Jeeva Transport Corporation Limited vs The Presiding Officer, Labour Court and Others

F.M. Ibrahim Kalifulla, J.—The short point that arises for consideration in this writ petition wherein the petitioner Transport Corporation has

chosen to challenge the order of the first respondent- Labour Court dated 30.12.1994 made in C.P. Nos. 160 to 181 of 1992 is as to whether the

non-inclusion of City Compensatory Allowance while calculating the wages of the respondent Nos. 2 to 915 for the purpose of payment of

minimum bonus of 8.33% for the years 1986-87,1987-88,1988-89 and 1989-90 was justified.

As far as the legal position as to whether the City Compensatory Allowance should be taken as part of wages under the Payment of Bonus Act

is concerned, it is not in dispute that it would form part of wages. It is also not in dispute that in the case on hand, the petitioner Corporation did

not include the City Compensatory Allowance while calculating the wages of respondent Nos. 2 to 915 and while calculating their minimum bonus

of 8.33% for the above stated years. The petitioner contended before the first respondent that for the relevant years, apart from the minimum

bonus of 8.33% , the respondent Nos. 2 to 915 were also paid a definite sum by way of Exgratia and that whatever was left out by not taking into

account, the City Compensatory Allowance, having been substantially compensated by payment of Exgratia, the non-inclusion of the City

Compensatory Allowance in the payment of minimum bonus of 8.33% by itself would not entitle respondent Nos. 2 to 915 for making a separate

claim on the City Compensatory Allowance paid to them for the relevant years. The first respondent/Labour Court rejected the stand of the

petitioner and proceeded to compute the relevant claim of respondent Nos. 2 to 915 by the order impugned in this writ petition.

Section 2(21) of the Payment of Bonus Act 1965 defines ""Salary or Wage"" to mean all remuneration (other than remuneration in respect of

overtime work)capable of being expressed in terms of money that would become payable, if the terms of employment, express or implied were

fulfilled and it would include the dearness allowance. Sub Clauses i to vii of Section 2(21) mention such of those items which are to be excluded

under the definition of ""Salary or wage"". Interpreting the said provision, it has been held that City Compensatory Allowance is part of wages as

defined under the main clause of Section 2(21). The question is settled by the Honourable Supreme Court in the Judgment reported in S.

KRISHNAMURTHY -VS- THE PRESIDING OFFICER, CENTRAL GOVT. LABOUR COURT, MADRAS AND ANOTHER 1986 (I)

LLJ 133 . Section 10 of the Act prescribes that every employer is mandatorily bound to pay to every employee in respect of an accounting year a

minimum bonus of 8.33% of the salary or wage earned by the employee during that accounting year, irrespective of whether the employer has any

allocable surplus or not in the relevant accounting year. Therefore, as far as the minimum bonus of 8.33% is concerned, there is a statutory

obligation cast upon the employer to discharge the said liability in respect of each accounting year. When that be so, the non-inclusion of the City

Compensatory Allowance by the petitioner while calculating the minimum bonus of 8.33% in respect of respondent Nos. 2 to 915 was directly in

violation of the provisions of Payment of Bonus Act. Even u/s 31A of the Payment of Bonus Act , if there is any contract between the employer

and the employee for payment of bonus linked with production or productivity in lieu of the bonus based on profits payable under the Act the said

provision makes it clear that in the event of any such agreement providing for relinquishment of right of the employees to receive the minimum

bonus u/s 10 would be null and void in so far as it purports to deprive them of such right. Therefore, even under the provisions of the Act, there is

no scope for depriving an employee of the payment of the minimum bonus payable to an employee by virtue of operation of Section 10 of the

Payment of Bonus Act to an extent of 8.33%. If the said component of City Compensatory Allowance had not been taken into account as

admitted by the petitioner in respect of respondent Nos. 2 to 915 in the matter of calculation of minimum bonus of 8.33%, it will have to be held

that respondent Nos. 2 to 915 were not really paid the minimum bonus of 8.33% as contemplated under the provisions of the Act. When that be

so, the contention of the petitioner that the exgratia amount paid should be construed as compensating whatever deficiency caused due to non

inclusion of City Compensatory Allowance in the wages cannot be accepted. It is not the case of the petitioner that there was any agreement

between the parties providing for such a situation. In such circumstances, the conclusion of the Labour Court in rejecting the stand of the petitioner

in the order impugned in this writ petition cannot be found fault with. I do not find any merit in this writ petition.

The writ petition, therefore, fails and the same is accordingly dismissed. No costs. Consequently, connected W.M.P. No. 14347 of 1996 is also

dismissed.