M/s. Allahabad Labour Supply Agency, Nagpur vs First Labour Court, Nagpur and others

M.N. Chandurkar, J.—The petitioner-company who claims that it was engaged as a contractor by the South Eastern Railway for supply of labour with necessary equipment for loading, unloading and otherwise handling of goods at the Ttwari Railway Station has Bled this petition challenging an order passed by the First Labour Court, Nagpur by which the petitioner was directed to pay to 45 of its employees minimum bonus u/s 10 of the Payment of Bonus Act, 1965, The proceedings before the Labour Court were initiated by these employees individually by making applications claiming an amount at Rs. 40 per year in respect of the years 1964 and 1065 on account of minimum bonus payable by the employer u/s 11) of the Payment of Bonus Act. These applications were registered as independent cases, but were consolidated by the Labour Court. The applications were made u/s 33-C (2) of the Industrial Disputes Act, 1947, and the applicants prayed that the amount so payable should be recovered u/s 33 C (1) of the said Act.

The applications filed by the employees were contested by the petitioner on several grounds. The grounds which are material for the purposes of this petition were that, according to the petitioner, the Railway and not he, was the employer of the persons, who had made the applications, and that in any case he was not liable to pay even minimum bonus because the provisions of the Payment of Bonus Act were not applicable in the case of the applicants in view of the provisions of clause (iv) of section 32 of the Payment of Bonus Act. An additional defence raised to the applications was that the Labour Court had no jurisdiction u/s 32-C (2) of the Industrial Disputes Act, 1947, to entertain the applications for recovery of the amount of bonus payable under the Payment of Bonus Act.

Before the Labour Court, in the proceedings which were consolidated, three of the applicants gave evidence and they also examined the Divisional Commercial Superintendent of the south Eastern Railway in under to prove the contract between the petitioner and the Railway in pursuance of which the petitioner was to supply labour to the Railway authorities for the purposes of doing several jobs which were enumerated in the contract. We shall have occasion to make a reference to this contract later.

On behalf of the petitioner its Manager Ratanlal Nathuram Sharma was examined who admitted that the claimants before the Labour Court were employed as labourers by the petitioner.

The learned Judge of the Labour Court on a consideration of the evidence tendered by the parties and on a construction of the terms of the contract entered into by the petitioner with the Railway administration came to the conclusion that the applicants before him were the employees of the petitioner-contractor and that they were not employees of the Railway administration. With regard to the exemption claimed by the petitioner under clause (iv) of section 32 of the Payment of Bonus Act, 1965, the Labour Court held that the ambit of clause (iv) was restricted to the employment by the Central Government, or the State Government, or the Local Authorities and that section 32 (iv) did not apply to establishments which did not belong to the Central Government, or State Government or the Local Authorities. On the question of jurisdiction the learned Judge held that the employees were entitled to invoke the jurisdiction of the Labour Court u/s 33-C (2) of the Industrial Disputes Act, 1947 as the right to claim minimum bonus under the Act was an individual right which flowed from the provisions of the Payment of Bonus Act. The Labour Court having found on all points against the petitioner held that each one of the 45 workers in the several cases before him was entitled to recover Rs. 40 for the accounting year 1st April 1984 to 31st March 1965 and 1st April 1965 to 31st March 1966 from the petitioner as minimum bonus under the provisions of section 10. The Labour Court also directed that a copy of the decision should be sent to the deputy labour commissioner under action 33C (4) of the Industrial Disputes Act for effecting recovery of the amount adjudged to be due to the applicants. Being aggrieved by this order, the petitioner has filed this petition challenging the decision of the Labour Court.

