Case: D.P. Kelkar Vs. Ambadas Keshav Bajaj

2. The main argument was advanced in Special Civil Application No. 2239 of 1968 and we would first set forth briefly the facts of that Special Civil Application. The petitioner before us is the manager of the India United Mills Ltd., No. 1 Mill, of Bombay, which we shall hereafter refer to for the sake of brevity as the Indu Mills as it is popularly known. On 29th November 1965 the Indu Mills was taken under the management of an authorised controller under Sectionof the Industries (Development and Regulation) Act, 1951 by a notification of the Government of India. One M.D. Bhat was appointed as the authorised controller. We shall refer to the detailed provisions of this notification a little later. On 21st December, 1967 the 1st respondent Dhondu Mahadeo Ghadi an employee of the Indu Mills applied before the Authority appointed under the Payment of Wages Act for the area of Greater Bombay for the payment to him of the minimum bonus payable to him under the provisions of Section 10 of the Payment of Bonus Act. He claimed to be entitled to receive Rs. 76.40 and Rs. 101.68 as bonus for the years 1965 and 1966. Though the amount claimed by this particular employee is small, the petitioner before us has averred that upon the decision of this matter further claims by the other employees of the mills are likely to be made and that even if only the minimum bonus is payable to all the employees of the mills it will entail an amount of over Rs. 20 lakhs for the two years 1965 and 1966 although the company has suffered net losses of Rs. 1.75 crores and Rs. 1.83 crores in the said two years.3. The facts relating to Special Civil Application No. 1909 of 1968 are somewhat similar. There we are concerned with the Pratap Spinning, Weaving and . of Amalner in Jalgaon District. The petitioner before us is D.P. Kelkar its general manager. The authorised controller was appointed to manage this mill by a notification dated 4th March 1963. He was one S.A. Kher. The initial appointment was for a period of 5 years but the management of the authorised controller has been continued from year to year and counsel informed us that the mill is still under the management and control of the authorised controller. The respondent No. 1 before us are the officials of the Rastriya Mill Workers Union of Amalner who claim to represent not only the 1st respondent Ambadas but also 773 other workers of this mill. On 26th December 1967 these workers put in a claim for the payment of the minimum bonus payable under the Act through the Union. They claimed a total sum of Rs. 1,20,312. The application was filed before the Authority under the Payment of Wages Act for the Amalner Taluka area at Amalner.

Reasoning:
9. By Section 12, no minimum or maximum bonus can be paid on salary in excess of Rs. 750/per month. To ensure this provision has been made for employees drawing a salary or wage of more than Rs. 750/per mensem in which case there is a special provision for calculation of bonus as if his salary or wage were seven hundred and fifty rupees per mensem only. Certain special cases are provided for in Section 13 and Section 14 provides for the computation of the number of working days. Then we come to the important provisions regarding set on and set off of allocable surplus contained in Section 15 of the Act. Where for any accounting year the allocable surplus exceeds the amount of maximum bonus payable to the employees in the establishment under Section 11, then, the excess shall, subject to a limit of twenty per cent of the total salary or wage of the employees employed in the establishment in that accounting year, be carried forward for being set on in the succeeding accounting year and so on up to and inclusive of the fourth accounting year to be utilised for the purpose of payment of bonus in the manner illustrated in the Fourth Schedule. Similarly where for any accounting year there is no available surplus or the allocable surplus in respect of that year falls short of the amount of minimum bonus payable to the employees and there is no amount or sufficient amount carried forward and set on under(1) of Section 15 which could be utilised for payment of the minimum bonus, then, such minimum amount or the deficiency, as the case may be, is to be carried forward for being set off in the succeeding accounting year and so on up to and inclusive of the fourth accounting year in the manner illustrated in the Fourth Schedule. The purpose of these provisions is clear. Where there are profits or allocable surplus, the allocable surplus must be set apart and utilised towards payment of the bonus under the Act subject to the limitations indicated. The balance has to be carried forward and when there are lean years and there is no available surplus or the allocable surplus falls short of the amount of minimum bonus, then the establishment can draw from the balance of the allocable surplus if any of the previous years. It is clear, however, that whether or not there is allocable surplus or available surplus, the minimum bonus has to be paid in any Case.We are unable to accept this contention because, in the first place as the definition of wages stands today there are no words of limitation in that definition limiting it to an agreement or contract between the employer and the employee. The definition says wages means all remuneration expressed in terms of money or capable of being so expressed which would, if the terms of employment express or implied, were fulfilled, be