JUDGMENT : 1. THE only question that is involved in these two rules is whether sick wages paid by the petitioners to the workers of their collieries are to be taken into consideration for the purpose of calculating the quarterly bonus under the Coal Mines bonus Scheme (hereinafter referred to as the Scheme) framed under section 5 of the Coal Mines Provident Fund, Family Pension and bonus Schemes Act, 1948, hereinafter referred to as the Act. 5. (1973) Special Civil Application No. 2466 of 1972, decided by vaidya and Dudhia, JJ., on June 20, 1973 (Unrep.). 6. (1963) Special Civil Application No. 1855 of 1962, decided by tambe and Palekar, JJ., on January 12, 1963 (Unrep.). 2. IT is not disputed that the petitioners have been paying bonus to the workers of their collieries but in calculating the bonus they did not take into consideration the wages paid to the workers for the period they were on sick leave. The respondents, the Regional Labour Commissioner and the Labour Enforcement Officer insist that such wages are to be considered in calculating the bonus payable to the workers. In order to resolve the question it is necessary to refer to the provisions of the Scheme. Clause (b) of paragraph 2 of the Scheme defines 'basic earnings' as meaning the total cash emoluments, whether earned while on duty or while on leave with pay, but excluding all payments for food concessions, dearness, house rent and other similar allowances, overtime, commission, presents or donations. Paragraphs 4, 5 and 5-A of the Scheme lay down qualifications for bonus in coal mines in certain States. We are concerned with paragraph 4, for it lays down the qualifications for bonus in coal mines in west Bengal ana Bihar. Paragraph 4 is as follows: "4. An employee in a coal mine in West Bengal or Bihar shall qualify for a bonus from his employer in respect of the quarter commencing on the first of January, 1948 or any subsequent quarter, provided he put in attendance in the coal mine during that quarter for not less than 54 days if a category 1 employee, or for not less than 66 days if a category II employee." Paragraph 6 of the Scheme provides for allowances for leave, etc. and is as follows: "6 (1) For the purposes of paragraphs 4, 5 and 5-A of this scheme, leave (including sick leave) granted by the employer to an aggregate of 21 days in a calendar year or, where an employee has availed himself of earned leave (including accumulations)the actual number of days of such leave plus 5 days in a calendar year, whichever is higher and days of lay-off as defined in clause (kkk) of Section 2 of the Industrial Disputes Act, 1947 and days of idleness caused by any lock-out which is illegal under sec. 24 of the said Act and days of absence from work on account of compulsory attendance in a Court of Law, shall count as days of attendance. (2) If on any working day in any period or quarter, as the case may be, an employee is on maternity leave or is unable to attend work owing to temporary disablement the number of days for which he must put in attendance to qualify for bonus under paragraphs 4, 5 and 5-A shall be reduced by 70 per cent, of such working days if a category I employee, or 85 per cent, of such working days if a category II employee. Explanation in calculating the 70 per cent or 85 per cent, of such working days, a fraction less than half shall be disregarded and not less than half shall count as one. (3) If in any period or quarter any day, other than the weekly holiday, is observed as a paid holiday in any coal mine, the number of days for which the employees must put in attendance in such period or quarter to qualify for bonus under paragraphs 4, 5 and 5-A shall be reduced by the number of such paid holidays falling in such period or quarter. In the event of dispute as to whether a day is a paid holiday or not the decision of the chief Commissioner (Central) shall be final. " Paragraph 7 of the Scheme relates to the amount of bonus of which sub-paragraph (2) and its proviso are relevant. Sub-paragraph (2) runs as follows: "7 (2) The amount of bonus payable to an employee in respect of quarters subsequent to the quarter ending on September 30, 1967 shall be ten per cent. " Paragraph 7 of the Scheme relates to the amount of bonus of which sub-paragraph (2) and its proviso are relevant. Sub-paragraph (2) runs as follows: "7 (2) The amount of bonus payable to an employee in respect of quarters subsequent to the quarter ending on September 30, 1967 shall be ten per cent. (10%) of the basic earning of the employee, for work done in that quarter in the coal mine wherein he qualifies for bonus: provided that the basic wage portion of the wage paid to an employee for paid holidays and leave with wages in such period or quarter shall also count toward basic earnings for the purpose of calculation of bonus." 3. UNDER paragraph 4 of the Scheme, in case of a category I employee he must put in attendance for not less than 54 days in a quarter and in case of a category II employee he must put in attendance for not less than 66 days in a quarter for the purpose of qualifying him for bonus. Paragraph 6 provides that under certain circumstances certain periods during which an employee does not actually put in attendance shall count as days of attendance. One of such periods is an aggregate of 21 days of leave including sick leave granted by the employer to an employee in a calendar year. If an employee avails of 21 days of sick leave that period shall be counted as days of attendance for the purpose of paragraph 4. Mr. Arun Kumar Dutt, learned Advocate appearing on behalf of the petitioners in both these rules has argued that the petitioners are not liable to pay bonus on account of sick leave. Secondly, it has been strenuously urged by him that in any event the petitioners are not liable to pay bonus in excess of the period of 21 days as mentioned in paragraph 6. He submits that the proviso to sub-paragraph (2) of paragraph 7, must be read subject to paragraph 6. The first contention as made on behalf of the petitioners is without any substance. Paragraph 6 has expressly provided that sick leave will