Honorary Secretary v. U. P. State Electricity Board, Lucknow
1973-03-02
G.C.MATHUR, HARI SWARUP
body1973
DigiLaw.ai
JUDGMENT Hari Swarup, J. - This appeal has been filed against the order of the learned Single Judge by which he dismissed the appellant's petition under Art. 226 of the Constitution. The petitioner had sought a Writ of Mandamus to command the U. P. State Electricity Board (hereinafter referred to as the Board) to pay to its employees, who are members of the petitioner Association, bonus under Section 8 of the Payment of Bonus Act, 1965, (hereinafter referred to as the Bonus Act). The petitioner is a registered society and a large number of the members of the society were said to be the employees of the Board. According to the petitioner, the engineers employed by the Board were its employees and thus entitled to receive from it bonus under the Bonus Act. 2. Section 8 of the Bonus Act provides that every employee shall be entitled to be paid by its employer bonus in accordance with the provisions of the Act. Section 10 of the Bonus Act casts a duty on every employer to pay to every employee a minimum bonus whether there are profits in the accounting year or not. This payment is subject to certain conditions with which we are not here concerned. Section 32 of to Bonus Act provides certain exceptions and mentions that nothing in the Bonus Act shall apply to certain categories of employees. The Board Pleaded that its employees were such that the Act did not amply to them. Reliance before the learned Single Judge was placed on clauses (iv) and (x) of Section 32 which read as under: "(iv) Employees employed by an establishment engaged in any industry carried on by or under authority of any department of the Central Government or a State Government or a local authority." "(x) Employees employed by any establishment in public sector, save as otherwise provided under this Act." The learned Single Judge held that exception (x) was not applicable but exception (iv) was, as the Board was a local authority and its employees who had filed the petition through the petitioners' society were employed by an establishment engaged in an industry which was carried on by a local authority. On this finding the petition was dismissed. 3. The petitioner filed the present appeal challenging the correctness of the judgment of the learned Single Judge about the finding that the Board was a local authority.
On this finding the petition was dismissed. 3. The petitioner filed the present appeal challenging the correctness of the judgment of the learned Single Judge about the finding that the Board was a local authority. Respondent while maintaining that the finding was good, further received arguments to justify the judgment on the basis that the case was covered by exception (v) of Section 32 of the Act which runs as follows: "(v) Employees employed by.... (a) the Indian Red Cross Society or any other institution of a like nature (including its branches); (b) Universities and other educational institutions: (c) Institutions (including hospitals, chambers of commerce and social welfare institutions) established not for Purposes of profit." The contention is that the Board was an institution established not for purposes of Profit and hence its employees were not entitled to any bonus under the Bonus Act. 4. After having heard learned counsel for the parties and considered the various provisions of the Bonus Act and the Electricity Supply Act, 1948 (hereinafter called the Supply Act), we are of opinion that the Board is an institution established not for purposes of profit and was thus, by reason of clause (v) of Section 32 of the Bonus Act, not liable to pay bonus to its employees. In this view it is not necessary in this appeal to consider the alternative pleas of the Board that the employees were covered by clause (iv) or (x) of Section 32 of the Act also. 5. Learned counsel for the appellants contended that the institutions mentioned in sub-clause (c) of clause (v) of Section 32 were institutions only of the nature of Indian Red Cross Society, Universities and hospitals and that the Board was neither an 'Institution' nor of the nature of institutions contemplated by this sub-clause. We are unable to hold either that the Board was not an 'institution' or that the institutions contemplated in this sub-clause were only those of the nature of Red Cross Societies, universities and hospitals and that the Board could not fall in the category of institutions contemplated by clause (v). The word 'institution' has, in our opinion been used in a broad sense in this sub-clause as it includes institutions also of the nature of chambers of commerce which, as commonly understood, are more or less for the benefit of the members alone.
