1. This write petition pertains to the award made by the labour court at Hubli, in Reference (I.D.) (L.C.H.) No. 37 of 1961 on its file and published in the Mysore Gazette of 5 July, 1962. The workmen of Newspaper Publisher (Private), Ltd. represented by the S. K. Press Workers' Union, Maidan Road, Mangalore, was the first party in that reference; the present petitioner was the second party. For the purpose of the present writ petition, we are concerned only with two questions out of those covered by the award. The first is the order of the labour court that one Jayananda Shetty who had been discharged by the petitioner on 26 December, 1960 should be reinstated; the second is the order of the labour court requiring the payment of an additional bonus equivalent to half-month's basic wages, to the first party workmen. These are the two main questions to which Sri T. Krishna Rao, the learned advocate for the petitioner, has confined himself and has contended that the award in so far as it relates to these two matters, is liable to be quashed.
2. The facts and circumstances giving rise to the above two questions, briefly stated, are as follows :- One Jayananda Shetty has been appointed on 15 February, 1960, as an attender by Baburaya Kini, the manager of the petitioner-concern. His duties consisted of sweeping the floor, cleaning the machine and carrying out errands. Accordingly to the finding of the labour court, Jayananda Shetty was a child above 14 years of ago when he was so appointed. On 3 November, 1960, the petitioner asked Jayananda Shetty to produce a school certificate or a certificate from the District Medical Officer, as proof of his age that he was an adult. On 13 November, 1960, Jayananda Shetty produced a medical certificate (Ex. M. 2) which showed that his age was 15 years. Thereupon, the petitioner discharged Jayananda Shetty, Exhibit M. 3, the order of discharge, was as follows :-
'It is observed from the certificate of the Assistant District Surgeon your age is fifteen years and you are classified as a child.
Since no children can employed, in a factory, your services are terminated; accordingly your account is ordered to be settled forthwith.'
3. The contention of the management before the labour court was that Jayananda Shetty was not a workman under the Industrial Disputes Act, 1947, and that after the management came to know from the medical certificate that he was not an adult but a child, Jayananda Shetty was discharged and that, therefore, he was not entitled to any compensation or reinstatement. These contentions were covered by issues (1) to (3) framed by the labour court, which are as follows :
(1) Whether Jayananda Shetty is not a 'workman' as per S. 2(s) of the Industrial Disputes Act
(2) whether Jayananda Shetty was only a child and not an adult
(3) whether the discharge of Jayananda Shetty was bona fide, lawful and justified The labour court held that Jayananda Shetty was a 'workman' within the meaning and spirit of S. 2(s) of the Industrial Disputes Act, that he being a 'child' above 14 years, his employment was not prohibited under the Factories Act, 1948, that the discharge of Jayananda Shetty was not bona fide and that he was entitled to reinstatement. (No back wages were awarded.)
4. So far as the question of bonus is concerned, it is seen from Para. 15 of the award that according to the calculations made by the labour court, the available surplus (after making necessary deduction) was a sum of Rs. 10,424.87. The petitioner had already paid a sum of Rs. 7,822.16 being equivalent to two months' basic wages, on account of bones. The labour court, deducted the amount of bones which had been already paid from the surplus amount of Rs. 10.424.87 and held that the balance of Rs. 2,602.71 was liable for distribution and directed the payment of an additional bonus equivalent to half-month's basic wages.
5. It is the above findings of the labour court that have been attacked by the petitioner. The contention of Sri T. Krishna Rao is that the finding of the labour court that Jayananda Shetty was a 'workman' under S. 2(s) is erroneous, that the view taken by the labour court that there was no prohibition under the Factories Act, 1948, in regard to the employment of a 'child' above the age of 14 years, is opposed to the provisions of the Factories Act and that the direction for reinstatement is illegal. So far as the question of bonus is concerned, the contention of Sri. Krishna Rao is that the utmost which the workmen would have been entitled to, by way of bonus, was, according to law, only half of the available surplus amount of Rs. 10.424.87 and that when the management had already paid, by way of bonus, more than half of the available surplus, it was within the competence of the labour court to have directed further payment of an additional bonus.
6. The relevant part of the definition of 'workman' in S. 2(s) of the Industrial Disputes Act, is as follows :-
'2. (s) 'workman' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connexion with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute ....'
7. It is argued by the learned advocate for the petitioner that the employment contemplated in S. 2(s) of the Industrial Disputes Act is lawful employment and not employment contrary to the provisions of any law. It is urged that the employment of Jayananda was actually opposed to the relevant provisions of the factories Act and that, therefore, Jayananda would not be a 'workmen' for the purpose of S. 2(s) of the Industrial Disputes Act. In order to properly appreciate this contention, the relevant provisions of the Factories Act will have to be looked into. Those relevant provisions are as follows :-
'67. No child who has not completed his fourteenth year shall be required or allowed to work in any factory'.
