P.D. Desai, J.
1. The petitioner is a company incorporated in the year 1958 under the provisions of the Companies Act, 1956. After setting up its plant, the petitioner company went into production in December 1962. By 1972 it had about 2000 employees on its pay-roll. At the material time, the respondent was employed in the textile department of the rayon division of the petitioner Company on a monthly salary of Rs. 225/-.
2. The case of the petitioner Company is that during the initial years after commencement of production it made no profit; and, that therefore, no demand for bonus was made by the workmen for the first few years. During the account years 1963-64 to 1966-67 no profit having been made, the petitioner Company was not even otherwise liable to pay bonus to its employees in view of the relevant provisions of the Payment of Bonus Act, 1965 (hereafter referred to as 'The Bonus Act'). The question of bonus was for the first time raised by Baroda Rayon Mazdoor Union for the year 1967. By that time the Bonus Act had come into force. In the course of negotiations, it was brought to the notice of the Union that in view of Section 16 of the Bonus Act, no bonus was payable to the workmen since no profit was earned for the 12 months-period ending with December, 1967. The Union, however, pressed for payment of ex-gratia bonus, and in the interest of continued cordial relatians, the petitioner Company agreed to make ex-gratia payment of bonus as a goodwill gesture. The petitioner and the Union, therefore, entered into a settlement on February 14, 1968; and under the said settlement, the petitioner agreed to pay ex-gratia bonus at the rate of 4 per cent of the total wages (inclusive of dearness allowance, but exclusive of other allowances, overtime, perquisites and ex gratia payments) for the period commencing from January 1, 1967, and ending with December 31, 1967 to those workmen who satisfied the conditions laid down in the settlement. The settlement in terms provided that the question of bonus for future years would be considered as and when admissible strictly in accordance with the provisions of the Bonus Act.
3. On February 9, 1977, the respondent preferred an application under Section 33C (2) of the Industrial Disputes Act, 1947 (thereafter referred to as 'the Act') in the Court of the Presiding Officer, Labour Court, Ahmedabad seeking to recover a sum of Rs. 350/- per year or such other sum which may be determined by the Labour Court as bonus for the years 1964-65, 1965-66 and 1966-67 and praying that a certificate be issued for the recovery of the said amount from the petitioner. The substance of the application was that the provisions of the Bonus Act were applicable to the establishment of the petitioner and, that therefore, the workmen including ths respondent employed by the petitioner company were entitled to payment of bonus. In terms, the plea was that the petitioner having made huge profit during the relevant period, the respondent was entitled to the minimum bonus at the rate of 4 per cent under the provisions of the Bonus Act. The said recovery application was resisted by the petitioner by its written statement dated April 26, 1977. In the forefront, the petitioner raised a preliminary objection to the effect that the Labour Court had no jurisdiction to entertain and try the respondent's application under Section 33C(2) of the Act and to grant relief to him as prayed. The petitioner relied upon the provisions of Section 22 of the Bonus Act and contended that the question whether the respondent was entitled to claim bonus depended upon the determination of a further question, viz, whether the petitioner was entitled to infancy benefit under Section 16 of the Bonus Act and that by virtue of the provisions of Section 22 of the Bonus Act, a dispute of such a nature would be deemed to be an industrial dispute within the meaning of the Act and that, therefore, an application under Section 33C(2) was not maintainable. Certain other prelirninary objections as well as contentions on merits were also raised, in the course of the said written statement. Ths Recovery Application came to be transferred to the Presiding Officer, Labour Csurt, Surat upon the establishment of the said Court. The Labour Court tried the aforesaid preliminary objection raised on behalf of the petitioner as a preliminary issue. At the hearing of the said preliminary issue, written argumentswere submitted on behalf of the petitioner on October 18, 1977. Upon aperusal of the written arguments, it appears that the petitioner buttressed its preliminary objection also on the ground that a proceeding under Section 33C(2) of the Act could be instituted only when there is an existingright to an amount or to any benefit which is capable of being computedin terms of money and that since the question whether the respondent was entitled to claim bonus for the period in question was seriously in dispute, in view of the provisions of Section 16 of ths Bonus Act, and such a dispute could only be resolved in the course of an industrial adjudication, an application under Section 33C(2) of the Act was not maintainable. By its impugned decision rendered on November 17, 1977, the Labour Court rejected the preliminary objection and held that it had jurisdiction to entertain and decide the individual claim for bonus raised by the respondent notwithstanding the provisions of Section 22 of the Bonus Act. Hence the present writ petition.
4. At the hearing of the petition, two contentions, broadly speaking, were advanced on behalf of the petitioner. First, Section 22 of the Bonus Act enacts that any dispute arising between an employer and the employees with respect to the bonus payable under the Bonus Act shall be deemed to be an industrial dispute within the msamng of the Act, and that since, in the instant case, the petitioner's contention is that having regard to the provisions of Section 16 of the Bonus Act, the respondent is not entitled to any bonus for the period in question, the dispute could only be resolved by an industrial adju dication under Section 10 and not in a proceeding under Section 33C(2) of the Act. Second, having regard to the fact that the very existence of the alleged right of the espondent to claim boaus for the period in question was seriously in dispute is view of the provisions of Section 16 of the Bonus Act, such a dispute affecting a large number of workman employed by the petitioner could only have been resolved by an industrial adjudication and that the question, if any, of computation of bonus in individual cases would arise only if and when such adjudication results in favour of the workmen; and that therefore, an application under Section 33C(2) of the Act was even otherwise not maintainable and that the Labour Court has no jurisdiction to grant any relief to the respondent in such a proceeding.