Shri Bobde, the learned counsel for the petitioner, contended that the employees who have been held by the Labour Court to be entitled to the minimum bonus payable under the Act were not governed by the provisions of the Payment of Bonus Act, 1965, because, according to him, these employees squarely fell within clause (iv) of section 32, and therefore, the Labour Court was not justified in holding that the employees, who had made the applications before it u/s 33-C (2) of the Industrial Disputes Act, were entitled to bonus u/s 10 of he Payment of Bonus Act. In order to appreciate this contention it is necessary to refer to the nature of the business which the petitioner is carrying on. The petitioner has filed on record a copy of the agreement between the President of India, as owner and Administrator of the South Eastern Railway, and the petitioner, who is described as Messrs. Allahabad Labour Supply Agency residing at 63, Gariwantola, Allahabad. Under the terms of this agreement, the petitioner is required to provide at all times as and when required a sufficient number of able-bodied adult male labourers with necessary equipment to perform all the work of porterage under the contract under the supervision of the Railway administration. The petitioner is also under an obligation to supply on demand of the Station Master, Goods Clerk Head Transshipment Clark on duty any additional number of labourers as the Railway administration may require if it appears to the Railway administration that the number of workers present is insufficient for the work to be performed Clause 2 of this agreement refers to the nature of the work which the contractor agrees to do at the said railway station, yards and premises of the Railway administration and sub-clause (i) of this clause gives a detailed description of the nature of work of handling which is to be done. This includes loading of goods into railway wagons, unloading of goods from the railway wagons transshipment of goods from sick and damaged wagons direct from one wagon to another or on to the ground and from the ground into wagons irrespective of the interval of time which might have elapsed between different parts of operation. Then it refers to handling of crane consignments when cranes are not available, handling of unconnected and Misdispatched goods checking the con tents of seal defective wagons, sweeping and cleaning wagons before loading from time to time, placing and removing from weighing machines outward goods required to be weighed or re weighed etc. The agreement, therefore requires the contractor to do the works specified in the agreement under the supervision and control of the Railway administration. Now the relevant clause (iv) of section 32 of the Payment of Bonus Act on which the petitioner relies is as follows:

"32. Act not to apply to certain classes of employees:� Nothing in this Act shall apply to

(i) ** **

(i) ** **

(iii) ** *

(iv) employees employed in an establishment engaged in any industry carried on by or under the authority of any department of the Central Government or a State Government or a local authority;"

According to the learned counsel fur the petitioner, the employees in all this case wore employed by his establishment and that establishment was engaged in the Railway industry which is carried on by or tinder the authority of the department of the Central Government, and therefore, the provisions relating to the Payment of Bonus Act did not, apply to such employees.

Having heard learned counsel on both sides at great length we are not inclined to accept the submission of Mr Bobde that the employees in this case fell within the description given in clause (iv) of section 32. It cannot be disputed that the petitioner has an establishment, but the question which really requires to be decided is whether the establishment of the petitioner is engaged in an industry which is carried on by or under the authority of a department of Central Government. The word ''''industry'''' is not defined in the Payment of Bonus Act, 1905, but u/s 2, clause (22), it is provided that words and expressions used but not defined in this Act and defined in the Industrial Disputes Act, 19-17 shall have the meaning respectively assigned to them in that Act. It will, therefore, be permissible to refer to the definition of ''''industry" in the Industrial Disputes Act, 1947, In clause (j) of section 2 of that Act it is provided that "industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or a vocation of workmen. Having regard to this definition of industry, it appears that in the instant case the industry contemplated by section 32 (iv) will be the business of transport of goods which is carried on by the department of Railways of the Central Government. It cannot be disputed that the business of transporting goods is carried on by the Central Government and not by the petitioner. The business of the petitioner, as an establishment, is the business of carrying out work of porterage and for that purpose making labour available to the Railways and it deals only in hiring out labour. The establishment of the petitioner can thus be said to be engaged in the industry or business of doing the work of porterage with the help of labour supplied to the Railway administration. By no stretch of imagination, therefore, the establishment of the petitioner can be said to be engaged in the business of transport of goods which the Railway administration of Central Government alone is carrying on. It is true that the work of loading goods and doing incidental jobs are entrusted by the Railway administration to the petitioner who does the same with the help of labourers, but merely because the Railway administration utilises the labourers employed by the petitioner it does not mean that the business for the purpose of which this labour is hired is carried on by the petitioner or that the petitioner is engaged in that business or industry. It is only where an establishment is directly engaged in an industry carried on by or under the authority of any department of the Central Government that the provisions of clause (iv) of section 32 are attracted. Thus the employees employed by the petitioner''s establishment cannot be said to be covered by the provisions of clause (iv) of section 32 of the Payment of Bonus Act. If they are not so covered by clause (iv) of section 32, then they "will be entitled to the benefits of the provisions of the Payment of Bonus Act, including section 10 under which they were making a claim, and in our view the learned judge of the Labour Court was justified in holding that the employees who had made applications before him did not fall within clause (iv) of section 32 of the Act.