be taken into consideration. In view of the express provision it cannot be said that no bonus is payable on account of sick leave. Now I may come to the second contention of Mr. Dutt. The first contention as made on behalf of the petitioners is without any substance. Paragraph 6 has expressly provided that sick leave will be taken into consideration. In view of the express provision it cannot be said that no bonus is payable on account of sick leave. Now I may come to the second contention of Mr. Dutt. It is said that there is an apparent anomaly between paragraph 6 and the proviso to sub-paragraph (2) of paragraph 7. The proviso enjoins inter alia that wages paid during the period of leave shall be counted towards basic earnings for the purpose of calculation of bonus. The proviso is quite consistent with the definition of the expression 'basic earnings', for the same includes within it cash emoluments earned by an employee while on leave with pay. It, therefore, follows that wages earned by an employee while on leave form part of his basic earnings and by virtue of the proviso shall be calculated for bonus. But under paragraph 6, the aggregate period of leave of 21 days including the period of sick leave in a calendar year shall be counted as days of attendance for the purpose of paragraph 4. Prima facie it appears that there is some conflict between paragraph 6 and the proviso but on a careful consideration it does not appear that there is any such conflict or anomaly for the reasons stated hereafter. 4. IN order to be eligible for bonus an employee must fulfil the conditions laid down in paragraph 4 read with paragraph 6. Paragraph 7 (2) and its proviso lay down the manner in which the amount of bonus has to be calculated. The eligibility for payment of bonus and the manner in which the amount of bonus are to be calculated are two different matters. The question of calculation of the amount of bonus will not arise unless an employee concerned qualities himself for the same in accordance with paragraph 4 read with paragraph 6. Under paragraph 4 a category II employee has to put in attendance for not less than 66 days in a quarter. Suppose he has been granted by the employer sick leave with wages for 36 days in a particular year which comes to 9 days in a quarter of that year. Suppose he has actually worked for 62 days in that quarter. Suppose he has been granted by the employer sick leave with wages for 36 days in a particular year which comes to 9 days in a quarter of that year. Suppose he has actually worked for 62 days in that quarter. Under paragraph 6, 21 days of sick leave in a calendar year or 5 days (approx.) in a quarter will be taken as days of attendance. Therefore, the employee who has worked for 62 days will be entitled to the payment of bonus, for the remaining 4 days will be taken as days of attendance as he is entitled to 5 days sick leave in a quarter. If, instead of 62 days he had actually worked for 59 days he would not be qualified for bonus, for even adding 5 days of sick leave which he is entitled to under paragraph 6 in a quarter as days of attendance, it will fall short of two days. As he is found to be qualified for bonus, the entire period of sick leave for 36 days will be taken into consideration for calculation of the amount of bonus. Thus there is no conflict between paragraph 6 and sub-paragraph (2) of paragraph and its proviso. The contention made on behalf of the petitioners that they are not liable to pay bonus in excess of the period of 21 days as mentioned in paragraph 6 is unsound and cannot be accepted. If this contention is accepted, in that case, the definition of the words basic earnings' and the provision of paragraph 7 (2) with its proviso will be nugatory and unworkable. 5. MR. Dutt has referred to Sec. 52 of the Mines Act, 1952 which provides for annual leave with wages of persons employed in a mine. He submits that the expression leave with wages' mentioned in the proviso to sub-paragraph (2) of paragraph 7 of the Scheme shall be understood as defined in Section 52 of the Mines Act. It is true that the said Act applies to persons working in a colliery, but in my opinion, in construing the provisions of the Act and the Scheme, it will be against the rules of constructions to refer to a different Act. It has been already pointed out that there is no conflict between paragraph 6 and sub-paragraph (2) of paragraph 7 and its proviso. It has been already pointed out that there is no conflict between paragraph 6 and sub-paragraph (2) of paragraph 7 and its proviso. The said provisions are clear and there is no ambiguity. In the circumstances, I do not think that I am called upon to consider the position under the Mines Act with regard to the question as to the period of leave with wages as provided for in Sec. 52. Lastly, it is contended that sub-paragraph (2) of paragraph 7 was substituted in 1968 but the proviso which was inserted in 1960 was allowed to remain and that, "accordingly, the proviso ceased to have any effect after the substitution of sub-paragraph (2). I am unable to accept this contention. The proviso is in the nature of an explanation and it lays down that the wages paid during the period of leave shall count towards basic earnings for the purpose of calculation of bonus. The proviso was necessary when sub-paragraph (2) was not substituted and after its substitution it is also necessary. In my opinion, the proviso has not lost its importance and cannot be said to have ceased to have any effect as contended on behalf of the petitioners. No other point has been argued in either of the Rules. For the reasons stated above, both these Rules are discharged but there will be no order as to costs. 6. THE respondents will be entitled to withdraw the sum of Rs. 500. 00 deposited by the petitioner in Civil Rule No. 2859 (w) of 1970 without furnishing any security, to be credited by them towards the dues of the petitioner on account of bonus. As prayed for on behalf of the petitioners, the operation of this judgment will remain stayed for a period of four weeks from date so as to enable them to prefer appeal.