JUDGMENT
Tarkeshwar Nath, J.
1. This application by Some Valley Portland Cement Company Limited (Lime Stone quarries), Baulia (hereinafter referred to as “the company”) is under Articles 226 and 227 of the Constitution of India, for an appropriate writ quashing the orders dated the 23rd September, 1965 (Annexure III) and 1st December, 1965 (Annexure V), passed by the Presiding Officer, Industrial Tribunal, Patna (Opposite Party No. 2), directing payment of interim bonus to the workmen for the year 1962.
2. The case of the petitioner was that the petitioner was a public limited company with its Head Office at 11, Clive Row, Calcutta and had works at Japla, in the district of Palamau, but the lime stone quarries were at Baulia in the district of Shahabad. The petitioner carried on business of quarrying lime stone at Baulia and manufactured cement at Japla. The petitioner had employed a number of workmen for carrying on the said business. Certain items of work were being carried on through contractors or commission agents and they employed their own labour for the work entrusted to them. The workmen employed by the contractors and commission agents work under the direct control of those contractors and commission agents and the petitioner had no hand in employing those workmen who were working under the contractors and commission agents. Later on, a dispute arose regarding payment of bonus for the years 1959, 1960, 1961 and 1962 to the workmen employed by the petitioner in the quarries. The parties jointly requested the Union Government to refer the said dispute to the Industrial Tribunal at Patna, and the Union Government, by order dated the 4th March, 1965, referred the said dispute for adjudication to Shri S.C. Prasad, Presiding Officer of the Industrial Tribunal at Patna (Opposite Party No. 2). This reference was registered as Reference No. 2 of 1965. On the 29th May, 1965, the President of India was pleased to promulgate the Payment of Bonus Ordinance, 1965 (No. 3 of 1965) hereinafter referred to as the “Bonus Ordinance”.
In the same year the Payment of Bonus Act, 1965 (Act XXI of 1965)–hereinafter referred to as the “Bonus Act“–received the assent of the President on the 25th September, 1965, and by this Act the Bonus Ordinance was repealed. Shri S. C. Prasad, Presiding Officer, Industrial Tribunal, Patna, by his order dated the 23rd September, 1965 (Annexure III), directed the petitioner to pay interim bonus for the year 1962 on the basis “as mentioned in Section 10 of the Payment of Bonus Ordinance, 1965, by 29-11-65″. This order was passed by opposite party No. 2 suo motu, and there was no application before him by anyone for that relief. Subsequently, the petitioner filed an application before the said Presiding Officer for clarification of the said order dated the 23rd September, 1965, and this application is annexure IV to the Writ Application. Opposite party No. 2 heard the parties and by his order dated the 1st December, 1965 (Annexure V) held that the petitioner was liable to pay the bonus to the employees employed by the contractors and commission agents as well. The petitioner company is aggrieved by these two orders of opposite party No. 2, and has filed this application for an appropriate writ for the quashing of those two orders.
3. Learned counsel for the petitioner submitted, in the first instance, that the order dated the 23rd September, 1965 was erroneous in law and without jurisdiction for the sample reason that the said order was not justified in view of the recent decision of the Supreme Court dated 5-8-1966 in the cases of Jalan Trading Co. Pvt. Ltd. v. Mill Mazdoor Union Civil Appeal No. 187 of 1966: (reported in AIR 1967 SC 691); The Management of Punalur Paper Mills Ltd. v. Union of India, Writ Petn. No. 3 of 1966; and the Travancore Rayons Ltd. v. Union of India, Writ Petn. No. 32 of 1966.
4. Mr. Rajeshwari Prasad, appearing for the petitioner, submitted that opposite party No. 2 had passed the said order relying on sections 10 and 33 of the Bonus Ordinance. Those two provisions of Sections 10 and 38 of the Bonus Ordinance were replaced by sections 10 and 38 of the Bonus Act. By Section 40 (1) of the Bonus Act, the Bonus Ordinance was repealed and Section 40 (2) laid down that “Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be “deemed to have been done or taken under this Act as if this Act had commenced on the 29th May, 1965”. Learned Counsel contended that, although the Presiding Officer (opposite party No. 2) had directed the payment of interim bonus on the basis of sections 10 and 33 of the Bonus Ordinance, yet the order passed by him will be deemed to have been passed under Sections 10 and 33 of the Bonus Act. Thereafter, the Supreme Court held (majority view) in the cases referred to- above that the provisions of Section 33 of the Bonus Act were arbitrary, discriminatory and invalid. The argument thus was that, as the provisions of Section 33 have been held to be ultra vires, the employees or the workmen were not entitled to interim bonus for the year 1962 in the reference which was made about three years later, that is, in 1965. On this ground, the order in question has been challenged by the learned counsel for the petitioner.