The nest contention raised by the learned counsel for the petitioner was that the petitioner was not the employer of the employees and that really the employees were employed by the Railway administration, and therefore, he was not liable for payment of bonus under any of the provisions of the Payment of Bonus Act. This contention was based on certain recitals in the agreement referred to above between the petitioner and the Railway administration. The learned counsel referred to clause (iii) of paragraph 3 of the agreement. This clause is as follows:

"3. (iii) The labourers employed by the Contractor shall carry on the items of work covered by the Agreement under the supervision and control of the Station Supdt./Master, Head Transshipment Clerk or Goods Clerk of the Railway administration just as Railway Porters and shall not be permitted either to ply for hire as licensed Porters or to be engaged by merchants for carrying their adjustments. The contractor shall also make such arrangements for the supervision and inspection of all handling, loading and operation as will ensure efficient work. The officers of the Railway administration will be entitled to supervise and inspect the work of the labourers supplied by the contractors."

Another clause on which reliance was placed by the learned counsel was clause (i) of the same paragraph 3. The relevant part of this clause is as follows:

"3. (i) The contractor shall be responsible for the proper and orderly conduct of the labourers whilst performing their duties at the Goods Sheds and station premises and shall employ only such men whose character has been verified by the Police and declared to be suitable for employment. He shall also on demand of the Railway administration or the Station Master/Supdt. concerned, forthwith terminate the service of any labourer who in the opinion of the Railway administration is indifferent, disobedient, insubordinate or is considered unsuitable for employment��.."

On the basis of these terms in the agreement it was contended that the labourers supplied by the petitioner had to work under the control and supervision of the Railway administration and that the Railway administration had also power to ask for termination of any labourer which the contractor was bound to do forthwith, and therefore, according to the learned counsel, the well-known test of supervision and control was satisfied with the result that these labourers must really be held to be employees of the Railway administration and not of the petitioner. Reliance was placed by the learned counsel on a decision in Shivnandan Sharma Vs. The Punjab National Bank Ltd., and the relevant observations of their Lordships relied upon were:

''In our opinion, there is no substance in that contention. If a master employs a servant and authorises him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for a cash consideration, the employees thus appointed by the servant would be equally with the employer, servants of the master. It is not always correct to say that persons appointed and liable to be dismissed by an independent contractor can in no circumstances be the employees of the third part),''

The learned counsel also referred to the decision of the Supreme Court in The Maharashtra Sugar Mills Ltd. v. The State of Bombay and others AIR 1951 SC 313 where their Lordships of the Supreme Court observed:

"Where the contractors engaged by a company were under the responsibility of employing responsible servants (as the company may approve of for carrying on the operation entrusted to them and those servants or coolies were to be paid wages by the contractor and if thought necessary by the company directly and the contract labour got the same amenities from the company as the muster roll labour, the persons employed by the contractor were ''employees'' within the meaning of the Act."

In this case the Supreme Court referred to the provisions of section 3 (13) and (14) of the Bombay Industrial Relations Act, 1947.

It cannot he disputed that the question as to whose employee a particular person is has to be determined with reference to the facts and circumstances of each individual case. Before the Labour Court the manager of the petitioner examined himself as a witness and his evidence will have some relevance for deciding the question as to whether the petitioner or the Railway administration was the employer of the employees. In his evidence given before the Labour Court, the manager has stated as follows:

"We employ piece rated and time rated workers. We pay piece rated workers on the basis of wagons. We don''t pay anything to the piece rated workers if there is no work on any day. We employ a Mukadam to employ piece rated workers. Generally, they work in groups and the gangman who leads is paid the wages of the work done by the Gang."

