IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.1446 of 2000 Date of decision: 11.01.2010 M/s DCM Limited and another ....Petitioners versus Presiding Officer, Industrial Tribunal, Punjab, Chandigarh and another. ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Harvinder Singh, Advocate and Mr. K.S.Dhaliwal, Advocate, for the petitioner. Mr. Pawan Kumar Mutneja, Advocate, Amicus Curiae, for the respondent-Workmen’s Union. ----- 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. 1. On a reference made to the Industrial Tribunal for an adjudication whether the workmen were entitled to 20% bonus for the accounting year 1994-95, the reference was answered in favour of the workmen with a direction to treat the bonus payable to the eligible workmen for the accounting year of 12 months from 01.07.1994 to 30.06.1995 subject to condition that it will not exceed 20% maximum. While making the award, the Industrial Tribunal found that the treatment of the accounting year for a period of 18 months from 01.07.1994 to 31.12.1995 by the employer and the consequential reduction of percentage of bonus to be declared on the allocable surplus as invalid Civil Writ Petition No.1446 of 2000 - 2 - and accepted the workmen’s claim that the employer could treat the accounting year only for a period of 12 months from 01.07.1994 to 30.06.1995. This, according to the employer, was beyond the scope of reference to the Tribunal and hence, the writ petition takes a focus on consideration of how the change of accounting period by the owner of the establishment could be done that may have a bearing to the percentage of bonus that could be declared to the workmen. 2. The reference to the Industrial Tribunal was a sequel to a stand-off between the workmen represented through the Union and the industrial unit DCM Engineering Products Limited, Asron (Nawanshahr) within the jurisdiction of the State of Punjab. The industrial establishment is admittedly a unit of M/s DCM Limited (hereinafter called ‘the Company’). It is further an admitted fact that DCM Engineering Products Limited (hereinafter called ‘the establishment’) had a separate balance-sheet and profit and loss account had been prepared and maintained. The workmen were seeking the claim to the profits made by the establishment and not as against the overall allocable surplus of the Company. For the accounting year 1994-95, the workmen had not been paid their bonus up to October 1995, when payments were at last made to each workman by way of an advance of Rs.4,000/- pending finalization of accounts and liable for adjustment when the bonus was declared in future after resolving the disputes. 3. It appears that the Company had applied to the Registrar of Companies for extension of time for holding annual general meeting consequent on extension of financial year 1994-95 initially for a period Civil Writ Petition No.1446 of 2000 - 3 - of 3 months from 30.06.1995 to 30.09.1995 and to hold the AGM on or before 31.03.1996 to conduct the business including adoption of Audited Accounts and Directors’ report etc. for the financial year 1994-95. The pleadings and evidence are further premised on an ultimate decision and permission for extending the accounting year for the company up to 31.12.1995. By the tenor of the statement given by the workmen by replication, it seems clear that the workmen themselves were not apprised of change of the accounting year before the company’s application to the Registrar of Companies. When the establishment ultimately declared the bonus at 13.467% for a period of 18 months and sought for recovery of a portion of the advance already paid, the workmen felt betrayed and contended that the fall in the percentage of bonus had arisen on account of the extension of the financial year 1994- 95 by another 6 months by including within the said period a huge amount of depreciation. The workmen contended that neither the Union nor any of the workmen had been a party to the proceeding for extension of financial year and the alleged permission said to have been given to company. The Union had, therefore, made a demand notice on 15.10.1996 claiming bonus of 30% for the year 1994-95 and in a settlement entered in the presence of the Assistant Labour Commissioner, Hoshiarpur, on 14.11.1996, it was agreed that the demand of the workmen for extra bonus for the year 1994-95 could be referred to the Industrial Tribunal. The settlement included a Diwali gift of Rs.1,000/- which was not to be treated as advance and that the workmen were resuming the work after 5 days of absence. The reference Civil Writ Petition No.1446 of 2000 - 4 - was made under such a circumstance to determine whether the workmen were entitled to 20% bonus for the year 1994-95 and to determine what benefit should accrue to the workers. 4. In the statement of claim, the workmen had categorically stated that the Company had often changes of ‘accounting year’ and closed its accounts sometimes after 15 months or sometimes after 18 months. Particularly for the year 1994-95 on account of the extension of the financial year upto 31.12.1995, the payment of bonus was also made to accrue till 31.12.1995 instead of payment by 30.06.1995. The workmen claimed that they were deprived of the payment of bonus double fold, first by a delay of period of 6 months and second for reduction in the rate of bonus. The management countered the allegations by stating that it was the prerogative of the employer to adopt a suitable accounting year and the workmen could have no cause for a complaint. According to them, the profits had fallen and the wages had increased. For the year 1994-95, the establishment was not making any profits and what fell for distribution was the set-on amount carried forward from the previous years. Although the reference sounded cryptic in leaving for adjudication the issue whether the workmen were entitled to 20%, the Tribunal observed that the dispute was indeed on the question whether the action of the management in altering the normal accounting year of 01.07.1994 - 30.06.1995 to 01.07.1994 -31.12.1995, in the context of the admitted facts and circumstances, was valid and justified. This shift in focus, according to the writ petitioner, was wholly impermissible and it amounted to making adjudication on a point which Civil Writ Petition No.1446 of 2000 - 5 - was not the subject of reference. 