'68. A child who has completed his fourteenth year or an adolescent shall not be required or allowed to work in any factory unless.. (a) certificate of fitness granted with reference to him under S. 69 is in the custody of the manager of the factory, and
(b) such child or adolescent carries while he is at work a token giving a reference to such certificate.'
'69. (1) A certifying surgeon shall, on the application of any young person or his parent or guardian accompanied by a document signed by the manager of a factory that such person will be employed therein if certified to be fit for work in a factory, or on the application of the manager of the factory in which any young person wishes to work, examine such person and ascertain his fitness for work in a factory.'
8. The expression 'child' according to the definition in S. 2(c) of the factories Act, means a person who has not completed his fifteenth year of age. It may also be mentioned that under S. 2(b) 'adolescent' means a person who has completed his fifteenth year of age but has not completed his eighteenth year. From Para. 6 of the award, it is seen that before the labour court, it was common ground between the parties, that at the date of his appointment Jayananda Shetty was a child. Further in the same paragraph the labour court has stated as follows :
'In view of the definition of the term 'child' it may now be safely taken that Jayananda Shetty was below fifteen years of age when he entered the service of the second party.'
9. Jayananda Shetty was below fifteen years of age on 15 February, 1960, the date of his appointment, and he was some 10 1/2 months older when he was discharged on 26th December, 1960. Therefore, on the date of his appointment, he was a child who had completed his fourteen year and on the date of his discharge, he could not have been a person older than an 'adolescent.' It is clear from the provisions of S. 68, that whether on the date of his appointment or on the date of his discharge, Jayananda Shetty could not have been required or allowed to work in any factory unless the conditions laid down in Cls. (a) and (b) of S. 68 were satisfied. It is stated by the learned advocate for the petitioner, that when the management came to know from the medical certificate, Ex. M. 3, that Jayananda Shetty was a child of fifteen years, they discharged him as his continuation in employment would be contrary to the prohibition in S. 68 and it is urged that during the period of the legally prohibited employment Jayananda Shetty could not be a 'workman' for the purposes of S. 2(s) of the Industrial Disputes Act, on the other hand, the argument of Sri Rama Kamath, on behalf of respondent 1, is that the language in respect of a child to whom S. 68 of the Factories Act Applies, and that, therefore, the term 'workmen' is wide enough to include a child who has been required or allowed to work in contravention of S. 68 of the factories Act. After hearing the arguments of both the sides on this point, it seems to us that there is considerable force in the contention urged by the learned advocate for the petitioner. However wide the definition in S. 2(s) of the Industrial Disputes Act may be, it cannot be understood as including any person whose employment is either legally prohibited or is contrary to the provisions of law. If the purpose of the law, as set out in the provisions of the particular enactment, is to prohibit either absolutely or conditionally, the employment of certain persons in certain kinds of work, then any employment contravening such prohibition ought not to be encouraged; otherwise, the purpose of such legal prohibition will be defeated. Therefore, the employment that is contemplated in S. 2(s) of the Industrial Disputes Act, cannot be understood as including any employment which is either legally prohibited or is in contravention of law. In this view of the matter, the employment of Jayananda Shetty, unless it was in accordance with Ss. 68 and 69 of the Factories Act, was legally prohibited, and would not make him a 'workman' for the purpose of S. 2(s) of the Industrial Disputes Act. It is undisputed that during the period when Jayananda Shetty was working under the petitioner, the provisions of Ss. 68 and 69 of the Factories Act had not been complied with. Therefore, when Jayananda Shetty would not be a 'workman' for the purpose of S. 2(s) of the Industrial Disputes Act, the labour court would have no jurisdiction at all. As contended by Sri Krishna Rao, the labour court could not give jurisdiction to itself by a wrong finding that Jayananda Shetty was a 'workman.'
10. Even otherwise, the direction in the award, for the reinstatement of Jayananda Shetty, cannot be sustained. The labour court, overlooking the provisions of Ss. 68 and 69 of the Factories Act, appears to have proceeded on the assumption that the employment of a child above fourteen years of age in a factory, was not prohibited under the Factories Act. In para 7 of the award, the labour court has stated as follows :
'The Factories Act, 1948, however, does not prohibit the appointment of a 'child' above fourteen years in a factory, but it merely lays down certain restrictions with respect to the working hours for children. Jayananda Shetty was more than fourteen years of age when he was appointed by the second party on 15 February, 1960 and therefore, S. 67 of the Factories Act, 1948, which prohibits the employment of a child below fourteen years, has no applications. Section 71(1) of the said Act provides that no child shall be employed or permitted to work in any factory
(a) more than 4 1/2 hours in any day;
(b) during the night.
