Kohinoor Tobacco Pro... v. Presiding Officer, S...

V.A Mohta, J.:— 1. What is the ambit and scope of S. 22 of the Payment of Bonus Act, 1965?

2. Whether the Payment of Bonus Act, 1965 is a complete Code for bonus payable under the said Act? If the answer is in affirmative, whether an application under S. 33-C(2) of the Industrial Disputes Act, 1947, is maintainable for claiming minimum bonus payable under S. 10 of the Payment of Bonus Act, 1965?

These two questions need determination by the Full Bench. The reference is made by a Division Bench of this Court in a Letters Patent Appeal No. 76 of 1982 arising out of Writ Petition No. 667 of 1980 (See ILR (1984) Bom 1863). Following is the relevant backdrop.

2. Sometime in 1977, the employees (respondents Nos. 13 to 17 to the appeal) applied under S. 33-C(2) of the Industrial Disputes Act, 1947 (ID Act) for computation of claims for minimum bonus payable under S. 10 of the Payment of Bonus Act, 1965 (“Bonus Act”). Though initially the claim covered period commencing from 1964-1965 to 1974-1975, it came to be restricted to period commencing from 1st Nov. 1970. The claim is against an old well known Bidi industry, the management of which has been changing hands. Previously it was with a partnership firm “Mohanlal Hargovinddas”. A Private Limited Company “Mohanlal Hargovinddas Tobacco Products Private Limited” (the original petitioner) took over the management from 1st Nov. 1970. During the pendency of this appeal it was taken over by “Kohinoor Tobacco Products Pvt. Ltd.” All the employees are quite old whose services are not affected by the changes in management Some of them are in employment since 1960. The claim was resisted by the Company inter alia on the ground that (i) being an establishment newly set up it was exempted from the liability of payment of statutory minimum bonus for the relevant period under S. 16 of the Bonus Act, (ii) proceedings under S. 33C(2) were not tenable. After enquiry and on certain disputed positions, the Labour Court Nagpur held that (i) employees worked for requisite number of days during the relevant period, (ii) the establishment was not newly set up and merely management had changed and hence there was no exemption and profit making in view of (sic) Explanation to S. 16 was an irrelevant factor and (iii) application under S. 33C(2) was maintainable. The Labour Court awarded to each of the employees a sum of Rs. 360/- towards a claim for minimum bonus for the period 1970-1971 to 1974-1975. This order was challenged in High Court in writ jurisdiction. A single Bench heard this petition along with three other petitions involving some common points. The writ petition came to be dismissed on 29th April 1982 which led to filing of this letters patent appeal. During the course of hearing of the appeal before the Division Bench, it was pointed out that with reference to the scope of S. 22 of the Bonus Act, two other different Division Benches of this Court have taken divergent views and it was requested that the controversy should be set at rest by reference to a larger Bench. Those two decisions are: (1) Allahabad Labour Supply Agency, Nagpur v. First Labour Court, Nagpur 1970 Mah LJ and (2) D.P Kelkar v. Ambadas Keshav Bajaj*, AIR 1971 Bom 124 : (1971 Lab IC 429). Attention of the Bench was also drawn to the divergence of views on the question prevailing in different other High Courts and so also to the Supreme Court decision in the case of State of Punjab v. Lahour Court, Jullandur, AIR 1979 SC 1981 : (1980 Lab IC 1084) wherein it is held that the Payment of Gratuity Act (“Gratuity Act”) being a complete Code, claim for gratuity under that Act cannot be entertained under S. 33-C(2). Impact of that, decision on the Bonus Act, it was argued, also needed examination. Under the circumstances and in view of the general importance of the questions involved, the appeal Court was pleased to make this reference.

