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Singh Engineering Works (P) Ltd. Vs. Industrial Tribunal (i) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1962)ILLJ455All
AppellantSingh Engineering Works (P) Ltd.
Respondentindustrial Tribunal (i) and ors.
Excerpt:
- - while the workers claim to be workmen under the employment of the petitioner company entitled to bonus and other privileges enjoyed by other workmen of the company. the true nature and character of the workmen's claim for bonus against their employers is now well settled. even so, the claim for bonus cannot be effectively made unless two conditions are satisfied; to this extent the finding is clearly illegal.d.s. mathur j.1. this judgment governs civil miscellaneous writ petitions nos. 56 and 57 of 1960, both by singh engineering works (p), ltd. kanpur (to be referred hereinafter as the petitioner company) to challenge the awards of the presiding officer, industrial tribunal (i), allahabad, respondent 1, on two references made to it by the government of the state of uttar pradesh, respondent 2 (to be referred hereinafter as the state government), as the questions of law involved therein are the same, both the petitions are being disposed of by one judgment. the request made in both the petitions is that a writ in the nature of certiorari be issued to quash the a wards, dated 26 september 1959, and also a writ in the nature of mandamus to direct the state government to withdraw the reference.....
Judgment:

D.S. Mathur J.

1. This judgment governs Civil Miscellaneous Writ Petitions Nos. 56 and 57 of 1960, both by Singh Engineering Works (P), Ltd. Kanpur (to be referred hereinafter as the petitioner company) to challenge the awards of the presiding officer, industrial tribunal (I), Allahabad, respondent 1, on two references made to it by the Government of the State of Uttar Pradesh, respondent 2 (to be referred hereinafter as the State Government), As the questions of law involved therein are the same, both the petitions are being disposed of by one judgment. The request made in both the petitions is that a writ in the nature of certiorari be issued to quash the a wards, dated 26 September 1959, and also a writ in the nature of mandamus to direct the State Government to withdraw the reference orders contained in Notification Nos. 254(LC)/XVIII-LA-868(KR)-1958, dated 4 May 1959 and 242(LC)/XVIII-LA-1237 (IKR)-1958, dated 8 May 1959 as subsequently amended by Notification No. 393(LC)/XVIII-LA-1237 (IKR)-1958, dated 5 June 1959; and also notifications, dated 8 October1959, under which the two awards of the industrial tribunal were published.

2. The notifications and the awards are, in substance, challenged on the ground that the contractors and their employees were not workmen and employees of the petitioner company and consequently the State Government could not refer any dispute between the contractors and their employees on one side and the petitioner company on the other to the industrial tribunal and the awards made by the tribunal were without Jurisdiction and liable to be quashed.

3. The petitioner company has its registered office at Kanpur and carries on the business of manufacture and sale of railway tracks and steel bars. The company gave contracts for certain items of work to seven persons. The industrial dispute with regard to six contractors and their employees was referred to the tribunal under the first reference order, which is in issue in Writ No. 56 of 1960. The case of the seventh contractor and his employees is in issue in Writ No. 57 of 1960. The petitioner company regards all the contractors as independent contractors, while the latter claim to be supervisors in the employment of the petitioner company. The other 108 persons involved in Writ No. 56 of 1960 are those who were employed directly by the six contractors. The number of such employees involved in Writ No. 57 of 1960 is ten. The case of the petitioner company is that all these workers were employed by and were in the employment of the contractors, and not of the company; while the workers claim to be workmen under the employment of the petitioner company entitled to bonus and other privileges enjoyed by other workmen of the company.

