Writ Petition No.805 of 2012

18th February, 2014

Petitioner Counsel: Shri R.B. PURANIK
Respondent Counsel: Shri A.M. GORDEY, J.L. BHOOT

Cases Cited:
Shramik Uttarsh Sabha Vs. Raymond Woolen Mills Ltd. & Ors., AIR 1995 SC 1137 [Para 37]

JUDGMENT

JUDGMENT :- Rule. Heard finally.

2. In the Complaint (ULP) No.102 of 2009 filed by the elected representatives under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the MRTU & PULP Act"), the Industrial Court has, by its judgment and order dated 24-1-2012, declared that the petitioner-employer is engaged in an unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act by denying the lawful claim for bonus of the employees. The Industrial Court has directed the petitioner-employer to pay the difference of bonus for the years 2006-2007 and 2007-08 as per the provisions of the amended Section 12 of the Payment of Bonus Act, 1965 on the basis of monthly salary or wages of Rs.3,500/- instead of Rs.2,500/-, after deducting the amount of bonus already paid for the said period to such employees. The employer is, therefore, before this Court in this writ petition.

Findings of the Industrial Court :

3. The findings of the Industrial Court are that there is no breach of Section 22 of the Payment of Bonus Act, which requires any dispute arising between the employer and his employee with respect to the bonus payable under the Act to be decided as an "industrial dispute" as per the provisions of the BIR Act, governing the industry. The dispute is regarding the entitlement of the employees to bonus on the basis of the upper limit of the monthly salary or wages of Rs.3,500/- as per the provisions of Section 12, which is not covered by Section 21 of the said Act, dealing with the recovery of bonus by making an application to the appropriate Government for recovery of such dues and obtaining a certificate for that amount from the Collector. The employer has not led any evidence to prove the balance-sheet for the concerned period in support of his claim that the "allocable surplus" under Section 15 of the said Act available with the employer, does not permit declaration of bonus at the maximum limit of 20% on the monthly salary of each employee to be considered at Rs.3,500/-. That the complaint is in respect of the implementation of provisions of Sections 11 and 12 of the Payment of Bonus Act, which attracts Item 9 of Schedule IV under the MRTU & PULP Act, and hence it has jurisdiction to entertain, try and decide such complaint.

Contentions of the petitioner-employer:

4. Shri Puranik, the learned counsel for the petitioner-employer admits the declaration of bonus under sub-section (1) of Section 11 of the Payment of Bonus Act at the rate of 20% for the accounting years 2006-07 and 2007-08 and the payment accordingly on the basis of the salary or wages of Rs.2,500/- per mensem. He has, however, urged that when a claim is made that the bonus at the rate of 20% needs to be calculated on the basis of salary or wages of Rs.3,500/- per mensem, as per the amendment to Section 12 of the said Act with effect from 1-4-2006, it is necessary to look into the availability of allocable surplus with the employer for the relevant accounting years. According to him, the declaration of percentage of bonus is linked with the available allocable surplus of the employer during the relevant accounting years.

5. Inviting my attention to the definition of "allocable surplus" under sub-section (4) of Section 2, the provisions of computation of available surplus under Section 5, and set on and set off of allocable surplus under Section 15 read with sub-section (2) of Section 11 of the said Act, Shri Puranik has urged that it becomes a matter of an "industrial dispute" under Section 22 of the said Act read with Section 3(17) of the BIR Act, governing an industry, which needs to be adjudicated in the mode and manner prescribed under the BIR Act, where the employer gets an opportunity to place on record the material and justify the action of denial. He submits that the jurisdiction of the Industrial Court under Section 28 read with Item 9 of Schedule of the MRTU & PULP Act is of a summary nature where the employer will not get an opportunity to justify its action and is, therefore, not available.