5. The contentions advanced on behalf of the petitioner raise interesting questions of law. We have heard both the sides on the two contentions set out above. Having given our anxious consideration to the matter, we are of the view, however, that for the purposes of the present case, it is not necessary to express any opinion on the first contention which does not appear to be capable of a straight answer in view of certain observations made in Sanghvi Jeevraj v. M.C.G. & K.M.W. Union : (1969)ILLJ719SC on the competing scope and ambit of Sections 22 and 39 of the Bonus Act. The present case, in our opinion, can be conveniently disposed of in favour of the petitioner even on the strength of the second point raised on its behalf, without deciding the true scope and ambit of Section 22 of the Bonus Act.
6. Before we proceed to deal with the rival contentions, one aspect needs to be clarified. Although in the recovery application made by the respondent, there is a specific averment that he was entitled to minimum bonus at the rate of 4 per cent under the provisions of the Bonus Act for the period in question, there are certain other and further averments which are capable of giving an impression that a claim to more than the minimum bonus was laid on behalf of the respondent. At the hearing of this writ petition, however, it was specifically conceded on behalf of the respondent that in the instant proceeding, the claim was confined to the minimum bonus only. As a result of this clarification made on behalf of the respondent, the entire controversy between the parties lies in a narrow compass. The only question which falls for consideration is whether a claim to minimum bonus under Section 10 of the Bonus Act, advanced by an individual employee who is a workman within the meaning of the Act, can be said to be founded on an existing right, which merely requires to be worked out by process of computation in a proceeding under Section 33C (2) of the Act, even when the question of exemption under Section 16 of the Bonus Act will require to be considered before granting a relief, or whether, in such a situation, an industrial dispute affecting a large number of workmen arises which requires to be adjudicated upon under Section 10 of the Act, and consequently the jurisdiction of the Labour Court under Section 33C(2) of the Act is ousted?
7. Reference may now be made to a few of the relevant provisions of the Act. Those provisions are too familiar; and we would not reproduce all of them. It is not in dispute that the petitioner is an 'industry' and that the respondent is a 'workman' within the meaning of the Act; and it is, therefore, not necessary to refer to the definitions of those terms occurring in Section 2 of the Act. An industrial dispute is defined in Section 2(k) to mean any dispute or difference, inter alia, between employers and workmen which is connected with (a) the employment or non-employment or the terms of employment, or (b) the conditions of labour, of any person. The definition is very wide, taking in, as it does, any dispute or difference connected with the employment; terms of employment or conditions of labour of any person. The dispute between an employer and workmen on the question of bonus would ordinarily be an industrial dispute. Indeed there is high authority for the proposition that a dispute on a general question such as bonus would be an 'industrial dispute'. In D.N. Banerji v. P.R. Mukherjee : 4SCR302 , it was observed as follows in paragraph 13:
The words 'industrial dispute' convey the meaning to the ordinary mind that the dispute must be such as would affect large groups of workman and employers ranged on opposite sides on some general questions on which each group is bound together by a community of interests-such as wages, bonuses, allowances, pensions, provident fund, number of working hours per week, holidays and so on.
Section 10 of the Act provides for a reference of industrial disputes to Boards, Courts or Tribunals; and the power in that behalf is conferred on the appropriate Government. Under Section 10(1)(d) a dispute or any matter appearing to be connected with, or relevant to the dispute, whether it relates to any matter specified in the Second or Third Schedule, is required to be referred to a Tribunal for adjudication. 'Bonus' is listed at item No. (5) of the Third Schedule. The dispute relating to bonus including minimum bonus can, therefore, appropriately form the subject-matter of a reference under Section 10 of the Act. Many disputes en bonus have come to be referred to the Industrial Tribunals in the past. Indeed, the whole law on the question of bonus was developed prior to the enactment of the Bonus Act in the course of adjudication before the Industrial Tribunals. Even after the enactment of the Bonus Act, disputes on the question of bonus have continued to be referred to the Industrial Tribunals in matters governed by the Act and those de hors the Act. In matters governed by the Act reference appears to have been made either by virtue of the provisions contained under Section 22 or Section 39 of the Bonus Act. Next is Section 33C which has two sub-sections. We are herein concerned with Section 33C(2) which in substance provides that where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may be decided by such Labour Court as may be specified by the appropriate Government. On the question of the true interpretation of this sub-section, there has been a catena of decisions. Before we turn to those decisions, however, we must refer to the relevant provisions of the Bonus Act as it stood at the relevant time.
