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2018 DIGILAW 920 (JK)

J&K Rajya Parivahan Nigham Karamchari v. J&K SRTC

2018-11-29

DHIRAJ SINGH THAKUR

body2018
JUDGMENT : Dhiraj Singh Thakur, J. 1. Both these petitions have been preferred against judgment and Award dated 24.03.2014 passed by the Industrial Tribunal/Labour Court, J&K, Jammu. Since common questions of law and facts are involved in both these petitions, the same were taken up together for final hearing and are being disposed by way of a common judgment. 2. Petitioners are serving as also the retired employees of the Jammu and Kashmir State Road Transport Corporation (J&KSRTC). The controversy in the present petitions pertains to their entitlement to claim bonus in terms of the Payment of Bonus Act, 1965 (for short, the Act of 1965). Based upon the claim of the petitioners, the following two disputes were referred to the Industrial Tribunal/Labour Court by the Government for adjudication: "1. Legality or otherwise of the action of the management of State Road Transport Corporation in denying the demands put forth by the applicant. 2. Award appropriate relief to the workers of the applicant union, in case thillegality of the action of the management as established." 3. The Industrial Tribunal/Labour Court, however, by virtue of the award dated 24.03.2014 rejected the claim of the petitioners by holding that the provisions of the Act of 1965 were not applicable to the employees of J&K SRTC. Reliance in this regard was placed upon sub-clause (2) of Section 20 of the Act of 1965 as also the sub clause 16 of Section 2 of the Act of 1965 which define "establishment in public sector". 4. Since the entire controversy revolves around the interpretation of Section 20 and the definition as contained in Section 2(16) of the Act of 1965, it would be worthwhile to refer to them in detail. 4(a). Section 20 of the Act of 1965 envisages thus: "20. Application of Act to establishments in public sector in certain cases.- (1) If in any accounting year an establishment in public sector sells any goods produced or manufactured by it or renders any services, in competition with an establishment in private sector, and the income from such sale or services or both is not less than twenty percent of the gross income of the establishment in public sector for that year, then, the provision of this Act shall apply in relation to such establishment in public sector as they apply in relation to a like establishment in private sector. (2) Save as otherwise provided in sub-section (1), nothing in this Act shall apply to the employees employed by any establishment in public sector." 4(b). Section 2(16) of the Act of 1965 defines "establishment in public Sector" as under: "2(16) "establishment in public sector" means an Establishment owned, controlled or managed by- (a) a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956); (b) a corporation in which not less than forty per cent of its capital is held (whether singly or taken together) by- (i) the Government; or (ii) the Reserve Bank of India; or (iii) a corporation owned by the Government or the Reserve Bank of India." 5. It appears that the Presiding Officer based his decision in excluding the employees of the Corporation from the purview of the Act of 1965 solely upon sub clause 2 of Section 20. However, what was ignored totally was that there was a saving clause contained in sub clause 2 of Section 20 and therefore, the decision ought to have been based more on the provisions contained in sub clause 1 of the Section 20. 6. With a view to test whether the Corporation falls within the provisions of sub clause 1 of section 20 of the Act of 1965, it is required to determine as to what precisely is the nature of existence of the Corporation as also the business that it is engaged in. 7. It is not denied that the J&K SRTC is a Corporation wholly owned, controlled and managed by the Government of J&K. The nature of business which it indulges in is transport business and in that connection, it plies buses on various routes within and outside the State of J&K. It is also not denied that the transport business in the State of J & K is also being managed by the private enterprises which runs bus service within and to locations outside the State. 8. The Tribunal proceeded to record a finding in paragraph 37 of the award that the Corporation was an establishment in the public Sector in terms of Section 2(16) of the Act of 1965. It appears that this finding was recorded also on the basis of the admission made by the Law Officer of the J&K SRTC as recorded in paragraph 34 of the award that the Corporation was a public Sector undertaking. It appears that this finding was recorded also on the basis of the admission made by the Law Officer of the J&K SRTC as recorded in paragraph 34 of the award that the Corporation was a public Sector undertaking. However, the Presiding Officer notwithstanding the finding recorded by it, in view of the sub clause 2 of Section 20 held that the petitioners are not entitled to the benefit of bonus by holing that the Act was in applicable to the public sector undertaking. 9. The view taken in the award impugned, on the face of it, is legally perverse and contrary to the mandate of Section 20(1) of the Act of 1965. Since the Corporation was earning its income only from running of the transport business which can clearly be said to be a service being rendered by the Corporation, therefore, in terms of sub clause 1 of section 20, the Act of 1965 would be squarely applicable to the undertaking in question. 10. Having considered the matter in its entirety, in my opinion, the order impugned is unsustainable in law and the same is, accordingly, set aside. The provisions of the payment of Bonus Act, 1965 are held applicable to the employees of the Corporation including the petitioners herein. Accordingly, the matter is remanded to the Industrial Tribunal/Labour Court for determination of exact entitlement of the petitioners to receive the bonus in terms of the Payment of Bonus Act, 1965. 11. Parties to appear before the Tribunal on 17.12.2018. Record be transmitted to the Tribunal, who shall pass final award within a period of two months.