Case: Union Vs. Transport and Dock Workers'New Dholera Steamships, Limited, and Others

the year 1962, and any subsequent accounting year was pending before the appropriate Government or before any tribunal or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947), or under any corresponding law relating to investigation and settlement of industrial disputes in a State, such disputes shall be decided in accordance with the provisions of this Ordinance.Explanation. - A dispute shall be deemed to be pending before the appropriate Government where no decision of that Government on any application made to it under the said Act or such corresponding law for reference of that dispute to adjudication has been made or where having received the report of the conciliation officer (by whatever designation known) under the said Act or law, the appropriate Government has not passed any order refusing to make such reference".4. The Ordinance came into force on 6 January, 1965 and the present award was made on 30 January, 1965. The Ordinance was prima facie applicable under S. 33 because immediately before 2 September, 1964 this dispute regarding payment of bonus was pending before a tribunal constituted under the Industrial Disputes Act and it related to payment of bonus for an accounting year subsequent to an accounting year ending on any day in the year 1962. At an earlier hearing the workmen intended invoking in their favour S. 10 of the Ordinance which read :"10. Payment of minimum bonus. - Every employer shall be bound to pay to every employee who has worked in the establishment for all the working days in an accounting year a minimum bonus which shall be 4 per cent of the salary or wages of the employee for the accounting year or forty rupees, whichever is higher, whether there are profits in the accounting year or not :Provided that where such employee has not completed fifteen years of age at the beginning of the accounting year, the provisions of this selection shall have effect in relation to such employee as if for the words forty rupees, the words twenty-five rupees were substituted."5. However as it was stated on behalf of the companies that the provisions of the Ordinance were going to be challenged as ultra vires the Constitution we ordered that noticed be issued to the Attorney-General. Before the appeal came up for hearing the Payment of Bonus Act, 1965 (Act 21 of 1965), was enacted which came into force on 25 September, 1965. The Act re-enacted S. 33 of the Ordinance but with some significant changes.The sectionnow reads :"33. Act to apply to certain pending disputes regarding payment of bonus. - Where, immediately before 29 May, 1965, any industrial dispute regarding payment of bonus relating to any accounting year, not being an accounting year earlier than the accounting year ending, on any day in the year 1962, was pending before the appropriate Government or before any tribunal or other authority under the Industrial Dispute Act, 1947, or under any corresponding law relating to investigation and settlement of industrial disputes in a State, then, the bonus shall be payable in accordance with the provisions of this Act in relation to the accounting year to which the dispute relates and any subsequent accounting year, notwithstanding that in respect of that subsequent accounting year no such dispute was pending.Explanation. - A dispute shall be deemed to be pending before the appropriate Government where no decision of that Government on any application made to it under the said Act or such corresponding law for reference of that dispute to adjudication has been made or where having received the report of the conciliation officer (by whatever designation known) under the said Act or law, the appropriate Government has not passed any order refusing to make such reference".The change of date in the section from 2 September, 1964 to 29 May, 1965, takes this case out of the application of the new section because immediately before 29 May, 1965 there was no dispute regarding payment of bonus pending before the tribunal. The dispute had already been disposed of on 30 January, 1965.6. It was contended before us that as an appeal is a continuation of the original proceeding the repeal should not affect the enforcement of the provisions of the Ordinance in this case. Reliance is placed upon S.6 of the General Clauses Act, 1897, wherein is indicated the effect of repeal of an enactment by another. It is contended that as the Payment of Bonus Ordinance has been repealed by S. 40(1), the consequences envisaged in S.6 of the General Clauses Act must follow and the present matter must be disposed of in accordance with the Ordinance as if the Act had not been passed. It is submitted that there was a right and a corresponding obligation to pay bonus under S. 10 of the Ordinance and that right and obligation cannot be obliterated because of the repeal of the Ordinance. This argument is not acceptable because of the provisions of Sub-sec. (2) of S. 40. That sub-section reads as follows :"40. Repeal and saving. -(1) * * *(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under this Act as if this Act had commenced on 29 May, 1965."Section6 of the General Clauses Act applies ordinarily but it does not apply if a different intention is made to appear expressly and the special saving incorporated in the repealing Act protects only anything (sic) Ordinance which is deemed to have been done or taken under this Act as if the Act had commenced on 29 May, 1965. Nothing had been done under the Ordinance and no action was taken which needs protection; nor was anything pending under the Ordinance which could be continued as if the Act had not been passed. There was thus nothing which was to be saved after the repeal of the Ordinance and this question which might have arisen under the Ordinance now ceases to exist.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]This is a matter of evidence and there was ample evidence before Sri Meher on which he could reach his conclusion and this Court does not interfere with a finding of fact reached on evidence to be found on the record. This point must also fail.When special leave was granted by this Court on 3 August, 1965, the Payment of Bonus Ordinance, 1965 (Ordinance 3 of 1965), had already been passed and the provisions of the Ordinance might have become applicable in this case because of the operation of S. 33 of the Ordinance.4. The Ordinance came into force on 6 January, 1965 and the present award was made on 30 January, 1965. The Ordinance was prima facie applicable under S. 33 because immediately before 2 September, 1964 this dispute regarding payment of bonus was pending before a tribunal constituted under the Industrial Disputes Act and it related to payment of bonus for an accounting year subsequent to an accounting year ending on any day in the year 1962. At an earlier hearing the workmen intended invoking in their favour S. 10 of the Ordinance which read :"10. Payment of minimum bonus.Every employer shall be bound to pay to every employee who has worked in the establishment for all the working days in an accounting year a minimum bonus which shall be 4 per cent of the salary or wages of the employee for the accounting year or forty rupees, whichever is higher, whether there are profits in the accounting year orchange of date in the section from 2 September, 1964 to 29 May, 1965, takes this case out of the application of the new section because immediately before 29 May, 1965 there was no dispute regarding payment of bonus pending before the tribunal. The dispute had already been disposed of on 30 January,argument is not acceptable because of the provisions of(2) of S. 40.Nothing had been done under the Ordinance and no action was taken which needs protection; nor was anything pending under the Ordinance which could be continued as if the Act had not been passed. There was thus nothing which was to be saved after the repeal of the Ordinance and this question which might have arisen under the Ordinance now ceases to exist.