If now reference is made to the terms of the agreement which is relied upon heavily by the petitioner, it will appear that the contract really requires the petitioner to perform the different kinds of jobs specified therein. Though this agreement has been referred to as an agreement relating to the supply of labour, it appears from the recitals in clause 2 of the agreement that the contractor has undertaken to carry out all the work of handling. It is, therefore, really a contract for doing the work of handling with the help of labour for which the petitioner himself has to arrange and even the payment which the Railway administration makes to the contractor is on the basis of work done. Clause 4 of the agreement provides for remuneration which the contractor is to get and it is as follows:

"4. (i) The remuneration of the Contractor shall be as follows:�

(a) A fixed sum for every unit of weight or wagon of goods subjected to handling operations mentioned in clause 2 (i), as set out in detail in the schedule of rates hereto.

(b) A sum of Rs. 351 (Rupees three hundred fifty-one only) per month for the work detailed in clause 2 (ii) above."

Thus the remuneration which the petitioner is to receive is according to the quantum of work done in respect of the handling and the loading operations, and in respect of other incidental work the petitioner was to receive a monthly payment of Rs. 351 Though the petitioner wants to style this contract as an agreement for mere supply of labour, it is clear that the petitioner is really a loading contractor for carrying out the work of porterage with the help of the labour to be employed by him. The agreement seems to emphasise the fact that it is the petitioner who is the employer of the employees, who work according to the terms of this agreement. This is not a case where the petitioner is absolved from all obligations with regard to the supervision and control of the labourers employed by him, but the provisions of sub-clause (iii) of clause 3 of the agreement clearly provides that the contractor has to make arrangement for the supervision and inspection of all handling and loading operations as will ensure efficient work. No doubt the part of the agreement relied upon by the petitioner indicates that the Railway authorities are also entitled to supervise and control the work of the labourers, but merely on account of that it cannot be concluded that the real employer in the transaction was the Railway administration and not the petitioner. The latter part of clause 3 (iii) states that the officers of the Railway administration will be entitled to supervise and inspect the work of the labourers supplied by the contractors. This means that the primary supervision was to be that of the petitioner himself and obviously as the Railways were interested in the safe and proper transport of goods they were bound to safeguard their own interest by seeing that the petitioner and his employees carry out the work under the contract efficiently and that alone appears to be the purpose of reserving the right of supervision by the Railway authorities under the terms of the agreement. There are several other clauses in the agreement which again emphasise the fact, that the labourers who would he working in pursuance of this agreement were to be the employees of the petitioner himself. Under clause 3 of the agreement the petitioner was to be responsible for any loss, destruction or deterioration of goods resulting or caused by the carelessness, neglect or misconduct or default of the contractor or "of the labourers in his employment" and he was under obligation to pay all claims and litigation expenses if they had to be incurred by the Railway administration. Similarly under clause 10 the contractor would be responsible for any detention caused to the vehicles due to insufficiency of labourers'' neglect, carelessness, incompetency or dishonesty of "labourers or other persons employed by him'''''''' or for any other cause whatsoever beyond the free time allowed of 5 working hours. The responsibility for loss or damage to rolling stock or other Railway property through the negligence, misconduct, default or any other act of commission or omission on the part of the petitioner''s agents, servants or employees was fastened on the petitioner in terms of this agreement. In addition to all this the statutory liability under several enactments was to be that of the petitioner. Under clause 13 of the agreement the petitioner was to be liable in respect of any claims made by "a person in his employment and engaged in the performance of this contract'''' which again indicates that the petitioner''s capacity as an employer of the labour which was made available for the purposes of the contract of porterage was emphasised. Clause 15 also is significant. It says the contractor shall be responsible for compliance with the provisions of the Payment of Wages Act, 1936, and the rules made thereunder in respect of "the staff employed by him" and shall keep the Railway administration indemnified against ail loss, damage or claims arising directly or indirectly through any failure or omission to comply with the requirements of the said Act. It will thus appear from the several terms of the agreement reproduced above that there was a definite agreement between the Railway administration and the petitioner that the persons who would be working in pursuance of this contract of porterage were to be the employees of the petitioner and that the petitioner was responsible for any loss, or damage, or any liability incurred as a result of the acts of commission or omission on the part of these labourers. In such circumstances the only conclusion which is possible" in this case is that the petitioner was the employer of the persons who had initiated proceedings before the Labour Court and that vis-a-vis the Railway administration he was only the contractor entrusted with the task of handling and loading the goods in accordance with the terms of the contract.

