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Even where an Act deals comprehensively with a particular subject matter, the Legislature can surely provide that it shall apply to particular persons or groups of persons or to specified institutions only. Ratio |
Therefore, the fact that the preamble states that the Act shall apply to certain establishments does not necessarily mean that it was not intended to be a comprehensive provision dealing with the subject matter of bonus. Ratio |
While dealing with the subject matter of bonus the Legislature can lay down as a matter of policy that it will exclude from its application certain types of establishments and also provide for exemption of certain other types of establishments even though such establishments would otherwise fall within the scope of the... |
The exclusion of establishments where less than 20 persons are employed in sec.1(3) therefore is not a criterion suggesting that Parliament has not dealt with the subject matter of bonus comprehensively in the Act. Ratio |
As already seen, there was until the enactment of this Act no statute under which payment of bonus was a statutory obligation on the part of ,in employer or a statutory right therefore of an employee. Ratio |
Under the and other corresponding Acts, workmen of industrial establishments as defined therein could raise an industrial dispute and demand by way of bonus a proportionate share in profits and Industrial Tribunals could under those Acts adjudicate such disputes and oblige the employers to pay bonus on the principle th... |
The right to the payment of bonus and the obligation to pay it arose on principles of equity and fairness in settling such disputes under the machinery provided by the Industrial Acts and not as a statutory right and liability as provided for the first time by the present Act. Ratio |
In providing such statutory liability, Parliament has laid down a statutory formula on which bonus would be calculated irrespective, of whether the establishment in question has during a particular accounting year made profit or not. Ratio |
It can further lay down that the formula it has evolved and the statutory liability it provides in the Act shall apply only to certain establishments and not to all. Ratio |
Since there was no such statutory obligation under any previous Act, there would not be any question of Parliament having to delete either such obligation or right. Ratio |
In such circumstances, since Parliament is providing for such a right and obligation for the first time, there would be no question also of its having to insert in the, Act an express provision of exclusion. Ratio |
In other words, it has not to provide by express words that henceforth no bonus shall be payable under the or other cor responding Acts as those Acts did not confer any statutory right to bonus. Ratio |
It will be noticed that though the confers substantive rights on workmen with regard to lay off, retrenchment compensation, etc., it does not create or confer any such statutory right as to payment to bonus. Ratio |
Bonus was so far the creature of industrial adjudication and was made payable by the employers under the machinery provided under that Act and other corresponding Acts enacted for investigation and settlement of disputes raised thereunder. Ratio |
There was, therefore, no question of Parliament having to delete or modify item 5 in the third Schedule to Industrial 'Disputes Act or any such provision in any cor responding Act or its having to 'exclude any right to bonus thereunder by any categorical exclusion in the present Act. Ratio |
But the argument was that if the Act were to be held as an exhaustive statute dealing with the subject of bonus, three results would follow which could never have been expected much less G intended by Parliament. Ratio |
These results would be : (1) that employees in establishments engaging less than 20 persons would get no bonus at all either under the Act or under industrial adjudication provided for by the and other corresponding Acts. Ratio |
Since such employees were so far getting bonus as a result of industrial adjudication, Parliament could never have intended to deprive them of such benefit; (ii) that employees in public sector Corporations and Companies would get no bonus either under the Act or under the or other corresponding law; and (iii) that suc... |
Though sec.1(3) excludes an establishment other than a fac tory having less than 20 employees from the application of the Act, all establishments which are factories irrespective of the number of persons employed therein and all establishments which are not factories but are having 20 or more employees are covered by t... |
Therefore, only small establishments having less than 20 employees and which are not factories are excluded. Ratio |
Even in such cases if any establishment were to have 20 or more persons employed therein on any day in any accounting year, the Act would apply to such an establishment. Ratio |
It is, therefore, clear that Parliament by enacting sec.1(3) excluded only petty establishments. Ratio |
We are not impressed by the argument that Parliament in excluding such petty establishments could not have intended that employees therein who were getting bonus under the Full Bench formula should lose that benefit. Ratio |
