Act or the Court constituted under the Payment of Bonus Act or the Court where the powers to adjudicate the dispute under sections 21 and 22 of the Bonus Act are conferred.
32. For above mentioned reasons, the impugned award passed by the learned Labour Court deserves to be set aside. Consequently, the said award is set aside and the petition is allowed. Orders accordingly. Rule is made absolute to the aforesaid extent.
Sd/ (K.M.THAKER, J) BHARAT 31