3. It is a common ground before us that a case coming under S. 22 of the Bonus Act cannot come under S. 33-C(2) of the ID Act. This must inevitably lead to examination of scope and ambit of these provisions and their settings. First the Bonus Act: It is an Act for payment of bonus and for matters connected therewith. This Act applies to every factory, every other establishment in which 20 or more persons are employed on any day during an accounting year and to such other establishments to which appropriate Government may make the act applicable. s. 2(13) defines the term ‘employee’, S. 2(14) the term ‘employer’, S. 2(21) the term ‘salary or wage’ which includes any bonus. S. 8 refers to the eligibility of an employee to claim bonus and S. 9 to the disqualifications. S. 10 creates a liability for minimum bonus at specified rates and S. 11 for maximum bonus under given circumstances. S. 16 deals with exemptions. Newly set up establishments unless they earn profits are for certain period exempted from the liability. Otherwise liability to minimum bonus does not depend upon profits at all Explanation I to S. 16 clarifies that “an establishment shall not be deemed to be newly set up merely by reason of a change of its location, management, name or ownership”. S. 19 refers to time limit for payment of bonus to employee. S. 21 provides that “without prejudice to any other mode of recovery” an application can be made for recovery of bonus under a settlement or an award or agreement to the appropriate Government which is authorised to issue a certificate for that amount to the Collector who is duty-bound to proceed to recover the amount as an arrear of land revenue. Prescribed time limit for such an application is one year. Delay can be condoned for sufficient cause. Explanation to S. 21 says that “in this section and in Ss. 22, 23, 24 and 25 ‘employee’ includes a person who is entitled to the payment of bonus under this Act who is no longer in employment”. S. 32 specifies the class, of employees to which the Act does not apply. Three sections which fall for close examination are:

22. 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, 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.

34A(old 34):

Subject to the provisions of Ss. 31A and 34, the provisions of this Act shall have effect notwithstanding 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 or service.

39. 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, or any corresponding law relating to investigation and settlement of industrial disputes in force in a State.

Now the ID Act. It is an Act for investigation and settlement of disputes and for certain other purposes. S. 2(k) defines the term ‘industrial disputes’, S. 2(s) the term ‘workman’. S. 2A which is added by Amendment Act No. 35 of 1965 fictionally makes even an individual dispute relating to discharge, dismissal, retrenchment or termination of services as an “industrial dispute” which means only collective dispute or a dispute espoused through Union. S. 10 deals with reference for adjudication of industrial disputes to Boards, Courts or Tribunals, whose respective jurisdictions are specified. Items falling under Third Schedule under S. 7-A which includes item of bonus (No. 5) comes within the jurisdiction of Industrial Tribunals. S. 33C deals with recovery of money due from an employer. S. 33-C(1) deals with application for recovery of money under a settlement or award or under provisions of Chap. VA or Chap. VB for which limitation prescribed is one year with usual clause of power of condonation of delay. S. 33C(2) deals with determination of entitlement to any money or any benefit capable of computation in terms of money. S. 33C(4) deals with recovery on the basis of that decision. No limitation is prescribed under S. 33-C(2) which is reproduced below—

“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, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government.”

4 The employer contends that the Bonus Act is a complete Code for a claim of any bonus and, therefore, any claim for bonus must first undergo adjudication process as contemplated under S. 22 of the Bonus Act and that the nature of defence is wholly immaterial. According to the submission even simple controversy about discharge of admitted liability is no exception and hence as soon as Labour Court under S. 33-C(2) finds that the claim has anything to do with bonus, it must stay its hand and reject the application at the very threshold without any enquiry. We find it extremely difficult to accept this submission. There can hardly be any serious debate on the point that as far as substantive right to any bonus is concerned, the Bonus Act is all pervasive a complete Code. It looks quite obvious that there cannot be a right to bonus dehors the Act But point before us is not about the right but about the remedy. S. 21 no doubt provides for recovery of bonus under certain circumstances by making application to the appropriate Government, but even that mode of recovery is “without prejudice to any other mode of recovery”. S. 22 refers to the machinery of adjudication under the ID Act. By fiction even a dispute about bonus is made “an industrial dispute” within the meaning of the ID Act. It is fairly not disputed on behalf of the employees that in a given case dispute relating to bonus may need adjudication as contemplated under S. 22. Contention is — and it looks quite sound — that S. 22 is not exhaustive of all disputes. For accepting the view point canvassed on behalf of the employees, the scheme of the Bonus Act in general and S. 39 in particular will either have to be ignored or considered as redundant. This will be against well-known canons of construction of statutes. S. 39 says with emphasis that “save as otherwise expressly provided the provisions of the Act shall be in addition to and not in derogation of the Industrial Disputes Act, or in any corresponding law relating to investigation and settlement of industrial disputes in force in a State. Considering the placement of the comma after the words “ID Act” and before the words, “or any order corresponding law” it looks plain that ID Act means all its provisions. S. 34A does give overriding effect to the Act over other law, agreements, settlement etc. but that too, to the extent of inconsistency. The combined reading of these provisions leaves no doubt that there is neither express exclusion of S. 33- C(2) of the ID Act nor the said provision is inconsistent to any provision of the Bonus Act.

