Pendse, J.:— This petition filed under Art. 226 of the Constitution of India to challenge order, dated 27 August, 1984, passed by the Presiding Officer, Third Labour Court, Bombay, in proceedings under S. 33-C(2) of the Industrial Disputes Act, 1947, has come before the Division Bench in the following circumstances:
Respondent 1 was employed by petitioner-company as a cashier and was in service for over 20 years and the last drawn wages were Rs. 1175 per month. Respondent 1 was entitled to amount of bonus of Rs. 1000 for the accounting year 1981–82 as declared and paid to other workmen of the company. The payment of bonus was in accordance with the settlement reached between the employer and the workmen and award passed in pursuance of settlement in Reference (IT) No. 47 of 1979 by Industrial Tribunal, Bombay. Respondent 1 also claimed that it was practice of the petitioner-company to pay bonus to all the employees including those who were not covered by the settlement. Respondent 1 was not paid bonus for the year 1981–82 and thereupon, respondent 1 filed Application (IDA) No. 1076 of 1983 before Labour Court under S. 33-C(2) of the Industrial Disputes Act. The application was resisted by the petitioners by filing written statement on 8 November, 1983 and it was, inter alia, claimed that respondent 1 was disqualified from claiming bonus for year 1981–82 and which was due on 30 June, 1983 in view of dismissal of respondent 1 from service by order, dated 11 June, 1984, on the ground that respondent 1 had committed theft, fraud and dishonesty in connection with the business, property and finance of the company. The petitioners also claimed that the application for payment of bonus under S. 33(C)(2) of the Industrial Disputes Act, 1947, was not maintainable.
2. The Presiding Officer, Third Labour Court, Bombay, by order, dated 27 August, 1984, turned down both the contentions and directed the petitioners to pay a sum of Rs. 1080 being the amount of bonus for year 1981–82. The petitioners preferred the present petition under Art. 226 of the Constitution of India to challenge the legality of order passed by the Labour Court. The petition came up for hearing before Justice Sri Daud on 24 January, 1991. The learned Judge did not accept the contention urged on behalf of the petitioners that the proceedings under S. 33-C(2) of the Industrial Disputes Act were not maintainable. The learned Judge found merit in the contention urged on behalf of the petitioners that respondent 1 was disqualified from claiming bonus for accounting year 1981–82 in view of provisions of S. 9 of Payment of Bonus Act (hereinafter referred to as the Act). The learned Judge felt that the decision rendered by Justice Sri Gadgil in Bankeshwardhar K. Dubey v. New Standard Engineering Company, Ltd. [1984 — II L.L.N 594], required reconsideration in view of the decision delivered by Single Judge of Madras High Court and in Wheel and Rim Company of India, Ltd. v. Government of Tamil Nadu [1971 — II L.LJ 299], The learned Judge fell that the vital aspects considered by Madras High Court were not brought to the attention of the learned Single Judge of this Court and, therefore, the decision requires reconsideration. Accordingly, the learned Judge directed the Registry to place the petition before the Chief Justice as required by rule 28 of the Original Side Rules to determine whether the petition should be posted before Division Bench for hearing. The learned Chief Justice has directed that the petition should be posted for hearing before this Bench.
3. Smt. Doshi, learned counsel appearing on behalf of the employer, submitted that respondent 1 was disqualified from claiming bonus due for accounting year 1981–82 in view of the provisions of S. 9 of the Act. The learned counsel urged that taking into consideration the non obstante clause with which S. 9 opens, it must be held that an employee would be disqualified from claiming bonus not only due in respect of accounting year in which the employee is dismissed but even for earlier period. Smt. Doshi naturally placed strong reliance upon the decision recorded by the learned Single Judge of Madras High Court. Smt. Mhatre, learned counsel appearing on behalf of respondent 1, on the other hand, submitted that the construction of provisions of S. 9 of the Act by Madras High Court is totally erroneous and the employee who was entitled to receive bonus for accounting year 1981–82 cannot be deprived of the same merely because in the subsequent year, the employee was dismissed from service for reasons set out under S. 9 of the Act. Smt. Mhatre urged that the view taken by the learned Single Judge of this Court is sound and is in accordance with the intention of the Legislature which desires to confer benefits upon the employee.