As aforesaid, Parliament was evolving for the first time a statutory formula in regard to bonus and laying down a legislative policy in regard thereto as to the classes of persons who would be entitled to bonus thereunder. Ratio |
It laid down the definition of an 'employee ' far more wider than the definition of a 'workman ' in the and the other corresponding Acts. Ratio |
If, while doing so, it expressly excluded as a matter of policy certain petty establishments in view of the recommendation of the Commission in that regard, viz., that the application of the Act would lead to harassment of petty proprietors and disharmony between them and their employees, it cannot be said that Parliam... |
It is true that the construction canvassed on behalf of the appellants leads, as argued by counsel for the respondents, to employees in public sector concerns being deprived of bonus which they would be getting by raising a dispute under the and other corresponding statutes. Ratio |
But such a result occurs in consequence of the exemption of establishments in public sector from the Act, though such establishments but for sec.32(x) would have otherwise fallen within the purview of the Act. Ratio |
It appears to us that the exemption is enacted with a deliberate object, viz., not to subject such establishments to the burden of bonus which are conducted without any profit motive and are run for public benefit. Ratio |
The exemption in sec.32(x) is, however, a limited one, for, under sec. 20 if a public sector establishment were in any accounting year to sell goods produced or manufactured by it in IF competition with an establishment in private sector and the income from such sale is not less than the 20% of its gross income, it wou... |
Once again it is clear 383 that in exempting public sector establishments, Parliament had a definite policy in mind. Ratio |
This policy becomes all the more discernible when the various other categories of establishments exempted from the Act by sec.32 are examined. Ratio |
An insurer carrying on general insurance business is exempted under cl.(i) in view of certain provisions of the Insurance Act, 1936 and the Insurance (Amendment) Act, 1950. Ratio |
In view of these provisions the Full Bench formula could not be and was not in fact applied at any time to such insurance establish ments. Ratio |
The Life Insurance Corporation of India is exempted under clause (1) because of its being a public sector concern having no Cl.(ii) of sec.32 profit motive and conducted in public interest.exempts shipping companies employing seamen in view of sec. 159(9) of the under which the was inapplicable to such seamen, the disa... |
The exemption in respect of stevedore labour contained in cl.(iii) also seems to have been provided for in view of the peculiar nature of employment,, the difficulty of calculating profits according to the normal methods and other such difficulties. Ratio |
The rest of the categories of establishments set out in sec.32 appear to have been exempted on the ground of (a) absence of any profit motive, (b) their being of educational, charitable or public nature, and (c) their being establishments in public sector carried on in public interest. Ratio |
Building contractors appear to have been exempted because of their work being contract job work, the unfeasibility of applying the formula evolved in the Act and the problem of employees of such contractors being more of evolving and enforcing a proper wage structure rather than of payment of bonus to them. Ratio |
It seems to us that if we were to accept the contention that the object of sec.32 was only to exempt the establishments therein enumerated from the application of the bonus formula enacted in the Act, but that the employees of those establishments were left at liberty to claim and get bonus under the machinery provided... |
Surely, Parliament could not have intended to exempt these establishments from the burden of bonus payable under the Act and yet have left the door open for their employees to raise industrial disputes and , ,get bonus under the Full Bench formula which it has rejected by laying down a different statutory formula in th... |
For instance, is it to be contemplated that though the Act by sec.32 exempts institutions such as the Universities or the Indian Red Cross Society or hospitals, or any of the establishments set out in cl.(ix) of that section, they would still be liable to pay bonus if the employees, 384 of those institutions were to ra... |
The legislature would in that case be giving exemption by one hand and taking it away by the other, thus frustrating the very object of sec. Ratio |
Where, on the other hand, Parliament intended to retain a previous provision of law under which bonus was payable or was being paid it has expressly saved such provision. Ratio |
Thus, under sec.35 the Coal Mines Provident Fund and Bonus Schemes Act, 1946 and any scheme made thereunder are saved. Ratio |
If, therefore, Parliament wanted to retain the right to claim bonus by way of industrial adjudication for those who are either excluded or exempted from the Act it would have made an express saving provision to that effect as it has done for employees in Coal Mines. Ratio |
Besides, the construction suggested on behalf of the respondents, if accepted, would result in certain anomalies. Ratio |
Take two establishments in the same trade or industry, one engaging 20 or more persons and the other less than 20. Ratio |
