IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 4454/2008 (OA 1345/97) Date of Decision : April 21, 2009 Smt. Sumitra Devi Petitioner Versus The HPSEB and others. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. A.K. Gupta, Advocate, for the petitioner. For the respondents : Mr. Shashi Shirshoo, Advocate, for the respondents. Sanjay Karol, J. (Oral) The petitioner admittedly was engaged as daily waged Peon in May, 1993 with the respondent-Board. Since then she has been continuously working. In terms of the present petition the petitioner is seeking payment of bonus in accordance with the provisions of The Payment of Bonus Act, 1965. The petition initially filed before the erstwhile Himachal Pradesh Administrative Tribunal, which was admitted on 24.2.1998 now stands transferred to this Court by virtue of the provision of the 1 Whether reports of Local Papers may be allowed to see the judgment? 2 Himachal Pradesh Administrative Tribunal (Transfer of decided and pending cases and applications) Act, 2008 (No. 14 of 2008). Respondents in their reply have primarily taken two objections: (i) The dispute essentially is covered under The Industrial Disputes Act, 1947 hence reference to dispute under Section 10 of The Industrial Disputes Act, 1947 is only available to the petitioner. (ii) That in any event the petitioner being daily rated workman is not covered within the meaning of employee under The Payment of Bonus Act, 1965. The present proceeding is being considered under Article 226 of the Constitution of India. The petitioner is seeking enforcement of her statutory right. Respondent being welfare state is obliged to accord benefit of beneficial legislation in accordance with law hence the plea of alternative remedy needs to be rejected straight away. The Payment of Bonus Act, 1965 (hereinafter referred to as the Act) was enacted to provide for the payment of bonus to persons employed in certain establishments on the basis of profits. It is a beneficial legislation and by virtue of the provisions of the Act payment of bonus is a statutory obligation imposed on the employer. That the respondent is an employer is not in dispute. Section 2 sub-section (13) defines the employee to be as under: “(13) ‘employee’ means any person (other than an apprentice) employed on a salary or wage not 3 exceeding three thousand and five hundred rupees per mensem in any industry to do any skilled or unskilled, manual, supervisory, managerial, administrative, technical or clerical work for hire or reward, whether the terms of employment be express or implied;” Sections 8 and 10 of The Payment of Bonus Act, 1965 reads as under: “8. Eligibility for bonus—Every employee shall be entitled to be paid by his employer in an accounting year, bonus, in accordance with the provisions of this Act, provided he has worked in the establishment for not less than thirty working days in that year.” “10. Payment of minimum bonus—Subject to the other provisions of this Act, every employer shall be found to pay to every employee in respect of the accounting year commencing on any day in the year 1979 and in respect of every subsequent accounting year, a minimum bonus which shall be 8.33 per cent of the salary or wage earned by the employee during the accounting year or one hundred rupees, whichever is higher, whether or not the employer has any allocable surplus in the accounting year: Provided that where an employee has not completed fifteen years of age at the beginning of the accounting year, the provisions of this section shall have effect in relation to such employee as if for the words ‘one hundred rupees’, the words ‘sixty rupees’ were substituted.” 4 The Apex Court in M/s. Sanghvi Jeevraj Ghewar Chand and others versus Secretary, Madras Chillies, Grains and Kirana Merchants Workers Union and another AIR (56) 1969 Supreme Court 530 while considering the provisions of the Act specifically held that the term “employee” under Section 2(13) of the Payment of Bonus Act is wider than that of a “workman” under the Industrial Disputes Act. A dispute between an employer and an employee, may not fall under the provisions of the Industrial Disputes Act but, however, and under Section 22 of the Act a legal fiction has been created whereunder disputes which ordinarily do not fall under the Industrial Disputes Act are deemed to be industrial disputes under the Industrial Disputes Act or any other corresponding Law. The Apex Court in Managing Director, Chalthan Vibhag Sahakari Khand Udyog, Chalthan, District Surat vs. Government Labour Officer and others, (1981) 2 SCC 147, has even held that even retaining allowance paid to the employees during off season would also fall within the definition of expression “salary” or “wages” under the Payment of Bonus Act, 1965. Similarly the Apex Court in Sakhkkar Mills Mazdoor Sangh vs. Gwalior Sugar Co. Ltd. (1985) 2 SCC 134, has held that even a seasonal workman would be entitled to the benefit of the provisions of the Act. The legislative background behind the labour Court enactments has been succinctly and liberally interpreted by the Apex 5 court in Uptron India Ltd. vs. Shammi Bhan and another, (1998) 6 SCC 538, as under:- “Prior to enactment of labour laws, in many industrial establishments, even terms and conditions of service were often not reduced to writing nor were they uniform in nature, though applicable to a set of similar employees. This position was wholly incompatible to the notions of social justice, inasmuch as there being no statutory protections available to the workmen, the contract of service was often so unilateral in character that it could be described as mere manifestation of subdued wish of workmen to sustain their living at any cost. An agreement of this nature was an agreement between two unequals, namely those who invested their labour and toil, flesh and blood, as against those who brought in capital. The necessary corollary of such an agreement was the generation of conflicts at various levels disturbing industrial peace and resulting necessarily in loss of production and sometime even closure or lockout of the industrial establishment. In order to overcome this difficulty and achieve industrial harmony and peace, the Industrial Employment (Stand Orders) Act, 1946 was enacted requiring the management to define with sufficient precision and 6 clarity, the conditions of employment under which the workmen were working in their establishments. The underlying object of the Act was to introduce uniformity in the conditions of employment of workmen discharging similar functions in the same industrial establishment under the same management and to make those terms and conditions widely known to all the workmen before they could be asked to express their willingness to accept the employment. The Act also aimed at achieving a transition from mere contract between unequals to the conferment of “status” on workmen through conditions statutorily imposed upon the employers by requiring every industrial establishment to frame “Standing Orders” in respect of matters enumerated in the Schedule appended to the Act.” In State of T.N. represented by Secretary, Housing Deptt., Madras vs. K.Sabanayagam and another, (1998) 1 SCC 318, the Court has again reiterated the legislative intent and history of enacting the aforesaid provisions. The Act does not bar a daily rated workman to be an employee. The definition is inclusive. Admittedly for the period in question the petitioner was not paid wages/salary exceeding Rs. 3500/- per month and she was performing the duties of an unskilled 7 manual labour. As such the petitioner is a employee to fall within the legislative intent and scope under the definition clause. A conjoint reading of the Sections would show that the respondent was enjoined with the duties of disbursing payment of bonus at such rates and for such period as the petitioner was entitled to. Section 13 of the Act mandates payment of bonus on rate stipulated for such period for which the employee has worked with the employer. The respondent is enjoined with the duty of disbursing payment of bonus in accordance with the provisions of the Act. Regretfully by taking a plea which is totally untenable in law the petitioner has been deprived of legitimate payments as stipulated under the law. It is undisputed that the provisions of the Act are enforceable by the respondents and that they have been paying bonus in accordance with the provisions of the Act to their regularly appointed employees who otherwise are taken to be covered by the provisions of the Act. For the aforesaid reasons the present petition is allowed. Respondents are directed to make payment of bonus to the petitioner at the rate of 8.33 per cent per annum for the period for which she is entitled to. Payment shall be made within a period of three months from today, failing which, thereafter she shall be entitled to interest at the rate of 9 per cent. 8 Petition is allowed with payment of cost of Rs. 11,000/- (Rupees eleven thousand only). (Sanjay Karol), Judge. April 21, 2009 (PK)