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Malabar Tile Works, Feroke, Kerala, a Partnership Firm and ors. Vs. Union of India (Uoi), Represented by the Secretary, Ministry of Labour, New Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Case NumberO.P. No. 2368 of 1965
Judge
Reported inAIR1968Ker143; (1967)IILLJ816Ker
ActsConstitution of India - Articles 14, 19, 19(1), 20(3), 226, 245, 246 and 358; Payment of Bonus Act, 1965 - Sections 1(3), 1(5), 2(13) and 27(2); Factories Act, 1948 - Sections 2
AppellantMalabar Tile Works, Feroke, Kerala, a Partnership Firm and ors.
RespondentUnion of India (Uoi), Represented by the Secretary, Ministry of Labour, New Delhi and ors.
Appellant Advocate V.K.K. Menon,; M. Ramachandran and C.J. Balakrishnan, Advs.
Respondent Advocate Adv. General,; T.C.N. Menon,; K.R. Panicker,;
DispositionPetition dismissed
Cases Referred and Kunl Behari Lal v. Union of India
Excerpt:
.....- definition employed in act and provision therein relating to payment of bonus to all persons - petitioners cannot challenge it on ground that as per section 2 (13) persons eligible to get bonus should be restricted to only workmen - no unreasonable restrictions in sections 27 (2) (b) or 27 (2) (c) as provisions supplement implementation of act and not in any manner violative of article 19 (1) (g) - held, petition dismissed. - - -where any money is due to an employee by was of bonus from his employer under a settlement or an award or agreement, the employee himself or any other person authorised by him in writing in this behalf, or in the case of the death of the employee, his assignee or heirs may without prejudice to any other mode of recovery, make an application to..........as defined in the industrial disputes act, 1947. it was contended that a law providing payment of bonus to a person other than the workman is beyond the legislative competence of the parliament. this contention has no substance. entries 23 and 24 in list iii in the seventh schedule of the constitution read as follows:'23 social security and social insurance; employment and unemployment24. welfare of labour including, conditions of work provident funds, employer's liability, workmen's compensation, invalidity and old-age pensions and maternity benefits.'the word 'employment' or 'employee' or 'workman' is not defined in the constitution. we have no doubt that the definition employed in the act and provision therein relating to the payment of bonus to all persons falling within the said.....
Judgment:

Isaac, J.

1. This Original Petition has been filed by twelve employers, who are mainly engaged in the manufacture and sale of roofing tiles, bricks and allied goods, for a declaration that the Payment of Bonus Ordinance, 1965, which was promulgated by the President of India on the 29th May, 1965, is unconstitutional, and for a writ in the nature of a mandamus restraining respondents 1, 2 and 3 from enforcing the provisions of the Ordinance against the petitioners. Respondents 1, 2 and 3 are the Union of India, the State of Kerala and the Industrial Tribunal, Calicut respectively. The remaining respondents are the Trade Unions representing the workers employed in the petitioners' factories. This Ordinance was replaced by the Payment of Bonus Act, 1965 (hereinafter referred to as the Act), which came into force on the 25th September, 1965. Accordingly the petitioners sought for some consequential amendments in the Original Petition; and it was allowed. The constitutional validity of the Act as a whole and several provisions contained therein came up for decision before the Supreme Court in Jalan Trading Co. (Private) Ltd. v. Mill Mazdoor Union, 1966-2 Lab LJ 546 = (AIR 1967 SC 691) which was rendered on the 5th August 1966. This decision upheld the Act as constitutional, and also upheld certain provisions of the Act which were attacked in that case. In view of the said pronouncement of the Supreme Court, the learned counsel for the petitioners confined his attack only against a few provisions of the Act.

2. The first contention advanced by the learned counsel was that sub-sections (3) and (5) of Section 1 of the Act are unconstitutional, as they offend Article 14 of the Constitution. Section 1 of the Act reads as follows:

'1. Short title, extent and application:

(1) This Act may be called the Payment of Bonus Act, 1965.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) Save as otherwise provided in this Act, it shall apply to--

(a) every factory; and

(b) every other establishment in which twenty or more persons are employed on any day during an accounting year.

(4) Save as otherwise provided in this Act, the provisions of this Act shall, in relation to a factory or other establishment to which this Act applies, have effect in respect of the accounting year commencing on any day in the year 1964 and in respect of every subsequent accounting year.