5. To understand the controversy between parties, it is necessary to refer to some of the Sections which are immediately relevant in this case. Section 1 which deals with the extent of applicability of the Act states through sub-Section (3) that it shall apply to (a) every factory and (b) every other establishment in which 20 or more persons are employed on any day during an accounting year. Section 2(1) defines accounting year as follows:- “(1) “accounting year” means- (i) in relation to a corporation, the year ending on the day on which the books and accounts of the corporation are to be closed and balanced; (ii) in relation to a company, the period in respect of which any profit and loss account of the company laid before it in annual general meeting is made up, whether that period is a year or not; (iii) in any other case- (a) the year commencing on the 1st day of April; or (b) if the accounts of an establishment maintained by the employer thereof are closed and balanced on any day other than the 31st day of March, then, at the option of the employer, the year ending on the day on which its accounts are so closed and balanced: Provided that an option once exercised by the employer under paragraph (b) of this sub-clause shall not again be exercised except with the previous permission in writing of the prescribed authority and upon such conditions as that authority may think fit.” Section 3 refers to a situation where an establishment consists of different departments, undertakings and branches. Section 3 is reproduced as under :- “Where an establishment consists of different departments or undertakings or has branches, whether situated in the same place or in different places, all such departments or undertakings or branches shall be treated as parts of the same establishment for the purpose of computation of bonus under this Act. Civil Writ Petition No.1446 of 2000 - 6 - Provided that where for any accounting year a separate balance-sheet and profit and loss account are prepared and maintained in respect of any such department or undertaking or branch, then, such department or undertaking or branch shall be treated as a separate establishment for the purpose of computation of bonus, under this Act for that year, unless such department or undertaking or branch was, immediately before the commencement of that accounting year treated as part of the establishment for the purpose of computation of bonus.” 6. In this case, there is no dispute that DCM Engineering Products Limited Asron is owned by M/s DCM Limited. The latter is a Company registered under the Companies Act. While the first part of Section 3 states that where an establishment consists of different department or undertakings or branches situate in the same place or in different places, all such departments or undertakings or branches shall be treated as part of the same establishment, the exception set out through the proviso is when for any accounting year a separate balance- sheet and profit and loss account is prepared in respect of any branch or undertaking or department, each of them shall be treated as a separate establishment. It has been authoritatively laid down in Messrs Alloy Steel Project Versus the Workmen-1971(1) Supreme Court Cases 536, that when a unit was maintaining separate accounts, balance-sheets and profit and loss account, the question of determination of bonus shall be only with reference to such unit and shall not be with reference to consolidated profit and loss statement of the Company that owned the unit. The Hon’ble Supreme Court held that the word “establishment” intended to indicate something different from a Company as defined by the provisions of Section 1(3). This judgment was affirmed in Delhi Civil Writ Petition No.1446 of 2000 - 7 - Cloth and General Mills Company Limited Versus Workmen-1971(2) Supreme Court Cases 695. There have been consistent string of authorities holding to the same position that maintaining the dichotomy between the unit or an establishment as distinct from a Company that owns such as an unit, establishment or branch for the purpose of bonus only, under specified circumstances. Kindly refer to The workmen of H.M.T. and another Versus The Presiding Officer, National Tribunal, Calcutta and others-(1973)2 Supreme Court Cases 277; The K.C.P. Employees’ Association, Madras Versus The Management of K.C.P. Limited, Madras and others-(1978) 2 Supreme Court Cases 42. The last of the judgments in M/s K.C.P. Employees’ Association, Madras confirmed the judgment of a Division Bench of Madras High Court in K.C.P. Limited, Central Workshop, Madras Versus K.C.P. Employees’ Association, Madras (by Secretary) and others-1969-II-LLJ 817. The learned counsel appearing for the petitioner made elaborate references to the decision of the Madras High Court which stood confirmed by the Hon’ble Supreme Court’s judgment. The Division Bench was seeking to resolve the dispute whether a limited Company having three different units at three different places and which was maintaining separate accounts for the three units and also preparing separate balance-sheets shall be compelled to determine bonus on the basis of balance-sheet and the profit and loss account of the Company as a whole or whether the demand for bonus made by employees of one of the units should be decided on the basis of the separate balance-sheet and profit and loss account of that unit. Civil Writ Petition No.1446 of 2000 - 8 - 7. In my view, there is no dispute that the bonus could be claimed by the workmen only in relation to the profit and loss account maintained by DCM Engineering Products Limited. The question is whether by changing of the accounting year of the Company namely of DCM Limited, the Company could force a consequent change of the ‘accounting year’ for the ‘establishment’ also. This will