5. Scope and ambit of S. 33-C(2) may be considered at this stage. This provision contains legislative recognition of the right of individual workman to a speedy remedy to enforce his existing individual right without having to seek recourse to the time consuming process under s. 10 of the id act or without having recourse to depend on the Trade Union to espouse his cause. No doubt it is a machinery provision but considering the wide language used there, as compared to the language used in S. 33-C(1) and the special beneficial object of this provision it is plain that any benefit arising on the basis of existing right — factual or legal — can be computed. If while computing that benefit any incidental question or questions arise, their determination would be inevitable, for without conceding such a power under this provision even the rightful claim can be defeated by mere denial — howsoever dishonest, mala fide or ex facie bogus and unsustainable it may be. Thus the jurisdiction under S. 33-C(2) is not merely confined to simple arithmetical calculation. That according to the employer even this calculation cannot be made in respect of bonus is yet altogether a different question. How wide the remedy is made can also be seen from the circumstance that it is unlike other remedies not subjected to any limitation.

6. There are a host of decisions on the point. We will refer to only a few of them. The case of Central Bank of India v. P.S Rajgopalan, AIR 1964 S 743, is a leading case on the point. It lays down that an enquiry into the existence of the right includes enquiry into incidental questions. In Central Inland Water Transport Corpn. Ltd. v. Workman, AIR 1974 SC 1604 : (1974 Lab IC 1018), it is held that calculation or computation can be either of the adjudicated right or of the right otherwise provided for. In the case of Sahu Minerals and Properties Ltd. v. Presiding Officer, Labour Court, AIR 1975 SC 1745 : (1975 Lab IC 1224), it is held that a question as to whether retrenchment compensation is payable or S. 25FFF(1) proviso applied falls within the purview of the provision. It was contended that this was an industrial dispute under Item No. 10 under the Third Sch. which needed prior adjudication. Repelling these submissions it is observed:

“It does not show that all questions arising out of retrenchment of workmen and closure of establishments have to be decided by the Industrial Tribunal Logically if the contention is to be accepted even if the question of retrenchment is not disputed, the Labour Court will not be competent to decide the question of compensation payable in a case of retrenchment because it raised the question of jurisdiction.”

A Division Bench of this Court in Ramkrishna Ramnath v. State of Maharashtra, 1975 Mah LJ 212 : (1975 Lab IC 1561), has held that enquiry into simple and incidental but basic jurisdictional facts, determination of which is necessary for the exercise of jurisdiction can be made under S. 33-C(2) and mere denial cannot oust the jurisdiction.