5. In order to appreciate these contentions, it is necessary to refer to the provisions of Sections 10 and 3S of the Bonus Ordinance. This Ordinance was passed on the 29th May, 1965, and Section 10 provided as follows :–
“10. Every employer shall be bound to pay to every employee who has worked in the establishment for ail the working days in an accounting year a minimum bonus which shall be four per cent of the salary or wage of the employee for the accounting year or forty rupees, whichever is higher, whether there are profits in the accounting year or not:
Provided that where such employee has not completed fifteen years of age at the beginning of the accounting year, the provisions of this section shall have effect in relation be such employees as if for the words ‘forty rupees’ the words ‘twenty-five rupees’ were substituted.”
Section 38 of the Ordinance, on the other hand, reads thus :–
“33. Where immediately before the 2nd September, 1964, any industrial dispute regarding payment of bonus relating to any accounting year ending on any day in the year 1962, and any subsequent accounting year was pending before the appropriate Government or re any Tribunal or other authority constituted under the Industrial Disputes Act, 1947, or under any corresponding law relating to investigation and settlement of Industrial disputes in a State, such dispute shall be decided in accordance with the provisions of this Ordinance.”
(It is not necessary to quote the explanation to Section 33).
6. According to Section 10 of the Ordinance, every employer was bound to pay to every employee the minimum bonus at the rate prescribed in that section. According to the provisions of Section 33, the Ordinance was to apply even to certain pending disputes regarding payment of bonus, and the effect of the two Sections 10 and 33, was that the employees were entitled to interim bonus even for the year 1962 notwithstanding the fact that the reference itself was made subsequent to the year 1962.
7. Having regard to the two sections at the Bonus Ordinance, it would be now useful to refer to certain facts emerging from the order passed by opp. party No. 2. There were two cases before him, Reference No. 2 of 1965 and Reference No. 3 of 1964. We are concerned with the order passed in Reference No. 2 of 1965. The Presiding Officer of the Tribunal observed that the main question for determination was whether the workmen were entitled to bonus, for the years 1959 to 1962; and if so what should be the quantum for each year? He then referred to the fact that the Union had claimed bonus on several alternative basas. But, later on, in Paragraph 3 of his order he indicated that the Union wanted that the bonus should be granted to it as interim relief for the year 1962 only because that year was covered by the Bonus Ordinance.
He made it sufficiently clear that as regards the other years the Union did not press its claim because they were beyond the purview of the Bonus Ordinance. His conclusion was that, under the Bonus Ordinance, the workmen would be entitled to get minimum bonus as laid down in it undisputedly for the year 1962. The operative part of his order was as follows :–
“After a vary careful consideration of this matter, I order that the Company do pay to the workmen interim bonus for the year 1962 on the basis as mentioned in Section 10 of the Payment of Bonus Ordinance, 1965, by 29-11-65.”
8. The position thus is that, during the pendency of Reference No. 2 of 1965, the Bonus Ordinance and the Bonus Act came in force, and opposite party No. 2 passed an order for the payment of interim bonus under Section 10, read with Section 33, of the Bonus Ordinance. It was by virtue of Section 33 that the provisions of Section 10 were applied to pending disputes with regard to bonus. The Supreme Court, in the cases, referred to above, here that Section 33 was patently discriminatory and the provisions thereof were invalid as infringing Article 14 of the Constitution of India, This Judgment of the Supreme Court was subsequent to the decision by Opposite Party No. 2, and, as such, he had not the advantage of this judgment. But, subsequent to his decision, the position has considerably changed and the law laid down by the Supreme Court has to be followed. In this view of the matter, the contention of the learned Counsel for the petitioner must be accepted to be sound.
9. Mr. Ranen Roy, appearing for Baulia Quarries Mazdoor Sangh (opposite party No. 3) contended that the order for the payment of interim bonus was passed by opposite party No. 2 under Section 10(4) of the Industrial Disputes Act, and not under Section 10 of the Bonus Ordinance. Learned Counsel contended that an order for the payment of interim bonus related to a matter which was incidental to the dispute which had been referred to the Tribunal, and it was within the scope of the Presiding Officer of the Tribunal to pass an order for the payment of interim bonus in respect of the year 1962, In support of this proposition, he referred to the case of the Management Hotel Imperial v. Hotel Working Hotel Workers’ Union, AIR 1959 SC 1342.