8. The preamble of the Bonus Act stated that it was enacted to provide for the payment of bonus to perons employed in certain establishments and for matters connected therewith. Sub-section (4) of Section 1 provided that the Bonus Act shall have the effect in respect of the accounting year commencing on any day in the year 1964 and every subsequent year. Sections 8 and 9 dealt with the eligibility for bonus and disqualification for claiming bonus respectively. Section 10 provided for the payment of minimum bonus and it read as under:
10. Payment of minimum bonus: Subject to the provisions of Sections 8 and 13, every employer shall be bound to pay to every employee in an accounting year a minimum bonus which shall be four per cent of the salary or wage earned by the employee during the accounting year or forty rupees, whichever is higher, whether there are profits in the account year or not.
Provided that where such employee has not completed fifteen years of age at the beginning of the accounting year, the provisions of this section shall have effect in relation to such employee as if for the words 'forty rupees' the words 'twenty-five rupees' were substituted.
Section 11 which has since been omitted dealt with payment of maximum bonus. Sections 12 and 13 dealt with calculation of bonus with respect to certain employees and proportionate reduction in bonus in certain cases. Section 16 made special provisions with respect to certain establishments; and the material part thereof read as under:
16. Special provisions with respect to certain establishments .- (1) Where an establishment is newly set up. whether before or after the commencement of this Act, the employees of such establishment shall be entitled to be paid bonus under this Act only;
(a) from the accounting year in which the employer derives profit from such establishment: or
(b) from the sixth accounting year following the accounting year in which the emoloyer sells the goods produced or manufactured by him or renders services as the case may be, from such establishment, whichever is earlier
Provided that in the case of any such establishment the employees thereof shall not, save as otherwise provided in Section 3, be entitled to be paid bonus under this Act in respect of any accounting year prior to the accounting year commencing on any day in the year 1964. Explanation I
Explanation II For the purpose of Clause (a), an employer shall not bedeemed to have derived profit in any accounting year unless(a) he has made provisions for that year's depreciation to which he is entitled under ihc Income-tax Act or, as the case may be, under the agricultural income-tax law; and
(b) the arrears of such depreciation and losses incurred by him in respect of the establishment for the previous accounting years have been fully set-off against his profits.
Section 18 dealt with deduction of certain amounts from bonus payable under the Act. Section 21 provided:
When any money is due to an employee by way of bonus from his employer under a settlement or on 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 assigns or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the monty 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 arrears of land revenue:
We are not concerned with the other parts of the said section. Section 22 dealt with reference of disputes under the Act. It read as under:
22. Reference of disputes under the Act : Where any dispute arises between an employer and his employees with respect to the bonus payable under this act or with respect to the application of this Act to an establishment in public sector then, such dispute shall be deemed to be an industrial dispute within the meaning of the Industrial Disputes Act, 1947 (14 of 1947) or of any corresponding law relating to investigation and settlement of industrial disputes in force in a State and the provisions of the Act or, as the cas' may be, such law, shall, save as otherwise expressly provided apply accordingly.
Under Section 23 there was a presumption about accuracy of balance-sheet and profit and loss account of corporations and companies, when any dispute of the nature specified in Section 22 has been referred to any arbitrator or tribunal under the Act or under any corresponding law relating to investigation and settlement of industrial disputes in force in a State. Section 32 excluded from the application of the provisions of the Bonus Act certain categories of employees and certain establishments specified therein. Section 34 provided for the over-riding effect of the provisions of Bonus Act not with standing anything inconsistent therewith contained in any other law for the time being in force or in the terms of any award, agreement, settlement or contract of service made before the 29th May, 1965. Section 36 empowered an appropriate Government having regard to the financial position and other relevant circumstances of any establishment or class of establishments if it is of opinion that it would not be in public interest to apply all or any of the provisions of the Act thereto to exempt for such period as may be specified by it such establishment or class of establishments from all or any of the provisions of the Act. Section 39 provided as follows:
39. Application of certain laws not barred : Save as otherwise expressly provided, the provisions of this Act shall be in addition to and not in derogation of the Industrial Disputes Act, 1947 (14 of 1947), or any corresponding law relating to investigation and settlement of industrial disputes in force in a State.
9. Before proceeding further, it would be advantageous to closely analyse the provisions of Sections 10 and 16 of the Bonus Act and their interaction. Section 10 opens with the words 'Subject to the provisions of Sections 8 and 13'; and it would, therefore, prima facie give an impression that once the conditions laid down in the said section and the requirements of Sections 8 and 13 are satisfied, the employees would be entitled, as of right, to get a minimum bonus. In other words, on a cursory reading of Section 10 an impression might be left that Section 16 is not relevant or material for the purpose of considering the applicability of Section 10. On this question, however, there is an authoritative pronouncement in Workmen H.M.T. v. Presiding Officer N.T. Cal A.I.R. 1973 Supreme Court, 2300. It was there held that though Section 10 has not been made subject to Section 16, the two provisions will have to be read harmoniously so as to give effect to the purpose of the Act. The Supreme Court further observed:
Section 16, in our opinion, has to be read as an exception to Section 10 Section 16(1) gives a total exemption to the establishments in the circumstances msntioned therein from payment of bonus which includes minimum bonus also...According to us, if Section 16(1) applies, however hard the result may be, Section 10 will not entitle an employee to get even the minimum bonus under Section 10.
