CW 1626/96 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.1626/1996 Subhash Chand & Others Versus Rajasthan Rajya Sahkari Tilhan Uptpadak Sangh Limited (Tilam Sangh), Jaipur & Anr Date of Order ::: 04/11//09 Hon'ble Mr. Justice Ajay Rastogi Mr. Nishant Vyas, for petitioners Ms Anisha Jain, for respondents Instant petition has been jointly filed by (31) petitioners who are employees of respondent-Rajasthan Rajya Sahkari Tilhan Utpadak Sangh Limited (“Tilam Sangh”), Jaipur, assailing order dt.20/10/95 (Ann.2) whereby two conditions have been stipulated for grant of bonus @ 8.33% for the year 1994-95 under Payment of Bonus Act, 1965 (“Bonus Act”). As alleged, petitioners employees of respondents-Tilam Sangh which is a society duly registered under Rajasthan State Co- operative Societies Act, 1965 on 03/07/90. It appears from cause title that some of petitioners were appointed after creation of respondent-Tilam Sangh, while some of them were working in RAJFED & in other Co-operative Societies but their services appear to have been transferred after creation of Tilam Sangh CW 1626/96 //2// under some administrative decision of State Government. Respondent-Tilam Sangh despite having incurred losses in the year 1992-93, declared payment of bonus for the year 1992-93 vide order dt.28/10/1993 (Ann.1). However, there was no order placed on record for declaration of bonus for the year 1993-94; but respondent- Tilam Sangh passed order dt.20/10/95 (Ann.2) holding that the bonus @ 8.33% for the year 1994-95 shall be payable to employees who fulfilled conditions referred to therein and first condition was confined to those having worked in RAJFED but joined Tilam Sangh on its creation and second condition related to those having completed six years' service as on 31/03/1995. Counsel for petitioner submits that order impugned (Ann.2) is discriminatory and contrary to law and of Bonus Act, and all such employees having worked for not less than thirty days in an accounting year are entitled to payment of bonus and all the petitioners being permanent employees having worked in 1992-93 & 1993-94, are entitled for payment of bonus under Bonus Act, more so when they were CW 1626/96 //3// paid bonus in earlier years; and withdrawal thereof vide order impugned is not legally sustainable. Counsel further submits that the Bonus Act is applicable to all the employees and they are entitled for minimum bonus U/s 10 of Bonus Act @ 8.33% for relevant years in question – denial whereof is in violation of Art.14 of the Constitution. Respondents filed their reply to the petition wherein it has been averred that respondent-Tilam Sangh is declared to be a relief undertaking U/s 4 of Rajasthan Relief Undertaking (Special Provisions) Act, 1961 (“Relief Act”) and is yet “relief undertaking” for which notification has been issued by State Government from time to time; as such present petition is not maintainable. Upon uplifting “relief undertaking”, remedy U/s 22 of Bonus Act can certainly be availed of by petitioners, if feel aggrieved. It has also been averred that while respondent-Tilam Sangh is “relief undertaking” no legal proceedings before any court or Tribunal could be instituted, as referred to in S.4(1)(b) with its explanation; remedy CW 1626/96 //4// U/Art.226 of the Constitution being extra- ordinary, ordinarily could not have been availed of by them. Apart from preliminary objection, on merits, it has been further averred that upon respondent-Tilam Sangh having been created on 03/07/90, one is entitled for payment of bonus U/s 16 of Bonus Act only if establishment is running in profit in five accounting years. It is clear that as per S.16 only after fifth year following the accounting year of sale of goods produced or manufactured by the employer, the bonus is payable only in respect of accounting year in which employer derives profit from such establishment and such bonus shall be calculated in accordance with provisions of Bonus Act relating to that year. In instant case, as per letter dt. 18/01/08 of Rajasthan State Co-operative Oilseed Growers' Federation Ltd., respondent Tilam Sangh derived losses in the years 1990- 91 to 2006-2007 except in year 1998-99 – extract whereof reads ad infra: CW 1626/96 //5// (Sum in Lacs) Year Cash Profit/Loss Net Profit/Loss 1990-91 1991-92 