payable. Therefore every kind of remuneration would be included in this definition so long as it is payable to the employee if the terms of employment, express or implied, were fulfilled. The expression if the terms of employment, express or implied, were fulfilled would in the context in which it is found apply to the employee. The condition precedent for the application of the definition would therefore be if the terms of employment, express or implied, were fulfilled by the employee. These words cannot in the context in which they are found apply to an employer. With respect we are in agreement with the remarks made in a recent judgment of this court in Balaram Abaji Patil v. M.C. Ragojiwalla : (1960)IILLJ491Bom by Mr. Justice Tarkunde. He said that the expression if the terms of the contract of employment express or implied, were fulfilled refers only to such of the terms of the contract of employment as are required to be fulfilled by the employed person. The expression has no reference to the terms of the contract which are to be fulfilled by the employer.Therefore those words do not bring in the concept of contract or agreement of employment, so far as the employer is concerned.13. A reference to the decision in Balaram Abajis case, : (1960)IILLJ491Bom , also gives rise to another point which we would here emphasize. At the time when that decision was given the definition of wages was different. Prior to the amendment Of the definition introduced by Act 68 of 1957 the definition was wages means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable ...... to a person employed in respect of his employment or of work done in such employment..... (the underlining is ours). The words if the terms of the contract of employment were, however, dropped by Section 3(3) of the amendment Act 68 of 1957 and the words terms of employment were substituted. It seems to us that upon the point which has been argued, this amendment makes a crucial difference. Now the words the contract of having been dropped, we do not see how it can still be argued that the definition is limited only to remuneration payable under an agreement or contract. It is clear that the amended definition would apply to all kinds of remuneration whether arising from a contract, an award, a settlement or under a statute. As stated in Balaram Abajis case, : (1960)IILLJ491Bom , the definition as it now stands makes no reference to the origin of the employers obligation to pay the remuneration. When we consider the legislative history of the definition, the construction which we have put upon it is further reinforced.In the Act therefore there is a right created in favour of the employee on the one hand and a duty enjoined upon the employer on the other hand to pay the bonus. It is clear, therefore that by this legislation a term of the employment has been introduced binding on the employer and in favour of the employee. The expression term of employment or under the terms of employment used in(vi) of Section 2 of the Payment of Wages Act, cannot, in our opinion, be read to imply merely contractual terms of employment. As we have said there is nothing in the definition as it stands to show that it refers only to contractual payment and would in the ordinary meaning of that expression include payments which it is the duty of the employer to pay whether under a contract or a statute or an award or settlement. The effect of the Payment of Bonus Act therefore, is to introduce a further term of employment as regards the payment of bonus. The requirement of the section therefore that whatever remuneration is payable must be payable under the terms of employment, is therefore satisfied. We must hold under the circumstances that the bonus payable under the Payment of Bonus Act 1965 amounts to wages within the definition in Section 2(vi). We say this however subject to what we will indicate hereafter.As regards the first contention, we have already discussed the question whether the payments under the Bonus Act amount to wages and in our opinion, they do amount to wages and to that extent, therefore, we must hold that so far as this contention is concerned, the Payment of Wages Authority had jurisdiction and the two authorities were right in the decision which they took on this point.20. The same however cannot be said about the other two contentions on the question of jurisdiction. Section 15,(1) confers the jurisdiction upon the Payment of Wages Authority in the following wordsthe State Government may appoint one or more persons to be the authority or authorities to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of the wages of persons employed or paid in that area.In the present case the dispute is not regarding deductions from wages but regarding delay in the payment of wages. The procedure prescribed for the trial of claims to wages is contained in(3) of Section 15 and a mere perusal of thatwould show that the procedure is a very summary procedure and enacted to ensure the speedy disposal of the employees claim and the prompt payment to him of his wages. The summary nature of these proceedings is indicated by the use of the words ..... and after such further inquiry (if any) as may be necessary. The Payment of Wages Authority has no doubt to give an opportunity to the employer of being heard but there is nothing like a formal hearing nor has evidence to be recorded in the manner in which it is recorded in a Civil Court nor is the other procedure to be followed as is normally followed in a Civil Court. In most of the cases which come before the Payment of Wages Authority, however, such a summary procedure would be suitable and expedient having regard to the purpose and object of the Act, but where a dispute arises and controversial and complicated questions of law are raised, involving a prolonged inquiry as in the present case it is clear that it was not intended by the Payment of Wages Act that such questions should also continue to be tried by the Payment of Wages Authority. The very nature of the jurisdiction conferred and the procedure prescribed preclude that being done.