(5) An establishment to which this Act applies under Clause (b) of Sub-section (3) shall continue to be governed by this Act notwithstanding that the number of persons employed therein falls below twenty.' Under Section 1(3) the Act applies to -- (a) every factory, and (b) every other establishment in which twenty or more persons are employed on any day during an accounting year. Section 1(5) does not apply to a factory, but only to an establishment other than a factory. It provides that an establishment to which the Act applies under Clause (b) of Sub-section (3) shall continue to be governed by the Act, notwithstanding that the number of persons employed therein falls below twenty. The factory is defined in Section 2(17) of the Act. According to this definition it shall have the same meaning as in Clause (m) of Section 2 of the Factories Act, 1948, which reads as follows:

'2. Interpretation -- In this Act, unlessthere is anything repugnant in the subjector context,--* * * *

(m) 'factory', means any premises including the precincts thereof--

(i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or

(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on, -- but does not include a mine subject to the operation of the Mines Act, 1952 (XXXV of 1952) or a railway running shed.'

It is clear from the above definition that any premises which is a factory will cease to be a factory, if the number of workers working therein falls short of ten, in the case of a factory where manufacturing process is being carried on with the aid of power, and if such number falls below 20, in the case of a factory working without the aid of power. It was, therefore, submitted by the learned counsel for the petitioners that the Act is made applicable to a factory only so long as it remains as a factory, whereas it is made applicable to an establishment other than factory to which the Act once applied, even if the number of workers falls below 20. In other words, in the case of a factory to which the Act once applied, the Act ceases to apply, when the number of workers working therein falls below ten or twenty, as the case may be at the relevant time. But in the case of an establishment other than a factory, towhich the Act once applied, the Act continues to apply, even if the number of workers is reduced to one. It was contended that this is discrimination between a factory and an establishment other than a factory, without any discernible reason or basis, and that Sub-sections (3) and (5) of Section 1 of the Act are, therefore, violative of Article 14 of the Constitution.

3. The above argument is based on a construction which the learned counsel is putting to Sub-section (5) of Section 1 of the Act to the effect that according to the subsection, the Act shall continue to apply to an establishment other than a factory, even if the number of workers therein falls below twenty, provided that the Act had once applied to such an establishment. As we take the view that the petitioners are not competent to attack the constitutional validity of Sub-sections (3) and (5) of Section 1 of the Act, it if unnecessary for us to decide whether the above construction which learned counsel seeks to give to Section 1(5) of the Act is correct or not. Assuming that he is right, his clients can have no complaint that any one of them has been subject to an unfavourable treatment, because of the fact that Sub-sections (3) and (5) of Section 1 of the Act treat a factory and an establishment other than a factory on a different basis.

The petitioners are either owners or occupiers of factories; and we are concerned in this case only with factories, and not any establishment other than a factory, to which alone Section 1(5) applies. The petitioners are in a more advantageous position, if the Act has dealt with factories and establishments other than factories in a differential manner, as they contend It is a well-established proposition of law that a person who is not aggrieved by the alleged differential treatment cannot complain of discrimination. In Hans Muller of Nurenburg v Superintendent. Presidency Jail, Calcutta, AIR 1955 SC 367 the Supreme Court dealing with a similar argument s'aid as follows:

'We do not intend to examine this contention because, even if it be true that there is the discrimination alleged, namely between one class of British subject and another, that will not give the petitioner a right of challenge on this ground. He is not a British subject and so is not a member of the only class that could claim to be aggrieved on this score. This Court has decided in earlier cases that the only persons who can impugn any given piece of legislation under Article 32 are those who are aggrieved thereby As the petitioner is not a person aggrieved so far as this point is concerned, he not being a British subject he cannot attack the section on this ground '

The same principle is affirmed in the decisions of the Supreme Court In Matajog Dobey v. H. C. Bhari, AIR 1956 SC 44; Calcutta Gas Co (Proprietary) Ltd v. State of West Bengal, AIR 1962 SC 1044 and Kunl Behari Lal v. Union of India, AIR 1963 SC 518 The petitioners are, therefore, not competent to challenge the constitutional validity of Sub-sections (3) and (5) of Section 1 of the Act on the ground of discrimination and we accordingly overrule this contention.

(4) The petitioners' next attack was directed against Section 2(13) of the Act which defines an employee as follows:

' 'employee' means any person (other than an apprentice) employed on a salary or wage not exceeding one thousand and six hundred rupees per mensem 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.'

