Yashoda Nandan, J.
1. By means of a notification dated 28th November, 1972 the State Government under Section 4K of the Industrial Disputes Act referred the following two disputes for adjudication to the Industrial Tribunal, respondent No. 2;
(1) Kya Sevayojkon Dwara parishist 'ka' me ullikhit shramikon ko arthik varsh 1970-71 ka bonus bhugtan na kiya jana uchit tatha/athwa vaidhanik hai? Yadi nahi to, we kis dar evam anya kis vibran sahit bonus pane ke
(2) Kya sevayoikon dawara parshist' kha' me ullikhit shramikon ko 1970-71 ka vibhinna daron par bonus vitarit karna uchit tatha Vaidhanik hai? Yadi nahi, to sambandhit sabhi shramik kis dar se bonus pane ke adhikari hain evam anya kis vivran sahit?
2. Written statements were exchanged between the employer, the petitioner, and the union representing the workmen concerned which has been impleaded as respondent No. 1 to the writ petition. The validity of the reference was challenged by the employer on the ground that by reason of Section 39 of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966, the dispute which had been raised should have been referred to a Tribunal constituted under Industrial Disputes Act, 1947. This contention was repelled by the presiding officer of respondent No. 2 by an order dated 22nd February, 1973. The award impugned was given by the Tribunal that the persons who were engaged by the concern for packing of beedis were merely Thekedars and not the employers of the concern within the meaning of the Payment of Bonus Act, 1965 (hereinafter referred to as the Bonus Act.) While discussing this question the Tribunal held as follows:
'Evidence shows' that they were receiving payment of their wages directly from the employer and not through any intermediary and also getting weekly off-day. They worked in the premises of the concern as they worked for the concern, even if they had no fixed hours of duty So long as there was middlemen or intermediary between the employer and the packers, the relationship of employer and employee would be deemed to exist between them and they would be entitled to receive bonus like all other employees.
3. The Tribunal found that bonus had not been paid to the workmen in accordance with the provisions of the Bonus Act and that the action of the employer in paying the bonus to the workmen named in Annexure (kha) at varying rates, therefore, improper and also illegal. It was held that 'all the persons named in Annexure (kha) were the employees of the concern at its two Branches at Jhansi and Garish Pathak and were entitled to get bonus for the accounting year.' In the award it was observed that the employer had not disclosed its profit for the year in question although he was called upon to file the profit and loss account and the computation chart. This, according to the Tribunal, was deliberate on the part of the employer. It was observed in the award that the presiding officer had consequently no material before him on the basis of which the available surplus of the concern could be worked out. The operative part of the award is in the following terms:
My award, in the circumstances, is that the employer shall calculate the available and allocable surplus for the accounting year 1970-71 in accordance with the provisions of the Payment of Bonus Act, 1965 and distribute bonus at uniform rate to all the employees named in the two Annexures. The amount of bonus which has already been paid to some of the employees, shall be suitably adjusted against the amount found payable to them after the computation of the available and allocable surplus. The required action must be completed by the employer within on e month and the payments made within six weeks from the date of publication of the award in the Official Gazette.
4. Aggrieved by the award the employer has filed this writ petition and prays for a writ of certiorari or any other similar order or direction quashing the reference made by the State Government under the notification in question. The petitioner also prays that the award dated 18th July, 1973 passed by the Industrial Tribunal, respondent No. 2, be quashed.
5. Learned Counsel appearing for the petitioner has in support of this petition, urged firstly that the packers, who have been found by the Tribunal to be employees of the petitioner for the purposes of the Bonus Act, were not employees and consequently not entilted to bonus. In support of his contention he has placed reliance on the observation contained in the decision of the Supreme Court in the State of Kerala and Anr. v. R.E.D Souza : 1971CriLJ689 . The question that came up for consideration in the above-mentioned case of the Supreme Court was as to whether the respondents to the appeal were not 'workers' within the meaning of Section 2(1) of the Factories Act. Section 2(1) of the Factories Act is practically in terms identical with Section 2 of the Bonus Act which defines 'employees' as 'any person (other than an apprentice) employed on a salary or wage not exceeding one thousand and six hundred rupees permanent in any industry to do any skilled or unskilled manual, supervisory, managerial, administrative, technical or clerical work for hire or reward, whether the terms of employment be express or implied.'
6. The nature of work done by the respondents in the State of Kerala and Anr. v. R.E.D' Souza (supra) has been quoted in the decision of the Supreme Court as follows:
This document shows that as and when catches of prawns are made, a consignment of prawns is brought to the premises in a lorry at any time of the day or the night, that the women and girls of the locality, who form a 'casual, heterogeneous, miscellaneous and irregular group', come at their convenience and do the peeling, washing, etc., at piece-rates, and that there are no specified hours of work, nor is there any control by the petitioner over the irregularity and attendance or of the nature, manner or quantum of their work. The same workers after finishing the work in the premises of the petitioner, go to another similar premises in the locality where other lorry loads of prawns are taken. In other words, if more prawns are caught at a particular time, they are brought and distributed among several premises like the petitioner's and the local women and girls collect at the several premises and do the work at piece-rates. The same workers do not go to the same premises on different occasions and the owners of the several premises do not have any control over the manner or quantum of work these women and girls do. The rates of remuneration naturally depend upon the quantity of prawns available, the number of women and girls that come to do the work, the hour of the day or the night when the catches arrive, etc. Sometimes, for days no work is done in the premises.