6. Further inviting my attention to the definition of an "employee" under sub-section (5) of Section 3 of the MRTU & PULP Act, he has urged that the Industrial Court will at the most get the jurisdiction under Section 28 of the said Act in respect of the employees, who are not working either in the managerial or administrative capacity and having income of less than Rs.6,500/- per month, but are the "workmen", as defined under clause (s) of Section 2 of the Industrial Disputes Act.

Contentions of the respondent-employees:

7. Shri Gordey, the learned Senior Counsel, assisted by Shri J.L. Bhoot, Advocate for the respondent-employees, submits that once the per-centage of bonus is declared by the employer under Section 11 of the Payment of Bonus Act, then it no more remains a matter of an "industrial dispute", as contemplated by Section 22 of the said Act. The employer is deemed to have taken into consideration of the relevant factors, as are pointed out by Shri Puranik snapping the link of percentage of bonus with the available allocable surplus with the employer for the concerned accounting years.

8. It is his submission that the allocable surplus is linked with the payment of bonus so far as the rights of employees are concerned and not with the discretion of an employer to declare the percentage of bonus irrespective of the allocable surplus available with it. His submission is that the employer may decide to reduce his profits to declare the maximum bonus so as to provide an incentive to the employees to increase the production activities, to motivate them, or even to maintain good relations and industrial peace. In such a situation, according to him, the percentage for payment of bonus declared, may not be in proportion to the available allocable surplus with an employer for the concerned years.

9. He further submits that in the present case, it is merely a question of implementation of the provisions of section 12 of the Payment of Bonus Act, which can be looked into by the Industrial Court in exercise of its jurisdiction under Section 28 read with Item 9 of Schedule IV of the MRTU & PULP Act. He, therefore, supports the view taken by the Industrial Court.

The relevant provisions of law :

10. Before proceeding to deal with the controversy involved in this case, certain provisions of the Payment of Bonus Act need to be looked into.

11. Section 10 of the Payment of Bonus Act creates an obligation on the part of the employer to pay a minimum bonus at the rate of 8.33% of the salary or wages earned by the employees during the accounting year, or Rs.100/-, whichever is higher, whether or not the employer has any allocable surplus in the accounting year. Thus, the payment of minimum bonus at the rate of 8.33% is a statutory right conferred by Section 10 of the said Act upon the employees and it is not controlled by the allocable surplus available with the employer in the concerned financial year.

12. Section 11 of the Payment of Bonus Act deals with the payment of maximum bonus and it reads as under :

"11. Payment of Maximum Bonus.-(1) Where in respect of any accounting year referred to in Section 10, the allocable surplus exceeds the amount of minimum bonus payable to the employees under that section, the employer shall, in lieu of such minimum bonus, be bound to pay to every employee in respect of that accounting year bonus which shall be an amount in proportion to the salary or wage earned by the employee during the accounting year subject to a maximum of twenty per cent of such salary or wage.

(2) In computing the allocable surplus under this section, the amount set on or the amount set off under the provisions of section 15 shall be taken into account in accordance with the provisions of that Section."

Sub-section (1) of Section 11 states that where in respect of any accounting year referred to in Section 10, the allocable surplus exceeds the amount of minimum bonus payable to the employees under that Section, the employer shall in lieu of such minimum bonus, be bound to pay to every employee in respect of that accounting year, the bonus which shall be an amount in proportion to the salary or wages earned by the employee during the accounting year subject to a maximum 20% of such salary or wages.

13. Section 12 of the Payment of Bonus Act deals with the calculation of bonus with respect to certain employees, and it runs as under :

"12. Calculation of bonus with respect to certain employees.--Where the salary or wage of an employee exceeds three thousand and five hundred rupees per mensem, the bonus payable to such employee under section 10 or, as the case may be, under section 11, shall be calculated as if his salary or wage were three thousand and five hundred rupees per mensem."