(3) itself makes this clear by the use of the words after such further inquiry (if any) as may be necessary, may ...... direct the payment of the wages deducted or delayed. Thus a discretion is given to the Authority in a given case not to decide the claim itself but to leave the parties to determine the claim by normal procedure. This was also the settled view of this court and has now received the imprimatur of the Supreme Court itself in its recent decision in Payment of Wages Inspector v. B.K.S.T. Co. : (1969)ILLJ762SC .The section in the first place applies only when a dispute arises between an employer and his employees with respect to the bonus payable under the Act. In making this provision the section, does not in any way affect or infringe any of the provisions of the Payment of Wages Act particularly Section 15 which confers jurisdiction upon the payment of Wages Authority. We have already shown that it was settled law that under Section 15 of the Payment of Wages Act, though no doubt all claims in respect of deductions from wages and delay in payment of wages are to be tried by the Payment of Wages Authority, where a dispute arises and there is a complicated question to be tried, that question should not ordinarily be tried by the Payment of Wages Authority. Section 22 of the Bonus Act says no more than this and to that extent would, in our opinion, be complementary to the law under the Payment of Wages Act. Any dispute arising between an employer and his employee with respect to the bonus payable under the Bonus Act would by Implication be taken out of the jurisdiction of the Payment of Wages Authority and be relegated to the jurisdiction of the Authority under the Industrial Disputes Act. There is nothing in the Payment of Wages Act, particularly in Section 15 of the Act, to exclude the operation of any other laws. On the other hand Section 34.(1) of the Bonus Act excludes the operation of the other laws. Section 34(1) sayssave as otherwise provided in this section, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the terms of any award, agreement, settlement or contract of service made before the 29th May, 1965.It was therefore intended that the Bonus Act should have effect notwithstanding anything contained in any other lawsTherefore even assuming that the Payment of Wages Act had provided for jurisdiction in a matter like this, we have held that it hasSection 34 would exclude the operation of the Payment of Wages Act, but we have already said that there is nothing in the Payment of Wages Act to indicate that the operation of any other law is excluded so far as the jurisdiction of the payment of wages authority iswords of Section 22 which we have quoted refer to any dispute with respect to the bonus payable and it seems to us that the language employed does not limit itself directly to the quantum of the bonus payable under the Act only. When the section says with respect to the bonus it means necessarily disputes in connection with the bonus or connected with the bonus payable under the Act. That would be the normal connotation of the words with respect to and it seems to us that when the employer raises an issue such has been raised in the present case, that the establishment itself has been exempted and therefore no bonus is payable, it is a dispute with respect) to the bonus payable under theis not exclusion from the provisions of the Act which had been canvassed on behalf of the employers but merely exemption as stated in the Act itself under this clause of Section 32. Therefore the dispute which the employers have raised in the present case will be a dispute under this Act and not de hors the Act. It seems to us therefore that the provisions of Section 22 would squarely apply to the dispute raised in the present case. That it is a dispute there can be no doubt, and indeed that has not been challenged in the present case. If so, it seems to us that for both the reasons which we have stated above that dispute would be beyond the jurisdiction of the Payment of Wages Authority. The first reason is that normally it is not a question which under the Payment of Wages Act itself ought to be decided by the Payment of Wages Authority because it raises a complicated question of law and secondly that in any event Section 22 indicates a forum where such a dispute ought to be tried and therefore by implication ousts the jurisdiction of the Authority under the Payment of Wages Act.The payment of Bonus Act is a special Act dealing with a special subject. It statutorily creates rights in favour of the employee and against the employer which the employee never enjoyed before namely the right to be paid what is called a bonus even though the establishment or undertaking may not be making profits at all. A bonus originally meant a boon or gift over and above what is normally due to the employee. It was in the nature of an extra dividend paid out of surplus profits. In the inception it was always