IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.7763 of 2000 Date of decision:26.08.2009 Haryana State Federation of Consumer Cooperative Wholesale Stores Ltd. (CONFED), Chandigarh through its Managing Director. ...Petitioner versus The Presiding Officer, Industrial Tribunal-cum-Labour Court, Sector 17, Chandigarh and another. ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr.Amit Rawal, Advocate, for the petitioner. None for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J.(Oral) 1. The award that is challenged in the writ petition is a direction by the Labour Court acceding to the workers' demand that they were entitled to bonus for the period 01.04.1992 to 31.03.1994. The response of the management was that for the relevant period, there had been a notification issued by the Haryana Government exempting the management from the provisions of the Payment of Bonus Act. The notification dated 07.12.1994 itself had been a subject of challenge by means of a writ before this Court by the workers' Union but it had been dismissed at the stage of admission granting however, the liberty to the workmen to raise a dispute before the Industrial Tribunal. Such a dispute Civil Writ Petition No.7763 of 2000 - 2 - raised before the Labour Court passed the impugned award. 2. In the course of the award, the Labour Court had held that by virtue of Section 39 of the Payment of Bonus Act, the provisions of the Act was to be taken in addition and not in derogation of the Industrial Disputes Act and therefore, the right to adjudicate on a dispute with reference to entitlement of bonus itself, could not be questioned. In fact, if the dispute had been that the notification obtained had any inherent flaw and that they were entitled to ignore the same, perhaps it should have been possible for the Labour Court to grant the relief. The workman had not challenged the order of this Court passed on 13.07.1995 in Civil Writ Petition No.9837 of 1995 where the Union had actually challenged the notification. So long as the notification remained, the entitlement of the workman to secure the bonus for that relevant period was not possible. 3. In State of Tamil Nadu Versus Sabanayagam and another- AIR 1998 Supreme Court 344, the Hon'ble Supreme Court dealt with the issue of the effect of exemption granted under a notification issued under Section 36 of the Act and the right of the workman to claim bonus for the period when exemption had been made. The Hon'ble Supreme Court there found, as a matter of fact, that the Housing Board had been taking consistent stand for the years in question that the Act applied to it but had obtained an exemption retrospectively from the Government. The Hon'ble Supreme Court held that having regard to the conduct of the management accepting the applicability of the Act, it could not have denied bonus by obtaining a notification to operate retrospectively. The Civil Writ Petition No.7763 of 2000 - 3 - Hon'ble Supreme Court held that it was a case of estoppel of fact and not on law. In this case, the notification which was obtained on 07.12.1994 was indeed retrospective in as much as it provided for an exemption from 01.04.1992 to 31.03.1993 and 01.04.1993 to 31.03.1994. The issue whether there could have been a retrospective applicability through a notification itself, was not answered by the Hon'ble Supreme Court in the above case. On the other hand, the Hon'ble Supreme Court had left the issue undecided. I do not mean to undertake that exercise now in this case for the illegality of such retrospective applicability of notification itself was not urged by the workmen. They had merely contended that the Act provided for payment of bonus and that could not have been denied by a notification. Such a contention was definitely not tenable. Even the Board passed a resolution on 23.11.1992, on the basis of which the subsequent notification had been obtained, referred to consultation with the office bearers of the workers' Union, and therefore, it could not be contended that the management at any point of time conceded the payment of bonus for those years when the workmen were demanding the bonus. 4. The claim of the workmen for bonus was, therefore, not possible in view of the exemption that had been granted, in a case where the validity of the notification itself could not be considered for want of any specific reference to such a notification before the Labour Court. The award of the Labour Court is erroneous and it is, therefore, liable to be set aside. Civil Writ Petition No.7763 of 2000 - 4 - 5. The writ petition is, therefore, allowed. However, there shall be no direction as to costs. (K.KANNAN) JUDGE 26.08.2009 sanjeev