The definition of an "employee" under sub-section (13) of Section 2 of the Payment of Bonus Act also becomes relevant, and hence it is reproduced below :

"2(13) "employee" means any person (other than an apprentice) employed on a salary or wage not exceeding then thousand rupees per mensem in any industry to do any skilled or unskilled, manual, supervisory, managerial, administrative, technical or clerical work for hire or reward, whether the terms of employment be express or implied."

A combined reading of both the aforesaid provisions clearly shows that an employee doing any skilled or unskilled, manual, supervisory, managerial, administrative, technical or clerical work and getting the salary or wage exceeding Rs.3,500/- per mensem, is also entitled to the payment of bonus, under Section 10, or, as the case may be, under Section 11 of the said Act as if his salary or wage were Rs.3,500/- per mensem.

14. Under Section 22 of the Payment of Bonus Act, where any dispute arises between an employer and his employees with respect to the bonus payable under the Act, then by deeming fiction, such a dispute is to be treated as an "industrial dispute" within the meaning of the Industrial Disputes Act or of any corresponding law relating to investigation and settlement of industrial disputes in force in a State and the provisions of that Act or, as the case may be, such law, shall, save otherwise expressly provided, apply accordingly.

Question No.1 for consideration :

15. The first question, which falls for consideration, is whether a dispute regarding non-payment of bonus on the basis of monthly salary or wages of employees at Rs.3,500/-, as prescribed under Section 12 of the Payment of Bonus Act, is to be treated as an "industrial dispute" under Section 22 with respect to the bonus payable under the Act.

Adjudication on Question No.1 :

16. Where an allocable surplus available with the employer during such accounting year exceeds the amount of minimum bonus payable to the employees under Section 10 of the said Act, sub-section (1) of Section 11 of the Payment of Bonus Act creates a statutory obligation on the part of the employer to pay to every employee an amount of bonus in proportion to the salary or wages earned by the employee during any accounting year over and above the amount of minimum bonus payable under Section 10 of the said Act, but subject to the maximum limit of 20%. In such a situation, it becomes a corresponding statutory right of every employee to get the bonus in proportion to his salary or wages earned by him during the concerned accounting year, subject to the maximum limit of 20% of such salary or wages.

17. The provision of Section 11 of the Payment of Bonus Act, however, does not create any bar for the employer to declare such higher percentage or quantum of bonus over and above the minimum bonus payable to the employees under Section 10 of the said Act irrespective of the amount of available allocable surplus with him. It is the discretion conferred upon the employer under Section 11 to decide a definite or fixed percentage or the quantum of bonus over and above the minimum bonus available under Section 10 of the said Act. Shri Gordey, the learned counsel for the employer, is right in urging that the allocable surplus is linked with the payment of bonus, so far as the rights of the employees are concerned and not with the discretion of an employer to declare the percentage of bonus, irrespective of the allocable surplus available with him. Such a voluntary declaration of a definite or fixed percentage or quantum of bonus payable to the employees by the employer may be by way of an incentive for the work, or to increase the production activity, or to motivate the employee, or even to maintain good relations and industrial peace or security. It need not necessarily depend upon the amount of available allocable surplus with the employer for the concerned accounting year, and the employer may choose to make such a declaration by reducing his profits also.

18. Once the employer exercises such discretion either by declaring a definite or fixed percentage or the quantum of bonus payable to the employees over and above the minimum bonus under Section 10 of the said Act, then it no more remains a matter of dispute, muchless an "industrial dispute", as contemplated by Section 22 of the said Act, but it becomes a matter of statutory right under sub-section (1) of Section 11 of the said Act to get the bonus as per the percentage or quantum of bonus so declared by the employer.