This decision clinches the issue that there is nothing like an absolute or unfettered right to minimum bonus under Section 10 and that the grant of minimum bonus is subject, inter alia, to the exemption granted to certain establishments under Section 16(1). In a case where Section 16(1) is attracted, therefore, the employees are not entitled to minimum bonus; indeed, the very right to minimum bonus is non-existent in such a case.
10. Against this background, we might next turn to Section 16(1) for a close scrutiny. It is clear on a plain reading of the material part of this section that where an establishment is newly set up, the workmen employed in such establishment are entitled to be paid bonus under the Bonus Act only (a) from the accounting year in which the employer derives profit from such establishment or, (b) from the sixth accounting year following the accounting year in which the employer sells goods produced or manufactured by him, or renders service, as the case may be, from such establishment, whichever is earlier. We are herein concerned with Clause (a) referred to above; and it would be profitable to concentrate our attention on the same. Explanation II to Section 16(1) enacts a fiction for the purpose of Clause (a); and accordingly an employer shall not be deemed to have derived profit in any accounting year unless (a) he has made provisions for that year's depreciation to which he is entitled under the Income-tax Act or the agricultural income-tax law, and (b) the arrears of such depreciation and losses incurred by him in respect of the establishment for the previous accounting years have been fully set-off against his profits. The fiction enacted in Explanation II provides, as it were, a special meaning to the word 'profit' which has not to be construed for the purposes of Section 16(1) according to its ordinary commercial sense, that is to say, profit earned during the accounting period, after deducting, inter alia, depreciation computed according to one of the several recognised methods. The Explanation embodies a clear legislative mandate that while determining, for the purpose of Section 16(1)(a), whether the employer has earned profit from the establishment in any accounting year, deductions have to be (sic) under the abovementioned two heads. It is only if any profit remains after providing for that year's depreciation under the Income-tax or agricultural income-tax law and after fully setting off arrears of such depreciation and (sic)-incurred in the previous accounting years that the employer can be said to have derived profit for the purpose of Section 16(1)(a). The determination of the question, therefore, whether an employer has derived profit from his newly set up establishment in any accounting year, will require investigation into several questions. Some of the matters which will require investigation are: (1) whether provision for that year's depreciation has been made in accordance with the provisions of the Income-tax Act or the agricultural income-tax law, as the case may be, (2) whether depreciation was provided on the same basis for the previous accounting years and whether arrears, if any, of such depreciation were carried forward from year to year upto the accounting year in question, (3) whether such arrears were fully set off against the profits of the accounting year in question and (4) whether losses incurred in the previous accounting years were similarly fully set-off against the profits. It would, thus, appear that in determining whether the employer derived any profit in the accounting year in question, the figures given in the balance-sheet and profit and loss account of the employer would not be necessarily determinative. In a given case, if the profit is ascertained and shown in the balance-sheet and profit and loss account, after deducting depreciation, say, by following the straightliae method of calculating depreciation, the profit shown accordingly in the record of the employer would not be determinative. (See Central Coal Wasbery v. Workmen : (1978)IILLJ350SC . If the same method is followed even while adjusting depreciation allowances during the previous accounting years and the profits or losses have been ascertained on that basis, that would also not be conclusive. An exercise will have to be undertaken afiesh to determine profit after computing depreciation allowances in accordance with the provisions of the Income-tax Act or the agricultural income-tax law. But this is not all. Even though under Section 23 of the Bonus Act, there is a presumption as to the correctness of the statements and particulars contained in the balance-sheets and profit and loss account of a company, if they had been properly audited by a qualified auditor, it would still have to be seen, if dispute arises, whether, for example, an item of expenditure was correctly shown as expenditure. As held in Workmen, W.J. & Co. v. W.J. & Co. : (1971)ILLJ503SC , the presumption under Section 23 is confined to the accuracy of the statements and particulars contained in the balance-sheet and the profit and loss account. However, if any item in the accounts is wrongly shown as expenditure, when, on the face of it, it is not so, the Court is not bound to hold that the method adopted in preparing the accounts is correct simply because the auditors raised no objection. If this is the true legal position qua the amount which has actually gone out of the funds of the Company and debited as expenditure in its books of account, it cannot possibly be disputed that when the genuineness of the entries in the balance-sheet and profit and loss account of the Company is disputed, the Court will be entitled to entertain and decide such a dispute. The determination of such a dispute would, in its turn, have effect on the ascertainment of the true profit or loss, as the case may be, earned or incurred in an accounting year, and ultimately on the decision of the question as to whether the exemption contained in Section 16(1)(a) is or is not attracted. Surely, all this does not involve mere computation, that is to say, calculation, estimation or accounting. In case of a dispute, the Court, in exercise of its judicial power, will have to determine these questions after affording to the parties affected an opportunity of being heard, and in certain cases, it might even require evidence to be recorded and submitted in accordance with the prescribed procedure. It is only after a hearing is accordingly afforded in respect of the matters in issue that the respective contention of the parties can possibly be decided; and, more particularly, the central question, whether the employer who has a newly set up establishment, is entitled to exemption under Section 16 of the Bonus Act can appropriately be determined. This is the true scope and ambit of Section 16(1)(a) read with Explanation II.