4. During the years 1956-57 and 1957-58, the petitioner company paid bonus to its workmen; but no bonus was paid to the above contractors and their employees on the ground that they were not the workmen of the petitioner company. The contractors and their employees raised a dispute which was taken up by the workmen of Singh Engineering Works (P.), Ltd. through the secretary, iron and steel mazdoor union, Kanpur, respondent 3. Respondent 4 of Writ No. 57 of 1960 is the contractor, Lalloo Mistri, claiming to be in the employment of the company. The dispute with regard to six contractors and 108 workers was referred to the industrial tribunal by the State Government under Notification No. 254(LC)/XVIII-LA-868(KR)-1958, dated 4 May 1959, and the matters of dispute so referred to the tribunal for adjudication were:

(1) Should the workmen, whose names appear in the annexure, be treated as the employees of the concern? If so, to what relief are the workmen entitled?

(2) Should the employers be required to pay bonus to the workmen mentioned in the annexure for the years 1956-57 and 1957-58? If so, at what rate and with what details?

5. The dispute with regard to the seventh contractor, namely, Lalloo Mistri, and his ten employees was referred to the industrial tribunal by the State Government under Notification No. 242(LC)/XVIII-LA-1237(IKR)-1958, dated 8 May 1959, as subsequently amended by Notification No. 393 (LC)/XVIII-LA-1237-(IKR)-1958, dated 5 June 1959, and the matters of dispute so referred for adjudication were:

(1) Whether the workmen whose names appear in the annexure A are actually the workmen of Singh Engineering Works (P.), Ltd. (Steel Factory), Kanpur. If so, from which date and with what details?

(2) If the issue 1 is decided in the affirmative, should the employers be required to grant them reliefs mentioned in annexure B?

6. Annexure B to the reference order is as below:

(1) All the amenities that are provided to other workers of the concern.

(2) Leave with wages for the years 1956 and 1957.

(3) Bonus for the financial year 1956-57.

7. The finding of fact recorded by the industrial tribunal is that payment to the employees in question was made by the contractors themselves and not by the petitioner company, that the payment was made to the employees mostly on daily basis system; that whenever contractors' men were recruited, they were not called upon to fill a form prescribed by the standing orders framed by the employers' association of Northern India and whenever they went on leave, they did not apply for leave to the company but simply informed the contractor; that they were never charge-sheeted by the company and if their services were terminated, it was not the company which gave them notice; and that similarly, if these workers came to duty late or left before time, the company took no notice thereof. The tribunal also recorded a finding that the contractors' men, however, worked within the precincts of the factory and during factory hours; and that the management of the company had the power to lay down not only the nature of work to be done by the contractors and their men but also the method of doing it. It was also found that there was no agreement that the contractors would do the work with their own hands; it was their duty to get the work done. If, however, any contractor did any manual labour in addition to the work for which be had taken the contract, he was paid extra for such work.

8. After recording the above finding of fact, the tribunal expressed the opinion, on consideration of the provisions of Section 2(i) of the Uttar Pradesh Industrial Disputes Act (Uttar Pradesh Act 28 of 1947), to be referred hereinafter as the Act, that the contractors and their men were the workmen of the petitioner company. It was at the same time observed that the test laid down by the Supreme Court also justified the above Inference. At the end of the award, the tribunal summarized the findings as below:

Petition No. 56 of 1960

(a) The persons mentioned in the annexure are the employees and workmen of Singh Engineering Works (P.), Ltd. Kanpur.

(b) They are entitled to all the privileges to which other workmen are entitled.

(c) They are also entitled to the bonus for the years 1956-57 and 1957-58 equivalent to one-fourth of their basic wages in said years.

(d) The workmen shall get Rs. 100 as costs.

(e) All the above payments shall be made within two months of the award becoming enforceable.

Petition No. 57 of 1960

(a) The persons mentioned in annexure A other than Algoo, are the employees and workmen of Singh Engineering Works (P.), Ltd. (Steel Factory), Kanpur.

(b) They are entitled to all the privileges mentioned as items 1 and 2 in annexure B.

(C) They are also entitled to the bonus for the year 1956-57 equivalent to one-fourth of their basic wages in the said year.

(d) The workmen shall get Rs. 50 as costs.