The Act would be applicable to the former but not to the latter. Ratio |
If the respondents were to be right in their contention the employer in the former case would be liable to, pay bonus at the rates laid down by the Act, i.e. at the rate of 4% minimum and 20% maximum, but in the latter case the Act would not apply and though his establishment is a smaller one, on the basis of the Full ... |
Section 32(vii) exempts from the applicability of the Act those employees who have entered before May 29, 1965 into an agreement or settlement with their employers for payment of bonus linked with production or productivity in lieu of bonus based on profits and who may enter after that date into such agreement or settl... |
Can it be said that in cases where there is such an agreement or settlement in operation, though this clause expressly excludes such employees from claiming bonus under the Act during such period, the employees in such cases can still resort to the and claim bonus on the basis of the Full Bench formula ? The answer is ... |
It cannot be that despite this position, Parliament intended that those employees had still the option of throwing aside such an agreement or settlement raise a dispute under the and claim bonus under the Full Bench formula. Ratio |
The contention, therefore, that the exemption under sec 32 excludes those employees from claiming bonus under the Act only and not from claiming bonus under the 385 or such other Act is not correct. Ratio |
This conclusion is buttressed by the provisions of sec.36 which empower the appropriate Government to exempt for a specified period an establishment or class of establishments from the operation of the Act, if it is of. Ratio |
the opinion that it is not in public interest to apply all or any of the provisions of the Act to such establishment or class of establishments. Ratio |
Since the appropriate Government can exempt such an establishment or establishments from the operation of the Act on the ground of public interest only, it cannot surely be that Parliament still intended that the employees of such exempted establishment or establishments can claim bonus through industrial adjudication ... |
We are also not impressed by the contention that the fact that sec.39 provides that the provisions of this Act are in a addition to and not in derogation of the or any other corresponding law shows that Parliament did not wish to do away with the right to payment of bonus altogether to those who cannot either by reason... |
Such a construction is fallacious on two ground. Ratio |
Firstly because it assumes wrongly that the or any other law corresponding to it provided for a statutory right to payment of bonus. Ratio |
All that those Acts provided for, apart from rights in respect of lay out, retrenchment etc., a machinery for investigation and settlement of disputes arising between workmen and their employers. Ratio |
It is, therefore, incorrect to say that the right to bonus under this Act is in addition to and not in derogation of any right to bonus under those Acts. Ratio |
Secondly, sec.39 became necessary because the Act does not provide any machinery or procedure for investigation and settlement of disputes which may arise between employers and employees. Ratio |
In the absence of any such provision Parliament intended that the machinery and procedure under those Acts should be made available for the adjudication of disputes arising under or in the operation of the Act. Ratio |
If, for instance, there is a dispute as to the computation of allocable surplus or as to quantum of bonus, or as to whe ther in view of sec.20 an establishment in public sector is liable to pay bonus, such a dispute is to be adjudicated under the machinery provided by the or other corresponding Acts. Ratio |
Considering the history of the legislation, the background and the circumstances in which the Act was enacted, the object of the Act and its scheme, it is not possible to accept the construction suggested on behalf of the respondents that the Act is not an exhaustive Act dealing comprehensively with the subject matter ... |
We are, therefore, of the view that the construction given to the Act by the Tribunals was not correct and the orders passed by them have to be set aside. Ratio |
The appeals are allowed, but as the question as to the scope of the Act is raised in these appeals for the first time, there will be no order as to costs. RPC |
V.P.S. Appeals allowed. RPC |
Appeal No. 48 of 1954. FAC |
Appeal from the Judgment and Order dated the 1 1 th January, 1954, of the High Court of Judicature of Mysore in Civil Petition No. 29 of 1953, quashing the Order of the Election Tribunal, Shimoga, dated the 15th January, 1953, in Shimoga No. I of 1952 53. FAC |
K. section Krishnaswami Iyengar (K. section Venkataranga Iyengar and M. section K. Iyengar, with him) for the appellant. FAC |
Dr. Bakshi Tek Chand (R. Ganapathy Iyer and M. section K. Sastri, with him) for respondent No. 1. FAC |
C. K. Daphtary, Solicitor General for India (Jindra Lal, Porus A. Mehta and P. O. Gokhale, with him) for respondent No. 3. 1954. FAC |
May 5. FAC |
The Judgment of the Court was delivered by MUKERGEA J. FAC |
This appeal is directed against a judgment of a Division Bench of the Mysore High Court, dated the 11th January, 1954, by which the learned Judges granted an application, presented by the respondent No. I under article 226 of the Constitution, and directed a writ of certiorari to issue quashing the,, proceedings and or... |
