State Of Maharashtra And Ors. vs Quadar Mohd. Finjari And Ors.
2001 Latest Caselaw 643 Bom

JUDGMENT

A.P. Deshpande, J.

1. Heard the learned counsel for respective parties.

2. These (17) Writ Petitions involve a common question of law and as such are being disposed of by this common judgment.

3. These petitions are filed by the State of Maharashtra challenging a common judgment dated March 15, 1997 passed by the Labour] Court at Jalgaon in exercise of power under Section 33-C(2) of the Industrial Disputes Act 1947 (hereinafter referred to as the Act for the sake of brevity). The application filed by the respondent- employees under Section 33-C(2) of the Act pertains to their claim for bonus. The applicants lodged the claim before the Labour Court by making an averment that the employees who were daily wagers working in Horticulture Department of the State of Maharashtra are entitled to receive bonus. The employees contended that they are entitled to receive bonus as their case is squarely covered by Government Resolution dated November 10, 1986. The said Government Resolution provides for payment of bonus to such of the employees who satisfy the conditions contained in the said Government Resolution, from the year 1985- 86. The employees as such claimed the bonus as is determined in the Scheme; contained in the Government Resolution dated November 10, 1986. A written statement came to be filed on behalf of the State of Maharashtra disputing the entitlement of the employees to receive the bonus. In the written statement, it is denied that the applicant-employees were entitled to receive bonus. It was also denied that the applicants had completed more than 240 days during the concerned year so also during the preceding years, which is a condition precedent for payment of bonus. The entitlement of daily wagers is spelt out in Clause 3 of the said Government Resolution. It provides that such of the employees who have put in more than 3 years of service and have put in a minimum of 240 days of actual work in each year are entitled to receive bonus. The said Resolution also provides for computation of the amount to be paid to such of the employees who are entitled to receive the bonus. An objection was raised by the State Government to the maintainability of the proceedings under Section 33-C(2) on the ground that it involved adjudication of right and the same cannot be done by the Labour Court in exercise of jurisdiction under Section 33-C(2). The Labour Court by the impugned order directed the State and its authorities to pay a certain sum of amount towards bonus to the employees, which the Labour Court calculated as per the criteria laid down in the guidelines contained in the Government Resolution.

4. Being aggrieved by the judgment and order passed by the Labour Court dated March 15, 1997, the State and its authorities have carried these writ petitions before this Court. The learned A.G.P. Shri Shinde contended on behalf of the petitioners that he is agitating only one ground i.e. jurisdiction of the Labour Court, to entertain the application under Section 33-C(2) of the Act. He has fairly conceded that he does not assail the finding of fact recorded by the Labour Court in regard to the completion of more than 240 days by each of the employees and they having employed for a period of preceding years, which is a eligibility criteria for receiving the bonus. Before I proceed to deal with the question about maintainability of the proceedings under Section 33-C(2) of the Act it would be apt to point out that before the trial Court every averment made in the application was denied in most unfair manner. In regard to each of the employees it was denied that he has put in more than 240 days of service. An application came to be moved on behalf of the employees before the Labour Court seeking a direction against the State and its authorities to produce the attendance register. As such the Labour Court passed an order against the State and its authorities to produce the attendance register, as the attendance registers were in possession of the employer-State. In all fairness, the State and its authorities ought to have placed the said record on the file of the trial Court but it appears that the applications were being opposed and fought with vengeance. No record which was necessary for counting the period of actual service was placed before the Labour Court and as such the Labour Court was constrained to draw an adverse inference against the State that had the records been produced before the Labour Court, the same would have gone against the employer-State. Having regard to attitude of the employer in withholding the material records, the Labour Court relied on the oral testimony of the employees and as a fact that the employees can be identified as persons entitled to bonus under the Scheme contained in the Government Resolution.

5. Reverting back to the first limb of challenge to the judgment and order passed by the Labour Court based on the submission that in these cases, the Labour Court was called upon to determine the rights of the employees and as such the same was outside the scope of Section 33-C(2) of the Act. Countering this argument, the learned counsel appearing for the employees-respondents contended that the I Labour Court was not called upon to decide the rights of the employees to receive bonus. The right and entitlement to receive bonus is very much spelt out in favour of the employees in the Government Resolution of 1986 itself. In the submission of the learned counsel, the Government Resolution itself provides for the eligibility of a person to receive bonus. The right of a person to receive bonus so also the corresponding liability of the State to pay the bonus is an adjudged right in favour of the employees, contained in the Scheme provided by the Government Resolution.

6. I have heard the learned counsel for the parties. I have also perused Government Resolution dated November 10, 1986. A perusal of the said Government Resolution leaves no room of doubt that the entitlement of the employee to receive bonus under the provisions of Payment of Bonus Act, is laid down in the said Government Resolution, meaning thereby, a right to receive bonus is crystalised by the terms of the said Government Resolution and the said Government Resolution also provides for eligibility of an employee to receive bonus. Such of the employees who have put in more than 3 years of service and such of the employees who have actually worked for at least 240 days in a year have been held to be entitled to bonus. The said eligibility criterion for receiving bonus is what is termed as an entitlement of an employee to receive bonus and as such all the employees who satisfy the conditions laid down under the Government Resolution have a legal right to receive bonus. On perusal of the Government Resolution two things are clear, that a right to receive bonus is crystalised and the Government Resolution also provided for the eligibility of employees to receive the bonus. The Government Resolution also provided the manner of computation of amount of bonus to be paid. In these petitions, there was a crystalised right in favour of the employees to receive bonus as they satisfied the condition No. 5 contained in Clause 3 viz. having put in more than 3 years of service and having actually worked for a minimum 240 days in each year. So the task that was to be performed by the Labour Court was only in regard to identify the persons/employees who would be entitled to receive bonus under the said Government Resolution. In this factual background, the objection put forth by the present petitioner about jurisdiction of the Labour Court under Section 33-C(2) of the Act is to be adjudicated.

