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Judgment
This writ petition coming on for hearing on this day upon preceding the petition and the affidavit filed in support thereof the order of the High
Court, dated 27th April, 1981 and made herein, and the counter affidavits filed herein and the relevant records on the file of the respondents herein
and comprised in the return of the respondents herein to the write made by the high court, and hearing the arguments of Mr. B. R. Dolia of M/s.
Aiyar and Dolia advocates for the petitioner, and Mr. J. Kanakaraj. Additional Government Pleader on behalf of the 1st respondent and of Mr.
Doraiswami, Advocate for the 2nd respondent, the Court made the following order :
There writ petition is for mandamus direct the second respondent, the Tamil Nadu State Housing Board to pay bonus as per the provisions of
the Payment of Bonus Act of 1965, hereinafter referred to as the Act, to the petitioner for the years commencing from the sixth accounting year
from the date of the coming into existence of the second respondent and render justice.
I may at once state that during the course of argument Mr. B. R. Dolia, learned counsel for the petitioner submits that in the event of the Court
accepting his arguments, he would be willing to confine his prayer only from the accounting year 1978-79 onwards and the prayer as made in the
petition need not be granted in full.
The facts are as under : The second respondent is a statutory body engaged in the business of constricting houses and conveying the same to the
public at the price quoted by it. The Tamil Nadu State Housing Board Act 1961 (Tamil Nadu Act 17 of 1961) is the one which governs the
functions of the Board. Section 3 of the said Act stated that the duty of carrying out the provisions of the Act shall, subject to the restrictions,
conditions and limitations therein contained, be vested in a Board to be called ''Tamil Nadu state Housing Board'' and such Board shall be a body
corporate and have perpetual succession and a common seal and shall, by the said name, sue and be used. The preamble of the Act reads as
followed :
Whereas it is expedient to provide for the execution of housing and improvement schemes, for the establishment of a State Housing Board and for
certain other matters hereinafter appearing :
But it cannot be gain-said that admittedly the constitution of the Board is for the execution of housing and improvement schemes. The functions of
the Board are set out under Chapter VII in detail. It is claimed in the affidavit that the activities of the Housing Board would constitution Industry
under S. 2(j) of Industrial Disputes Act, since it has got systematic organisation and is run with the cooperation of the staff including engineers and
other employees. The State Housing Board is an establishment covered by the provisions of payment of Bonus Act. It is a Corporation as defined
under S. 2(ii) of the Act. If that be so according to the petitioner, the employees of the second respondent do not fall under the exemptions
contemplated under S. 32(v)(c) of the Act.
The Union of which the petitioner is a General Secretary, has been agitating the issue relating to payment of bonus to the employees of the 2nd
respondent. As early as 5th January, 1978, the relating to payment of Bonus was raised before the Chairman. A demand was made by the Tamil
Nadu Housing Board Diploma Engineers'' Union on 24th February, 1978. Even earlier, the State Government modified G.O. Ms. No.
1042/Finance (CFC) Department dated 11th October, 1977, by G.O. MS. No. 1045/Finance (CFC) Department dated 1st November, 1977.
By the earlier Government Order, the directive of the first respondent was that the establishment like the 2nd respondent should not sanction to its
staff any bonus or ex-gratia payment or any other form of lump sum concession without the prior approval of the first respondent, Government. By
the subsequent Government Order, the earlier Government Order was modified and the right of the employees to get at least the minimum bonus
provided for under the Act was recognized. Consequent too this recognition, the Board set apart a sum of Rs. 18,00,000 being the bonus payable
to its employees calculated as per the payment of Bonus Act. On 1st January, 1979, the Tamil Nadu Housing Boards Diploma Engineers'' Union
brought to the notice of the Government the fact that Rs. 18,00,000/- having been set apart as bonus to the employees and requested the second
respondent Housing Board to pay minimum bonus to their employees. This was further pursued by a lawyer''s notice dated 14th August, 1979. In
answer to that, it was claimed that by virtue of S. 32(v)(c) of the Act, the Payment of Bonus Act itself was inapplicable to the Housing Board since
it is a special welfare institution not established for the purpose of profit.