(e) All the above payments shall be made within two months of the award becoming enforceable.

(f) Algoo is dead. His heirs not being before the tribunal, no adjudication is possible qua his rights.

9. The reliefs Bought in the two writ petitions are, naturally, for quashing the two reference orders and the awards and also the notifications under which the awards were published; but in the grounds of the petitions, only such points were raised as affect the status of the contractors and their men, whether they are or are not the employees or workmen of the petitioner company. The finding of the tribunal with regard to the amenities to which the contractors and their men were entitled was not specifically challenged. A casual reference was, however, made in the body of the writ petitions to the difficulties which shall have to be faced by the petitioner company, but even then this part of the award was not challenged. In these circumstances, it will not be proper for this Court to interfere with that part of the award which lays down that by virtue of their being the workmen of the petitioner company, they shall be entitled to the same benefits as the other workmen, unless, of course, the main finding recorded by the industrial tribunal, namely, that the contractors and their men were the workmen of the petitioner company for purposes of the Act, is found to be illegal, in whole or in part.

10. The important point for consideration, therefore, is, if, for purposes of the Act, the contractors and their employees are workmen and employees of the petitioner company and by virtue of their being workmen, are entitled to bonus, etc., out of the profits that the company made during the period in question.

11. The tribunal has Interpreted Section 2(1)(iv) of the Act to mean that the contractors and their employees were the workmen of the company. I am in substantial agreement with this view though it must be clarified that the contractors' men shall also be employees and workmen of the contractors by whom they were engaged. Such men would be employees of the contractors under the contract arrived at between them; but by virtue of the provisions of the Act, they shall also be employees or workmen of the petitioner company. When the workmen are employees of both the company and the contractors, they shall be workman of the petitioner company for certain purposes consonant with the object of the Act and, consequently entitled to many benefits at its expense and for other purposes they shall be employees of the contractor under whose direct employment they were. As far as contractors are concerned, they shall be, in appropriate oases, workmen and employees of the petitioner company and shall be entitled to such benefits as may be due under the law or the rules having the force of law.

12. The term 'workmen' is defined in Section 2(z) of the Act and the relevant part thereof is as below:

'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 purposes 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, but does not include any such person....

13. It will be found that the definition is in substance the same as contained in Section 2(s) of the Industrial Disputes Act 1947 (Act 14 of 1947). The definition of 'workman' as contained in the Central Act was considered by the Supreme Court in Dharangadhra Chemical Works, Ltd. v. State of Saurastra and Ors. 1957--I L.L.J. 477 and also in Chintaman Rao and Anr. v. The State of Madhya Pradesh 1958--II L.L.J. 252; and certain observations made therein can suggest that workman must be in the employment of the employer himself, in the present case, of the petitioner company, before he can be deemed to be an employee or workman of that employer. Their lordships of the Supreme Court were considering the scope of the word 'workman' under the Central Industrial Disputes Act or the Factories Act. They did not have in mind a case under the Uttar Pradesh Industrial Disputes Act. A workman in employment has to be in the employment of someone, that is, of the employer. If an enactment does not give the definition of the term 'employer,' or the definition contained therein does not, for all the practical purposes, go beyond the ordinary meaning of the word, we shall have to hold that a workman employed in the industry is in the employment of one who actually employs him and not necessarily the owner of the industry. But where the law defines the term 'employer,' or the definition contained meaning to the word and, if necessary, to give a wider meaning to the term 'employer ' and also to 'workman,' all the more, when it is found that the term 'workman ' has been defined with reference to the industry and not the employer. It is true that If the word 'employer' cannot be given a wider meaning, a workman shall, as laid down in the above cases, be one in the employment of an employer, and shall be an employee of one who employs him.