The petitioners' learned counsel submitted that, under the above definition, a person employed in a supervisory managerial, or administrative work, and drawing a salary not exceeding Rs 1600 per month is also an employee and is entitled to get bonus, even though he is not a 'workman' as defined in the Industrial Disputes Act, 1947. It was contended that a law providing payment of bonus to a person other than the workman is beyond the legislative competence of the Parliament. This contention has no substance. Entries 23 and 24 in List III in the Seventh Schedule of the Constitution read as follows:

'23 Social security and social insurance; employment and unemployment

24. Welfare of labour including, conditions of work provident funds, employer's liability, workmen's compensation, invalidity and old-age pensions and maternity benefits.'

The word 'employment' or 'employee' or 'workman' is not defined in the Constitution. We have no doubt that the definition employed in the Act and provision therein relating to the payment of bonus to all persons falling within the said definition is within the ambit of the aforesaid rule

5. The next attack was against Section 21 of the Act which --gads as follows:

'Recovery of bonus due from an employer. --Where any money is due to an employee by was of bonus from his employer under a settlement or an award or agreement, the employee himself or any other person authorised by him in writing in this behalf, or in the case of the death of the employee, his assignee or heirs may without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government or such authority as the appropriate Government may specify in this behalf is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue.'

This Section has two provisos and an Explanation, and they are not extracted here, being not relevant to the controversy). The petitioner's learned counsel contended that the power vested under this Section on the appropriate Government for the recovery of an amount claimed by an employee by way of bonus, as an arrear of land revenue, is arbitrary and unguided, in so far as the Act does not provide any machinery for determining the question whether any bonus is due or not, in case the liability is disputed by the employer. We do not think that this contention is correct. In the first place, the Section itself provides that a certificate for the recovery of the bonus claimed by the employee shall be issued to the Collector only 'if the appropriate Government or such authority as the appropriate Government may specify in this behalf, is satisfied that the money is so due'. So the power vested in the Government or the specified authority, as the case may be, is not arbitrary or unguided.

In a case where the claim of an employee is disputed, it is open for the employer to satisfy the Government or the specified authority that the amount is not due; and no action is likely to be taken under this Section before hearing an employer against whom the claim is made. Secondly, the Section only makes the machinery for the recovery of an arrear of land revenue available also for the recovery of bonus due to an employee under the Act. If the claim is disputed, the employer can resort to all the remedies available to him, as on the case of an arrear of land revenue, when the liability to pay the same is disputed. After all, the petitioners are not complaining before us of any arbitrary or unreasonable treatment under Section 21 of the Act, but only the possibility of being subjected to such treatment. We do not think that this apprehension is well founded.

6. The last attack was on Clauses (b) and (c) of Section 27(2) of the Act, which reads as follows:

'27(2) An Inspector appointed under Sub-section (1) may, for the purpose of ascertaining whether any of the provisions of this Act has been complied with--

(a) require an employer to furnish such information as he may consider necessary;

(b) at any reasonable time, and with such assistance, if any, as he thinks fit, enter any establishment or any premises connected therewith and require any one found in charge thereof to produce before him for examination any accounts, books, registers and other documents relating to the employment of persons or the payment of salary or wage or bonus in the establishment:

(c) examine with respect to any matter relevant to any of the purposes aforesaid, the employer, his agent or servant or any other person found in charge of the establishment or any premises connected therewithor any person whom the Inspector has reasonable cause to believe to be or to have been an employee in the establishment;

(d) make copies of, or take extracts from, any book, register or other document maintained in relation to the establishment;

(e) exercise such other powers as may be prescribed.'

The contention is that Clauses (b) and (c) of Section 27(2) create unreasonable restrictions on the fundamental right of a citizen under Article 19(1)(g) of the Constitution to carry on any occupation, trade or business, and that the power under Clause (c) given to the Inspector appointed under this Section to examine the employer, his agent, or servant or other person found in charge of the establishment is violative of Article 20(3) of the Constitution, as it amounts to testimonial compulsion.

Apart from the fact that Article 19 is not available to the petitioners, as it stands suspended under Article 358 of the Constitution, in view of the Proclamation of Emergency being still in operation, we do not find any unreasonable restrictions in the provisions contained in Clause (b) or (c) of Section 27(2) of the Act. These provisions have been made for the purpose of ascertaining whether any of the provisions of the Act has been complied with; and they do not, in any manner, interfere with the fundamental right under Article 19(1)(g). It is also well established that the possibility of a person being accused of any offence does not give immunity to him from being examined for a lawful purpose. The examination contemplated under Clause (c) is not for the purpose of establishing any offence against the person examined, but only for the purpose of ascertaining whether any of the provisions of the Act has been complied with. Article 20(3) of the Constitution has no application to such a case.

7. In the result, this petition falls, andis hereby dismissed. In the circumstances of the case, we make no order as to costs.


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