19. The contention of Shri Puranik for the petitioner-employer is that the declaration of bonus payable at the rate of 20% was made on the basis of misconception of law that Section 12 of the Payment of Bonus Act prescribes the basis of salary or wages of Rs.2,500/- per mensem, but actually it is of Rs.3,500/- per mensem. He does not dispute that ignorance of the provisions of law cannot be an excuse. The provision uses the word 'shall' and is, therefore, mandatory. It does not leave any choice to the employer to calculate the bonus, and at any rate lesser than Rs.3,500/- per mensem, where the salary or wage of an employee exceeds Rs.3,500/- per mensem. It, therefore, becomes merely a matter of calculation of the bonus payable at the rate of 20% on the amount of salary or wages of Rs.3,500/- per mensem, as specified under Section 12 of the Payment of Bonus Act. There is no adjudication as such involved in making such calculations either in respect of the rights of the employees or corresponding liability of an employer.

20. In view of above, it has to be held that a dispute regarding non-payment of bonus on the basis of monthly salary or wages of employees at Rs.3,500/-, as prescribed under Section 12 of the Payment of Bonus Act, cannot be treated as an "industrial dispute" under Section 22 therein with respect to the bonus payable under the Act. The question No.1 is, therefore, answered accordingly.

As to the finding of an Industrial Court :

21. The Industrial Court has held that the remedy under Section 21 of the Payment of Bonus Act was not available to the employees. To deal with such finding, the provision of Section 21 of the Payment of Bonus Act needs to be seen, and hence it is reproduced below :

"21. Recovery of bonus due from an employer.--Where any money is due to an employee by way of bonus from his employer under a settlement or an award or agreement, the employee himself or any other person authorised by him in writing in this behalf, or in the case of the death of the employee, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government or such authority as the appropriate Government may specify in this behalf is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue:

Provided that every such application shall be made within one year from the date on which the money became due to the employee from the employer:

Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period."

A mere dispute regarding calculation of bonus under Section 12 of the said Act can be dealt with under Section 21 therein. However, such a remedy under Section 21 of the said Act is without prejudice to any other mode of recovery available to the employees. It is thus an additional remedy, which is provided under Section 21 of the said Act. The recourse to any other mode of recovery is not barred by Section 21 of the said Act. Hence, it cannot be said that the jurisdiction of the Industrial Court under Section 28 of the MRTU & PULP Act was not available to recover bonus due from the employer.

Question No.2 for consideration :

22. The Industrial Court has recorded the finding that the dispute is regarding the entitlement of employees to bonus on the basis of the upper limit of monthly salary or wages of Rs.3,500/- per mensem, as per the provision of Section 12 of the Payment of Bonus Act. If this finding is to be accepted as correct, then it would lead to an "industrial dispute", and Section 22 regarding reference to disputes under the Payment of Bonus Act would come into operation. Therefore, the second question, which falls for consideration, is whether the jurisdiction of the Industrial Court under Section 28 read with Item 9 of Schedule IV of the MRTU & PULP Act becomes available to claim bonus declared by the employer ?

Adjudication on Question No.2 :

23. The Legislative background in which Section 22 of the said Act was introduced, will have to be seen first. The Payment of Bonus Act is a Central legislation, which came into force with effect from 25-9-1965. When the said enactment was brought into force, there were only two enactments in force providing machinery for investigation and settlement of industrial disputes - one was the Bombay Industrial Relations Act, 1946, which is a State legislation; and the other was the Industrial Disputes Act, 1947, which is a Central legislation. The Parliament, therefore, must have thought that it is not necessary to provide a separate machinery under the Payment of Bonus Act to decide any dispute between an employer and his employees with respect to the bonus payable under Act and the machinery already available under the Industrial Disputes Act or any corresponding legislation in force in the State, can be utilized or entrusted with the function of deciding any such dispute.