The word 'institution' has, in our opinion been used in a broad sense in this sub-clause as it includes institutions also of the nature of chambers of commerce which, as commonly understood, are more or less for the benefit of the members alone. The basic concept that runs through all the categories of institutions mentioned in clause (v) in our opinion concerns the purpose of their establishment. It covers institutions that are established not for purposes of profit. If any institution is established not for purposes of profit it would be an institution of the nature contemplated by clause 1(v) because, in the absence of profit motive ordinarily the purpose of such institution will be the welfare of the society. Hence the questions to be determined for finding out whether the employees are covered by clause (v) or not will be two, viz., whether the Board is an institution and whether it was established not for purposes of profit. 6. The word: 'institution' has various meanings in the English dictionary. In the Shorter Oxford Dictionary, the relevant definition is as follows: "An establishment, organisation or association of institutions for the promotion of some object esp. one of public or general utility, religious, charitable, educational etc...." Again, according to the Webster's Dictionary, a corporation having quasi Governmental powers and authorised to administer a revenue producing public enterprise' can be an institution. The Board was established under the Supply Act and was declared to be a corporation. It had to be constituted under Section 5 of that Act by issue of a notification in the official Gazette by the State Government. The Board under Section 12 of the Supply Act is a body corporate by the name notified under Section 5 and has a perpetual succession. It is thus an establishment. The nature of the establishment is also such that it can be classed as an institution. As will be seen later, the purpose of the establishment is the promotion of an object of public or general utility. The purpose of the establishment of the Board, as would be discussed later, is the rationalisation of production and simply of electricity and the electrical development in the State. This in our opinion, is an object of public or general utility. The welfare of the society depends upon its economic progress, which to a large extent, depends on the supply of electrical power.
This in our opinion, is an object of public or general utility. The welfare of the society depends upon its economic progress, which to a large extent, depends on the supply of electrical power. Electricity provides not only power to work the industry and agriculture but is also a contributor to social welfare inasmuch as it provides light to the people. Hence the promotion of such an object must be the promotion of an object of public or general utility. Therefore, even according to the dictionary meaning the Board will be an institution i.e., an establishment for the promotion of an object of public or general utility. 7. Moreover sub-clause (c) of clause (v) of Section 32 of the Bonus Act also indicates that the Board is an establishment of such a nature that it can be brought under the category of 'institution' in sub-clause (c) of clause (v), Clause (ix) of Section 32 runs as follows: "Nothing in this Act shall amply to (ix) Employees employed by (a) the Industrial Finance Corporation of India (g) any other financial institution (other than a banking company). being an establishment in public sector which the Central Government may, by notification in the Official Gazette, specify, having regard to (i) its capital structure: (ii) its objectives and the nature of its activities; (iii) the nature and extent of financial assistance or any concession given to it by the Government: and (iv) any other relevant factor", The term "any other financial institution" used in sub-cl. (c) above used the word 'institution' for the corporations enumerated in sub-clauses (a) to (f). If these corporations could be institutions, we see no reason why the Board cannot be an institution. The financial institutions mentioned in sub-clauses (a) to (1) also have the object of promoting economic welfare of the people but the earning of Profit by them is not excluded. They are of the nature of trading corporations. Hence, in our opinion, the word 'institutions' in sub-clause (c) of clause (v) in Section 32 has been used by the Legislature in its wide sense to include even trading corporations, if they were established not for Purposes of profit. The Board will thus be an institution within the meaning of this clause. 8.
Hence, in our opinion, the word 'institutions' in sub-clause (c) of clause (v) in Section 32 has been used by the Legislature in its wide sense to include even trading corporations, if they were established not for Purposes of profit. The Board will thus be an institution within the meaning of this clause. 8. The long title of the Electricity (Supply) Act, 1948, is as follows: "An Act to provide for the rationalisation of the production and supply of electricity and generally for taking measures conducive to electrical development." 9. The preamble of the Act runs as follows: "Whereas it is expedient to provide for the rationalisation of the production and supply of electricity for taking measures conducive to electrical development and for all matters incidental thereto: "It is hereby enacted as follows ...... .... .. ..." Then follows the first section of this Act. The Statement of Objects and Reasons given in the bill runs as under: "The co-ordinated development of electricity in India on a regional basis is a matter of increasingly urgent importance for post-war reconstruction and development. The absence of co-ordinated system, in which generation is concentrated in the most efficient units and bulk supply of energy centralised under the direction and control of one authority is one of the factors that impedes the healthy end economical growth of electrical development in this country. Besides it is becoming more and more apparent that if the benefits of electricity are to be extended to semi-urban and rural areas in the most efficient and economical manner consistent with the needs of an entire region, the area of development must transcend the geographical limits of a Municipality, a Cantonment Board or a Notified Area Committee, as the case may be. It has, therefore, become necessary that the appropriate Governments should be vested with the necessary legislative powers to link together under one control electrical development in the contiguous areas by the establishment of what is known as the "Grid System". In the circumstances of this country such a system need not necessarily involve inter-connection throughout the length and breadth of a province: regional co-ordination inclusive of some measure of inter-connection may be all that is needed.
