JAIPUR POLYSPIN LTD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) IN this writ petition the petitioner, namely, Jaipute Polyspin Limited, which is a public limited company, has prayed for the issuance of appropriate writ, order or direction for quash of the order dated April 13, 1990 (Annexure-8), passed by the State Government in exercise of its power under Section 10 (1) (d) read with Section 12 (5) of the Industrial Disputes Act, 1947, whereby the Government has referred for adjudication to the Industrial Tribunal, Jaipur the dispute as to whether the profit and loss accounts of M/s. Jaipur Polyspin Ltd. , for the years 1982-83 to 1987-88 are correct and if not for which years the employees are entitled to Bonus.

(2.) THE case set out by the petitioner company is that it is engaged in manufacturing of synthetic yarn at its factory in Industrial Area, Ringus, District Sikar. It started production in the financial year 198283 and from the beginning it is running in losses on account of market conditions, severe power cuts, labour problems and other troubles. It is a new company /establishment and is entitled to the benefits under Section 16 of the Payment of Bonus Act, 1965 (for short referred to as 'the Bonus Act' ). There are two Unions in the petitioner Company, namely, Rashtriya Mill Mazdoor Sangh, Reengus which is affiliated with Indian National Trade Union Congress and Jaipur Polyspin Mazdoor Union which is affiliated with C. I. T. U. The first union is a majority union and is recognised by the management. Since the petitioner was not having profit, no bonus was paid to the employees during the financial years of 1982-83, 1983-84 and 1984-85. Neither the employees nor their majority union raised any demand for bonus during that period. For the year 1985-86, the Respondent No. 2, namely, Jaipur Polyspin Mazdoor Union raised a demand for grant of 15% bonus under the Bonus Act. A letter to this effect was sent to the General Manager of the Company on October 6, 1986. This demand was investigated into by the Labour Welfare Officer-cum-Conciliation Officer, Sikar and before the Conciliation Officer the parties agreed that according to the law bonus was not payable. On that basis the Conciliation Officer closed the file vide his order dated November 20, 1986 (Annexure- 2 ). For the year 1986-87, the Company was running in losses, therefore, neither the employees nor their unions made any claim for payment of bonus. The audited accounts for the Company for the financial year 1988-89 were published and they show that the company is still incurring losses. The Respondent No. 2, however, vide its letter dated September 20, 1988 (Annexure-3) made a demand for payment of bonus for the year 1987-88 at the rate of 20% of the wages. On the basis of this letter, the Conciliation Officer-cum-Regional Assistant Labour Commissioner, Sikar called the parties on October 14, 1988 for preliminary investigation of the demand under Section 12 (2) of the Industrial Disputes Act, 1947. The petitioner Company submitted its reply dated October 14, 1988 in respect of the claim of Respondent No. 2 for payment of 20% bonus and submitted that no bonus was payable to the employees for the year 1987-88. The Respondent No. 2 reiterated its claim vide letter dated November 30, 1988. It asserted that the company had in fact earned profits. Respondent No. 2 requested that in the interest of the establishment the workmen should be allowed bonus for the year 1987-88 at an early date. The Conciliation Officer considered the rival claims of the parties and then vide his letter dated March 4, 1989 informed the President and Secretary of Respondent No. 2 that no action can be taken at his end. The Respondent No. 2 thereafter submitted a letter dated March 27, 1989 before the Conciliation Officer and requested that the dispute regarding payment of bonus for the year 1987-88 be referred for adjudication to the Industrial Tribunal. Thereafter the Conciliation Officer vide his letter dated November 9, 1989 submitted a failure report under Section 12 (4) of 1947 Act indicating that while workmen had made a claim for payment of bonus the employer has stated that no bonus is payable. The workmen have described the accounts as erroneous and the explanation submitted by the employer is not acceptable to the workmen. After receipt of the failure report, the Government passed order for making a reference of dispute, as mentioned hereinabove, for adjudication by the Industrial Tribunal and a notification for this purpose has been issued on April 13, 1990.

(3.) IN challenging the notification dated April 13, 1990 the petitioner has asserted that the alleged dispute which has been referred for adjudication is neither an industrial dispute under ' Section 22 of the Bonus Act nor under Section 2 (k) of 1947 Act. Such matter cannot be referred for adjudication. According to the petitioner, the appropriate Government can refer a matter for adjudication when the same is an industrial dispute falling within the ambit of Section 2 (k) of 1947 Act. Reference pertains to the correctness of the profit and loss accounts of the Company for the financial years 1982-83 to 1987-88. These accounts have been duly audited by the authorised auditors under the Companies Act and, therefore, under Section 23 of the Bonus Act, there is a presumption about the accuracy of accounts. The correctness or validity thereof cannot be made a subject matter of industrial dispute under Section 22 of the Bonus Act read with Section 2 (k), 1947 Act. Thus, what has been referred for adjudication is not an industrial dispute at all. Further case of the petitioner is that an industrial dispute can be said to arise only when a demand is made by the workmen and the same is rejected by the employer. In the present case the only demand made by the union relates to the payment of bonus for the financial year 1987-88. This has not been accepted by the Management and thus, at the best it can be said that there is a dispute between the parties regarding the payment of bonus for the year 1987-88. The failure report also relates to this dispute. The Respondents have placed reliance only on the failure report of the Conciliation Officer and on no other material. Notwithstanding this, it has made the impugned reference regarding the correctness of the profit and loss accounts for the years 1982-83 to 1986-87 and the admissibility of bonus to the employees in case it is found that profit and loss accounts are not correct. The Union had also raised a demand for the payment of bonus for the year 1985-86 but subsequently agreed before the Conciliation Officer that the bonus was not payable and, therefore, the file was closed by the Conciliation Officer on November 20, 1986. It is also the case of the petitioner that there has been considerable delay in the making of the reference in respect of the profit and loss accounts for the years 1982-83 to 1986-87. Reopening of all the accounts will cause serious injury to the petitioner without any advantage to the workmen. Everything will be unsettled after a lapse of long time.