IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 10970 of 1993. Date of Decision : February 09, 2010. Punjab Housing Development Board, Sector-17, Chandigarh, through Housing Commissioner. ...... Petitioner. Versus. Presiding Officer, Labour Court, U.T. Chandigarh, and another. ..... Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. Sanjeev Sharma, Advocate, for the petitioner. Mr. G.P. Singh, Advocate, for respondent No. 2. AUGUSTINE GEORGE MASIH, J. (ORAL). Punjab Housing Development Board Workcharged Employees Union, Chandigarh/respondent No. 2 (hereinafter referred to as “respondent/Employees Union”) submitted a Charter of Demands dated 17.02.1983 (Annexure-P-1) to Punjab Housing Development Board (hereinafter referred to as “ the petitioner/Board”). In the said demand notice, respondent/Employees Union raised sixteen demands. The petitioner/Board admitted demands No. 1, 2, 3, 7, 8, 9, 10, 13, 14, and demand No. 15 was dropped by respondent/Employees Union of its own. The other demands were not accepted by the petitioner/Board and, therefore, reference under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”) was made to the Labour Court, U.T., Chandigarh (hereinafter referred to as “the Labour Court”), vide order dated 22.10.1988 by the appropriate Government. C.W.P. No. 10970 of 1993. -2- The respondent/Workman Union filed their claim statement on 05.09.1990 and the petitioner/Board filed its response thereto. The demands which remained to be adjudicated upon were demands No. 4, 5, 6, 11, 12, and 16. During the proceedings before the Labour Court, the petitioner/Board conceded that demands No. 6, 11, 12, and 16 have also been accepted and given effect to. Only two demands, i.e., demands No. 4 and 5 were required to be adjudicated upon, but during the hearing, it transpired that demand No. 4 also stood accepted in the light of the Third Pay Commission Recommendations, which was adopted by the petitioner/Board. Thus, demand No. 5 was the only demand, which required adjudication of the Labour Court. On consideration of the same, the Labour Court accepted the same by holding that the workcharged employees were entitled to bonus from 1976 onwards. The Award was passed by the Labour Court on 07.12.1992 (Annexure-P-5), which has been challenged by the petitioner/Board in the present writ petition. Counsel for the petitioner/Board contends that the impugned Award passed by the Labour Court, cannot be sustained as an agreement was entered into between Punjab Housing Board Employees Union (Regd.), Chandigarh, and the petitioner/Board, wherein the said Union had entered into a settlement with the petitioner/Board, according to which it was agreed upon between the parties that the employees of the petitioner/Board will be paid bonus for the last four assessment years, namely, 1984-85, 1985-86, 1986-87 and 1987-88. The bonus for the years 1984-85 and 1985-86 will be credited to the provident fund of the employees and bonus for the years 1986- 87 and 1987-88 will be paid in cash and this agreement will apply to all employees of the petitioner/Board, who were entitled to bonus under the Act. Vide Agenda item No. 9105, the petitioner/Board agreed to the said settlement and a resolution to that effect was passed by the petitioner/Board. Reference C.W.P. No. 10970 of 1993. -3- dated 15.07.1983 made on demand notice raised by the Punjab Housing Board Employees Union (Regd.) Chandigarh, wherein nine demands on the petitioner/Board were raised, which was referred by the Chandigarh Administration on 01.02.1985 as the conciliation proceedings failed and was disposed of in the light of the agreement, vide order dated 14.02.1989 (Annexure-P-4). He contends that the said agreement and Award dated 14.02.1989 (Annexure-P-4), passed by the Labour Court, is binding on respondent/Employees Union and, therefore, the impugned Award dated 07.12.1992 (Annexure-P-5), cannot be sustained. He further contends that as per Section 18 of the Act, the settlement of the Award would be binding on the parties and respondent/Employees Union cannot make an exception to this. In support of this contention, counsel for the petitioner/Board relies upon the judgments of Hon'ble the Supreme Court in the cases of Herbertsons Ltd. Versus The Workmen of Herbertsons Ltd and others, A.I.R. 1977 Supreme Court, 322, M/s Hari Fertilizers etc. Versus State of U.P., 2000 (3) S.C.T. 1088, National Engineering Industries Ltd Versus State of Rajasthan, 2000(1) S.C.T. 717, and Division Bench Judgment of Delhi High Court in the case of Management of M/s Birla Cotton Spinning and Weaving Mills Ltd Versus Kapra Mazdoor Ekta Union, 2002(1) S.C.T. 479. He challenges the Award also on the ground that the claim, which had been made by respondent/Employees Union, was highly belated as the claim of bonus was made from the year 1976 and the reference had been made in the year, 1980. The claim was stale and, therefore, could not have been adjudicated upon by the Labour Court and should have been dismissed