14. Section 2(i) of the Act gives the definition of the term 'employer,' Clauses (ii) and (iii) thereof are inapplicable to the facts of the present case and the purpose shall be served if only the material parts of the definition are quoted in this judgment. The relevant part of the definition is as below:

2 (i)--'employer' includes--

(i) an association or a group of employers;

* * *(iv) where the owner of any industry in the course of or for the purpose of conducting the Industry contracts with any person for the execution by or under such person of the whole or any part of any work which is ordinarily part of the industry, the owner of such Industry;

15. The legislature has not prohibited the giving of contract to others for the execution by or under such person of the whole or any part of any work which is ordinarily part of the industry. The owner of the Industry shall thus not be acting; illegally if he gives contract to others for execution of the whole of the work of the industry; and in such case he shall have no person under his direct employment. Consequently, if Clause (iv) was not incorporated in the definition of 'employer,' there could be an instance of an industry, the owner of which had no workman in his employment; all the workers of the industry would be in the employment of the contractors and would be the workmen of the contractors. Such an owner can utilize for himself all the profits of the Industry without sharing them with the workers. The legislature apparently realized such a possibility and made a provision by incorporating Clause (iv) in Sections 2(i) of the Act, that even though the owner has no one in his employment, he shall, for purposes of the Act, be deemed to be 'employer' of the workers employed by the contractors. To put it differently, even though the workers are employed by contractors and not by the owner of the industry, the owner becomes, in the eye of law, their employer.

16. It will be found that the definition of 'employer' as contained in. Sections 2(i) of the Act is not exhaustive; it is illustrative in the sense that it merely Indicates who come within the category of employers. Consequently, the actual employer of the worker shall not cease to be an 'employer.' In other words, the contractors men are the workmen of both the contractor and the company--of the company for purposes connected with the object of the enactment and also the particular benefit claimed, and of the contractor in other respects. Further, the workmen shall be entitled to all the amenities and privileges to which the workmen of the industry are entitled, unconcerned by whom such amenities or 'benefits' are to be provided. If under the contract between the owner of an industry and the contractor, the amenities or benefits are to be provided by the contractor, the initial responsibility shall be of the contractor but if for some reason he is not able to provide such amenities or benefits the workmen shall have the right to claim such amenities or benefits from the other employer, namely, the owner of the industry.

17. The above interpretation of the provisions of the Act, in one way, fulfils the test laid down in Dharangadhra Chemical Works, Ltd. v. State of Saurashtra and Ors. 1957--I L.L.J. 477 (supra). While considering the scope of Section 2(s) of the Central Industrial Disputes Act, 1947, their lordships of the Supreme Court observed that the essential condition of a person being a workman within the terms of that definition was that he should be employed to do work in that industry, there should be, in other words, an employment of his by the employer, and that there should exist relationship as between employer and employee or master and servant. Under the Central Industrial Disputes Act. 1917, the term 'employer' does not include the owner of the industry where the owner has, in the course of or for the purpose of conducting the industry, contracted with any person for the execution of the whole or any part of a work which is ordinarily part of the industry and consequently the employer of the contractor's men shall be the contractor himself and not the owner of the industry. But under the Uttar Pradesh Act, the owner of the industry is also an employer. There is no controversy with regard to the contractor's men being employed to do work in the industry. Such workers though employed by the contractor will, in view of Section 2(i) of the Act, be deemed to be in the employment of the owner also and there would exist the relationship as between employer and employee, such relationship having been created by statute.

18. To get over this difficulty, it was contended on behalf of the petitioner company that under Clause (iv) of Section 2(i) of the Act, the owner of the industry could, at the most, be regarded as employer of the contractor, but not of the contractor's men. This contention has no force. The Sub-section merely lays down 'who is an employer' and not 'of whom'; and consequently it will not be proper for us to add words on the supposition that the legislature had the intention to regard the owner of the industry as employer of a category of the employees only, namely, contractors. Thus under Clause (iv) of Section 2(i) of the Act, the owner of the industry shall be deemed to be the employer of all the workmen employed in the industry.