24. A comparative study of the Industrial Disputes Act, Bombay Industrial Relations Act on one hand and the Payment of Bonus Act on the other hand reveals that (i) Section 2(k) of the Industrial Disputes Act defines an "industrial dispute" means any dispute or difference between "employer" and "workman", as defined under Section 2(g) and Section 2(s) of the said Act respectively; (ii) Section 3(17) of the Bombay Industrial Relations Act defines an "industrial dispute" to mean any dispute or difference between "employer" and "employee", as defined under Section 3(14) and Section 3(13) of the said Act respectively; (iii) the definitions of "workman" under Section 2(s) of the Industrial Disputes Act, and "employee" under Section 3(13) of the Bombay Industrial Relations Act do not include any person employed in managerial, administrative, supervisory or technical capacity drawing a salary exceeding an amount stipulating therein; (iv) the definition of "employee" under Section 2(13) of the Payment of Bonus Act includes any person employed on a salary or wage exceeding the amount of salary or wage payable to a "workman", defined under Section 2(s) of the Industrial Disputes Act, and an "employee", as defined under Section 3(13) of the Bombay Industrial Relations Act; and (v) an "employee", defined under Section 2(13) of the Payment of Bonus Act includes the person employed to do any skilled or unskilled manual, supervisory, managerial, administrative, technical or clerical work.

25. In the background of the aforesaid provisions of all the three enactments, Section 22 under the Payment of Bonus Act was introduced, and hence it is reproduced below :

"22. Reference of disputes under the Act - Where any dispute arises between an employer and his employees with respect to the bonus payable under this Act or with respect to the application of this Act to an establishment in public sector, then, such dispute shall be deemed to be an industrial dispute within the meaning of the Industrial Disputes Act, 1947 (14 of 1947), or of any corresponding law relating to investigation and settlement of industrial disputes in force in a State and the provisions of that Act or, as the case may be, such law, shall, save as otherwise expressly provided, apply accordingly."

The aforesaid provision creates a deeming fiction and states that where any dispute arises between an employer and his employees with respect to the bonus payable under the said Act, it shall be deemed to be an industrial dispute within the meaning of the Industrial Disputes Act, 1947, or of any corresponding law relating to investigation and settlement of industrial disputes in force in a State, and the provisions of that Act, or, as the case may be, such law, shall, save as otherwise expressly provided, apply accordingly.

26. The object of introducing Section 22 of the Payment of Bonus Act is to confer a jurisdiction upon the machinery available under the Industrial Disputes Act or any corresponding legislation relating to investigation and settlement of disputes in force in a State, and to make the other provisions available therein to resolve such dispute. It is not the object of creating a deeming fiction to exclude the remedy available in any other enactment to entertain, try and decide the dispute with respect to the bonus payable under the Payment of Bonus Act. To consider the legal fiction, as creating a bar of the remedy available in other enactments, would amount to creating another legal fiction of deeming exclusion of jurisdiction of Courts in other enactments and enlarging the scope of a deeming fiction, which is created.

27. In order to overcome the inconsistency, as pointed out above, in the comparative study of all the three enactments, Section 22 treats - (i) an "employee" defined under Section 2(13) of the Payment of Bonus Act to be a "workman" defined under Section 2(s) of the Industrial Disputes Act, or an "employee" defined under Section 2(13) of the Bombay Industrial Relations Act; and (ii) a dispute with respect to the bonus payable under the Payment of Bonus Act is an "industrial dispute". These are the assumptions of facts to give full effect to the legal fiction created under the said provision.

28. The Industrial Court exercising its jurisdiction either under the Industrial Disputes Act or any corresponding law relating to investigation and settlement of industrial dispute, gets jurisdiction by virtue of Section 22 of the Payment of Bonus Act to decide any dispute with respect to the bonus payable to the persons, who are covered by the definition of an "employee" under Section 2(13) of the Payment of Bonus Act, irrespective of the fact whether such persons are the "workmen" under Section 2(s) of the Industrial Disputes Act or the "employees" under Section 2(13) of the Bombay Industrial Relations Act. In view of this, the contention of Shri Puranik for the petitioner-employer that the Industrial Court has no jurisdiction to entertain, try and decide any such industrial dispute at the instance of the persons, who are not the "workmen" under Section 2(s) of the Industrial Disputes Act, or the "employees" under Section 2(13) of the Bombay Industrial Relations Act, is rejected.