In November, 1979 the 2nd respondent was prepared and willing to pay statutory minimum bonus for the years 1977-78, pending final
determination of quantum of bonus payable to their employees. The Union of which the petitioner is the General Secretary, even went to the extent
of giving up the claim for bonus for the past years, namely prior to the years 12977-78 provided from the year 1978-79 onwards the 2nd
respondent paid bonus to its employees. Thereupon steps were taken by the second respondent in consultation with the Government to pay bonus
to their employees from the years 1978-79 onwards. However, it appears that the first respondent passed G.O. Ms. No. 2018/Housing and
Urban Development Department, dated 31st October, 1979. As a result of the exemption, the bonus upto the year 1977-78 was not required to
be paid. The exemption having been passed, accordingly to the petitioner without notice to the petitioner Union is not binding. It was at that stage,
he moved this Court by way of W.P. No. 2320 of 1980, That writ petition came up before me and by an order dated 18th June, 1980, I
dismissed that write petition with the following observations :
The petitioner states that the question of payment of bonus to persons like him is under the active consideration of the Government and very likely
orders in his favour would be passed soon. I record the Statement. In the event of the petitioner not getting the bonus, which he claims as due to
him, it is well open to him to come forward with a fresh writ petition. With this observation, this writ petition is dismissed.
Thereafter all the efforts of the petitioner to obtain the bonus for the employees of the second respondent having failed, he has come forward with
this present writ petition.
In the counter-affidavit filed on behalf of the 2nd respondent, it is stated that it is not correct to contend that the 2nd respondent is engaged in
the business of constructing houses and conveying them. There is no trade or business carried on. Acquiring land, constructing houses and
providing the same to landless persons on ownership basis or rental basis for nominal price or rent, are the functions of the Tamil Nadu State
Housing Board. The Board does not run the business on commercial line. Nor does it obtain any profit. The contention that the 2nd respondent is
an industry as defined under S. 2(j) of Industrial Disputes Act, with systematic organization and run with the co-operation of the staff including
Engineers and other employees is incorrect. The averment that the Housing Board is an establishment covered by the provisions of Payment of
Bonus Act and is a Corporation as defined under S. 2(11) of the Payment of Bonus Act is incorrect. The contention that the employees of the 2nd
respondent do not fall within the exemption contemplated under S. 32(v)(c) of the Payment of Bonus Act is incorrect.
It is stated that Tamil Nadu Housing Board is a Social Welfare Institution providing housing facilities for persons without a house to live in.
Factually the schemes are implemented without any profit motive. This is made clear by the preamble of the Housing Board Act. If an institution is
established and is in fact run only for Social Welfare without profit motive, then such an Institution cannot be considered as an industry. The two
main sources by which the Housing Board receives money are income through Rental Housing Schemes and income through sale of plots and
buildings. The rental rates are calculated on the basis of actual expenditure and P.W.D. rates. Similarly the sale price also is fixed on the basis of
actual expenditure incurred by the Housing Board for a particular scheme. Therefore the Housing Board as a Body do not derive any profit. The
provision of housing facilities is a welfare program. Therefore it is not an industry.
While examining the payment of Bonus to the employees of the Board during 1978-79, only to be on the safer side, provision was made in the
budget for a sum of Rs. 10/- lakhs during 1978-79. However from 1978-80 onwards, no provision has been made in the budget for bonus
payment. It is incorrect to contend that Tamil Nadu Housing Board provides Rs. 18 lakhs during the year 1978-79.
At no point of time, willingness was expressed to pay minimum bonus as per the provision of the Act. Admittedly by G.O. Ms. No. 2018 Housing
dated 31st October, 1979, the Housing Board exempted from all the provisions of the Bonus Act for a further period upto accounting year 1977-
The petitioner has not exhausted the statutory remedies provided for under the Payment of Bonus Act. Therefore the writ petition is liable to be
dismissed on the short ground.
