D.D. Seth, J.
1. This petition under Article 226 of the Constitution arises out of the following circumstances.
2. The petitioner is an employee of the New Victoria Mills Company, Ltd., Kanpur, opposite party 2 to the petition, as a line jobber. The nature of his duty is to supervise the work of weavers working on looms which is known as one line and that is why the name of line jobber is given to a person who supervises the work done on the line. The petitioner is paid wages which is calculated on the average production given by the weavers and the looms of the line. It is stated in Para. 4 of the petition that if the production is 66 per cent or above in case of four looms set and 72 per cent or above in case of two looms set, the weavers and the line jobbers are paid efficiency reward which is also known as production bonus. According to the petitioner the efficiency reward is paid in terms of an agreement arrived at between the representatives of the workmen and the petitioner-concern and has been regularly paid as part of their wages. Line jobbers also are paid efficiency reward even though they were not actually working in the mills as the payment depends upon the production given by the line of a line jobber. In 1952 and 1957 the petitioner was sent out of the mills for doing some election work on behalf of the petitioner-concern and was paid efficiency reward though he did not actually work in the mills. In those years he was shown on 'special leave.' From 31 March to 26 April 1957 the petitioner was sent out to receive training started by the State Government. He was shown on leave and was paid efficiency reward for that period. Prom 8 January to 7 April 1960 the petitioner was again sent to receive training of workers' teacher started by the Central Government and was granted leave for that period. He was again shown as being on ' special leave ' for the period but was not paid efficiency reward. The petitioner demanded the payment of efficiency reward but the company refused to pay it. Then the petitioner approached his union which raised an industrial dispute. As no amicable settlement could be arrived at during conciliation proceedings the State Government, by an order issued in February 1961, referred the following dispute for adjudication to the labour court (II) at Kanpur, opposite party 1 to the petition:
Matter of dispute.-Whether the action of the employers in depriving their workman, Keshav Prasad, son of Ram Lakhan Rai, T. No. 7, line mistry, weaving department, of efficiency reward for the period 8 January to 7 April 1960 is legal and/or justified If not, to what relief is the workman concerned entitled and with what other details ?
3. The parties filed their written statements before the labour court and also led oral evidence. The labour court gave its award on 31 August 1961 and held that the petitioner was not entitled to the payment of efficiency reward for the period in dispute as he did not actually work during that period and was only allowed leave with wages. The award was published in the Uttar Pradesh Gazette on 14 October 1961.
4. The petitioner challenges the award and prays that the same be quashed. It is also prayed that the labour court be directed to decide the matter of dispute afresh.
5. A counter-affidavit has been filed by the assistant labour officer of the mills and the petitioner has filed his rejoinder-affidavit.
6. I have heard Sri J.N. Tewari, the learned Counsel for the petitioner, and Sri T.N. Sapru, appearing for the mills. Sri J.N. Tewari submitted that the labour court has committed an error apparent on the face of the record in holding that the efficiency reward is not a part of wages though the employers Admitted it to be so in their pleadings. He also contended that the labour court has committed an error apparent on the face of the record in holding that efficiency reward is paid to the line jobbers when they are actually on duty.
7. Sri T.N. Sapru, on the other hand, contended that efficiency reward is a variable factor and is not a fixed amount and therefore had to be determined before the payment could be made to the petitioner. He also submitted that efficiency reward paid to the petitioner in the past was an ex gratia payment as it does not form part of wages and further that in the past the petitioner was treated to be on ' special leave.' According to the learned Counsel, efficiency reward is bonus and is not part of wages as defined by Section 3(y) of the Uttar Pradesh Industrial Disputes Act, 1947. The learned Counsel further submitted that efficiency reward is payable as part of wages only after it has been actually earned. Lastly Sri T.N. Sapru submitted that the labour court has held that efficiency reward was not payable to the petitioner, after appraisal of the evidence led before it by the parties, and, therefore, this Court should not interfere with the award under Article 226 of the Constitution.
8. I was not shown any provision of the standing orders of the mills under which special leave is allowed to a workman. In Para. 6 of the written statement filed by the union on behalf of the petitioner before the labour court it was stated that efficiency reward is part of wages. That paragraph was replied to in the written statement filed on behalf of the mills in the following terms:
That the contents of Para. 6 of the written statement are admitted. As Keshav Prasad did not work during the aforesaid period, he was not paid the efficiency reward, because he was not entitled to it.
9. The above statement shows that the fact that efficiency reward was part of wages was admitted by the mills in its written statement filed before the labour court. A further admission is made in Para. 3 of the counter-affidavit filed in this Court. Paragraph 3 of the counter-affidavit reads as follows:
That the contents of Para. 3 of the said petition are not admitted as they stand. The petitioner's wages are composed of various elements, such as basic minimum wage, personal wage, wage calculated on the basis of average production given by the weavers and the looms on the line, in which the petitioner was a line jobber, efficiency reward, dear-food allowance, etc.