The liability to pay bonus under the Payment of Bonus Act is that of an employer. The term "employer" is defined in section 2 (14) of the Payment of Bonus Act, 1965, The material part of this definition is as follows:

"2 (14) "employer" includes�

(i) * * * * * *

(ii) in relation to any other establishment, the person, who or the authority which has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent;"

For the purposes of the provisions of the Payment of Bonus Act, therefore, if the petitioner squarely falls within the above definition of employer, then we fail to see how he can dispute his liability to pay bonus under the Payment of Bonus Act. The petitioner-firm M/s. Allahabad Labour Supply Agency is owned by the proprietor P. S. Saraswat and admittedly he has an establishment over the affairs of which he has the ultimate control. The proprietor has himself not gone into the witness-box, but it is significant to notice that the Manager, who has been examined by the petitioner as his witness, has made no effort in his evidence to show that the petitioner does not fall within the above definition. As a matter of fact his evidence also does not disclose that it was at any time disputed that the labourers were the petitioner''s employees hut the employees of the Railway administration. The evidence makes no reference to the fact that the labourers who were doing the work of handling and loading were really the employees of the Railway administration and not that of the petitioner. It is clear, therefore, that the petitioner in its capacity as employer was liable to pay the bonus claimed by the employees.

We have reached the above conclusion on the evidence given by the Manager of the petitioner and on a construction of the agreement between the petitioner and the Railway administration. As already stated the question as to who is the employer will always be a question of fact. The two decisions of the Supreme Court relied upon by the petitioner are really of no assistance to us in deciding the present ease as to whether the Railway administration was the employer or not. In both these cases the decisions turned on the terms of the contracts between the persons who were styled as contractors and the employers. In The Maharashtra Sugar Mills Ltd. v. The State of Bombay and others on the basis of certain terms of agreement between the contractor and the Maharashtra Sugar Mills it was found that the contract labour got the same amenities from the company as the muster roll labour and that the contractors engaged by the company were under the responsibility of employing responsible servants as the company may approve of for carrying on the operation entrusted to them and those servants or coolies were to he paid wages by the contractors and if thought necessary by the company directly. On these facts it was held that the labourers employed by the Mills through the contractors were employees within the meaning of the term as defined in section 3 (13) of the Bombay Industrial Relations Act, 1946.

In the other ease of Shivnandan Sharma v. The Punjab National Bank Ltd. the Supreme Court held on a construction of an agreement between the Bank and its Treasurers that a cashier who was employed by the Treasurers was really the employee of the Bank itself. The facts in that case were that the cash department of the Bank was in charge of the Treasurers who, according to the terms of the agreement, were found really to be servants of the Bank, The Treasurers appointed the cashiers and these cashiers were subject to a full control by the Bank in their day to day work and also in the matter of leave or absence. The Bank had also made itself answerable to the employees thus appointed by the Treasurers with the concurrence of the Bank for their bonus, provident fund and travelling allowance and on these facts it was held that if the Treasurers were the servants of the Bank then their nominees must equally be so. Their Lordships of the Supreme Court observed that if the Treasurers'' relation to the Bank was that of servants to a master, simply because the servants were authorised to appoint and dismiss the ministerial staff of the Cash Department would not make the employees in the Cash Department independent of the Bank and that in that situation the ultimate employer would be the Bank through the agency of the Treasurers. Reference was made in this decision to a passage from Salmond''s Treatise on the Law of Torts in paragraph 11 of the judgment regarding the distinction between a servant and an independent contractor. After referring to the test laid down by Salmond their Lordships observed as follows:

