MANAGEMENT OF WORTH TRUST Vs. PRESIDING OFFICER

JUDGEMENT

(1.) This appeal has been filed by the Management of Workshop for Rehabilitation and Training for the Handicapped (WORTH) Trust challenging the order passed in W.P.No.22392 of 2004 dated 25.03.2013.

(2.) The said writ petition was filed by the appellant Trust challenging the correctness of the order passed by the Industrial Tribunal, Chennai in I.D.No.109 of 1998 dated 28.04.2004. The employees/workmen of the appellant Trust raised a dispute under the provisions of the Industrial Disputes Act, 1947 claiming that for the year 1996-97, they are entitled to be paid bonus under the provisions of the Payment of Bonus Act and ex-gratia. The Government vide G.O.(D).No.559 Labour and Employment Department dated 25.07.1998 referred the said dispute for adjudication before the Industrial Tribunal, Chennai. The second respondent, the Workers Union filed the statement of claim before the Industrial Tribunal demanding that the members of their Union are entitled to 20% bonus with 5% ex-gratia for the account year 1996-97. The appellant Trust filed counter affidavit resisting the claim of the workmen and among other things contended that the provisions of Payment of Bonus Act will not apply to the appellant Trust as they would fall within the scope of either Section 32(v)(a) or 32(v)(c) of the Payment of Bonus Act (hereinafter referred to as "the Act"). Before the Industrial Tribunal, one Mr.M.Doss was examined as WW1 and 25 documents were marked as Exs.W1 to W25. On behalf of the appellant Management, Mr.C.Antonysamy, one of the Trustee of the appellant Trust was examined as MW1 and 20 documents were marked as Exs.M1 to M20. The Labour Court after considering the oral and documentary evidence by award dated 28.04.2004 held that the demand of the second respondent Union for payment of bonus and ex-gratia for the year 1996-97 is justified and the workmen, members of the second respondent Union are entitled to minimum bonus of 8.33% for the relevant period and also entitled to ex-gratia amount for that year similar to the amount already received by them in the previous and succeeding years. Accordingly, the dispute raised by the workmen was allowed. The appellant challenged the award passed by the Industrial Tribunal in the said writ petition which was dismissed by the impugned order. Aggrieved over the same, the appellant is before us by way of this appeal.

(3.) Mr.Anand Gopalan, learned counsel for M/s.T.S.Gopalan and Co., counsel for the appellant submitted that the scheme of the Act is required to be looked into to examine the correctness of the order passed by the Industrial Tribunal as confirmed by the Writ Court. It is submitted that the underlying principle behind the Act is that the factory or establishment should generate a profit as the computation of bonus is based on the profit earned by the factory or an establishment. To substantiate this argument, the learned counsel referred to Sections 4 and 5 of the Act. Referring to Sections 10 and 11 of the Act, it is submitted that the provision uses the expression "allocable surplus" and therefore, the provisions of the Act would stand attracted only if there is a surplus and even if it is no so, the minimum bonus payable is in terms of Section 10 of the Act. Therefore, it is submitted that essentially the factory or an establishment should have been established with an intention to make profit and if it is not so, the provisions of the Act cannot be applied. Elaborating his submissions, Mr.Anand Gopalan, learned counsel referred to Section 32 of the Act which states that nothing under the Act will apply to certain class of employees and Clause (v) of Section 32 enumerates three categories of employers to whose employees the provisions of the Act will not apply, namely, (a) the India Red Cross Society or any other institution of a like nature; (b) Universities and other educational institutions and (c) institutions (including hospitals, chambers of commerce and social welfare institutions) established not for purposes of profit. It is submitted that the rigour of Section 32 of the Act is different from the effect of Section 36 which is the power of exemption and the appellant Trust falls within Clause (a) of Section 32(v) and therefore, the provisions of the Act will not apply to its employees or if it is contended that Clause (a) of Section 32(v) of the Act is not applicable, then the appellant would fall within Clause (c) of Section 32(v) of the Act and accordingly, the provisions of the Act will not be applicable to its employees. To explain as to how the appellant Trust was established, the purpose of its establishment, etc. the learned counsel referred to the counter statement filed by the appellant before the Industrial Tribunal in I.D.No.109 of 1998. It is further submitted that the witness examined on the side of the workmen, WW1 has accepted in his deposition that the employees of the appellant are leprosy cured persons and persons who are differently abled. It is submitted that the Industrial Tribunal erroneously held that the provisions of the Act would apply and not only ordered payment of bonus at 8.33% but also directed ex-gratia to be paid without specifying the amount. It is further submitted that the learned Writ Court erroneously confirmed the order of the Tribunal but made an observation that the ex-gratia paid to the workmen can be adjusted against the bonus. It is further submitted that in the year 1985 the only change which was effected to the Trust Deed was change of name and it does not take away the purpose for which the Trust was established, namely, for training and/or employment of leprosy cured and differently abled persons.