paidby the employer but later legislation made the payment of bonus obligatory. Now the payment under this Act is also obligatory but it is payable whether there are profits in the accounting year or not (see Section 10). The payment has thus lost the essential characteristics of a bonus, yet it is called by that name in the Act. These are all steps taken by our legislatures within recent times in their attempts to remove economic imbalances and to restore social justice between employer and employee. It is also common knowledge that so far it was the Industrial Courts and Tribunals which adjudicated upon disputes regarding bonus and granted bonus to employees of a concern. No doubt they never granted bonus to employees of a concern which was being run at a loss ant under the present Act what is called bonus is for the first time in the history of industrial relations made payable to employees of an establishment even though that establishment is running at a loss, but it is understandable that the function of deciding disputes regarding the new payment and granting it would also be entrusted to Industrial Court and Tribunals. In the present case so far as the Indu Mills are concerned, they have specifically stated that in the year 1965 they incurred a loss of Rs. 1,79,00,000/and in the year 1966 a loss of RupeesThe Act, therefore, makes provision for the first time for an extraordinary right which was not within the contemplation of the Industrial Law before and was passed with the sole object of conferring only that right upon the employees and providing for it. When such a special statute containing special provisions also creates a special forum for the trial of disputes under the Act it is settled law that any dispute arising under that Act must go before the special Tribunal created under the Act. We hold for these reasons that the Payment of Wages Authority had no jurisdiction in the present case to try the dispute raised in these cases.With regard to the latter judgment (in Pratap Spinning. Weaving and Manufacturing Co.s case) we may say that the Authority gave some further reasons as can be seen from the following observations at the end of paragraph 16:Section 32 conceives of theof the Act to certain classes of employees. Certainly this is far removed from the question of application of the Act under Section 20.We have already dealt with this point but we must say that these observations amount to an incorrect reading of Section 32, Clause (iv). Section 32 does not conceive of anyof the Act to an employer. On the other hand, it is a provision of the Act itself and the Act itself creates an exemption. In other words it amounts to saying that the employer claims an exemption under the Act and not de hors the Act. The authority erred in observing that Section 32 conceives ofof the Act to certain classes of employees and because it took this incorrect view it also observed that the question was far removed from the question of application of the Act under Section 20. Any dispute raised under Section 32 would be a question governing the applicability of the Act. We are unable to sustain the reasoning of either authority.32. A further contention based upon the amendment to Section 15(1) of the Payment of Wages Act, by Amendment Act 53 of 1964 was advanced. Of the several amendments made by that Act at the end of(1) of Section 15 for the words of persons employed or paid in that area the following words were substituted, of persons employed or paid in that area, including all matters incidental to such claims, (the underlining is ours.) On the strength of the last clause which we have underlined it has been contended on behalf of the respondents that the jurisdiction of the Payment of Wages Authority after this amendment has been considerably enlarged. Whereas previously the Authority was only confined to hearing and deciding claims arising out of deductions from wages or delay in the payment of wages, now the authority has jurisdiction to decide all matters incidental to such claims. Therefore the points which have been raised on behalf of the employers and which we have dealt with above could have been dealt with by the Payment of Wages Authority in the present case.33. It seems to us that the amendment was brought in only for the purpose of clarifying what was already the law namely that the jurisdiction of the authority is confined to deciding all claims arising from deductions from wages or delay in the payment of wages and that would necessarily include, matters connected with the two questions and that is why it is referred to in the amendment as all matters incidental to such claims. The amendment refers only to mattersto the claims arising out of deductions from wages or delay in the payment of wages and we do not think that when the amendment speaks of matters incidental it meant to include within the ambit of the jurisdiction of the payment of wages authority substantial questions as to the applicability of the Act or as to the applicability of exemptions created under the Act and similar other questions especially where complicated questions of law or fact arise. Despite the amendment we think the decision of the Supreme Court in : (1969)ILLJ762SC and the principle laid down there would still govern the present case. So long as any complicated question of law or fact is likely to arise, even though incidental, the matter cannot be tried by the payment of wages Authority, See para 10 at p. 596 of the report. For these reasons we are of the opinion