Mr. B. R. Dolia, learned counsel for the petitioner, after taking me through the relevant provisions of the Act, submits as under. To upset an
order prevalent in 1978-79 without hearing the Union of which the petitioner is a Secretary, is wholly irregular since the workmen had every right
to have their say. However, the learned Counsel states that this question may be left open to be decided in an appropriate proceeding. It is his
contention that under the relevant provisions of the Statute namely S. 10 of the Act, every industrial establishment, as the case may be, is bound to
pay the minimum statutory bonus and that cannot be denied. In the instant case, the Housing Board till the accounting year 1977-78 accepted this
proposition, and sought exemption. Under those circumstances, it cannot be contended that it is exempt from any of the provisions. As a matter of
fact in Maharashtra State Electricity Board v. M. C. Chitale and others 1981 I L.L.J. 462 it was held that where there is a systematic course of
activity, it would be an industry and having regard to the activities of the Board as set out in Tamil Nadu State Housing Board Act, it would be
clear that it is a profit making organization. Even otherwise, such a contention as is sought to be put forth now cannot be urged.
The next contention of the learned Counsel is that having accepted the position that it is liable to pay bonus under the Act and sought
exemption, it is not open now to claim that the Housing Board is exempted from the operation of the Act by virtue of S. 32(v)(c) of the Act. A
benefit was conferred upon the Board. It is open to the Board to waived the benefit. Once it is so waived the benefit, it is no longer possible for it
now to contend that there is no estoppel against the statute. It is not a case of estoppel. The Act exempts certain categories under S. 32. If on the
earlier occasion, the benefit of that provision has not been had and having waived the benefit, it is not open to it now to say that S. 32 will govern.
Such a waiver of the benefit has been upheld as seen from the decision in AIR 1971, Supreme Court, page 2230, and a ruling of the Privy Council
in AL. AR. Vellayan Chettiar v. Government of the Province of Madras (The Indian Law Reports, 1948, Madras, page 214) which related to a
case of waiver of notice under S. 80 Civil Procedure Code.
The last of the argument that is addressed before me is that this is not a case to which S. 20(2) of the Act would apply at all so as to require
the petitioner to raise by way of Industrial Disputes. Section 20 of the Act would relate to a dispute as to the quantum of bonus or as to the
applicability of the Act to a public sector. As to the quantum of bonus, there cannot be any dispute here since what is claimed is the statutory
minimum bonus, but not on the profit that is made by the Housing Board. As regards the stand of the Housing Board that is a public sector
undertaking no such contention is permissible because throughout in the counter affidavit what is claimed is the benefit of exemption under S. 32(v)
(c) of the Act.
The various proceedings of the Board and the provisions in the Budget would clearly go to show that at no point of time it was ever thought that
the Housing Board would squarely come under S. 32(v)(c) of the Act.
In answer to this Mr. K. Duraiswamy, learned Counsel for the second respondent, Housing Board, urges that under S. 20(2) of the Act, the
remedy of the petitioner is to raise an Industrial Dispute. That exactly is the reason why the remedy is provided so that all questions relating to the
matter of this kind can be agitated by way of Industrial Dispute.
The mere fact that exemption was sought for in the year 1977-78, does not preclude the Board to raise a statutory estoppel conferred under S.
32(v)(c) of the Act. In other words, there is no estoppel against the statute. Even if certain provisions were made in the earlier budget, it cannot
again enable the petitioner to find his cause to claim bonus. If however, a dispute is raised by the petitioner or the Union of which he is General
Secretary by way of Industrial Dispute, it may enable him for adjudicating that matter.
I may state that in view of the fair concession of the learned Counsel for the petitioner, I am not called upon to decide whether the grant of
exemption without notice to the workmen is bad or not.
I will now refer to the relevant provisions of the Payment of Bonus Act, 1965, which I have stated earlier, would be referred to as the Act for
the purpose of convenience. This is an Act to provide for the payment of bonus to persons employed in certain establishment and for matters
connected therewith. Section 1(3)(b) states that it applied to every other establishment in which twenty or more persons are employed on any day
during an accounting year. Section 2(16) defines establishment in public sector, which is extracted below :
establishment in public sector"" means an establishment owned, controlled or managed by -
(a) A Government company as defined in S. 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.