11. We may now revert to Section 33C of the Act. This section has been the subject matter of a host of decisions; and yet in every arguable case which has come up before the Court, its scope and ambit is required to be considered.
12. The leading decision on the true ambit and scope of Section 33C is Central Bank of India v. Rajagopalan : (1963)IILLJ89SC . It was there observed that in construing Section 33C(2), two relevant considerations have to be borne in mind. First, the construction should not be so broad as to bring within the scope of Section 32C cases which would fall under Section 10(1) of the Act, and, secondly, having regard to the fact that the policy of the Legislature in enacting Section 33C is to provide a speedy remedy to the individual workmen to enforce or execute his existing right, it would not be reasonable to exclude from the scope of this section cases of existing rights which are sought to be implemented by individual workmen. Therefore, whenever an industrial dispute arises between the employees acting collectively and their employer, such a dispute must be adjudicated upon in the manner prescribed by the Act, as for instance, by reference under Section 10(1) of the Act. If, however, it is merely a question of enforcement or execution of an existing right of an individual woman, the remedy under Section 33C should not be denied to him. Proceeding further it was observed in that case that so far as Section 33C(2) is concerned, it is not merely confined to cases where the right claimed by the workmen is admitted. It is clear that if the workman's right to receive the benefit claimed by him is disputed, such a dispute might have to be determined by the Labour Court. The precise observations of the Supreme Court in this connection are as follows:
The claim under Section 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by Sub-section (2).
As regards the true nature of the jurisdiction exercised by the Labour Court, under Section 33C (2), it was held:.it is virtually exercising execution powers in some cases, and it is well settled that it is open to the Executing Court to interpret the decree for the purpose of execution. It is, of course, trust that the executing Court cannot (sic) behind the decree, nor can it add to or subtract from the provision of the decree. These limitations apply also to the Labour Court; but like the executing court, the labour court, would also be competent to interpret the award or settlement on which a workman basis his claim under Section 33C(2). Therefore, we feel no difficulty in holding that for the purpose of making the necessary determination under Section 33C(2), it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman's right rests.
Proceeding further it was pointed out that the claims not based on settlements, awards or made under the provisions of Chapter VA, may also be competent under Section 33C(2) and that may illustrate its wider scope. Therefore, the scope of Section 33C(2) is wider than Section 33C(1) and cannot be wholly assimilated with it.
13. In Bombay Gas Co. Gopal Bhiva : (1963)IILLJ608SC , Hil was again emphasised that the proceedings contemplated by Section 33C(2) are, in many cases, analogous to execution proceedings, and the Labour Court which is called upon to compute in terms of money the benefit claimed by an industrial employee is, in such cases, in the position of an executing Court; like the executing court in execution proceedings governed by the Court of Civil Procedure, the Labour Court under Section 33C (2) would be competent to interpret the award on which the claim is based, and it would also be open to it to consider the plea that the award sought to be enforced is a nullity. In other words, the Labour Court would be justified in refusing to implement an award, if it was satisfied that the direction in the award on which the applicant's claim is based is without jurisdiction.
14. In East India Coal Co. v. Rameshwar : (1968)ILLJ6SC , the workmen of the appellant Company claimed bonus under the scheme framed by the Central Government under the Coal Mines Provident Fund and Bonus Schemes Act, 1948, and railway fares and leave wages under the award of the Industrial Tribunal which had come into effect. The said claim was allowed by the Labour Court in a proceeding under Section 33C(2) of the Act. Two contentions, liter alia, before the Supreme Court were (1) that Section 33C(2) contemplates recovery of money benefit under an award, settlement or under the provisions of Chapter V-A of the Act only and not under any other statute or scheme framed thereunder and (2) that the proceedings under Section 33C(2) being in the nature of execution proceedings substantial questions between an employer and his employee cannot be adjudicated by the Labour Court under the said section. The Supreme Court rejected both these contentions holding that (a) the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer, (b) the scope of Sub-section (2) of Section 33C is wider than that of Sub-section (1) and the former is not confined to cases arising under an award, settlement or under the provisions of Chapter V-A and (c) there is no reason, therefore, to take the view that a benefit provided by a Statute or a Scheme made thereunder, being an existing right, without there being anything contrary under such Statute or Section 33C(2), cannot fall within Sub-section (2).
15. In Namor Ali v. The Central Inland Water Tansport Corporation Ltd : (1978)ILLJ167SC , the provisions of Section 33C(2) again fell for consideration. It was there pointed out that there are two parts of the sub-section as it exists after its amendment by Act 36 of 1964. The first part is concerned with the money claim simpliciter and the second part speaks about computation in terms of money of any benefit to which the workman is entitled. As regards first part of the subsection, it was observed:
The expression 'if any question arises as to the amount of money due' embraces within its ambit any one or more of the following kinds of disputes:
(1) Whether there is any settlement or award as alleged?
(2) Whether any workman is entitled to receive from the employer any money at all under any settlement or an award etc.?
(3) If so, what will be the rate or quantum of such amount?
(4) Whether the amount claimed is due or not?
A dispute as to all such questions or any of them would attract the provisions of Section 33C(2) and make that remedy available to the workmen concerned.
