S SURYANARAYANA Vs. DIST CO OP OFFICER VISAKHAPATNAM

JUDGEMENT

(1.) The petitioners 11 in number. employed in Thimmarajupeta Primary Agricultural Co-operative Society Limited (for short 'the Society), Visakhapatnam District, filed this writ petition questioning the proceedings of the 3rd respondent dated 1-10-1997 directing them to repay the ex-gralia paid to them from 1993-94 to 96-97 as the Registrar and Commissioner of Co-operative Societies as well as respondents 1 and 2 objected for payment of ex-gratia on the basis of G.O.Ms. No.366 F.W. (FW.W&M. I) Department dated 29-10-1993.

(2.) Heard both the Counsel. The Government Order referred by the Registrar and Commissioner of Co-operative Societies has no application to the facts of the case. In that Government Order the issue for consideration before the Government was whether public enterprises either in the Cooperative Sector or Companies or Corporations have to pay the minimum statutory bonus even if they are incurring loss under payment of Bonus Act. Of course, a direction was given to all the concerned. Further, in the Government Order it is stated that the Government is taking action under Section 36 of the Bonus Act to exempt those establishments for payment of bonus if their financial position or other relevant circumstances" warrant such a course of action in public interest. Accordingly, a direction was given not to pay minimum bonus without reference to the profit and loss of the enterprises. In fact, I had an occasion to deal with the validity of that G.O. and the same was struck down in Andhra Food's case and the matter went upto Supreme Court. Secondly, the A.P. Co-operative Societies Act deals with the day to day affairs of the Cooperative Society. Section 45 deals with the disposal of the net profits earned by the Society after the end of the accounting year and under sub-section (c) when the Society earns profit. We are concerned with sub-section (d). Section 45 (d): Payment of bonus to employees of the Society or remuneration to a Member for services rendered by him to the Society to the extent and the manner specified in the bye-laws."As per clause 33 (III) (c) of bye-laws approved by the Registrar of Co-operative Societies, the employees have to pay minimum oae month's salary whether it is called bonus or remuneration. Admittedly, in this case, the Society was making profits and the Society paid only one month's salary to these employees all these years as bonus and the action of the Society enjoins legal sanctity and no one can find fault with the action of the Society. But unfortunately, the Registrar, a senior bureaucratic of the State Government, who is expected to guide and advise the societies in implementing the provisions of the Act has forgotten that there is such a clause in the Act. He relies on G.O. Ms. No. 366 which was issued under payment of Bonus Act without applying his mind about the applicability of the G.O. to the issue with the result the petitioners have to approach this Court by way of filing of the writ petition.

(3.) In the light of the view taken by me, there are no merits in the objections raised by the Department in payment of ex-gratia to the petitioners from 1993-94 onwards and in fact it is bounden duty of the Society as long as it makes profits, to pay the bonus to its employees.