7. In the light of this liberal and beneficial interpretation of S. 33-C(2), we find it impossible to hold that even a case of discharge of admitted liability under the Bonus Act, cannot be examined under S. 33-C(2). The liability of the employer to pay bonus is declared by a statutory provision contained in S. 10. What is more, it has also quantified the liability. In this case the establishment is not exempt (S. 16), the employees are eligible, (S. 8), and they are not governed by S. 32. Now, in a situation like this all that the Labour Court is called upon to do is to calculate the statutory liability against the employer. The sole object of enacting this provision as indicated earlier is to facilitate easy collection of claims of the workmen against the employers. Looked from all these angles, we see nothing either in the text or in the context to drive the employees to the money and time consuming adjudicating process and to deny the summary remedy for enforcement of statutory claim. Should we presume that for enforcement of this new and otherwise unusual right to claim bonus — profit or no profit.— the Legislature intended to have only a cumbersome process of adjudication, though for enforcement of other statutory rights this summary remedy was provided. True it is that if the plain language of the statute warrants such a conclusion the words must be given effect to unmindful of the consequences. But such is not the case here. In our view the plain language supports the view canvassed by the employees. We repeat that no doubt even in respect of a claim for bonus there can be many complicated controversies which cannot be summarily tried in a limited jurisdiction of S. 33-C(2) and need adjudication as contemplated under S. 22 of the Bonus Act. It is an enabling provision and the parties if they so choose may have their claims adjudicated as industrial dispute, but that does not mean that the additional summary remedy saved under S. 39 of the Bonus Act is taken away by reason of S. 22 of the Bonus Act. All really must depend upon the nature and width of the controversy and not merely on the claim of the employer irrespective of the nature of defence.

8. In the case of Sanghvi Jeevraj Ghewar Chand v. Secy., Madras Chillies, Grains and Kirana Merchants Workers Union, AIR 1969 SC 530 : (1969 Lab IC 854), following observations are made while considering the whole scheme in the light of the contention that there can be a right to bonus independent of the Bonus Act.

“Thus, bonus which was originally a voluntary payment acquired under the Full Bench formula the character of a right to share in the surplus profits enforceable through the machinery of the Industrial Disputes Act, 1947, and other corresponding Acts………. The distinction between S. 22 and S. 39, therefore, is that whereas S. 22 by fiction makes the disputes referred to therein industrial disputes and, applies the provisions of the Industrial Disputes Act and other corresponding laws for the investigation and settlement thereof, S. 39 makes available for the rest of the disputes the machinery provided in that Act and other corresponding laws for adjudication of disputes arising under this Act.”

It is contended that the observations about S. 39 do not relate to the applicability of the I.D Act as a whole but are limited only to its provisions for “investigation and settlement of disputes”. We do not agree. No observations can be dissociated from the setting in which they are made. A line here and line there, cannot either be read in isolation or torn out of context. In that case the question arose whether a claim for bonus by the employees in an establishment which the Bonus Act specifically excludes from application is maintainable independent of the Bonus Act, specially in view of non-deletion of item of ‘Bonus’ from the Third Sch. While answering this question the provisions were examined and it was held that the I.D Act, does not create a right to bonus and merely provides for a remedy. The provisions of the Bonus Act vis-a-vis S. 33-C(2), were not examined at all, for the simple reason that they did not fall for consideration. Close reading of the judgment leaves no manner of doubt that whole of the I.D Act, including enforcement process was in the mind of their Lordships while examining the scope of S. 39 of the Bonus Act. If for adjudicating process S. 22 is exhaustive it is difficult to see why for the same purpose S. 39 was enacted again. The deliberate use of comma in this S. 39, after the I.D Act as we have already noticed cannot be either accidental or mistaken.

9. Equally untenable is the submission that on the principle “generalia specialibus non derogant” the Bonus Act will prevail over the I.D Act in the matter of bonus. We fail to see how this principle can at all be attracted. The Bonus Act in terms makes the I.D Act applicable for recovery of bonus. Moreover the Labour Court acting under S. 33-C(2) cannot be regarded as Court of general jurisdiction. It is as much a special tribunal as any other tribunal is on some matters there may be overlapping of jurisdiction but that is altogether a different aspect. If any principle appropriately applies in this case it is the principle of harmonious construction.