16. In Punjab Beverages v. Suresh Chand : (1978)IILLJ1SC , it was reiterated that a proceeding under Section 33C(2) is a proceeding, in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from his employer, or, the bone capable of being, 'computed in terms of money, proceeds to compute of money. Then follow the following pertinent observations:
But the right to the money which is sought to be calculator to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer.... It is not competent to the Labour Court exercising jurisdiction under Section 33C(2) to arrogate to itself the functions of an industrial tribunal and eatertain a claim which is not based on an existing right but which may appropriately be made the subject-matter of an industrial dispute in a reference under Section 10 of the Act.
The question in that case was, whether an order of dismissal passed in contravention of Section 33(2)(b) of the Act was void and inoperative so that the aggrieved workman would be entitled to maintain an application under Section 33-C(2) for determination and payment of the amount of wages due to him on the basis that he continued in service despite the order of dismissal. It was held that an order of discharge or dismissal passed in contrvention of Section 33 was not rendered void and inoperative. The Supreme Court further observed:
If that be so, the only remedy available to the workman for challenging the order of discharge or dismissal is that provided under Section 33A, apart of course from the remedy under Section 10, and he cannot maintain an application under Section 33C(2) for determination and payment of wages on the basis that he continues to be in service. The workman can proceed under Section 33C(2) only after the Tribunal has adjudicated, on a complaint under Section 33A or on a reference under Section 10, that the order of (sic) of dismissal passed by the employer was not justified and has set aside that order and reinstatedle workman.
17. In Nizamuddin v. New Shorrock Mills Ltd. 20 G.L.R. 290, a Full Bench of this Court considered the scope and ambit of Section 33C in the light of various decisions of the Supreme Court. In the context of Section 33C(2), the Full Bench observed that, so far as the workmen is concerned, he must proceed on the footing of an existing right; the existing right may be under the terms of the settlement or an award or the right may have been provided for either by custom or by law or by agreement, but there must be an existing right and so long as there is that existing right which is claimed by the workman, he can apply to the Labour Court under Section 33C(2) and the Labour Court will have jurisdiction to deal with the application on merits. The Full Bench further pointed out that Section 10 of the Act was wide enough to cover all industrial disputes including those which would fall under Section 33C(2). However, Section 33C(2) provides a sp2edier remedy for the recovery of the dues of a workman against his employer in certain specified type of cases and the basis is that there must be an existing right. In terms, it was observed
Section 33C(2) is obviously not meant for creation of any new rights or fresh rights. All that it deals with is an existing right which, as we have observed above, may arise because of an adjudication in an earlier proceeding or which has been provided for either by custom or by law or by agreement.
The decision of the Supreme Court in Central Bank of India's case (supra) was held to provide an illustration of the dispute which would legitimately fall within Section 33C(2). It was held that once the workman concerned bases his claim on an existing right, e.g. on an adjudication, the question whether the workman falls within the award or the adjudication is a matter which can be dealt with and should be dealt with by the Labour Court under Section 33C(2). The Full Bench emphasised that so long as there is no dispute on the showing of the workman on the workman's application under Section 33C(2) that the relationship of employer and employee has not ceased to exist and the claim which the workman puts forward in his application under Section 33C(2) is based on an existing right, the application under Section 33C(2) is maintainable. Therefore, once the workman's case as disclosed in his application to the Labour Court shows that the existence of the relationship of employer and employee is not put in dispute by the workman himself and that claim rests, on the basis of an existing relationship of employer and employee and on the basis of existing right which may arise out of an adjudication or which may be provided for, by custom or law or agreement, the application under Section 33C(2) is maintainable. The fact that the employer by his plea raises some dispute does not mean that the jurisdiction of the Labour Court to deal with the question is taken away.
18. We now come to the crux of the matter or the crust of the problem. Against the background of the aforesaid statutory provisions and the decided cases, can the claim to minimum bonus by an individual employee who is admittedly a workman within the meaning of the Act, be said to have been founded on an existing right which merely requires to be worked out by the process of computation in a proceeding under Section 33C(2) of the Act, even when the question of exemption under Section 16(1)(a) of the Bonus Act is inevitably involved in considering whether or not to grant the relief?
19. Having given our anxious consideration to the question, it appears to us, for reasons which follow, that the question must inevitably and necessarily be answered in the negative. We are conscious of the fact that having regard to the policy of the Legislature in enacting Section 33C, it would not be reasonable to exclude from the scope of the said section cases of existing rights which are sought to be implemented by the individual workmen. However, in our considered judgment, in a case which falls within the mischief of the question posed above, the remedy under Section 33C(2) would not be available, broadly speaking, for the reasons that; (i) when a workman claims money allegedly due to him as minimum bonus under Section 10 read with Section 16(1) of the Bonus Act from his employer whose establishment is newly set up, he cannot be said to be asking merely for quantification or computation of bonus payable to him under an existing right or a right the existence of which can be enquired into as incidental to the main function of execution which has been assigned to the Labour Court under Sub-section (2) of Section 33C of the Act and (ii) a dispute of such nature, involving as it does, in substance and effect, the employer on the one hand and the entire labour force having community of interest on the other, would appropriately fall within the meaning of an industrial dispute to be adjudicated upon by the regular machinery provided under Section 10 of the Act.