that the payment of wages authority would not have jurisdiction to try the question raised in these two petitions before us and that the decisions of the authorities overruling the objection as to jurisdiction raised by the employers, were incorrect.Such is the drastic effect and the vast power assumed by the Central Government and partially conferred upon the authorised controller functioning under the authority of the Central Government. It is clear that the principal officers of the company namely the manager and the director are wiped out of existence and the authorised controller substituted. The plenary body which usually has the plenary authority in a company, and appoints the directors viz. theis no doubt continued but it is an ineffective and powerless body offor they cannot discharge their main function namely of appointing directors through whom the company is usually managed and they cannot pass any effective resolutions without the consent of the Central Government. They are onlyin name and have none of the usual power and authority of theunder the Companies Act. What is worse, they cannot resolve that the companys business should be put an end to because they cannot pass a winding up resolution without the consent of the Central Government, nor can any proceeding for winding up lie without the consent of the Central Government.43. It is clear upon these provisions that the management and control is completely taken away from the directors and substantially from theand the effective management and control of the Central Government through the authorised controller substituted. It is impossible not to hold in a case like this that the industrial undertaking is being carried on under the authority of the CentralConsiderable stress was laid on behalf of the workers upon(2) of Sectionwhich is so to say a saving clause saving the powers of the undertaking which happens to be a company.(2) merely sayssubject to the provisions contained in(1), and to the other provisions contained in this Act and subject to such other exceptions, restrictions and limitations, if any, as the Central Government may, by notification in the official Gazette, specify in this behalf, the Indian Companies Act, 1913, shall continue to apply to such undertaking in the same manner as it applied thereto before the issue of the notified order under Sectiondoubt the Companies Act continues to apply but the conditions and limitations with which its operation is circumscribed are so numerous and drastic as to make the solemn statement thatthe Indian Companies Act shall continue to apply to such undertaking in the same manner as it applied thereto before the issue of the notified order under Sectionor less chimerical. As we have shown, every vestige and substance of power is taken away under the provisions of SectionsE. The directors cease to function, the shareholders cannot pass effective resolutions unless approved by the Central Government; thecannot appoint directors under any circumstances; the authorised controller is given the control and management in place of the directors, and no proceeding for winding up can lie even though resolutions are passed to that effect without the consent of the Central Government. What remains of the powers of the directors of the company after these provisions come into operation, it is difficult to envisage. The authorised controller is not fettered by limitations. On the other hand he enjoys all the powers under the Companies Act subject to the overriding powers of the Central Government to give powers or to create exceptions, restrictions or limitations upon those powers under the Companies Act. Three conclusions may be drawn from these provisions. Firstly that after the notifications and the operation of these sections come into force, what is left of the company is the mere outward shell of incorporation and every vestige of power to manage and control is taken away from the directors andSecondly the authorised controller becomes all powerful and enjoys all the authority under the Companies Act except to the extent that he is controlled by the Central Government. Thirdly the plenary and overriding power of the Central Government to give directions and to make exceptions, restrictions and limitations to the Indian Companies Act and thereby further to control the authorised controller and the company is absolute and unrestricted. We have no manner of doubt that under this dispensation the establishments of which the management and control were taken away in the cases before us, were carried on under the authority of a department of the Centralhave already referred to the two notifications and to the provisions of the law contained in Sectionsof the Industries (Development and Regulation) Act, 1951 and the authorised controller is in no sense appointed as an agent or representative of the Government. He is a controller authorised by the Central Government and has to comply with all directions issued from time to time by the Central Government. The management and control therefore, is directly under the department of the Central Government concerned and not under a person who has any independent authority of his own. In every matter and in every respect in which the authorised controller can act in the management of the company it is the Central Government who is the authority to issue directions or to control his actions. He is therefore the person authorised and not an agent of Government. The establishment therefore, it must be held, is being carried