on this ground alone. In support of this contention, he relies upon the judgment of this Court in the case of Satpal Versus Presiding Officer, Labour Court, C.W.P. No. 10970 of 1993. -4- Gurdaspur, 2001 (3) S.C.T. 764. Counsel for the petitioner/Board has raised another objection to the Award by contending that the provisions of Payment of Bonus Act, 1965 (hereinafter referred to as “the Bonus Act”) is not applicable to the petitioner/Board in the light of Section 32(iv) of the Bonus Act. On the other hand, counsel for respondent/Employees Union contends that respondent/Employees Union was not a signatory to the agreement entered into between the petitioner/Board and Punjab Housing Board Employees Union (Regd.) Chandigarh. It is a distinct Union from that of respondent/Employees Union. In any case, he submits that in the light of first proviso to Section 31-A of the Bonus Act, any agreement or settlement, whereby the employees relinquish their right to receive the minimum bonus under Section 10, shall be null and void and, therefore, the contention as raised by counsel for the petitioner/Board that the agreement and the Award, which had been passed pursuant to the agreement and Award dated 14.02.1989 (Annexure-P-4), would not be binding on the employees of the petitioner/Board. He contends that there can be no estoppel against the statute and the right cannot be waived, which are conferred upon the employees. He further submits that the contention of counsel for the petitioner/Board that the demand was belated, is devoid of any force. The Award on which the petitioner/Board is relying is dated 14.02.1989 (Annexure-P-4), where the Punjab Housing Board Employees Union (Regd.) Chandigarh, had raised a demand on 15.07.1983, whereas in the case of respondent/Employees Union, the demand was served on 17.02.1983, which was prior in time. He further contends that the time consumed by the Government for making a reference, i.e., till 1990, cannot be put on respondent/Employees Union and further that no such objection was raised by the petitioner/Board before the Labour Court C.W.P. No. 10970 of 1993. -5- during the proceedings. His further contention is that it was not the case of the petitioner/Board before the Labour Court that the Bonus Act is not applicable to the petitioner/Board. No pleadings were made in this regard nor was any evidence led in support of this contention. This argument has been raised by the petitioner/Board for the first time before this Court and in the absence of the pleadings before the Labour Court or before this Court in the writ petition, the same cannot be gone into and adjudicated upon. I have heard counsel for the parties and have gone through the records of the case. The controversy in the present case is limited to the claim made by respondent/Employees Union with regard to grant of bonus with effect from 1976 onwards. It is not in dispute that bonus to all employees of the petitioner/Board stood paid from 1984 onwards. It is also not in dispute that the agreement entered into between the Punjab Housing Board Employees Union (Regd.) Chandigarh, and the petitioner/Board resulted in passing of an Award dated 14.02.1989 (Annexure-P-4) and according to this agreement, the employees of the petitioner/Board were to be paid bonus with effect from 1984-85 only. As per Section 18 of the I.D. Act, any settlement and Award is/are binding between the Employer and the Workmen. The question, therefore, which requires to be adjudicated upon is “whether an Award which is based on an agreement, which is in violation to the statute, would be binding on the employees”? It is not in dispute that Bonus Act covers the grant of bonus to the employees. The agreement, which was entered into between Punjab Housing Board Employees Union (Regd.) Chandigarh and the petitioner/Board curtail/relinquish the right of the employees to claim bonus from the year C.W.P. No. 10970 of 1993. -6- 1976 onwards. Reference to Section 31A of the Bonus Act, would be beneficial at this stage, which reads as under :- “31A. Special provision with respect to payment of bonus linked with production or productivity.-Notwithstanding anything contained in this Act,- (i)where an agreement or a settlement has been entered into by the employees with their employer before the commencement of the Payment of Bonus (Amendment) Act, 1976 (23 of 1976), or (ii)where the employees enter into any agreement or settlement with their employer after such commencement, for payment of an annual bonus linked with production or productivity in lieu of bonus based on profits payable under this Act, then, such employees shall be entitled to receive bonus due to them under such agreement or settlement, as the case may be: Provided that any such agreement or settlement whereby the employees relinquish their right to receive the minimum bonus under section 10 shall be null and void in so far as it purports to deprive them of such right; Provided further that such employees shall not be entitled