19. In this connexion, it may, however, be observed that a person who is given contract for the execution of a work shall be treated as contractor or workman depending upon whether the contract was for service or of service. If the contract was for service, the person would be a contractor and cannot be placed in the category of an employee or workman for purposes of the Act. On the other hand, if the contract was of service, even though the person is called a contractor, he shall, in the eye of law, be a workman.

20. A reference may now be made to a decision of the Madhya Pradesh High Court in Jabalpur Electric Supply Co. Ltd. v. State Industrial Court, Madhya Pradesh and Ors. 1959--II L.L.J. 74 in which a contrary view has been expressed. The definition of the term 'employer' as contained in Section 2 (11) of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, is in substance the same as in Section 2(i) of the Uttar Pradesh Industrial Disputes Act; but 'employee' has been defined in a different manner. The difference being that 'workman' as defined in Section 2(z) of the Uttar Pradesh Act is one employed in the industry, while 'employee' as defined in Section 2(10) of the Central Provinces and Berar Act is a person employed by an employer. In one, stress is laid on employment in the industry and in the other by the employer. Even when, in the eye of law, there are two employers, an employee can be of one who actually employs him. The Madhya Pradesh case is thus distinguishable but I am in respectful disagreement with the observation that under Section 2(11) of the Central Provinces and Berar Act, which is similar to Section 2(i) of the Act, an employer within the meaning of the local Act is the owner of the Industry and not a contractor. Such a finding could be based on the assumption that, in the eye of law, there could be only one employer, or that the definition of 'employer' as contained in the local Act is exhaustive. There can be two employers, one who actually employs and pays wages, etc, to the worker and the other under fiction of the law, i.e., for purposes of the Act. Further, as observed above, the use of word 'includes' makes it clear that the definition of 'employer' as contained in the local Act is illustrative and not exhaustive.

21. The definition of 'employer' as contained in Section 3(14) of the Bombay Industrial Relations Act (Act XI of 1947) is materially the same as in Section 2(11) of the Central Provinces and Berar Act and also Section 2(i) of the Uttar Pradesh Act: but the term 'employee' has been defined somewhat differently. The definition of 'employee' in the Bombay Act is on the lines of the definition contained in Section 2(3) of the Uttar Pradesh Act with the only difference that in the Bombay Act it has been clarified that 'employee' shall include a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of Clause (e) of Section 3(14) while Section 2(s) of the Uttar Pradesh Act is silent on this point. However, if Sections 2(i) and 2(z) of the Act are read together, it must be held that the Bombay Law on the above question is the same as contained in the Uttar Pradesh Act. The law laid down by the Bombay High Court in State of Bombay v. Maharashtra Sugar Mills 1951--I L.L.J. 137 which was affirmed in appeal by the Supreme Court in Maharashtra Sugar Mills v. State of Bombay 1951--II L.L.J. 299 and similar law laid down in Patel Mills, Ltd. and Anr. v. Ratilal Dahyabhai and Ors. 1957--I L.L.J. 675 can usefully be applied to the State of Uttar Pradesh also.

22. To sum up, in view of the definition of 'employer' as contained in Section 2(f) of the Act, the owner of the Industry, in the instant case, the petitioner company, is one of the employers of the contractor's men and the latter are 'workmen' within the meaning of Section 2(2) of the Act, though they shall be entitled to claim same benefits and privileges from the contractor in the first Instance and if the contractor does not provide such benefits and privileges from the owner of the industry. The workmen shall, however, be entitled to claim many benefits and privileges directly from the owner of the industry, provided that under the enactment or the nature of the benefits and privileges they can be provided and should be provided by the owner himself at his expense.

23. The next point for consideration is whether ID the eye of law, the contractors are also workmen entitled to benefits and privileges to which the workmen of the petitioner company are ordinarily entitled.