10. The case of State of Punjab, (1980 Lab IC 1084) (SC) (supra) is a decision on the Payment of Gratuity Act, 1972, (Gratuity Act), which has been held to be a complete Code, for everything relating to gratuity including the mode of its recovery. Having so held on the basis of the well knit scheme of that Act, it was further held that proceedings under S. 33-C(2) of the I.D Act for recovery of the gratuity under the Act do not lie. This must take us to the examination of the scheme of the Gratuity Act S. 3 provides for appointment of any office to be the “controlling authority” responsible for administration of this Act S. 4 refers to quantifications for entitlement S. 7(1) deals with the subject of determination of the amount of gratuity. In the case of dispute an eligible employee has to apply to the employer in a given time and in prescribed form for payment and the employer is duty-bound to determine the amount by giving him and so also to the controlling authority a notice in writing specifying the amount of gratuity determined S. 7(3) casts a duty for payment within a specified period S. 7(4)(a) casts a duty on the employer to deposit the amount with the controlling authority. S. 7(4)(b) provides for adjudication of the dispute after due enquiry and hearing by the authority, as if it is a judicial proceeding within the meaning of Ss. 193 and 228 and for the purposes of S. 196 of the Penal Code. S. 7(7) provides for an appeal to the appropriate Government within 60 days. Proviso provides for extension of period S. 7(8) deals with the right of hearing before the appellate authority. The new Ss. 7A and 7B, (added by act no. 25 of 1984), make provision for appointment of Inspectors with wide powers of examination, inspection, entry etc.; S. 8 refers to the mode of recovery and liability to pay compound interest at 9% per annum on delayed payments. S. 14 which is an overriding provision reads thus:

“The provision of this Act or any rule made there under shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act”

It is in this background that the Supreme Court held that the Gratuity Act is a complete Code for all matters including the mode of recovery and that it has overriding effect on all other provisions which cannot exclude S. 33C(2). On comparison of these two enactments it is difficult to hold that the ratio of that decision can apply to the Bonus Act, the scheme of which is entirely different. It is pertinent to notice that there is no provision in the Gratuity Act corresponding to S. 39 of the Bonus Act.

11. We must now undertake the exercise of examination of precedents dealing with S. 22 of the Bonus Act. Our attention was drawn to the Full Bench decision in the Anand Oil Industries v. Labour Court, Hyderabad, AIR 1979 Andh Pra 182 : (1979 Lab IC NOC 87). That reference arose out of a writ of prohibition against the Labour Court, Hyderabad prohibiting it from proceeding with or deciding application under S. 33-C(2) of the I.D Act filed by the employees for computation of claims for minimum bonus under the Bonus Act as well as minimum wages under the Minimum Wages Act. The employer rushed to the Court for this writ even without filing a counter. The background in which the said decision was rendered is stated thus in the said judgment:

“It may be clarified even at this stage that the petitioner employer did not assert that it was not an establishment to which the Payment of Bonus Act does not apply (v.o) nor did it assert that the respondents were not employees of the petitioner firm nor that they had not put in the requisite length of service. Even in this writ petition these contentions were not raised. Hence if the petition filed by the respondents-employees under S. 33-C(2), is held entertainable by the Labour Court, we must find that the respondents-employees would be entitled to receive the minimum bonus declared under S. 10(2) of the Act.”

While dealing with the point about tenability of a claim for minimum bonus vis-a-vis S. 10 of the I.D Act, relating to adjudication as applied to S. 22 of the Bonus Act it is observed:

“The minimum bonus is statutorily fixed and the right to receive the same is statutory right vested in the employee. Hence no dispute could arise or be raised with respect to minimum bonus payable under the Act. If the employer fails to pay the amount or refuses to pay the minimum amount of bonus, it does not constitute a dispute with respect to bonus payable under this Act requiring adjudication by way of reference under S. 10 of the Act. It would only be a refusal of the payment of the amount statutorily due to the employees.”

Dealing with S. 22 and S. 39 of the Bonus Act and S. 33C(2) of the I.D Act it is observed as under:

“Further S. 39 of the Payment of Bonus Act expressly saves, the application of the provisions of the Industrial Disputes Act to such claims by declaring that the provisions of the Payment of Bonus Act shall be in addition to and not in derogation of the Industrial Disputes Act, S. 33C(2) of the Industrial Disputes Act must therefore be held applicable to such claims inasmuch as no provision of the Industrial Disputes Act expressly provides otherwise. In other words, the provision contained in S. 33C(2) cannot be deemed to be excluded by necessary implication or by any fiction of law……… When a statutory right to a minimum bonus is created and a petition under S. 33C(2) is maintainable for computing the amount as per the statute, it could not have been, the intention of the legislature in enacting S. 22 to make such dispute an “industrial dispute”. No question of an adjudication or an award in respect of such right could arise. In making provision under S. 22 of the Payment of Bonus Act, that any claim “with respect to the Payment of Bonus under this Act” would be deemed to be an “industrial dispute”, the legislature could never have intended that even where a right created under a statute merely upon the employer denying such a right should necessarily be referred for adjudication under S. 10 of the Industrial Disputes Act as an industrial dispute.”

