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2014 DIGILAW 348 (UTT)

Promod Kumar Sharma v. State Of Uttaranchal

2014-09-03

SUDHANSHU DHULIA

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ORDER : Sudhanshu Dhulia, J. The petitioner was a workman in the Irrigation Department in the erstwhile State of U.P. and his services were retrenched on 11.05.1990. He raised an industrial dispute and thereafter an award dated 21.08.1995 was given in his favour by the Labour Court, Haldwani by which the petitioner was reinstated in service and termination order was set aside. However, this order was challenged before the High Court of Judicature of Allahabad by the State of U.P. where the writ petition was dismissed vide order dated 17.02.1997. Against the said order, the State of U.P. preferred Special Leave Petition before the Hon'ble Apex Court, which was also dismissed vide order dated 23.11.1998, and thereafter a review petition was also filed before the Hon'ble Apex Court, but the same was also dismissed vide order dated 03.02.1999. Thereafter the petitioner was reinstated in service with “wages and allowances” minus “bonus”. Hence the present writ petition. A preliminary objection has been made by Mr. N.P. Sah, learned counsel for the State of Uttarakhand as well as Ms. Beena Pande, learned counsel for the State of U.P. regarding the maintainability of the writ petition, as if at all the petitioner has a remedy to move an application to the appropriate authority in view of Section 6H of the U.P. Industrial Disputes Act, 1947 or Section 33(C)(2) of the Industrial Disputes Act, 1947. Nevertheless the petitioner straightway filed the present writ petition before this Court. Though both counsels for the respondents are correct and have made valid objections, yet the matter is pending before this Court since 2006, and it would not be proper to dismiss the writ petition on the said ground. The matter, therefore, heard on merit. 2. Heard Mr. T.S. Rautela, learned counsel for me petitioner, Mr. N.P. Sah, Standing Counsel, present for the State of Uttarakhand, Ms. Beena Pande, Standing Counsel, present for the State of U.P. and perused the record. 3. After his reinstatement in service, the petitioner has been given the back-wages and allowance, minus bonus. “Can petitioner also liable to be given his bonus?” This is a short question before this Court. The award of the labour court is for payment of “wages and allowances”. 3. After his reinstatement in service, the petitioner has been given the back-wages and allowance, minus bonus. “Can petitioner also liable to be given his bonus?” This is a short question before this Court. The award of the labour court is for payment of “wages and allowances”. The definition of “wages” in U.P. Industrial Disputes Act, 1947 reads as under:-- “Wages' means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment, or of work done in such employment, and includes-- (i) such allowances (including dearness allowance) as the workman is for the time being entitled to; (ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles; (iii) any travelling concession, but does not include-- (a) any bonus; (b) any contribution paid or payable by an employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force; (c) any gratuity payable on the termination of his service.” 4. The definition of “wages” in Industrial Disputes Act, 1947 reads as under:-- “'wages' means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment, or of work done in such employment, and includes-- (i) such allowances (including dearness allowance) as the workman is for the time being entitled to; (ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles; (iii) any travelling concession; (iv) any commission payable on the promotion of sales or business or both; but does not include- (a) any bonus; (b) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force; (c) any gratuity payable on the termination of his service.” 5. From the perusal of the above provisions it appears that the definition of “wages and allowances” which would include allowances, as has been referred above, excludes “bonus” from the definition of “wages and salary”. This is being done, as bonus has an absolutely different connotation and meaning. 6. The Hon'ble Apex Court in Hamdard (Wakf) Laboratories Vs. Deputy Labour Commr. and Others, AIR 2008 SC 968 has held that the amount of back wages has to be paid to the employee on the basis of the award, which has been given in his favour and the award of wages and allowances does not include bonus, unless specifically stated as said inter alia. Apart from this there was another aspect touched by the Hon'ble Apex Court in the above judgment, which is that the payment of bonus can only be raised by way of an industrial dispute under Section 6H(1) of the U.P. Industrial Disputes Act. The Hon'ble Apex Court in its judgment Hamdard (Wakf) Laboratories Vs. Deputy Labour Commr. and Others, AIR 2008 SC 968 has held as under:-- “There is yet another aspect of the matter which cannot be lost sight of. A claim for bonus in the context of Section 22 of the Payment of Bonus Act can be raised only by raising an industrial dispute. It cannot be raised by way of an execution application. If a claim had been made under an award, the same attained finality when the amount payable thereunder had been calculated. Bonus was a subject-matter of claim in the first application filed under Section 6-H(1) of the Act. The amount payable thereunder had been determined. Another application under Section 6-H(1) of the Act for the purpose of enforcement of award, therefore, was, in our opinion, not maintainable.” 7. In view of the above observation made by the Hon'ble Apex Court as well as considering the provision of Industrial Disputes Act, the bonus has rightly been denied to the petitioner. Therefore, the petitioner has no claim of bonus. Accordingly, the writ petition is dismissed. No order as to costs.