4. In view of the rival submission, the short question which falls for determination is whether the decision of the learned Single Judge of this Court requires reconsideration. We have purused the decision of the learned Single Judge of this Court as well as the decision of the Madras High Court and we have no hesitation in concluding that the decision of the Single Judge of this Court is in accordance with law and does not require reconsideration. The perusal of the provisions of the Act makes it clear that the entitlement to the payment of bonus arises under S. 8 of the Act on the employee working in the establishment for not less than 30 working days in that year. Section 19(b) of the Act provides that the amount payable to an employee by way of bonus shall be paid in cash by employer within a period of 8 months from the close of the accounting year. Section 18, inter alia, provides that in any accounting year if an employee is found guilty of misconduct causing financial loss to the employer, then it shall be lawful to deduct the amount of loss from the amount of bonus payable in respect of that accounting year only. Section 9 provides that notwithstanding anything contained in the Act, an employee shall be disqualified from receiving bonus if dismissed from service for fraud, riotous or violent behaviour while on the premises of the establishment, or theft, misappropriation or sabotage of any property of the establishment. The bare perusal of S. 9 makes it clear than an employee is disqualified from receipt of bonus only if he is dismissed from service on grounds referred to in S. 9 of the Act. The contention urged on behalf of the employer that the disqualification operates not only in respect of the accounting year in which the employee is dismissed but even for the earlier period. It is not possible to accede to the submission. The entitlement to receive bonus accrues on completion of not less than 30 working days in a year by the employee. The payment of bonus is deferred for a period of 8 months from the close of the accounting year under S. 19(b) of the Act. The mere fact that the employer has failed to pay the bonus due to the employee for a particular accounting year cannot entitle the employer to claim that the payment will not be made because the employee was dismissed on some future date. Reference was made on behalf of the employer to the provisions of S. 4(6) of the Payment of Gratuity Act, 1972, to claim that it is open to deprive the employee of the entire amount of gratuity in case of termination of service on certain grounds. The comparison of the provisions of S. 4(6) of the Payment of Gratuity Act with S. 9 of Payment of Bonus Act is not correct. The entitlement to receive bonus accrues on completion of service for not less than a period of 30 working days in an accounting year, while the entitlement to receive gratuity accrues only at the end of the service. The provisions of Payment of Gratuity Act and Payment of Bonus Act provide for different contingencies and, therefore, it is futile to compare the provisions of the two Acts.
5. The perusal of the decision of the Madras High Court makes it clear that the learned Judge has proceeded to hold in favour of the employer on two propositions, the first that S. 9 of the Payment of Bonus Act does not specifically provide that the employee is disqualified from receiving bonus for the accounting year in which the employee was dismissed. It is obvious that the learned Judge had applied literal construction to the provisions of S. 9 of the Act overlooking that the Act is a benevolent legislation enacted with a view to confer benefit on an employee who had worked in the establishment for a particular period. The second ground which appealed to the Madras High Court is that S. 9 provides for aggravated misconduct than one referred to in S. 18 of the Payment of Bonus Act. With respect, the conclusion of the learned Judge of the Madras High Court is not accurate. Section 9 does not take into contemplation the aggravated form of misconduct but comes into play only when the order of dismissal is passed. It hardly requires to be stated that in every case where an employee is involved in fraud, theft or riotous or disorderly behaviour, the employer is not bound to impose punishment of dismissal. Even in respect of misconduct, fraud and theft, it is open to impose a lesser punishment and in such case the provisions of S. 9 of the Act are not attracted. It is, therefore, not correct to suggest that in every case of aggravated form of misconduct S. 9 would automatically come into picture. The learned Single Judge of this Court has given sound reasons for not accepting the view taken by the learned Single Judge of Madras High Court and we are in entire agreement with reasons and conclusions recorded by the learned Single Judge of this Court. In our judgment, the observations of Justice Sri Daud that certain vital aspects considered by Madras High Court were not brought to the attention of Single Judge of this Court are not correct. In our judgment, the Labour Court was perfectly justified in holding that respondent 1 was not disqualified to receive payment of bonus for accounting year 1981–82. In our judgment, the order of the Labour Court is not required to be disturbed and the petition must fail.
6. Accordingly, rule is discharged with costs.
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