Section 10 is the heart of the Act which says that every employer shall be found to pay to every employee in respect of that accounting year a
minimum bonus which shall not be less than 8.33 per cent. Then S. 16 gives emphatic protection which need to detain us. Section 36 of the Act
grants the Power to the appropriate Government to exempt, subject to such conditions as it may think fit to impose, such establishment or class of
establishments from all or any of the provisions of this Act. While so exempting, regard must be had of financial position and other relevant
circumstances. This exemption is further conditioned upon the facts that the State must form an opinion in public interest that it will not be desirable
to apply the provisions of the Act to an establishment or class of establishment. Therefore S. 36 is restrictive in nature and it has no absolute power
of exemption. However, in addition to the power of exemption, what is found in the act in S. 32 which says that the Act shall not apply to certain
classes of employees. What is relied upon by the second respondent in S. 32(v)(c) which reads thus :
Nothing in this Act shall apply to employees employed by institutions (including hospitals, chambers of commerce and social welfare institutions)
established not for purposes of profit.
The Housing Board now claims itself to be a social welfare institution in the counter affidavit. About the correctness of that claim, I will consider
later. If the Housing Board falls within the vortex of the Act, it is bound to pay the minimum bonus as set out under S. 10 of the Act. Therefore, my
endeavor should be to find out as to whether the Housing Board falls within the four corners of the Act. What transpired before the Board as item
No. 477 dated 18th October, 1979 is as follows :
The Board in its Resolution dated 2nd November, 1978 approved the proposal for the payment of Bonus to the Workers and Staff of the Wood
Working Unit for the year 1977-78 at 8.33% annual wages according to which the payment was made as bonus.
It was therefore proposed to pay bonus at 8.33% of annual wages to them workers and staff of the Wood Working Unit for the necessary
payment has already been made, as the workers were pressing for the payment before Deepavali.
The Board is requested to ratify the action of the Chairman for the payment of the bonus for the year 1978-79.
Thereafter a note was put up by the Board to the following effect :
The Government in their G.O. Ms. No. 2018, Housing and Urban Development Department dated 31st October, 1979 (9 copy enclosed) have
issued notification excepting the Tamil Nadu Housing Board from all the provisions of the payment of Bonus Act, 1965 for a further period upto
the accounting year 1977-78. The Union representing the various categories of employees of the Housing Board have been representing and
pressing for the payment of at least minimum Bonus to all the employees of the Board from the year 1978-79 onwards, as granted by the Board to
the employees working in the Wood Working Unit and the Cellular Concrete Plant.
The reasons urged for declaration of bonus are that the Housing Board has been earning profits in the disposal of plots as well as flats, that the
employees and the Board are governed by the provisions of the Industrial Disputes Act and that the Housing Boards in other states have granted
bonus to their employees. The Unions have, however, represented that they will not press for Bonus for the years upto 1977-78. The probable
expenditure that may have to be incurred is minimum of 8.33% is declared as Bonus would be about Rs. 14 lakhs every year.
The matter is therefore placed before the Board for taking a decision in the matter and recommending to Government.
However, the Government granted the exemption under G.O. Ms. No. 2018 dated 31st October, 1979 in the following manner :
In exercise of the powers conferred by S. 36 of the payment of Bonus Act, 1965 (Central Act 21 of 1965) the Governor of Tamil Nadu hereby
exempts the Tamil Nadu Housing Board, from all the provisions of the said Act for a further period upto the accounting year 1977-78.
Then again by a letter dated 4th May, 1979, the Chairman of the Housing Board states as follows in his note :
According to the present position, only the following units of Tamil Nadu Housing Board attract the provisions of the Industrial Disputes Act and
the payment of Bonus Act.
Cellular Concrete Plant of T.N.H.B.
Wood Working Unit.
