DEWANS MODERN BREWERIES LTD Vs. INDUSTRIAL TRIBUNAL, J&K

JUDGEMENT

(1.) THE Petitioner is a public limited company which pre ­viously used to carry on its business under the name and style of Kashmir Fruit and Chemical Industries Jammu. On Septem ­ber 12, 1966, the Management of the Company by its resolution no. 8/2 decided to pay to its staff and labour Bonus amounting to Rs. 12,579.66. The resolution ran thus: - "It was resolved that the award of bonus to the Com ­panys staff and labour amounting to Rs. 12,579.66 for the year ending 31st March, 1966, be and is hereby approved subject to the conditions laid down hereunder : (i) All such personnel as were working in the Com ­panys service on 31st March, 1966, excepting the Managing Director (but including the Executive Directors) will be eligible to get the bonus. (ii) The Bonus scale is to be two months pay for the full twelve months service and on pro rata basis for service less than a years. (iii) Absence without leave for seven days or leave with ­out pay plus absence not exceeding fifteen days will be condoned. Absence without leave beyond seven days or a total of leave without pay and absence beyond fifteen days in a year shall not be condoned."

(2.) AGGRIEVED by the first condition in the above mentioned resolution that its benefit would be available only to those employees who were in service of the company on March 31, 1966, and contending that bonus constituted a term of their em ­ployment, respondents Nos. 2 to 6 made a common cause and approached the appropriate Labour Authority for redress. Attempts for an amicable settlement having failed to yield any fruitful result and the government being of the opinion that an industrial dispute existed between the management of the com ­pany and its employees because of the claim for bonus the following matters were referred under Section 10 (l)(d) of the Jammu and Kashmir Industrial Disputes Act to respondent No. 1 for adjudication vide notification S.R.O. No. 292 dated August 12, 1968: (a) The claims of M/s Mistri Amar Singh, Inder Jit Singh, Bakshi Ram Welder, Charan Singh Driver and Ram Employees of Kashmir Fruit and Chemical Indus ­tries Jammu for grant of bonus. (b) The legality or otherwise of the action of the manage ­ment in disallowing the payment of bonus; and (c) grant of appropriate relief to the employees in case the genuineness of their claim is established. The petitioner did not in response to the notices issued to it file any rejoinder before respondent No. 1 and instead its Deputy Managing Director, Shri Krishen Lal Dhawan, appeared and made a statement before the respondent to the effect that all the employees excepting Amar Singh, respondent No. 2 who was not in the employ of the company on March 31, 1966, were entitled to bonus. The Secretary of the Trade Employees Association, Jammu, however, averred before respondent No. 1, that though Amar Singh left the service of the company about three weeks before March 31, 1966, he was also entitled to bonus for the pe ­riod for which he served the company during the year for which the bonus had been decided to be paid to its other employees by the company. On a consideration of the matter respondent No. 1 being of the opinion that the aforesaid condition imposed by the Management of the Company was unreasonable awarded, by its award dated February 4, 1970, Rs. 820.37 as bonus to respon ­dents Nos. 2 to 6. Out of this amount Rs. 302/ - was awarded to respondent No. 2 who had served the concern for eleven months and nine days during the year 1965 -66. The relevant portion of the award is reproduced below for facility of reference: - "It may be mentioned here that the Bonus Act does not apply in the State and the questions of bonus are to be determined according to the conditions of service of the workmen in a certain industry. In the present case the management has itself decided to pay bonus to the work ­men and in the face of their own decision it does not lie in their mouth to say that they are entitled to refuse the payment of bonus to any of the workmen who was serving during the period for which the bonus was paid to others. The Company has put a condition in the resolution to the effect that only the workmen who were working on 31st March, 1966, would be entitled to receive bonus but this condition to my mind, is a very unreasonable one. When some of the workmen who had worked for a part of the period only for which the bonus was paid have been paid the bonus the company cannot be allowed to deprive the effected workmen of the bonus because they were not in the employ of the management on 31st March, 1966. If the company is allowed to do so, it would be against social and natural justice because the co -workmen of the affected workmen have been paid even for a part of the relevant period and the affected workmen are deprived of their dues simply because they had left the service of the company before 31st March, 1966. The possibility cannot be ruled out that this restriction has been deliberately put in the resolution of the company to deprive affected work ­men of their share in the bonus because they had left the service of the company. In view of the reasons mentioned above and the material on record, it is apparent that all the affected workmen, including Amar Singh, are entitled to the bonus in proportion to the periods for which they have served in the company during the period for which the bonus has been allowed by the Company." On the award being published in the Government Gazette, the Deputy Labour Commissioner, Jammu, vide his letter No. DIC/234 -35 dated May 6. 1970. called upon the petitioner to implement the award. Aggrieved by these proceedings the petitioner has approached this court by means of a petition under Section 106 of the Constitution of Jammu and Kashmir challenging the aforesaid award made by respondent No. 1 on February 4, 1970, and praying that the same be quashed.

(3.) THE petition is based on the ground that Payment of Bonus Act, 1965, nor being applicable to the State and payment of bonus neither being a term of employment of respondents Nos. 2 to 6 nor being wages within the meaning of the Industrial Disputes Act, but being a mere ex -gratia payment, there was no dispute within the meaning of the Industrial Disputes Act, which could be referred for adjudication to respondent No. 1. It has been further contended by the petitioner that respondent No. 2 not being in service of the Company on March 31, 1966, he did not fulfil the essential condition laid down in the resolution and as such the bonus could not be paid to him.