29. The Bombay Industrial Relations Act defines an "industrial dispute" under sub-section (17) of Section 3 therein as under :

" "industrial dispute" means any dispute or difference between an employer and employee or between employers and employees or between employees and employees and which is connected with any industrial matter."

The definition of an "industrial matter" under sub-section (18) of Section 3 of the Bombay Industrial Relations Act includes "wages", and the definition of "wages" under sub-section (39) of Section 3 therein includes "any bonus payable to an employee". Thus, it can be said that any dispute, which arises between an employer and his employees with respect to the bonus payable under the Payment of Bonus Act, would be an "industrial dispute" within the meaning of sub-section (17) of Section 3 of the Bombay Industrial Relations Act, and such a dispute can be investigated and settled as per the provisions of the said Act through the machinery provided therein. It has, therefore, to be held that the BIR Act is a "corresponding law" in force in the State of Maharashtra within the meaning of Section 22 of the Payment of Bonus Act.

30. Now the question is whether MRTU & PULP Act can be said to be "a corresponding law relating to investigation and settlement of industrial disputes in force in the State of Maharashtra", as contemplated by Section 22 of the Payment of Bonus Act. The object of MRTU & PULP Act is to define certain activities of the employers, which would be treated as unfair labour practices; to suggest action, which should be taken against the employers for engaging in such unfair labour practices; to constitute Courts (as independent machinery) for carrying out the purposes of the Act; and to enforce the provisions relating to unfair labour practices. Apart from this, there are other objects also with which the controversy in this petition does not relate.

31. The MRTU & PULP Act deals with and defines "unfair labour practices" under sub-section (16) of Section 3 of the said Act to mean "unfair labour practices", as defined in Section 26. Section 26 of the said Act states that in this Act, unless the context requires otherwise, "unfair labour practices" mean any practices listed in Schedules II, III and IV therein. Section 27 of the said Act deals with the prohibition on engaging in unfair labour practices and it states that no employer or union and no employees shall engage in any unfair labour practice.

32. Section 28 of the MRTU & PULP Act prescribes procedure for dealing with complaints relating to unfair labour practices. It empowers the "Court", as defined under sub-section (4) of Section 3 of the said Act, i.e. the "Industrial Court" or the "Labour Court", as the case may be, to deal with such complaints, either under Section 5, or, as the case may be, under Section 7 of the said Act.

33. Section 8 of the said Act deals with the Investigating Officers, who are empowered to conduct investigation into any such complaint of unfair labour practice, and to assist the Industrial or the Labour Court in discharging their duties. The duties of the Investigating Officers are also prescribed under Section 9 of the said Act. Section 30 of the said Act deals with the powers of the Industrial and Labour Courts, and under sub-section (3) therein, such Courts are conferred with the same powers, as are vested in the Courts in respect of - (a) proof of facts by affidavit; (b) summoning and enforcing the attendance of any person, and examining him on oath; (c) compelling the production of documents; and (d) issuing commissions for the examination of witnesses, for the purposes of holding an enquiry or proceeding under the said Act.

34. The objects of MRTU & PULP Act and the aforesaid provisions contained therein clearly show that it is a law relating to investigation and settlement of an "unfair labour practice", as defined under sub-section (16) of Section 3 read with Section 26 and the items listed in Schedules II, III and IV therein, which is to be done through the machinery of Industrial and Labour Courts with the assistance of Investigating Officers.

35. Though the Bombay Industrial Relations Act defines and deals with an "industrial dispute", it neither does define nor refer to an "unfair labour practice". The MRTU & PULP Act though deals with and defines an "unfair labour practice", it neither does define nor refer to an "industrial dispute". It may happen that an "industrial dispute", as defined under the BIR Act, may attract any one or more unfair labour practices on the part of the employer, employee or union, as defined under the MRTU & PULP Act. Similarly, an "unfair labour practice", as defined under the MRTU & PULP Act, may become an "industrial dispute", as defined under the BIR Act. Thus, if an industrial dispute attracts any of the items listed in Schedules II, III and IV of the MRTU & PULP Act, then the Industrial Court gets jurisdiction under Section 28 therein to decide such dispute as an unfair labour practice.