''We are here not concerned with those nice distinctions which have been drawn in connection with the rule of vicarious liability in torts. We are here concerned only with the question how far the test laid down by the standard authors as quoted above can be applied to determine the present controversy whether the Treasurers of the Bank were its servants as contended on behalf of the appellant or independent contractors as claimed on behalf of the respondent-Bank."

Thus it is clear that the decision in Shivnandan''s case also turned on facts therein and in our view that decision is of no assistance to the petitioner in this case.

We must therefore hold that having regard to the terms of the agreement between the petitioner and the Railway administration the petitioner was really the employer of the labourers and the Labour Court was justified in arriving at the finding that the claim against the petitioner as the employer was maintainable in respect of the payment of bonus,

Thereto, last contention raised by the learned counsel for the petitioner was that the application of the contesting respondents u/s 33-C (2) of the Industrial Disputes Act, 1947, was not maintainable before the Labour Court in view of the provisions of section 22 of the Payment of Bonus Act. Section 22 of the Payment of Bonus Act is as follows:

"22- Reference of disputes under the Act - Where any dispute arises between an employer and his employees with respect to the bonus payable under this Act or with respect to the application of this Act to an establishment in public sector, then, such dispute shall be deemed to be an industrial dispute within the meaning of the Industrial Disputes Act, 1947, or of any corresponding law relating to investigation and settlement of industrial disputes in force in a State and the provisions of that Act or, as the case may be, such law, shall, save as otherwise expressly provided, apply accordingly."

The contention is that there was a dispute between the petitioner and his employees with respect to the bonus payable under the Act within the meaning of section 22 of the Act, and therefore, the machinery which was open to the contesting respondents to get this dispute resolved or settled was the one provided either by the provisions of the Industrial Disputes Act, 1947, or the Bombay Industrial Relations Act which is the corresponding law relating to investigation and settlement of industrial disputes in force in the State of Maharashtra. According to the learned counsel, the only way by which the contesting respondents could validly make a claim for payment of bonus was under the provisions either of the Industrial Disputes Act, 1947 or the Bombay Industrial Relations Act, 1946. We are unable to accept this contention. It is true that there is a dispute between the petitioner and the individual employees who have made applications u/s 33-C (2) of the Industrial Disputes Act, 1947 and the question which falls for our consideration is whether section 22 of the Payment of Bonus Act must be so construed as to exclude the jurisdiction of the Labour Court u/s 33-C (2) of the industrial Disputes Act, 1947. The learned counsel appearing for the petitioner was unable to point out to any provision either in the Industrial Disputes Act, 1947 or in the Bombay Industrial Relations Act, 1946 under which an individual employee could ask for a direction against the employer regarding payment of the amount of bonus due under the Payment of Bonus Act. Obviously such a provision does not exist in any of the two Acts referred to above. It is now well established that the provision regarding settlement of industrial disputes in the Industrial Disputes Act, 1947 only relate to the settlement of collective disputes. "Industrial Disputes has been defined in section 2, clause (k) of the Industrial Disputes Act, 1947, as meaning any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with conditions of labour, of any person. There is no machinery under the Industrial Disputes Act. 1947 by which an individual employee could get an individual industrial dispute resolved nor is there any provision under which he could ask for a direction against his employer regarding any monetary benefits or payment of any money due to him from the employer. It is also now well established that the sole object of enacting the provisions of section 33-C (2) of the Industrial Disputes Act, 1947 was to provide for a speedy machinery to individual employees because such a remedy was not available to them unless that individual dispute was taken up by the Union and assumed a character of a collective dispute. The history of the legislation preceding the enactment of section 33-C (2) was referred to by the Supreme Court in The Central Bank of India Ltd. Vs. P.S. Rajagopalan etc., and after referring to this legislative history, their Lordships have observed in paragraph 15 of the judgment as follows:

"The legislative history to which we have just referred clearly indicates that having provided broadly for the investigation and settlement of industrial disputes on the basis of collective bargaining, the Legislature recognised that individual workmen should be given a speedy remedy to enforce their existing individual rights, and so, inserted section 32-A in the Act in 1950 and added section 33-C in 1956- These two provisions illustrate the cases in which individual workmen can enforce their rights without having to take recourse to section 10 (1) of the Act, or without having to depend upon their Union to espouse their cause. Therefore, in construing section 33-C we have to bear in mind two relevant considerations- The construction should not be so broad as to bring within the scope of section 33-C cases which would fall u/s 10 (1). Where industrial disputes arise between employees acting collectively and their employers, they must be adjudicated upon in the manner prescribed by the Act, as for instance, by reference u/s 10 (1) These disputes cannot be brought within the purview of section 33-C. Similarly, having regard to the fact that the policy of the Legislature in enacting section 33-C is to provide a speedy remedy to the individual workmen to enforce or execute their existing rights, it would not be reasonable to exclude from the scope of this section cases of existing rights which are soughs to be implemented by individual workmen. In other words, though in determining the scope of section 33-C we must take care not to exclude cases which legitimately fall within its purview, we must also bear in mind that cases which fall u/s 10 (1) of the Act for instance, cannot be brought within the scope of section 33-C."

In the Central Bank case an argument was also advanced that the jurisdiction u/s 33-C (2) was a restricted jurisdiction and the Labour Court did not have jurisdiction if a dispute was raised before it about the Workmen''s right to receive benefit and that such a dispute could not be deter-mined by the Labour Court, This argument was negatived and in paragraph 10 of the judgment their Lordships observed "we must accordingly hold that section 33-C (2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers".

The provisions of section 33-C (2) of the Industrial Disputes Act, 1047, again came up for consideration before the Supreme Court recently in Chief Mining Engineer East India Coal Co. Ltd. Vs. Rameswar and Others, . In this decision their Lordships considered the earlier decisions regarding the construction of section 33-C (2) and summarized the legal position regarding the scope of section 33-C (2) in the following pro positions;

"(1) The legislative history indicates that the Legislature after providing broadly for the investigation and settlement of disputes on the basis of collective bargaining, recognised the need of individual workmen of a speedy remedy to enforce their existing individual rights and, therefore, inserted section 33-A in 1950 and section 33-C in 1956. These two sections illustrate cases in which individual workmen can enforce their rights without having to take recourse to section 10 (1) and without having to depend on their union to espouse their case.

(2) In view of this history two considerations are relevant while construing the scope of section 33-C. Where industrial disputes arise between workmen acting collectively and their employers such disputes must be adjudicated upon in the manner prescribed by the Act, as for instance u/s 10 (1). But having regard to the legislative policy to provide a speedy remedy to individual workmen for enforcing their existing rights, it would not be reasonable to exclude their existing rights sought to be implemented by individual workmen. Therefore, though in determining the scope of section 33-C care should be taken not to exclude cases which legitimately fall within its purview, cases which fall, for instance u/s 10 (1), cannot be brought u/s 33-C.

(3) Section 33-C which is in terms similar to those in section 20 of the Industrial Disputes (Appellate Tribunal) Act, 1950 is a provision in the nature of an executing provision.