on directly under the authority of a department of the Central Government. The argument moreover ignores the distinction drawn by the section itself by the use of the words by and under in contradistinction to each other.47. The view we have taken is supported by the principles laid down in two of the cases which were referred to Abdul Rehman Abdul Gafur v. E. Paul : (1962)IILLJ693Bom (decision of a single Judge of this Court) and Secretary, Indian Naval Canteen Control Board, New Delhi v. Industrial Tribunal, Ernakulam : AIR1966Ker94 , though upon the facts a contrary conclusion was reached. In both these cases dealing with the identical phrase under the authority of the Central Government to be found in the definition of appropriate Government in Section 2(a)(i) of the Industrial Disputes Act, the Court held that the phrase means and is intended to apply to industries carried on directly under the authority of the Central Government. In our opinion, upon the circumstances we have set forth here and having regard to the provisions of the Industries (Development and Regulation) Act, it is amply established that both these undertakings were being directly run under a department of the Central Government. In the two cases that fact was negatived, but the circumstances in each of those two cases were quite different. In one case the Mazgaon Dock Limited was continuing as an incorporated public limited company and exercising all its powers through a board of directors although the capital belonged entirely to the Government. In the Kerala case the undertaking involved was the Indian Naval Canteen Service functioning under its own constitution created by a trust. The circumstances here are entirely different. We, however accept with respect, the interpretation put in these two decisions upon the words carried on under the authority of the Central Government as meaning carried on directly under the authority of the Central Government. While we have thus agreed with the principle laid down in these two authorities, we may say that we must not be understood to have accepted all that has been decided in the Kerala case. Particularly we refer to the observations in para 7 of that case thatthe question as to whether a particular industry is carried on by or under the authority of the Central Government is essentially a question of fact depending on the circumstances of each case.In our opinion, that observation in that case was hardly necessary and was casual observation, but we wish to make it clear that we are unable to accept that observation. In our opinion, the question whether a particular industry is carried on by or under the authority of the Central Government is a mixed question of law andcannot give that construction for we cannot hold that any words used in a statute are redundant unless necessity compels us to do so. In the present case we think that those words have a meaning. The Legislature has used a composite expression, though a somewhat cumbersome expression an establishment engaged in any industry to indicate the subject of the clause carried on by or under the authority of any department of the Central Government. In our opinion, an establishment engaged in any industry is a composite expression to which the clause carried on by or under the authority of any department of the Central Government is a qualification. Instead of using a more compendious expression establishment, the draftsman has in the interests of extra clarity used the expression establishment engaged in any industry. This construction is reinforced on a consideration of other provisions of the Act particularly the preamble to the Act,(3) of Section 1 and Section 3, Section 4(b) read with Sch. 2 and Sections 5 and 6 read with Sch. 3. A perusal of these provisions of the Payment of Bonus Act will show that the Act never contemplated applying this provision to an industry but only to an establishment. It purports to be an Act for the payment of bonus to persons employed in certain establishment and for matters connected therewith and the main object and purpose of the Act also reinforces the construction which we have placed upon Clause (iv) of Section 32.51. In order to get out of the impact of Clause (iv) of Section 32 an attempt was further made to limit the applicability of Section 32, Clause (iv) by saying that the provisions of ChapterB andto which we have referred, were all provisions which confer powers which were merely supplementary to the normal powers under the Companies Act such as for instance, the power of the Central Government under Sections 408 and 409 of the Companies Act and that therefore the company qua company continues to have the normal powers of control enjoined by the Central Government. We cannot appreciate such an argument because the powers conferred upon the Central Government under Sections 408 and 409 of the Companies Act are in no way comparable to the powers assumed by the Central Government under Chapterof the Industries (Development and Regulation) Act. It is unnecessary to deal in detail with these powers, but a mere perusal of Sections 408 and 409 will show that one gives power to the Central Government to appoint directors and the other to stay operation of any action taken detrimental to public limited companies. Such powers are powers of supervision and are in no way comparable to the powers of control and management given to the Central Government under Chapterof the Industries (Development and Regulation) Act. We are unable to accept this contention.