1992-93 1993-94 1994-95 1995-96 1996-97 1997-98 1998-99 1999-2000 2000-2001 2001-2002 2002-2003 2003-2004 2004-2005 2005-2006 2006-2007 (+) 42.04 (-) 325.37 (-)1366.66 (-)0681.30 (-)1267.58 (-)1113.87 (-)1168.43 (-)1462.94 (+) 770.53 (-) 1460.87 (-) 1055.70 (-) 0972.96 (-) 0691.07 (-) 0859.81 (-) 0873.81 (-) 0915.17 (-) 0361.29 (-) 109.05 (-) 530.18 (-) 1679.77 (-) 1097.81 (-) 1956.06 (-) 1760.29 (-) 1718.46 (-) 2040.54 (+) 196.51 (-) 1998 (-) 1542.56 (-) 1315.44 (-) 0821.82 (-) 0973.15 (-) 0987.09 (-) 1015.19 (-) 0461.28 Thus, employer Tilam Sangh derived losses in relevant five accounting years and therefore, even otherwise, petitioners are not entitled for payment of bonus under the Bonus Act. As regards bonus erroneously paid for accounting year 1992-93, contrary to statute, it will not confer right to pay the bonus in subsequent year, and any decision having been taken erroneously, will not confer further right in seeking prayer for payment of bonus for subsequent years, also. CW 1626/96 //6// It has not been disputed by Counsel for petitioners that respondent-Tilam Sangh is still “relief undertaking” under notifications having been issued by State Government from time to time for an industrial undertaking being exempted from suit or legal proceedings and even if pending shall not proceeded with during the period while it remains “relief undertaking” as explained in S.4(1)(b) of the Act, 1961. In the facts & circumstances of the case, remedy available U/s 22 of Bonus Act could not have been availed of by petitioners which have constrained them to approached this Court. Of course, remedy is available to petitioners under Bonus Act, which is ordinarily to be availed of but respondent- Tilam Sangh being a “relief undertaking”, certainly statutory remedy could not be availed of by them during the period, the establishment remained “relief undertaking”. As regards remedy available to petitioner of invoking extra ordinary jurisdiction of this Court U/Art.226 of the Constitution, certainly cannot be said to be barred or being covered U/s 4 of the Act, 1961. But the facts remains that if in view of CW 1626/96 //7// availability of statutory remedy being suspended for instituting suit/legal proceedings against such establishment which is “relief undertaking”, whether writ court should exercise jurisdiction U/Art.226 of the Constitution in all situation. It is not the case where the fundamental rights of petitioners are being infringed or they are deprived of livelihood covered U/Art.21 of the Constitution. However, only question which requires consideration herein is as to whether petitioners are entitled for payment of bonus under Bonus Act, 1965. In the opinion of this Court, since institution of suit or legal proceedings stand suspended under the Act, 1961 against respondent-Tilam Sangh being “relief undertaking”, this Court would not like to exercise its writ jurisdiction U/Art. 226 of the Constitution, particularly when neither their fundamental rights nor right of livelihood are being infringed. In Ishaq Mohd etc. Vs. Jaipur Metals & Elect. Ltd (1988(1) RLR 157) this Court observed that while invoking writ jurisdiction in case of Company being “relief undertaking” under the Act, 1961, this Court can entertain CW 1626/96 //8// petition and grant relief but in that case, services of writ petitioners were dispensed with after having rendered service for 30 years and they were deprived of their livelihood in an arbitrary manner. In instant case, question raised for consideration is with regard to entitlement of payment of bonus which can certainly be examined by appropriate authority in terms of mechanism provided U/s 22 of Bonus Act and it requires appreciation of material on record in regard to entitlement and as to whether if they are entitled to payment of bonus, to what percentage, which can be decided and computed only after adjudication; more-so when it has been alleged that respondent-Tilam Sangh was deriving losses consistently since the year 1990 – statement in this regard has been placed on record quoted supra. In such circumstances, this Court would not like to exercise its extra-ordinary jurisdiction U/Art. 226 of the Constitution. Consequently, writ petition fails and is hereby dismissed. (Ajay Rastogi), J. K.Khatri/p.8/ 1626CW96RsrOctNov4.doc