7. The learned counsel appearing for the petitioners has invited my attention to a judgment of the Apex Court reported in AIR 2000 SC 3734 to substantiate his contention that, the Labour Court cannot, while deciding an application under Section 33-C(2) of the Act, determine the rights of the parties. In the submission of the learned counsel the said judgment takes a view that an order directing, payment of back wages cannot be executed by filing an application under Section 33-C(2) of the Act and as a result of necessary corollary thereof, in the submission of the learned counsel for the petitioners, an application seeking payment of bonus is also not maintainable under Section 33-C(2) of the Act. I have carefully gone through the said judgment of the Apex Court and the said judgment does not lay down such a wide proposition as is sought to be contended by the learned counsel for the petitioners. The Apex Court has considered an earlier judgment which lays down parameters within which the Labour Court can make an enquiry while dealing with the Application under Section 33-C(2) of the Act. The facts emerging in the judgment reported in AIR 2000 SC 3734 are altogether different. In the said case the Labour Court was not only required to make detailed investigation but also was required to adjudicate the rights of the employees. In facts of the said case as could be gathered from para 8 of the judgment no right or benefit could be spelt out from the award, as having accrued to the workmen. It appears that under the Award only reinstatement was granted to the employee and back wages were not granted. The Apex Court on noticing the said facts has observed thus:

"It cannot be spelt out from the award in the present case that such a right has accrued to the workmen as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to back wages. Hence the 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. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent."

On the proposition of law there cannot be any quarrel that in a proceeding filed under Section 33-C(2) of the Act if the Court is called upon to adjudicate the right or benefit to which a person is entitled or not, then obviously the said application will not be maintainable under Section 33-C(2) of the Act. I am conscious of the view taken by the Apex Court in judgment that the exercise of power under Section 33-C(2) of the Act is in the nature of execution proceedings and only when there is a pre- existing right then and then alone an application under Section 33-C(2) of the Act is maintainable. The learned counsel appearing for the respondents has invited my attention to the judgment of the Apex Court and specifically to paragraphs 12, 13 and 14 thereof. The test laid down is as to whether there is any existing right in favour of a person moving an application under Section 33-C(2) of the Act. It further lays down that a question which is incidental to passing of order under Section 33-C(2) of the Act can also be adjudicated by the Labour Court. An exercise to identify a person as to whether he is entitled to the relief, more so when right has been declared or adjudged would be very much within the jurisdiction of the Labour Court while deciding an application under Section 33-C(2) of the Act.

8. The next limb of the submission is that the jurisdiction of Labour Court under Section 33-C(2) of the Act is ousted as there exists a remedy to recover the bonus under the provisions of Payment of Bonus Act, which is a special statute. To repel the said contention, the learned counsel for the respondents has relied on a judgment . The said judgment is a Full Bench judgment interpreting the provisions of Payment of Bonus Act. The Full Bench after having retrospect of the Scheme of the Payment of Bonus Act observed that a remedy under Section 33-C(2) of the Industrial Disputes Act is in addition to and is not in derogation with the remedy provided under the Payment of Bonus Act. The Full Bench has noticed phraseology used in Section 21 of the Payment of Bonus Act which reads thus: "Without prejudice to any other mode of recovery" and also noticed the provisions of Section 39 which reads as under:

"Save as otherwise expressly provided, the provisions of this Act shall be in addition to and not in derogation of the Industrial Disputes Act, 1947 (14 of 1947) or any corresponding law relating to investigation and settlement of industrial disputes in force in State."

The said judgment is the clear authority on the proposition that for claiming bonus a person may have recourse to the provisions contained in Payment of Bonus Act or may make an application for recovery under Section 33-C(2) of the Industrial Disputes Act. The said judgment answers the second submission made on behalf of the State and the other, that as there is a special Act viz. Payment of Bonus Act, 1965 occupying the field and it being a complete Code, an application under Section 33-C(2) of the Industrial Disputes Act is not maintainable.

9. Having regard to the law laid down by the Apex Court and the Full Bench, I have no hesitation to hold that as there was a pre-existing right in the employees which was crystalised by a Government Resolution, the Labour Court was not called upon to adjudicate the right or benefit in favour of employee. The exercise which the Labour Court was called upon to make was only in regard to identification of the persons as to whether they are entitled to receive the bonus according to the norms laid down in the Government Resolution and nothing more. In this view of the matter, the submission made on behalf of the petitioner State fails. I hold that the Labour Court was very much within its powers in passing the judgment and order an application moved under Section 33-C(2) of the Act.

10. Before passing the operative order, I would like to state that during the pendency of these petitions, this Court had stayed the money claim of bonus granted in favour of the employees and as a result thereof none of the employees/daily wagers have been paid the bonus. In this view of the matter, I pass the following order:

In the result, Petitions are dismissed.

I direct the State to pay the amount of bonus as indicated in the order of the Labour Court together with interest at the rate of 12% p. a. from the date of passing of the order by the Labour Court till the actual payment is made. I hope and trust that the State Government and its authorities would make the payment of said amount of bonus so also interest, within a period of 2 months from today. Needless to mention that the rule stands discharged and interim orders vacated.