(4) Section 33-C (1) applies to cases where money is due to a workman under an award of settlement or under Chapter V-A of the Act already calculated and ascertained and therefore, there is no dispute about its computation. But sub-section (2) applies both to non-monetary as well as monetary benefits. In the case of monetary benefit it applies where such bentest though due is not calculated and there is a dispute about its calculation����

It is thus clear that if the sole object of enacting section 33-C (2) was to provide a speedy remedy to an individual employee to enforce his right, then unless it can positively be established that the employee is prohibited from invoking the jurisdiction u/s 33-C (2) it will not be possible to hold that an application for recovery of statutory minimum bonus u/s 8of the Payment of Bonus Act cannot be made by an individual employee. It is true that a dispute between an employer and employees with respect to the bonus payable under the Payment of Bonus Act is fictionally made an industrial dispute by section 22 of the Act. If an industrial dispute within the meaning of the Industrial Disputes Act, 1947 would be a collective dispute, then if the fiction is to be given its full effect section 22 will have to be so construed as to refer only to a collective dispute between an employer and his employees. This construction is also supported by the use of the words "employer and employees" in section 22. The use of the word ''employees'' is not without significance and is clearly intended to indicate that a reference of a dispute raised by an individual employee is not contemplated by section 22 of the Act. There is also no machinery under the Bombay Industrial Relations Act whereby an individual employee could also seek a direction from the Labour Court regarding the payment of bonus or for resolving the dispute which arises between him and the employer as a result of non-payment of the bonus by the employer. The jurisdiction of the Labour Court under the Bombay Industrial Relations Act is governed by the provisions of section 78 of the Act. Under clause (b) of sub-section (1) it has jurisdiction to decide an industrial dispute referred to it under sections 71 and 72 of the Act. The dispute which is contemplated as capable of being referred to under sections 71 and 72 of the Act is the one with regard to which there is an agreement between an employer and the representative Union as contemplated by section 66 of the Act. The other parts of section 78 also do not give it jurisdiction to decide a dispute like the one in the instant case. Thus if the provisions of Industrial Disputes Act, 1947, contemplate machinery for settlement of a collective dispute as pointed out above and there is no provision in the Bombay Industrial Relations Act, 1946 which the employee would avail of for the recovery of the bonus amount and only a collective dispute only be referred to the Labour Court, then the proper construction of section 22 of the Act would be to restrict its operation only to cases of collective disputes between the employer and employees. Section 22 of the Payment of Bonus Act, 1965 must therefore be held to be not applicable in the case of an individual dispute. Construction of section 22 in the manner contended by the counsel for the petitioner would be to defeat the object with which section 33-C (2) was enacted. Thus if there is no provision either in the Industrial Disputes Act, 1947 or in the Bombay Industrial Relations Act, 1947, by which an individual employee can take recourse to a remedy for exercising his right, and in the instant case the right which is given to him to get a minimum amount of bonus is u/s 8 of the Act, then the only alternative for him would be to approach the Labour Court u/s 33-C of the Act.

That a remedy under suction 33-C (2) is not barred is also clear from the provisions of section 39 of the Payment of Bonus Act. Section 39 is as follows:

"39. Application of certain laws not barred Save as otherwise expressly provided, the provisions of this Act shall be in addition to and not in derogation of the industrial Disputes Act, 1947, or any corresponding law relating to investigation and settlement on industrial disputes in force in a State."

Section 39 expressly provides that the provisions of the Payment of Bonus Act, 1965 are not in derogation of the provisions of the Industrial Disputes Act, 1947 or the corresponding State Act, Thus the right of an employee to approach the Labour Court u/s 33-C (2) for recovery of the amount of minimum bonus is unaffected by section 22 of the Payment of Bonus Act, 1965. Even otherwise in our view section 22 must he construed as an enabling provision and in no ease can it be so construed as to defeat the right of an individual employee to approach the Labour Court u/s 33-C (2) of the Industrial Disputes Act, which right is expressly saved and reiterated again by section 30 of the Act. We are. therefore, unable to hold that the Labour Court had no jurisdiction to entertain the applications made by the individual employees u/s 33-C (2) of the Industrial "Disputes Act, 1947. Even though the right of the employees to claim minimum bonus was disputed by the employer the Labour Court was competent to decide the question of entitlement of the employees. There is thus no reason to interfere with order of the Labour Court.

These were the only contentions raised by the learned counsel for the petitioner. Since we have negatived all the three contentions, the petition is liable to be rejected. The petition is, therefore, rejected with costs.