20. While analysing the provisions of Sections 10 and 16 of the Bonus Act and considering the interaction of those two sections, we have earlier pointed out that the law is well-settled that both sections have to be read harmoniously so as to give effect to the purposes of the Act and that Section 16 has to be read as an exception to Section 10. Section 16(1) gives a total exemption to the establishments in the circumstances therein mentioned from payment of bonus which includes minimum bonus also. It would be pertinent at this stage to once again extract and reproduce the relevant observations of the Supreme Court in Workmen H.M.T.'s case (supra):
When the section says that an employee of the establishment referred to in Section 16 shall be entitled 'to be paid bonus under this Act' only if the conditions mentioned therein are satisfied, it is idle to contend that, notwithstanding the exemption granted under Section 16, the establishment referred to therein is still bound to pay a minimum bonus.... According to us if Section 16(1) applies however, hard the result may be, Section 10 will not entitle an employee to get even the minimum bjnus under Section 10.
It would thus appear that in all situations, the right to claim minimum bonus cannot be said to be an existing right and that in cases to which Section 16(1) applies, Section 10 will confer no right on an employee to get even the minimum bonus. Since Section 16(1) gives a total exemption to a newly set up establishment until the conditions therein laid down are satisfied, there is, in the eyes of law, no existing right to minimum bonus in a workman employed in such an establishment. If there is no existing right, it cannot possibly be disputed, having regard to the decisions referred to above, that no remedy could be sought by such a workman in a proceeding under Section 33C(2) of the Act.
21. On behalf of the respondent it was strenuously contended that the correct prespective in which the matter must he viewed is that Section 10 entitles an individual workman, including a workman employed in an establishment which is newly set up, to a minimum bonus, and that, if the employer seeks to defeat such a right by pleading exemption, say, under Section 16(1), it would be open to him to plead such an exemption, and for the Labour Court to determine the dispute arising out of such a plea since such a dispute arises out of the contention of the employer and it is incidental to the main function assigned to the Labour Court under Section 33C (2) of the Act. We are afraid, the argument is over-simplified and overlooks many relevant aspects. In the first place, it is not permissible to view Sections 10 and 16 in isolation and to proceed on the footing that Section 10 confers a right which has come into existence and which might be defeated if Section 16(1) is attracted. The provisions of a statute have to b; read Ex visceribus actus and both Sections 10 and 16 will have to be read simultaneously and their provisions will have to be harmonised; and if that is done, in cases where, Section 16(1) is attracted, there will be no right in an employee to get even the minimum bonus under Section 10 of the Bonus Act. In the next place, whenever a question as to payment of minimum bonus arises in a proceeding under Section 33C(2) in the context of an establishment which is admittedly newly set up and which, on the facts disclosed in the application under Section 33C(2) itself, as in the instant case, brings into sharp focus the provisions of Section 16 (1)(a) on account of the plea of the workman himself to the effect that the establishment having made profits in the relevant period, he is entitled to minimum bonus, the question as to jurisdiction cannot be decided on the basis that the dispute arises out of a plea raised by the employer. The germ of the dispute in such a case is to be found in the application under Section 33C(?) itself; and it cannot, therefore, be said to arise only out of a plea, if any claiming exemption under Section 16(1) raised by the employer. In the last place, it cannot be successfully contended that an enquiry into the question of exemption under Section 16(1) is only incidental to the computation or quantification of the amount of minimum bonus which is the subject matter of the main determination under Section 33C(2) of the Act. Indeed, looked at from the correct angle, the question of exemption is the main question; and not only is it the main question, but it is also not one which is capable of resolution without proper and regular adjudication. While analysing the provisions of Section 16(1), we have pointed out above the various aspects of the case which will require to be considered and determined before deciding whether a newly set up establishment has earned profit during the particular period so as to attract the provisions of Section 10. Those are not matters which involve mere question of interpretation of a statutory provision on which the claim to computation or calculation of minimum bonus is founded. They also involve substantial questions which can only be determined by proper adjudication in a competent forum in the exercise of judicial powers during the course of which evidence might have to be submitted and scrutinised and decision reached whether the right to minimum bonus exists. The Labour Court exercising powers under Section 33C(2), being in the position of an executing Court, cannot legitimately perform such function, for, the question in substance and reality is not merely whether any amount of money is due as minimum bonus to the workman, but whether there is any existing right at all to (sic) minimum bonus having regard to the combined operation of Sections 10 and 16 of the Bonus Act. In other words, the question is not merely one as to what is the amount due on the basis of an existing right claimed under the Statute; the question really is whether there is any right at all to claim any amount under the Statute? As pointed out in Central Bank of India's case (supra), and Bombay Gas Company's case (supra), it might be open to the Labour Court under Section 33C(2) to interpret an award or settlement, and for that matter, even the statutory provisions upon which the right to claim the amount is founded. However, in the context of Sections 10 and 16(1)(a), while considering the question whether liability to pay minimum bonus arises at all, what the Labour Court would be required to do is not merely to interpret the provisions of Sections 10 and 16(1)(a), but to determine substantial and complex question requiring adjudication which cannot possibly be done by that Court whose only function is one of computation.