There are some other restrictions contained in Sub-secs. (2), (3) and (4) of S. 71, but the point to be noted is that since Jayananda Shetty was above fourteen years at the date of his appointment, his appointment could not be said to be bad under the Factories Act, 1948.'
11. It is clear that the labour court has proceeded to consider only S. 71 which deals with the working hours for children, without directing its attention to Ss. 68 and 69. The question of working hours would come in only when a child above the age of fourteen years was appointed after satisfying the conditions set out in S. 68. Therefore, the provisions of S. 71 would not be of much relevance while considering whether the requirements of S. 68 had been satisfied. The view of the labour court that the appointment of Jayananda Shetty was not bad, is clearly erroneous, inasmuch as Jayananda Shetty had been appointed without fulfilling the conditions set out in S. 68. The employment of a child in a factory, unless the conditions set out in S. 68 are satisfied, is clearly prohibited. The direction for reinstatement which is founded on the erroneous view of the labour court that the appointment of Jayananda Shetty was not bad, cannot be sustained. There can be no question of reinstatement when the earlier appointment itself was contrary to law. Even on the date of the publication of the award (which is in the gazette of 5 July, 1962) Jayananda Shetty would not be an adult, but only as 'adolescent'; but the labour court has not further directed that such reinstatement should be only after that conditions set out in S. 68 are satisfied. As contended by Sri Krishna Rao, such a direction (for reinstatement) which is not subject to the condition that the provisions of S. 68 should be satisfied, is not legal. Any compliance with that direction regarding reinstatement, would be a violation of the provisions of the Factories Act and such a direction cannot be sustained and is patently erroneous. The direction for reinstatement is, therefore, liable to be quashed. Sri Rama Kamath suggested that it would be open to us to direct that the reinstatement should be subject to compliance with the requirements of S. 68. There is no force in this suggestion; because, on account of the lapse of time, Jayananda Shetty has ceased to be an adolescent and, therefore, it is not possible to comply with the conditions of Ss. 68 and 69.
12. We will now proceed to consider the contentions pertaining to the award of additional bonus. Sri Krishna Rao sought to contend that the labour court erred in adding back the sum of Rs. 5,677.36 had been profits. This matter has been dealt with in Para. 10 of the award. It would appear that this sum of Rs. 5,667.36 had been shown as editorial remuneration due to one Sri V. S. Kudva. But this amount had been actually received by his son, M.W. 1, Sri Sanjiv v. Kudva, who was the managing director. The labour court, finding that there was no explanation as to why this amount had been received by the managing director and not by the editor of the newspaper concern, took the view that the said amount should be added on to the net profits. No ground has been made out before us, which would justify our interference with the above view taken by the labour court, on the facts and circumstances before it.
13. But even from the facts set out in the award itself, it seems to us that the direction for the payment of additional bonus is clearly unsustainable. At Para. 15 of the award, the labour court has stated that the available surplus for distribution of the bonus, was a sum of Rs. 10,424,87. According to what the Supreme court has stated in Rajendra Mills, Ltd. v. Their workmen [1960 - II L.L.J. 53] it is seen that even though there is no inflexible rule as regards the proportion of distribution of the available surplus (when it is not considerable), the workable rule, which ought to be followed, is that the distribution should be equal as between the employer and the industry on the one hand and the workmen on the other. At p. 55 this is what the Supreme Court has stated :
'While no inflexible rule can possibly be laid down as regards the proportion of distribution of the available surplus a workable rule, where the surplus is not considerable, very often is that when no other evidence as regards the relevant factors is available, the distribution should be such as to leave to the employer and the industry on the one hand and the workmen on the other approximately equal benefits.'
14. Accordingly, in the present case, the maximum bonus which the workmen would be entitled to, would have been held if the surplus amount of Rs. 10,424.87. But, as an amount far larger already been paid by way of bonus, namely, Rs. 7,822.16, there was nothing more due to be paid to the workmen, on that account. Strangely enough, for some unexplained reason, the labour court deducted this sum of Rs. 7,822.16 which had already been paid by way of bonus, from the sum of Rs. 10,424.87 and directed that out of the balance an additional bonus equivalent to half-month's basic 2 wages, be paid to the workmen. This method of calculation adopted by the labour court is not supported by any convincing reason or binding precedent. In adopting this method of computation and directing a further additional bonus be paid, the labour court has acted arbitrarily and its direction for the payment of additional bonus is liable to be quashed.
15. In the result, the award in so far as it directs reinstatement of Jayananda Shetty and the payment of an additional bonus, shall stand quashed. Parties will bear their own costs.