Mr. Rajeshwari Prasad, for the petitioner, conceded to this extent that a Tribunal could pass an order for the payment of interim bonus; but he contended that the present impugned order was not under Section 10(4) of the Industrial Disputes Act. Mr. Ranen Roy further submitted that Section 10 of either the Bonus Ordinance or the Bonus Act gave statutory right to the employees and the workmen to claim bonus at the rate prescribed in Section 10; and if the employers did not pay that bonus, then the employers would suffer the penalty as laid down in Section 29 of the Bonus Act. According to his argument, although the Presiding Officer (Opposite Party No. 2) had taken guidance from the provisions of Section 10 of the Bonus Ordinance, yet he did not pass the order under that section. He further went to this length that, although the impugned order might have been influenced by the provisions of Section 10 of the Bonus Ordinance, yet the said order could not be deemed to be an order under Section 10 of the Bonus Ordinance. have already referred to the question formulated by opposite party No. 2 and the conclusion arrived at by him in the impugned order. He has nowhere mentioned Section 10(4) of the Industrial Disputes Act. In the circumstances of the present case, it cannot be held that the impugned order was passed under Section 10(4) of the Industrial Disputes Act. Apart from it, there is another ground for taking this view.
The Presiding Officer, no doubt, mentioned in the earlier part of his order that the bonus is was being claimed on several grounds e. g. (a) the bonus was customary and formed part of the service conditions of the workmen; (b) the bonus was linked with production on the basis of the settlement dated the 22nd July, 1958; and (c) there was a liability to pay bonus on the basis of the Full Bench formula. But it is significant that none of these grounds formed the basis of the impugned order. If interim bonus was being granted on the basis of the Full Bench formula, or on any other basis, then the opposite party No. 2 must have indicated that ground clearly in the impugned order; but he has not done so. The order is entirely based on the provisions of Section 16, read with Section 33, of the Bonus Ordinance.
I thus do not find any merit in the contention raised by Mr. Roy and it must be overruled. Even accepting for a moment the contention of Mr. Ranen Roy that opposite party No. 2 had taken guidance from the provisions of Section 10, read with Section 33, of the Bonus Ordinance, the position will be that the said guidance will be deemed to have been taken from the provisions of Section 33 of the Bonus Act but the provisions of Section 33 of the Bonus Act having been held to be invalid by the Supreme Court in the cases referred to above, there was thus no basis for passing an order for payment of interim bonus for the year 1962. In other words, the very principle for guidance not being operative any more, the impugned order becomes invalid as it has no other basis. I have thus not the least hesitation in coming to the conclusion that the order dated the 23rd September, 1965 (Annexure III) passed by opposite party No. 2 for the payment of interim bonus for the year 1962 is erroneous and without jurisdiction, and it must be quashed.
10. Learned Counsel for the petitioner further pressed that the order dated the 1st, December, 1965 (Annexure 5) as well was invalid and illegal. The petitioner Company wanted a clarification of the previous ordor dated the 23rd, September, 1965. By the subsequent order dated the 1st, December, 1963, opposite party No. 2 held that the employes employed by the contractors and commission agents of the Company who worked in the factory at Japla or in the quarries at Baulia came within the purview of “employee” as defined to Section 2(13) of the Bonus Act. He further held that it was immaterial as to who had employed the employees, inasmuch as they were in roe factory or the quarries and they must be held to be “employees”. Learned Counsel canvassed that those employees of the contractors and commission agents could not be deemed to be the employees of the petitioner Company.
On the other hand Mr, Ranen Roy referred to the decision in the case of Dharangadhra Chemical Works Ltd. v. State of Saurashtra, AIR 1957 SC 264, where the various tests for determining as to who where “employees” and “workman’ were laid down. He contended that a person employed by the contractor or the commission agent was a “workman” as defined in Section 2(5) of the Industrial Disputes Act. It is not necessary to go into this question, inasmuch as the order dated the 23rd, September, 1965 (Annexure III) is being quashed and there would be no longer any question of any clarification of the said order at the instance of the petitioner Company. After the quashing of the said order, the next order dated the 1st, December, 1965 (Annexure V) will have no effect at all.
11. In the result, the application is allowed. Let a writ of certiorari be issued quashing the order dated the 23rd, September, 1965 (Annexure III) passed by Sri S.C. Prasad, Presiding Officer, Industrial Tribunal, Patna (Opposite Party No. 2). This order having been quashed, the subsequent order dated the 1st, December, 1965 (Annexure V) passed by him will have no effect. In the circumstances of the present case, there will be no order as to costs of this application.
Choudhary, J.
12. I agree.