36. No doubt that Section 22 of the Payment of Bonus Act does not refer to the term "unfair labour practice", as defined under the provisions of the MRTU & PULP Act. The reason is obvious that when the Payment of Bonus Act was enacted, there was neither any Central legislation, nor any State legislation in force dealing with or defining the term "unfair labour practice", but both the enactments, viz. the Industrial Disputes Act and the Bombay Industrial Relations Act, then in force, defined and dealt with an "industrial dispute" only. Subsequently, the concept of "unfair labour practice" is also introduced by way of an amendment by Act No.46 of 1982 with effect from 21-8-1984 under the Industrial Disputes Act. This, however, does not mean that if an act complained of amounts to "unfair labour practice", the same cannot be decided under the provisions of the MRTU & PULP Act, merely because it also amounts to an "industrial dispute".

37. The decision of the Apex Court in the case of Shramik Uttarsh Sabha v. Raymond Woolen Mills Ltd., and others, reported in AIR 1995 SC 1137, discloses a comparative study of the provisions of the MRTU & PULP Act and the BIR Act. Para 13 of the said decision being relevant, is reproduced below :

13. The M.R.T.U. and P.U.L.P. Act takes note of the provisions of the B.I.R. Act. Many of its definitions are stated to be those contained in the B.I.R. Act. Chapter III, which deals with the recognition of unions, States, in Section 10(2), that its provisions do not apply to undertakings in industries to which the provisions of the B.I.R. Act apply. The B.I.R. Act was enacted to provide for the regulation of the relation of the employers and employees in certain matters and to consolidate and amend the law in relation to the settlement of industrial disputes. The M.R.T.U. and P.U.L.P. Act was enacted to provide for the recognition of trade unions for facilitating collective bargaining for certain undertakings; to state their rights and obligations; to confer certain powers on unrecognised unions; and to define and provide for the prevention of unfair labour practices; and to constitute courts in this behalf. It cannot, therefore, be said that the B.I.R. Act and the M.R.T.U. and P.U.L.P. Act operate in different fields. There is commonality in their objects and their provisions. The obvious intent of the legislature which enacted them was that they should operate in tandene (tandem) and complement each other in respect of industries to which the B.I.R. Act had been made applicable. The two statutes must be read together.

From the aforesaid decision of the Apex Court, it is clear that the BIR Act and the MRTU & PULP Act operate in the same field. There is commonality in their objects and their provisions. The obvious intention of the Legislature, which enacted them, was that they should operate in tandem and complement each other in respect of industries, to which the BIR Act had been made applicable. The two statutes must be read together.

38. The Bombay Industrial Relations Act and the MRTU & PULP Act provide an independent machinery for investigation and settlement of disputes covered by it. The remedy provided under the BIR Act is, however, complex, cumbersome, lengthy and time-consuming, as compared to the remedy available under the MRTU & PULP Act. Hence, the tendency of the party is to have a recourse to the speedy and easy remedy available under the MRTU & PULP Act. There is no bar created either under the provisions of the Payment of Bonus Act or under the provisions of the BIR Act to the jurisdiction of the Industrial Court under Section 28 of the MRTU & PULP Act to entertain, try and decide any dispute with respect to the bonus payable under the Payment of Bonus Act, which amounts to an "unfair labour practice" under the MRTU & PULP Act.

39. In this connection, Section 39 of the Payment of Bonus Act is relevant and needs to be looked into. Hence, it is reproduced below :

"39. Application of certain laws not barred.--

Save as otherwise expressly provided, the provisions of this Act shall be in addition to and not in derogation of the Industrial Disputes Act, 1947, (14 of 1947), or any corresponding law relating to investigation and settlement of Industrial Disputes in force in a State."