We wholly endorse the above line of reasoning. This decision has also noticed inter alia the case of Sanghwi Jeevraj, (1969 Lab IC 854) (SC) (supra), and such other provisions which were brought to its notice. It is apparent that either the provisions of S. 19, explanation of S. 21 or S. 34 of the Bonus Act were not presented for consideration, but even after consideration of these provisions no difference in conclusion seems possible for the reasons we have already indicated. One of the several reasons adopted for holding that S. 22 of the Bonus Act cannot come in the way of computation under S. 33C(2), was that no individual dispute could go for adjudication in view of the provisions of the I.D Act, as fictionally adopted in S. 22 by reason of the distinction in the language used in the word “employee” under the Bonus Act and that of “Workman” under the I.D Act. In coming to the conclusion, what weighed was the concept of “industrial dispute” under the I.D Act and the use of the plural word “employees” and not singular word “employee” in S. 22. In this context the principle of the General Clauses Act that singular would include plural and plural would include singular was not accepted. Now Explanation to S. 21 can make difference. Had the attention of the Bench been invited to this, may be a different conclusion on this aspect would have been arrived at Explanation to S. 21 though intended to cover even ex-employees, does refer to the word “employee” vis-a-vis S. 22 of the Act, though in fact such a word does not find place in the said section. It is contended, therefore, that fiction of “industrial dispute” can also be extended to individual dispute considering the further position that even in S. 19 singular word “employee” is used. It is also contended that even in case of doubt, a beneficial view should be taken in the interest of an individual employee considering the nature of relief granted under the Bonus Act. This submission is quite attractive. If possible a view should be preferred which would reduce as many procedural steps and impediments as is possible in the way of quick and smooth delivery of the fruits of such special benefit to the one for whom it is meant. Even if this submission which does not appear to have been advanced even before the single Bench is accepted, no different conclusion is possible, for as already noticed befere, the argument of plurality is not the sole reason behind the conclusion of the Full Bench. It may be incidentally noticed that the Full Bench has also relied upon the similar observations made on this point by the Division Bench of this Court in the case of Allahabad Labour Supply Agency, (1970 Man LJ 9) (supra), before which also the submission based on S. 19 or explanation to S. 21 does not seem to have been advanced.

12. The two Division Benches of this Court (i) in case of Allahabad Labour Supply Agency (supra) and (ii) in Jaidev v. Ramanbhai (Letters Patent Appeal No. 49 of 1980 decided on 31-3-1981), have taken a view that S. 39 of the Bonus Act saves the remedy of S. 33C(2) Punjab and Haryana High Court in the case of Bawasingh v. State of Punjab, 1974 Lab IC 425, has also taken a similar view. It is true that Allahabad Labour Supply Agency (supra), and so also Bawasingh (supra), have not considered either the case of Sanghvi Jeevraj or explanation to S. 21 of S. 19 or S. 34 of the Bonus Act but by reason of that alone it cannot be said that different conclusion would have been reached. In any case as indicated above we have ourselves considered all these aspects and have shown how even if the submissions are accepted jurisdiction under S. 33C(2) of the I.D Act is not ousted in the case of claim for statutory minimum bonus under the circumstance.