10. In the above paragraph also it is admitted that efficiency reward forms part of wages. It follows, therefore, that if the petitioner was entitled to wages for the period 8 January to 7 April 1960 he was also entitled to the payment of efficiency reward which formed a part of wages. There is no force in the contention of Sri T.N. Sapru that the efficiency reward is paid only to those workmen who actually work in the mills. Paragraph 7 of the counter-affidavit filed on behalf of the mills is as follows :
That in reply to the allegations made in Para. 7 of the said petition that the petitioner was treated as on special leave when he went out for election propaganda work during 1952 and 1957 is incorrect. The petitioner was then permitted to do the election propaganda work but he was treated as 'on duty' and was therefore paid the efficiency reward.
11. The above paragraph shows that the petitioner was paid efficiency reward in 1952 and 1957 even though he had not actually worked in the mills. It is also not correct that efficiency reward which was to be paid to the petitioner was a variable factor and was not a fixed amount. The moment the petitioner earned Rs. 66 he was entitled to get the payment of efficiency reward which amounted to Rs. 6.60. The efficiency reward, therefore, in the petitioner's case was not variable and was a fixed amount. The payment of the efficiency reward became a term and condition of the employment of the petitioner and also became a part of his wages. If wages were paid to the petitioner, there is no reason why efficiency reward also was not paid to him.
12. Sri T.N. Sapru relied upon the definition of 'wages' as contained in Section 2(y) of the Uttar Pradesh Industrial Disputes Act, 1947, and submitted that wages do not include bonus. The definition of ' wages ' in Section 2(y) of the Act is as follows:
'wages' means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment, or of work done in such employment and includes-
(i) * * *(ii) * * *(iii) any travelling concession,
but does not include-
(a) any bonus;(b) * * *(c) * * *
13. In my opinion, the definition of 'wages' as contained in the Uttar Pradesh Industrial Disputes Act is not applicable in the instant case. That definition is only in relation to fixation of wages and refers to those wages about which there is a dispute. Once the amount of wages is fixed, the definition as contained in the Uttar Pradesh Industrial Disputes Act is of no help. If the amount of wages is fixed, then the proper definition which is relevant is the definition as contained in Section 2(vi) of the Payment of Wages Act, 1936, which defines wages as:
'wages' means all remuneration (whether by way of salary, allowances, or otherwise) expressed in terms of money or capable of being so expressed which Would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes-
(a) any remuneration payable under any award or settlement between the parties or order of Court;
(b) * * *(c) any additional remuneration payable under the terms of employment (whether called a bonus or by any other name);
(d) * * *(e) * * *but does not include-
(1) to (6) * * *
14. According to the definition of 'wages' as contained in the Payment of Wages Act it Includes bonus. It is the definition of 'wages' as contained in the Payment of Wages Act which is applicable in the instant case as there was no dispute regarding the rate of wages payable to the petitioner. I am fortified in my view by a ruling in Express Newspapers, Ltd. v. Union of India 1961-I L.L.J. 339. This was a case under the Central Industrial Disputes Act. It was held that:
The following are the principles of fixation of rates of wages:
(1) In the fixation of rates of wages which include within its compasa the fixation of scales of wages also, the capacity of the industry to pay is one of the essential circumstances to be taken into consideration except in cases of bare subsistence or minimum wages where the employer is bound to pay the same irrespective of such capacity; and(2) * * *(3) * * *
15. The above observation also shows that the definition of 'wages' as contained in the Uttar Pradesh Industrial Disputes Act is not relevant in connexion with the instant case.
16. It was held in Titaghur Paper Mills Company, Ltd. v. their workmen 1959-II L.L.J. 9 that:
The payment of production bonus depends upon production and is in addition to wages. In effect, it is an incentive to higher production and is in the nature of an incentive wage.
17. It follows, therefore, that production bonus is always in addition to wages and is an incentive wage. It also follows that the petitioner was entitled to efficiency reward of Rs. 6.60 the moment he was paid Rs. 66 as wages. The award of the labour court clearly suffers from an error apparent on the face of the record inasmuch as the labour court did not take into consideration the definition of 'wages' as contained In the Payment of Wages Act and in holding that efficiency reward is not part of wages and is payable only to line jobbers when they are actually on duty. When the conclusion of law recorded by the labour court is based on an obvious misinterpretation of the relevant statutory provision or is expressly founded on reasons which are wrong in law, this Court is justified in correcting the conclusion of the labour court by a writ of certiorari. See Syed Yakoob v. K.S. Radhakrishnan : 5SCR64 .
18. The petition is, therefore, allowed with costs and the award of the labour court dated 31 August 1961 is quashed and the case is remanded to the labour court, Kanpur, for a fresh decision of the matter of dispute in accordance with law.