The employees working in the above two units were also paid bonus for the year 1978-79. The Tamil Nadu Housing Board was exempted from
the provisions of the payment of Bonus Act under S. 36 of the Act, for the temporary period upto the end of 1977-78. This exemption had
necessarily to be obtained for the reasons that the Tamil Nadu Housing Board is governed under the Industrial Disputes Act. According to the
order issued in G.O. Ms. No. 9139 H.U. III/2/69-2 dated 14th March, 1969 (copy appended herewith) when the Housing Board is governed
under the Industrial Disputes Act the applicability of the Bonus Act is not obligatory but it is statutory. As the financial position of the Board in the
past was not sound enough, the permanent exemption was previously sought for by the Board. But, orders to that effect were not issued.
In this connection, kind reference is invited to G.O. Ms. No. 1045, Finance dated 1st November, 1977 (copy appended herewith) where
from it may be seen that the statutory Board should not sanction to its staff any bonus or exgratia payment or any other form of lump sum
concession without the prior approval of the Government. But, the Government now want to know whether automatic exemption under S. 32(v)
(c) of the Act was ever considered in the past. The question was never considered previously, because of the fact that the Housing Board which is
covered by the Bonus Act was engaged in finding out ways and means to make payment. It is also brought to the kind notice of the Board that the
employees of the Tamil Nadu Housing Board are pressing for payment of bonus.
In this connection, it is submitted that automatic exemption can be availed of only, if the Housing Board can be named as ''Social Welfare
Organisation'' serving the Public without profit motive. Though the Tamil Nadu Housing Board which is statutory body, is being run on ""No profit
and no loss basis"" it cannot be stated that the Board does not make a profit at all in its transactions, on the development of plots and constructions
of houses. It can also be stated that the introduction of various schemes financed by HUDCO, an element of profit is added in most of the HIG
flats with a small subsidy of E.W.S. Such subsidy is only a fraction of the profits made under the H.I.G. However, the Board borrows money from
various sources at different rates of interest for the execution of the various schemes. The Board''s borrowing rate of interest ranges from 6% to
11%. Such loans received are not spent for specific projects. But, in case of hire purchase allotment, a uniform rate of interest is charged on the
allottees at 1% of the highest borrowing interest, except in the case of HUDCO schemes where the rates of interest committed is charged. Thus, it
may be seen from the above that good amount of profit is earned by the Housing Board. This can be substantiated by referring the revenue
position of the Board as on 31st March, 1978 which indicates surplus of Rs. 196.93 lakhs taking into account the arrears due from the various
allottees to the tune of Rs. 100 lakhs. If the Bonus is declared, the commitment of the Board would be approximately Rs. 10 lakhs per year. The
annual cost of establishment is approximately Rs. 120 lakhs exclusive of allowances.
Under the rules, the payment of minimum bonus will be 8.1/3% of the pay for persons who are drawing less than Rs. 1,600/- per month
subject to a maximum of Rs. 750/- per annum. Presently, the West Bengal Housing Board and Gujarathi Housing Board are paying nonus for their
employees. It is also ascertained from the Government of West Bengal that they are making payment of Bonus to their employees at the rate of
8.1/3% treating the Board as an ''Industry'' under the Industrial Disputes Act. The payment is made by them from their revenues only, which they
are able to earn by adding, different profits in the sale of buildings by public auctions etc., on the same analogy. The Housing Board may also
derive income in the near future and there may be any difficulty in meeting this expenditure in this regard from its available funds. Besides, the
Housing Board with its assets and liabilities is earning more and more every year. The income derived by way of rental, leasing of shops and stalls
etc., will undoubtedly go towards profit to certain extent.
In the circumstances, it appears not necessary to seek for the exemption of the Government from the payment of minimum bonus of 8.1/3%
which is a statutory right as per the orders issued in G.O. Ms. No. 1045, Finance dated 1st November, 1977. The Government have also directed
that when payment of bonus to the employee of the public sector undertakings is strictly in accordance with the provisions of the Bonus Act such
cases need not be referred to the Government for approval. No deviation from the Bonus Act should normally be made. However, if any deviation
is proposed to be made by way of payment of ex-gratia or any other incentive in cash or any kind, then only it should carry the prior approval of
the Government.