24. With regard to contractors the Industrial tribunal has recorded a finding of fact, namely, that the management of the petitioner company has power to lay down not only the nature of work to be done by the contractors but also the method of doing it, A finding of fact recorded by an Industrial tribunal, which is sole Judge of facts arising in an Industrial dispute referred to it for adjudication, cannot ordinarily be interfered with by the High Court in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India, Consequently, the legality or illegality of the award shall have to be determined keeping in mind the finding of fact recorded by the tribunal. At this place it may however be observed that this finding cannot be said to be improper; that was the only finding which could be recorded on the basis of the evidence adduced by the parties.

25. Whether the contract is for service or is of service was considered by their lordships of the Supreme Court in Dharangadhra Chemical Works, Ltd. v. State of Saurashtra and Ors. 1957--I L.L.J. 477 (supra) and the view expressed therein was affirmed in another Supreme Court decision in the case of Chintaman Rao and Anr. v. State of Madhya Pradesh 1958--II L.L.J. 252 (supra).

26. The main test for determination of the above question was held to be the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or as observed by lord Uthwatt at p. 23 in Mersey Docks and Harbour Board v. Coggtns and Griffith (Liverpool), Ltd. 1947-I A.C.1 at p. 23 (E):

The proper test is whether or not the hirer had authority to control the manner of execution of the Act in question.

27. In the present case, the petitioner company had the power not only to lay down the nature of work to be done but also the method of doing it. The above test is thus fulfilled, and the status of the contractors of the petitioner company shall be of an employee, that is, workman, and not of a contractor. It is true that contractors are not bound, or may not even be expected themselves to do the work, but to have it done by engaged labour. They are thus not workmen in the sense that they are expected to do a skilled or unskilled work but the work that they have to do is of a supervisory nature and such a worker shall also come within the definition of 'workman' as contained in Section 2(3) of the Act. In other words, the contractors of the petitioner company were rightly placed in the category of 'workman' for purposes of the Act.

28. To conclude, the contractors who call themselves supervisors and also the workmen employed by the contractors are 'workmen' who could not only raise the Industrial disputes but claim amenities and other benefits which are ordinarily admissible to other workmen of the petitioner company.

29. This leads us to another important question, which has already been briefly commented upon above, from whom can the workers claim the various amenities and privileges? This is a very general question which cannot properly be adjudicated upon unless an issue is raised and the parties adduce their full evidence. However, it may be observed that the ultimate responsibility shall be of the owner of the industry, who is. In the eye of law, an employer, but for many purposes the Initial responsibility shall rest on the actual employer, that is, the contractor. The legislature has not prohibited the owner of an industry from giving contract of the whole or any part of the work of the industry and when no prohibition exists, any contract that the owner makes with the contractor shall-be valid and it is but equitable that the contract should be given due weight, For example, it will be wrong to lay down that the labour employed by the contractor can, in the first instance, demand their wages from the owner of the industry. They have been employed by the contractor who would be made payment by the petitioner company on the basis of the contract between them, and in such circumstances, the workers should demand wages from the contractor. If a contrary view is taken, we would be ignoring the terms of the contract between the owner of the industry and the contractor which was not the intention of the legislature.

30. A general question, whether the contractors and their men are entitled to the privileges to which the other workmen of the company are ordinarily entitled, was referred to the Industrial tribunal, and it has answered the question in the affirmative. Broadly speaking, this finding cannot be said to be against the law; but the tribunal has not indicated from which employer the privileges were to be claimed in the first Instance--whether the workman can claim all the privileges in the first instance from the owner of the industry or they must first of all claim the privileges from the contractor who actually employed them and when he fails to provide the privileges, to make a demand from the petitioner company. In the circumstances, the two awards in question cannot be said to be complete by themselves, and may have to be quashed to enable the tribunal to make an award in accordance with the law.