7. Learned Counsel for the petitioner contended that packers who admittedly worked in the premises of the petitioner-employer also had no regular hours of work and were at liberty to work or not on a particular day. In our opinion, the decision in the State of Kerala and another (supra) is of no assistance to the petitioner. In the instant case undisputably the packers, who were claiming payment of bonus did not constitute casual, heterogeneous, miscellaneous and irregular group but were irregularly working as packers in the premises of the petitioner. It is true that on any particular day they may choose to attend to the work at the premises of the factory or not but nonetheless they were employees of the petitioner within the meaning of the Bonus Act since on those days on which they did work, they worked under the control and supervision of the petitioner, and the mere fact that the payment was on daily wages did not affect their status as employees.
8. It was next contended that the dispute which had been referred for adjudication under Section 4K of the U.P. Industrial Disputes Act would be referred for adjudication only under the Central Act in view of Section 39(1) of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966. This contention, in our opinion, is unsound. The Beedi and Cigar Workers (Conditions of Employment) Act provides the conditions of employment of Beedi and Cigar Workers. The various sections of the Act make incumbent on the employer to maintain the prescribed standard of cleanlines, ventilation, drinking water facilities, latrines and urinals, working hours, payment of wages for overtime work, interval for rest, etc. This Act has nothing to do with payment of bonus to the workers employed by such concerns. When Section 39(1) of the Beedi and Cigar Workers (Conditions of Employment) Act provides that the Central Act shall apply to matters arising in respect of every industrial premises. It clearly means that in the event of any dispute arising between the workers and the employer in respect of any working condition provided by the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 it shall be adjudicated upon under the provisions of the Central Act. As already observed, this Act does not deal with payment of bonus to the workmen at all. On the other hand, the Bonus Act is concerned only with one condition of service of workmen, namely, the payment of bonus to them. Section 22 of Bonus Act provides:
Where any dispute arises between an employer and his employees with respect to the bonus payable under this Act.then such dispute shall be deemed to be an industrial dispute within the meaning of the Industrial Disputes Act, 1947, or of any corresponding law relating to investigation and settlement of industrial disputes in force in a State and the provisions of that Act, or, as the case may be, such law, shall save as otherwise expressly provided, apply accordingly.
The U.P. Industrial Disputes Act is a law corresponding to Central Act relating to investigation and settlement of industrial disputes in this State. A dispute had arisen between the petitioner and its employees with regard to payment of bonus. To a dispute of this very character Section 22 of the Bonus Act is clearly applicable and consequently the Industrial Tribunal, in our opinion correctly held by its order dated 22nd February, 1973 that the reference made under Section 4K was not invalid.
9. There is yet another reason why the petitioner cannot be allowed to raise this contention at this stage. By an order dated 22nd February, 1973 as already stated, it had been held by the Industrial Court that the reference was valid and it proceeded to decide the dispute referred to it. The decision dated 22nd February, 1973 was one with respect to a jurisdictional question. The petitioner did not challenge its legality or question any further the power of the Industrial Court to proceed to decide the issues referred to it. It is obvious that it took the chance of obtaining an award in its favour on merits. It is only when the award has gone against the petitioner that it has chosen to raise this question. The conduct of the petitioner disentitles it to be heard on this question and to challenge the ultimate award on this ground.
10. Learned Counsel for the petitioner ultimately contended that contrary to the material on record the Industrial Tribunal has wrongly observed that the petitioner had not filed his profit and loss account and consequently it was not in a position to work out the available surplus of the concern. In support of his contention, he has placed reliance on the assertion made in paragraph '21' of the. petition to the effect that the petitioner had submitted its balance-sheet for the year 1970-71 and the learned Industrial Tribunal has completely ignored the balance-sheet filed by it. The counter-affidavit that has been filed in opposition to the writ petition does not specifically deny the claim that the petitioner had filed its balance-sheet for the year 1970-71, It was also urged that in either of the two disputes referred to the Tribunal it was required to determine the rate at which bonus was to be paid to the aggrieved workmen, and the award was incomplete since the Tribunal had not determined the rate at which the petitioner was required to pay bonus to the aggrieved workmen. In our opinion, there is force in this contention. We have closely examined the award and it does not appear that the rate at which the workmen of the petitioner had to be paid bonus by it has been left undecided. This is likely to lead to a further dispute between the petitioner and its workmen. It is true that in the award the petitioner has been directed to distribute the bonus at an uniform rate to all the employees named in the two annexures. In the absence of the rate being specified, the petitioner, however, would be handicapped in carrying out the directions contained in the award. We consequently, while upholding the rest of the award, quash the directions contained in paragraphs 10 and 11 thereof. The respondent is directed to determine the late at which bonus is to be paid by the petitioner to the workmen concerned. In case, as asserted by petitioner, the balance-sheet is on record, there should be no difficulty in the Industrial Tribunal itself determining the available surplus for computation of the amount of bonus to which the workmen concerned are entitled. In any case the Industrial Tribunal is armed with powers enough to compel the petitioner to provide its profit and loss account. Learned Counsel appearing for the petitioner has undertaken to produce the balance-sheet and profit and loss accounts, etc., in case the balance-sheet is not already on record.
11. The petition thus stands partly allowed. The case will go back to the Industrial Tribunal for completion of the award in accordance with the directions contained in this judgment within two months of a certified copy of this order being produced before it by respondent No. 1, parties shall bear their own costs.