Industrial Disputes Act, 1947 - Sections 10, 10(1) and 12
1. In exercise of the powers conferred by Clause (d) of Sub-section (1) of S. 10 read with Sub-section (5) of S. 12 of the Industrial Disputes Act, 1947, the Government of Maharashtra by its order, Industries and Labour Department No. AJA-93 (1)/63-LAB-II, dated 31 January, 1964, referred to this tribunal for adjudication the industrial dispute consisting of the workmen's following demand :
'All employees should be given half of the total wages earned in 1962 as bonus for the year 1962.'
2. A statement of claim, in support of the demand, was submitted by the Publishers and Booksellers 'Employees' Association representing the workmen. The employer filed its written statement contesting the demand.
3. The employer has produced the certificate of its incorporation under the Companies Act. It was incorporated on 31 August, 1961. The company is limited.
4. The demand is for bonus for the year 1962. The accounting year of the employer-company is the Hindu Samvatsar, from October to October. The demand is therefore deemed to be for the bonus for the year 1961-62.
5. The demand is for bonus for a year ending in 1962. The industrial dispute has been pending before the tribunal since prior to 1 September, 1964. The dispute is therefore governed by the Payment of Bonus Ordinance, 1965. The position is expressly conceded by the employer by his application dated 4 August, 1965.
6. The employer has produced its balance sheet as on 27 October, 1962 and profit and loss account for the period from 31 August, 1961 to 27 October, 1962. The balance sheet and profit and loss account are certified by chartered accountants. Sri J. V. Shukla, general secretary, Publishers and Booksellers 'Employees' Association, representing some of the workmen, took inspection of the said documents and also of the other documents filed with the Registrar of the Companies. Thereafter he made an application seeking certain particulars. The employer gave its reply dated 15 April, 1964. Therein the employer furnished some of the particulars and as regards the rest, it submitted that they were not relevant. More than a year has elapsed since then. The application was not pressed and no attempt is made to show that the other particulars are relevant. In view of S. 23 of the Ordinance, it is presumed that the statements in the balance sheet and the profit and loss account submitted by the employer, are accurate.
7. From the said balance sheet and the profit and loss accounts it is seen that the employer-company has suffered loss. Under S. 10 the workmen are prima facie entitled to the 'minimum bonus.'
8. The present demand for the bonus was made by the notice dated 6 March, 1963 by the Publisher and Booksellers 'Employees' Association, representing the workmen. Thereafter the reference was made on 31 January, 1964. There was the prior settlement dated 2 August, 1962 between the employer and the Asia Publishing House Employer Union purporting to represent the workmen. Under the terms of the settlement the workmen had a abandoned the claim for bonus for the period up to the end of December 1962. Section 34 (1) of the Ordinance reads :
'... The provision of this Ordinance shall have effect notwithstanding anything inconsistent therewith contained ... in the terms of any award agreement, settlement .....'
9. Notwithstanding the said settlement the workmen should be entitled to the 'minimum bonus.'
10. It is noted above that the employer was incorporated on 31 August, 1961. From the profit and loss account submitted by the employer it is seen that it has suffered loss for the period from 31 August, 1961 to 27 October, 1962. Ordinance, S. 16(1), reads :
'Where an establishment is newly set up, whether before or after the commencement of this Ordinance, the employees of such establishment shall be entitled to be paid bonus under this Ordinance only (a) from the accounting year in which the employer derives profit from such establishment; '
11. Mentioning the said circumstances the employer made its application dated 4 August, 1965 and contended that it was not liable to pay even the 'minimum bonus.' In the reply dated 17 August, 1965 on behalf of the Publishers and Booksellers' Employees' Association it is stated that the present company is a successor-in-interest to Asia Publishing House and therefore the case was covered by the Expln. 1 to S. 16. The said explanation reads :
'For the purpose of this section, an establishment shall not be deemed to be newly set up merely by reason of a change in its location, management name or ownership.'
12. Asia Publishing House is a partnership concern. It has been in existence for a number of years. In this proceeding, the publishers and Booksellers' Employees' Association had made an application praying that Asia Publishing House be joined as a party to this dispute. Therein it was alleged that 'Asia Publishing House' and 'Asia Publishing House (Private) Ltd.,' the present employer, are one and the same. The said contention was negatived by this tribunal. In the affidavit made in support of the application it was stated that 'Asia Publishing House (Private), Ltd.' was a successor to 'Asia Publishing House.' It was observed that normally the liabilities would flow from the predecessor to the successor and not backwards from the successor to the predecessor. It was held that Asia Publishing House was not a necessary party nor a proper party and accordingly the application was rejected by the order dated 1 July, 1965. The question of fact whether 'Asia Publishing House (Private), Ltd,' was a successor of 'Asia Publishing House' was not decided. Industrial disputes between Asia Publishing House and the workmen employed under it are subject-matter of the proceedings in Reference (I.T.) Nos. 171 of 1959 and 92 of 1959 pending before the industrial tribunal, Sri V. R. Paralkar. Therein, application was made by the Publishers and Booksellers' Employees' Association praying that 'Asia Publishing House (Private), Ltd.' be joined as a party and it was alleged that it is a successor of Asia Publishing House. Notice thereof was issued to, and this employer, 'Asia Publishing House (Private), Ltd.' was heard. Therein the tribunal was pleased to hold this employer to be a successor of Asia Publishing House and accordingly made its order dated 27 July, 1965 that it be joined as a party to the said proceedings. The said finding is binding on this employer. I therefore hold that this employer viz., Asia Publishing House (Private), Ltd., is a successor to Asia Publishing House. It is covered by the Expln. 1 to S. 16. It is not a 'newly set up' establishment as contemplated by S. 16(1). It is not entitled to the exemption provided by S. 16.
13. In conclusion, I hold that the workmen concerned are entitled to the 'minimum bonus.' That is subject to the condition laid down in the Ordinance.
14. In the result I award :
(i) Each of the employees who had worked in this establishment for not less than thirty working days in the year 1961-62 shall be paid as bonus for the year an amount equivalent to 4 per cent of his wages for the year or Rs. 40 whichever is higher or the proportionate amount under S. 13 as the case may be :
Provided that no bonus shall be paid to an employee who is dismissed from service for
(a) fraud; or
(b) riotous or violent behavior while on the premises of the establishment; or
(c) theft, misappropriation or sabotage of any property of the establishment.
(ii) The amount of bonus shall be paid within a period of one month from the date of publication of this award : Provided that a worker who has ceased to be in the employ of the company shall claim the bonus making an application in writing within the period of one month aforesaid and the company shall pay the amount within a month from the receipt of such application.