depend on the interpretation to the meaning of accounting year as provided as under Section 2(1) of the Act. The said definition contemplates three situations: (i) in relation to a Corporation; (ii) in relation to a Company; and (iii) in any other case. The attempt of the learned counsel appearing for the petitioner is to show that DCM Limited being the owner of the establishment namely, DCM Engineering Products, when it had changed the accounting year to extend up to 31.12.1995, it shall be that period which shall operate also for the establishment. The definition no doubt makes possible an accounting year even a period longer than a year comprising of 12 months. The learned counsel appearing for the petitioner would submit that Section 2(1)(iii) would apply only to case of an establishment which has an accounting year which is not a Company. According to him, if the owner of the establishment was a Company, the accounting year of the Company alone shall be the accounting year of the establishment. 8. This mode of reading of the Section, in my view, is not correct and does not take a logical extension to a notional treatment of an establishment or a unit as distinct from a Company that owns the unit or establishment, in the manner contemplated by the proviso to Section 3. Civil Writ Petition No.1446 of 2000 - 9 - We have already seen that DCM Engineering Products Limited is an establishment which has separate profit and loss account and it is only the profit and loss account of that establishment which is relevant for declaration of bonus. Although the parent Company DCM Limited may also have consolidated profit and loss account, it will be irrelevant for the workmen by virtue of the proviso. If, for the workmen, the profit and loss account of the unit alone was relevant, the accounting year for the Company which owns the unit cannot determine the accounting year for the unit. It is to cover such a situation that clause (iii) of Section 2(1) operates. 9. Section 2(1)(iii)(b) states if the accounts of an establishment maintained by the employer thereof are closed and balanced on any day other than the 31st day of March, then at the option of the employer, the year ending on that day on which the accounts are so closed and balanced shall be accounting year. In this case, admittedly the accounts were closed on 30th June every year up to the year 1994 and only during the period of the year 1994-95 without closing the account on 30th June 1995, the employer had sought to extend the accounting period for the establishment to coincide with the accounting year of the Company by extending it up to 31st December, 1995. If such an extension were to be made, the proviso to Section 2(1)(iii)(b) states that such permission may be obtained from the prescribed authority and that prescribed authority, in this case, shall, in the context of Section 2(5), be the State Government. Permission obtained by the Company with the Registrar of Companies could be only for the purpose of complying with the Civil Writ Petition No.1446 of 2000 - 10 - provisions of the Companies Act and it will have no bearing to altering the accounting year of the establishment. If the unit were to be treated as distinct from the Company by operation of the proviso to Section 3, a fortiorari, it ought to be distinct also for the purpose of reckoning the accounting year. The Industrial Tribunal has, in this case, correctly held that since the DCM Engineering Products was a separate and independent unit, the action of the Company in extending the accounting year without the DCM Engineering Products Limited itself applying for extension of the accounting year without the prior permission of the prescribed authority namely, the Labour Commissioner, Punjab, was patently illegal and wholly unjustified. The Tribunal has, therefore, held and in my view correctly so, that the permission sought by the parent Company for the extension of its accounting year had no relevance or impact with regard to the unit which was an independent establishment for the purpose of computation of bonus. 10. The only aspect that has to be still seen whether such adjudication by the Industrial Tribunal is outside the purview of the reference made to it by the Government. The starting point of the dispute itself was only when the employer had sought to reduce the percentage of bonus from 20% to 13.467% and when they sought to make recoveries of alleged excess amount paid from out of the advance of Rs.4,000/- paid during October 1995. The demand of the workmen for the accounting year 1994-95 for higher bonus was only on the basis that the employer was not entitled to increase the accounting period for the accounting year from 12 months to 18 months. When the Government was making a Civil Writ Petition No.1446 of 2000 - 11 - reference to the justification of the claim of the workmen at 20% bonus, it took within its fold the right of the workmen to contend that 20% was possible to be paid if the accounting period was properly reckoned as falling within a period of 12 months from 01.07.1994 to 30.06.1995 and not from 01.07.1994 to 31.12.1995. This was an obvious corollary to a dispute whether the workmen were entitled to the bonus at the percentage which they were asking for. In my view, the Industrial Tribunal had not exceeded its jurisdiction and its adjudication of what was the accounting year was a necessary point for adjudication and could not be separated from the issue whether the workmen were entitled to the bonus which they were claiming. 11. The decision of the Tribunal is, under the circumstances, fully justified and no interference is called for. The writ petition is, therefore, dismissed. I place on record my sincere appreciation to Shri Mutneja, Amicus Curiae for the workmen, for the assistance rendered to this Court for presenting the case in all its facets. The direction given by the Industrial Tribunal already shall now be undertaken by the petitioner establishment and the entire process will be completed within 2 months from the date of this judgment. No costs. (K.KANNAN) JUDGE 11.01.2010. sanjeev