31. The question of bonus had been specifically raised in both the references and on this point the finding recorded by the tribunal cannot be said to be unjustified. The legislature has made no provision in the Act for the payment of bonus nor has any such provision been made in any other enactment. The award of bonus to workers is more by practice and convention than under some law. Bonus is not a bounty but by labour practice has become a right which the workmen can claim as their legitimate share out of the profits accruing to the industrial concern as a result of their labour. The profits accruing to the industrial concern have to be shared both by persons providing the capital and by the labour. A part of the profits goes to persons providing the capital, i.e., to shareholders or the owners of the Industry, while a reasonable share goes to the workmen by way of additional cash payment for the extra output or the profits of the concern. The meaning of bonus and the nature and character thereof was considered by the Supreme Court in Sree Meenakshi Mills, Ltd. v. Their workmen 1958--I L.L.J. 239 and the observations made therein can usefully be reproduced hereinbelow:

The true nature and character of the workmen's claim for bonus against their employers is now well settled. Bonus is not, as its etymological meaning would suggest, a mere matter of bounty gratuitously made by the employer to his employees; nor la it a matter of deferred wages... the term ' bonus' is applied to a cash payment made in addition to wages. It generally represents the cash incentive given conditionally on certain standards of attendance and efficiency being attained. This is based on the view that both labour and capital contribute to the earnings of the industrial concern and so it is but fair that labour should derive some benefit if there is surplus available for that purpose. Even so, the claim for bonus cannot be effectively made unless two conditions are satisfied; the wages paid to workmen fall short of what can be properly described as living wages; and the industry must be shown to have made profits which are partly the result of the contribution made by the workmen in increasing production.

32. When the payment of bonus is based on the view that both labour and capital contribute to the earnings of the industrial concern, no other opinion can be formed except that the bonus is payable by the Industrial concern and not by the actual employer, in the present case, contractor. Consequently, bonus shall be payable by that employer who is the owner of the Industry and not by the employer who actually engages them. Keeping the above principle in mind, it was rightly held by the tribunal that bonus was payable to both the contractors and the workmen by the petitioner company.

33. The findings recorded by the Industrial tribunal in both the cases were thus within jurisdiction and in accordance with the law, except on one point where it was held that all the persons concerned, namely, the contractors and their men, were the employees and workmen of Singh Engineering Works (Private), Limited, Kanpur, suggesting thereby that there was only one employer and the contractor was not the employer of the workmen. To this extent the finding is clearly illegal.

34. What is required, in substance, is the clarification of finding (a) recorded in both the references. While exercising jurisdiction under Article 226 of the Constitution of India, High Courts do not usurp the functions of a Court of appeal and for that reason cannot have the power to modify the award. The High Courts can thus merely quash that part of the award which is against the law or without Jurisdiction, and to maintain the rest if the valid part thereof is enforceable, further, it is the operative part of the judgment of a Court of law which is binding on the parties; and if this Court does not quash the award in whole or in part, the award to the extent it is not quashed can be enforced without taking into consideration any observation that this Court may have made in the body of the judgment. When the awards cannot be modified by this Court, the only option left is to quash that part of the award which is not in accordance with the law. In the circumstances finding (a) recorded in both the oases shall have to be quashed. This is, for all purposes, a declaratory part of the award, the rest being a consequential one. Once the declaration la quashed, remedies available cannot be enforced as it shall not be known against whom the claim can be made or who can be called upon to provide the amenities, privileges, etc The proper order to be passed by this Court, therefore, is to such both the awards so that the Industrial tribunal may make a proper award in accordance with the law.

35. Both the petitions are hereby allowed and it is ordered that a writ of certiorari be issued to quash the awards, dated 26 September 1969, made in References 14 and 15 of 1959. It is further ordered that a writ of mandamus shall go to the Government of the State of Uttar Pradesh, respondent 2, to withdraw the notifications, dated 8 October 1959, under which the two awards were published. Both the references shall be deemed to be still pending before the industrial tribunal and it shall now make the award in accordance with the law. Costs on parties.


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