In the circumstances of this country such a system need not necessarily involve inter-connection throughout the length and breadth of a province: regional co-ordination inclusive of some measure of inter-connection may be all that is needed. An essential prerequisite is, however, the acquisition of necessary legislative power not only to facilitate the establishment of this revision in newly licensed areas but also to control the operations of existing licensees so as to secure fully co-ordinated development. "Government feel that it is not possible to legislate for this purpose within the framework of the Indian Electricity Act, 1910 which was conceived for a very different purpose. In their view what is needed is specific legislation: on the broad lines of the Electricity (Supply) Act, 1926 in force in the United Kingdom, which will enable Provincial Governments to set up suitable organizations to work out 'Grid Schemes' within the territorial limits of the Provinces. Although executive power under the proposed Bill will necessarily vest in the Provinces two considerations indicate the necessity for Central Legislation: (i) the need for uniformity in the organisation and development of the "grid system" and (ii) the necessity for the constitution of semi-autonomous bodies like Electricity Boards to administer the "grid systems". In the view of Government it is bodies like these which are likely to be the most suitable organizations for working the "Grid Systems" on quasi-commercial lines. Such Boards cannot, however, be set up by Provincial Governments under the existing Constitutional Acts as they would be in the nature of trading corporations within the meaning of Entry 33 of the Federal Legislative List..." Hence, the object of the establishment of the Board is the rationalisation of the production and supply of electricity and electrical development in the State of Uttar Pradesh. In that view, it cannot be said to have been established for purposes of profit. Provisions of the Supply Act also point to the same conclusion. The general duties of the Board are given in Section 18 of this Act. It runs as follows: "18 General duties of the Board............
In that view, it cannot be said to have been established for purposes of profit. Provisions of the Supply Act also point to the same conclusion. The general duties of the Board are given in Section 18 of this Act. It runs as follows: "18 General duties of the Board............ Subject to the provisions of this Act, the Board shall be charged with general duty of promoting the coordinated development of the generation, supply and distribution of electricity within the State in the most efficient and economical manner with particular reference to such development in areas not for the time being served or adequately served by any licensee and without prejudice to the generality of the forgoing provisions it shall be the duty of the Board ..... (a) to prepare and carry out schemes sanctioned under Chapter V: (b) to supply electricity to owners of controlled stations and to licensees whose stations are closed down under this Act; (c) to supply electricity as soon as practicable to any other licensees or persons requiring such supply and whom the Board may be competent under this Act so to supply." Again Section 59 of the Supply Act provides the general principles for Board's finance. It says: "The Board shall not, as far as practicable and after taking credit for any subventions from the State Government under Section 63 carry on its operations under this Act at a loss, and shall adjust its charges accordingly from time to time.............." Thus the Supply Act enjoins noon the Board to carry on its operations not at a loss. That points out that the purpose is not to make profit but that the operations should not be so run that it would eat out the capital chiefly to be provided in the form of loans and subventions by the State Government. Learned counsel for the appellant, however, contended that the provision in Section 80 of the Supply Act for payment of income tax and super tax and for payment of loan mentioned in Section 67 indicate that the purpose of the Board was to carry on the trading activity in such a manner as to earn a profit. We are unable to accept this contention in view of that has been mentioned earlier. The Board is required by Section 67 to work in such manner that it would not suffer loss.
We are unable to accept this contention in view of that has been mentioned earlier. The Board is required by Section 67 to work in such manner that it would not suffer loss. Profits may accrue in its working and it is for this reason that provision has been made for payment of income tax and super tax. The provision for liquidation of debts can also not be said to by such a provision from which inference may be drawn that the establishment was for the purpose of making profits. The provisions under Section 67 of the Supply Act for the transfer of one-half of the balance of the Consolidation Fund of the State also indicates that no money is to be kept by the Board and if it incidentally saves money on the transactions it has to go to the Consolidated Fund. The Board is not owned by shareholders to whom the profit might go or for whose benefit the profits might be earned. The Board cannot thus be Presumed to be an institution established for Purposes of profit. We are accordingly of opinion that the Board is an 'institution' and has been established not for the purposes of profit. It falls within the exception provided by sub-clause (c) of clause (v) of Section 32. The Bonus Act does not, for this reason apply to the Board. 10. The result, therefore, is that the employees of the Board are not entitled to claim minimum bonus under Section 8 of the Payment of Bonus Act. The appeal therefore fails and is dismissed, but as the Board did not base its case on clause (c) of Section 32 of the Bonus Act before the learned single Judge, we direct that the parties should bear their own costs of this appeal.