The facts material for purposes of this appeal may be briefly narrated as follows: The appellant and respondent No. 1, as well as eight other persons, who figured as respondents Nos. 2 to 9 in the proceeding before the High Court, were duly nominated candidates for election to the Mysore Legislative Assembly from Tarik... |
Five of these nominated candidates withdrew their candidature within the prescribed period and the actual contest at the election was between the remaining five candidates including the appellant and respondept No. 1. FAC |
The polling took place on the 4th January, 1952, and the votes were counted on the 26th of January following. FAC |
As a result, of the counting the respondent No. 1 was found to have secured 8,093 votes which was the largest in number and the appellant followed him closely having obtained 8,059 votes. FAC |
The remaining three candidates, who were respondents Nos. 2, 3 and 4 before the High Court, got respectively 6,239, 1,644 and 1,142 votes. FAC |
The Returning Officer declared the respondent No. 1 to be the successful candidate and this declaration was published in the Mysore Gazette on the 11th February, 1952. FAC |
The respondent No. 1. lodged his return of election expenses with the necessary declaration sometime after that and notice of this return was published on the 31st March, 1952. FAC |
The appellant thereafter filed a petition before the Election Commission, challenging the validity of the election, inter alia, on the grounds that there was violation of the election rules in regard, to certain matters and that the respondent No. I by himself or through his agents were guilty of a number of major corr... |
The petitioner prayed for a declaration that the election of respondent No. I was void and that he himself was duly elected. FAC |
This petition, which bears date, 10th of April, 1952, was sent by registered post to the Election Commission and was actually received by the latter on the 14th of April,; following. FAC |
The Election Commission referred the matter for determination by the Election Tribunal at 253 Shimoga and it came up for hearing before it on the 25th of October, 1952. FAC |
On that date the appellant filed an application for amendment of the petition, heading it as one under Order VI, rule 17, of the Civil Procedure Code, and the only amendment sought for was a modification of the prayer clause by adding a prayer for declaring the entire election to be void. FAC |
It was stated at the same time that in case this relief could not be granted, the petitioner would, in the alternative pray for the relief originally claimed by him, namely, that the election of respondent No. I should be declared to be void and the petitioner himself be held to be the elected candidate at the election... |
Despite the objection of respondent No. 1, the Tribunal granted this prayer for amendment. FAC |
The hearing of the case then proceeded and on the averments made by the respective parties, as many as 27 issues were framed. FAC |
Of them, issues Nos. 1, 5, 6, 11, 12 and 14 are material for our present purpose and they stand as follows : (1) Has there been infringement of the rules relating to the time of commencement of poll by reason of the fact that the polling at Booth No. I for Ajjampur fixed at Ajjampur to take place at 8 A.m did not reall... |
The judgment of the Tribunal is dated the 15th of January, 1953. FAC |
On the 5th February, 1953, the respondent No. I presented an application before the Mysore High Court under article 226 of the Constitution praying for a writ or direction in the nature of certiorari calling for the records of the proceeding of the Election Tribunal in Election Petition No. I of 195253 and quashing the... |
This application was heard by a Division Bench consisting of Medappa C.J. and Balakrishnaiya J. and by their judgment dated the 11th January, 1954, the learned Judges allowed the petition of respondent No. 1 and directed the issue of a writ of certiorari as praved for. FAC |
It is against this judgment that the appellant has come up to this Court on the strength of a certificate granted by the High Court under articles 132(1) and 133(1) (c) of the Constitution. FAC |
The substantial contention raised by Mr. Ayyangar, who appeared in support of the appeal, is, that the learned Judges of the High Court misdirected themselves both on facts and law, in granting certiorari in the present case to quash the determination of the Election Tribunal. ARG |
It is urged, that the Tribunal in deciding the matter in the way it did did not act either without jurisdiction or in excess of its authority, nor was there any error apparent on the face of the proceedings which could justify the issuing of a writ to quash the same. ARG |
It is argued by the learned counsel 255 that, what the High Court has chosen to describe as errors of jurisdiction are really not matters which affect the competency of the Tribunal to enter or adjudicate upon the, matter in controversy between the parties and the reasons assigned by the learned Judges in support of th... |
Two points really arise for our consideration upon the contentions raised in this appeal. Ratio |
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