to be paid such bonus in excess of twenty per cent of the salary or wage earned by them during the relevant accounting year.” First proviso to Section 31A of the Bonus Act clearly specifies that any agreement or settlement, whereby the employees relinquish their right to receive the minimum bonus under Section 10, shall be null and void in so far as it purports to deprive them of such a right. Any agreement or settlement or for that matter any Award passed in pursuance of such a settlement or agreement, would be null and void as the same would be hit by the provisions of proviso to Section 31A of the Bonus Act. There can be no estoppel to the statute. Section 34 of the Bonus Act further fortifies the claim of the respondent/Employees Union, which reads as follows :- “34. Effect of laws and agreements inconsistent with the Act. - Subject to the provisions of section 31A, the provisions of C.W.P. No. 10970 of 1993. -7- this Act shall have effect notwithstanding anything inconsistent there with contained in any other law for the time being in force or in the terms of any award, agreement, settlement or contract of service.” When these two provisions are read in conjointly with each other, only one conclusion can be reached and, i.e., agreement between the petitioner/Board and Punjab Housing Board Employees Union (Regd.) Chandigarh, and the Award dated 14.02.1989 (Annexure-P-4), which was passed in pursuance of and in consonance with the above agreement, would be null and void and, thus, not binding on respondent/Employees Union. In any case, respondent/Employees Union was not a party to the said agreement and the Award and the reference on the demand notice served by respondent/Employees Union is dated 17.02.1983, which was prior in time, was pending adjudication before the Labour Court. In the light of the specific provisions as contained in first proviso to Section 31A and Section 34 of the Bonus Act, the contention as raised by counsel for the petitioner/Board that the agreement and the Award dated 17.02.1983 (Annexure-P-4), would be binding on respondent/Employees Union, cannot be accepted and deserves to be rejected. The judgments relied upon by counsel for the petitioner/Board in the cases of Herbertsons Ltd. (supra) , M/s Hari Fertilizers etc. (supra), National Engineering Industries Ltd (supra), and Management of M/s Birla Cotton Spinning and Weaving Mills Ltd (supra), would not be applicable to facts of the present case as in none of the cases provisions as contained in Bonus Act were involved. These judgments are purely based on the Industrial Disputes Act. The contention of counsel for the petitioner/Board that the claim of respondent/Employees Union is stale as the same is belated, also cannot be C.W.P. No. 10970 of 1993. -8- accepted for the reason that no such objection was raised by the petitioner/Board before the Labour Court. In any case, the demand was raised by respondent/Employees Union on 17.02.1983, which was being considered by the petitioner/Board all through and, as a matter of fact, out of sixteen demands except for demand No. 5, all other demands were accepted, implemented and given effect to by the petitioner/Board during the pendency of the demand and/or during the proceedings before the Labour Court. The only issue, which was left for adjudication by the Labour Court, was demand No. 5, which was with regard to the claim of bonus from the year 1976 as it is an admitted position that bonus from the year 1984-85 was paid to the employees in accordance with the Bonus Act. Thus, this contention of counsel for the petitioner/Board does not carry weight and is accordingly rejected. The last contention, which was raised by counsel for the petitioner/Board, wherein he has contended that the Bonus Act shall not apply to the petitioner/Board in the light of Section 32 (iv) of the Bonus Act, also cannot be accepted firstly, for the reason that no such objection was raised by the petitioner/Board before the Labour Court nor was it pleaded or any evidence was led in support of this. This contention has also been raised by counsel for the petitioner/Board for the first time at the argument stage as there is no pleadings in the present writ petition as well on this aspect. There is nothing on the record to suggest that the petitioner/Board would be covered by the provisions of Section 32 (iv) of the Bonus Act. In any case, it is an admitted case that the bonus is being paid to the employees with effect from 1984 onwards as per provisions of Bonus Act. This contention as raised by counsel for the petitioner/Board is, therefore, not accepted. C.W.P. No. 10970 of 1993. -9- In view of the above, the Award dated 07.12.1992 (Annexure-P-5) passed by the Labour Court, is upheld as there is no illegality in the same, which would call for any interference by this Court. Finding no merit in the present writ petition, the same stands dismissed. (AUGUSTINE GEORGE MASIH) JUDGE February 09, 2010. sjks. Whether referred to the Reporter : ___________