13. We may also notice another Division Bench Decision of this Court in the Case of Municipal Council, Achalpur v. Shaikh Rahim Shaikh Rustam, 1984 Mah LJ 998. The point involved in this case was whether the Minimum Wages Act was a complete Code and whether the application under S. 33C(2), for claiming minimum wages was maintainable. This decision has considered inter alia the cases of (i) State of Punjab (1980 Lab IC 1084) (SC); (ii) Anand Oil Mills (1979 Lab IC NOC 87) (Andh Pra); (iii) Allahabad Labour Agency (1970 Mah LJ 9) and it is held that remedy provided under S. 20 of the Minimum Wages Act could not be said to be exhaustive and the said Act cannot be said to be a complete Code and that alternate remedy of S. 33C(2) is not barred.

14. In the case of D.P Kelkar (1971 Lab IC 429) (Bom) (supra), the question was whether authority under the Payment of Wages Act (P.W Act), has jurisdiction to decide the claim for statutory bonus under the Bonus Act. The Division Bench held that though bonus payable under the Bonus Act falls within the definition of the term “wages” under the P.W Act, the jurisdiction of the authority under that Act is ousted in view of provisions of S. 22 and S. 34 of the Bonus Act. It is in this context that the following observations were made:

“When such a special statute containing special right also creates a special forum, for the trial of dispute under the Act, it is settled law that any dispute arising out of that Act must go before the special tribunal created under the Act.”

Now quite obviously the question whether the claim is maintainable under S. 33C(2) of the I.D Act in the light of S. 39 of the Bonus Act itself, did not at all fall for consideration there. It is therefore, not possible to treat this as direct authority on the points at issue. In any case we do not agree that by logical extension these observations can be made applicable even to the case governed by S. 33C(2). The case of United Buildings v. Ramnath Sharma, 1974 Lab IC 1215 (Pat), also relates to the P.W Act and follows Kelkar's decision. Madras High Court in the case of D. Aranha v. Management, 1975 Lab IC 1180, has no doubt held that even a simple plea of discharge of liability to pay bonus is covered by S. 22 of the Bonus Act and, therefore, proceedings under S. 33C(2) are not entertainable; but with respect, for the reasons which need not be repeated, we find it difficult to accept this view. Anand Oil Mills case has exhaustively considered the Madras decision.

15. All that remains is the consideration of authorities to which our attention was drawn on behalf of the employer at the fag end. One is the Divisional Supdt. v. Labour Court, Hyderabad, (1983) 2 Andh WR 244, which has taken a view that detailed enquiry as to whether for a number of years in the past the employees worked as temporary workers or as casual workers could not be made under S. 33C(2). Considering the controversy involved and after referring to Anand Oil Industries case (1979 Lab IC NOC 87) (Andh Pra) (supra), it has been held that merely because there is assertion of the status, proceedings do not lie dehors the controversy. We fail to see how the ratio of that decision helps in one way or the other in present case. Second is the case of Premier Automobiles v. K.S Wadke, AIR 1975 SC 2238 : (1975 Lab IC 1651). This authority deals with the jurisdiction of the Civil Courts under S. 9 of the C.P Code, to try and adjudicate upon an industrial dispute if it concerns with enforcement of certain rights or liabilities created only under the I.D Act. The dispute related to the two settlements arrived at between the management and the workmen. The submission was, as neither an application under S. 33C for settling such disputes is maintainable nor is there any remedy provided for, excepting upon a reference which the Government may or may not make, Civil Court has jurisdiction to decide such dispute. This submission was negatived on the basis of the scheme of the I.D Act we fail to see how even this decision renders any assistance to the case of the employer.

16. For the reasons we have recorded our answers are as follows:

Answer to question No. 1:— Every dispute relating to minimum bonus payable under S. 10 of the Bonus Act does not fall within the ambit and scope of S. 22; and depending upon what the actual controversy between the parties is, proceedings for its recovery under S. 33C(2) are maintainable.

Answer to question No. 2:— Bonus Act is complete Code so far as the right to bonus is concerned. It is not a complete Code as far as the remedies are concerned Application under S. 33C(2) of the I.D Act for claiming minimum bonus under S. 10 of the Bonus Act is maintainable under the given circumstances.

17. Reference answered accordingly. No order as to costs. The Letters Patent Appeal be placed before the appropriate Division Bench for disposal in the light of the above answers.

Answer accordingly.