22. Strong reliance, however, was placed on behalf of the respondents on the decision in East India Coal Co.'s case (supra); and it was urged that that decision concludes the question and that recovery of money payable as bonus can be made in a proceeding under Section 33C(2), although substantial questions between the employer and employee might arise in the course of such proceeding. We are afraid, the argument is advanced without appreciating the basic distinction between the two situation viz. one before the Supreme Court and the other before this Court and the relevant statutory provisions governing both the cases. The claim to bonus in East India Coal Co.'s case was based upon a scheme framed under the Coal Mines Provident Fund and Bonus Schemes Act, 1948. The provisions of the said scheme are not before us nor are they elaborately discussed in the judgment. A mere look at the provisions of the said Act, however, makes it clear that the Central Government is thereunder authorised to frame a scheme for the purpose of payment of bonus to the workmen employed in the coal mines and that provision has to be made under the scheme for all or any of the matters specified in the Second Schedule (see Section 5). When we turn to the Second Schedule, it appears that the scheme to be framed under the said Act has to provide for 'the payment of bonus dependent on the attendance of an employee during any period ' It would thus appear that bonus under such scheme would necessarily involve computation of the amount due as bonus to an individual workman on the basis of his attendance during any period. Besides, the other matters to be provided for in the scheme, such as eligibility, rate and manner in which the bonus shall be calculated, conditions debarring an employee from getting bonus in whole or in part, time and manner of payment of bonus etc. indicate that the enquiry into a disputed claim of bonus under the scheme would necessarily be incidental to the main determination. The Coal Mines Provident Fund and Bonus Schemes Act, 1948 did not certain at The relevant time any provision relating to exemption such as the one we have in Sections 16 and 36 of the Bonus Act; nor did it contain any provision similar to Section 32 of the Bonus Act making provisions of the Act inapplicable to certain class of employees and establishments. The matters to be provided for under the Coal Mines Bonus Scheme as prescribed in the Second Schedule to the Coal Mines Provident Fund and Bonus Schemes Act, 1948 also do not indicate that any similar provision could have been made in the Scheme itself. It would, thus appear that a claim to bonus based on the provisions of the Scheme under the Coal Mines Provident Fund and Bonus Schemes Act, 1948 could not possibly involve investigation into questions such as those with which the Labour Court might have to deal under Section 33C(2) of the Act in the context of a claim under the Bonus Act. The instant case with which we are dealing it self is an illustration on the point. In our view, therefore, the decision in East India Coal Company's case (supra) cannot be treated as an authority for the proposition that a claim to minimum bonus under the circumstances such as those which exist in this case can be legitimately entertained and allowed in a proceeding under Section 33C (2) of the Act.
23. We wish to emphasise that in taking the view which we are taking herein, we have been considerably influenced by the fact that in the history of our industrial jurisprudence, a dispute on the question of entitlement to bonus has been treated as affecting a large number of workmen who are ranged against the employer and one which requires determination of certain general questions on which the workmen are bound together by a community of interest. Even after the enactment of the Bonus Act and even in the context of minimum bonus payable to employees in a newly-set-up establishment, it appears to us that this essential characteristic of the dispute remains unchanged. Such a dispute cannot be resolved upon an application made by an individual workman in a proceeding under Section 33C (2) and any decision arrived at in such a proceeding might more often than not hurt the entire body of workmen, for, an individual workman will not, in the very, nature of things, have the capacity, equipment and resources, which a collective body of workmen would have, to espouse the cause. We wish to make it clear at the same time, however, that our decision in this case is confined to and governs only such cases where a demand for minimum bonus has been raised by employees of a newly-set-up establishment, which is prima facie entitled to the benefit of exemption under Section 16(1)(a) of the Bonus Act, and dispute in respect of which has not been previously adjudicated upon in an appropriate forum. This decision should not be taken as an authority for the proposition that even in a case where a plea of exemption has been rejected in a regularly instituted adjudication proceeding, no application made by an individual workman under Section 33C(2) for computation and recovery of bonus consequent upon such adjudication would lie.
24. The decision of the Labour Court proceeds entirely on the basis of Section 22 of the Bonus Act. The Labour Court has not examined the aspect from the angle from which we have looked at it. It is, therefore, not necessary to deal with the reasoning contained in the order of the Labour Court or with the decisions cited in its order.
25. In the result, the writ petition succeeds; and it is allowed. We hold that the Labour Court had no jurisdiction to entertain and try the instant application under Section 33C(2) of the Act. Accordingly, the impugned order of the Labour Court is quashed and set aside. Rule made absolute accordingly with no order as to costs.
On behalf of the respondent, an oral application was made for a certificate under Article 133 of the Constitution of India. We are not inclined to grant the certificate, because, in oar view, though the case can be said to involve a substantial question of law of general importance, the said question does not require to be decided by the Supreme Court, in view of the fact that our decision on the question turns upon the legal principles which are well settled by several decisions of the Supreme Court. The oral request made on behalf of the respondent for certificate is, therefore, rejected.