The aforesaid provision makes it clear that save as otherwise expressly provided, the provisions of the Payment of Bonus Act shall be in addition to and not in derogation of the Industrial Disputes Act, 1947, or any corresponding law relating to investigation and settlement of industrial disputes in force in a State. In view of this, neither Section 22, nor Section 39 of the Payment of Bonus Act can be construed in derogation of remedy provided under the MRTU & PULP Act.

40. In view of the aforesaid position, it has to be held that the MRTU & PULP Act relates to investigation and settlement of such an industrial dispute, which attracts any one or more unfair labour practices, as specified therein, and as such it becomes a "corresponding law" within the meaning of Sections 22 and 39 of the Payment of Bonus Act. Therefore, irrespective of the remedy available under the BIR Act, the jurisdiction of the Industrial Court under Section 28 read with Item 9 of Schedule IV of the MRTU & PULP Act becomes available to claim bonus declared by the employer. The Industrial Court was, therefore, competent to issue directions under Section 30 of the said Act to the petitioner-employer to pay the bonus as per Section 12 of the Payment of Bonus Act. The second question is, therefore, answered accordingly.

41. The Industrial Court has held in the present case that the complaint is in respect of the implementation of the provisions of Sections 11 and 12 of the Payment of Bonus Act, which attracts Item 9 of Schedule IV of the MRTU & PULP Act, and hence it has got jurisdiction under Section 28 therein. Section 30 of the MRTU & PULP Act empowers the Industrial Court to decide as to whether there is an "unfair labour practice", as is complained of, and to grant such a declaration and direct such persons to cease and desist from such unfair labour practice, and to take such affirmative action of payment of bonus as per Section 12 of the Payment of Bonus Act.

42. There is no challenge to the findings recorded by the Industrial Court, viz. (i) that non-implementation of the provisions of Sections 11 and 12 of the Payment of Bonus Act attracts Item 9 of Schedule IV of the MRTU & PULP Act; and (ii) that the Industrial Court has power under Section 28 read with Section 30 of the MRTU & PULP Act to issue direction to the petitioner-employer to take affirmative action regarding payment of bonus to the employees as per Section 12 of the Payment of Bonus Act. Even otherwise, I do not find any infirmity in such findings recorded by the Industrial Court.

43. The Industrial Court has recorded the finding that the petitioner-employer has not led any evidence to prove the balance-sheets for the concerned period in respect of his claim that the allocable surplus under Section 15 of the Payment of Bonus Act available with him does not permit declaration of bonus at the maximum limit of 20% on the basis of monthly salary of each employee to be considered at Rs.3,500/- for the accounting years 2006-2007 and 2007-2008. It was open for the employer to rely upon the provisions of sub-section (4) of Section 2 regarding allocable surplus; Section 5 regarding computation of available surplus; and sub-section (2) of Section 11 read with Section 15 regarding set on and set off of allocable surplus. But that has not been done.

44. There is no question of remand of the matter back to the Industrial Court to provide an opportunity to the petitioner-employer to lead any such evidence for the reasons that - (i) it is not the claim made before this Court; (ii) declaration of 20% bonus is not disputed; and (iii) the question is merely of calculation as per Section 12 of the Payment of Bonus Act. Thus, no interference is called for in the judgment and order of the Industrial Court, impugned in this petition.

45. In the result, the petition is dismissed. Rule stands discharged. No order as to costs.

46. At this stage, Shri Puranik, the learned counsel for the petitioner-employer, submits that there is already an interim order operating in this petition, which may be extended by a further period of eight weeks so as to enable the petitioner-employer to take further steps in the matter.

The request is opposed by the learned counsel appearing for the respondents.

In view of the fact that the interim order is continued till this date, the same shall continue to operate for a period of six weeks from today; after expiry of which, it shall stand automatically vacated without reference to the Court.

Petition dismissed.