In the circumstances and ""in view of the above facts, that the payment, of bonus is statutory, the Board is requested to take a decision as to grant
of payment of bonus to the employees of the Tamil Nadu Housing Board as admissible under the rule for the year 1978-79. The Government may
be informed thereafter of the decision taken by the Board.
The employees working in the two units were also paid bonus for the year 1978-79. The two units are :
Cellular Concrete Plant of T.N.H.B.
Wood Working Unit.
From the statement of Economics of salable per plots unit and Economics of Building permit furnished before me, it is also seen that the
Housing Board is making profit. From the above facts, it is clear that the Housing Board had always considered that there was liability on its part
to pay bonus. As a matter of fact, in the Annual Estimate of Income and Expenditure of Tamil Nadu Housing Board for the year 1978-79, on 2nd
March, 1978 it was stated in paragraph 5 thus :
The Board took note of an additional provisions of Rs. 30.00 lakhs during 1978-79 on Pay Commission recommendation (Rs. 20 lakhs.) and
Bonus (Rs. 10 lakhs) approximately.
If really the situation was otherwise, the Board would not have sought exemption from the Government. As to how far the activities of the Board
would make it fall within the four corners of the payment of Bonus Act, can be answered with reference of this note. In Maharashtra State
Electricity Board Vs. M.C. Chitale and others, the question arose whether the activities of Maharashtra Electricity Board are such as it could be
called an establishment not for profit and is exempt under S. 32(v)(c) of the Act. In paragraph 12, it was answered thus :
Having given our anxious thought to this question, we are unable to agree with the view taken and we say this with utmost respect. It is true that
the ""institution"" is a word of very wide import and can include within its sweep even the Government and many statutory corporations which are in
terms referred to in the exemption clause. But, in out judgment, the term is not used in the generals and wide sense. Now, it may be noted that the
definition of the word ''employer'' under S. 2(14) who is statutorily liable to pay the bonus conceives of his being an employer of an ""establishment
which carried with it a sense of being commercial undertaking. By the time the Bonus Act enacted in the 1965 enlarged concept of ''industry''
covered even non-commercial institutions such as hospitals, clubs and charitable institutions. The word ""Institution"" has thus become synonymous
with ""establishment"" and the Act uses both the works without indicating any distinction in their imports. One more factor provides the clue. Under
different clauses of S. 32, Government as well as many statutory corporations of public utility, such as Life Insurance Corporation, Indian Red
Cross Society, Universities and other Educational Institutions, Reserve Bank of India, Industrial Finance Corporation, Deposit Insurance
Corporation, Agricultural Refinance Corporation, the Unit Trust of India, the Industrial Development Bank of India, etc., are exempt. They all are
institutions by the same standard and measure as the petitioner is. Thus these clauses deal with different species of the genus ""institution"" and it is
necessary to ascertain which particular category or species is intended to be brought under this particular clause. Now, the word ''institution'' has
been used not merely in isolation and immediately thereafter there is a bracketed portion giving the inclusive list such as hospitals, chambers of
commerce and social welfare institutions. In the absences of any definition of the said work, the context and the collocation of the words can be
best guide to indicate its true import. State of Assam Vs. Ranga Mahammad and Others, . It is well known method of interpreting a statute that
when there is a doubt about the meaning of a particular word it has to be understood in the sense in which it best harmonizes with its subject-
matter. If the word is not precise but is general, it has to be restricted to the fitness of the matter. In other words, to consture as particular if the
intention be particular. Maxwell on the interpretation of Statutes, (12th Edition) page 76, observes as under :
The words of a statute, when there is doubt about there meaning, are to be understood in the sense in which the best harmonize with the subject
of the enactment. Their meaning is found not so much in a grammatical or etymological propriety of language, nor even in its popular use as in the
subject, or in the occasion on which they are used, and the object to be attained. Grammatically words, may cover a case; but whenever a statute
or document is to be construed, it must be construed to according to the mere ordinary gender meaning of the words, as applied to the subject-
matter with regard to which they are used, unless there is some thing which renders it necessary to read them in a sense which is not ordinary sense
in the English Language as so applied. Keeping this canons of interpretation as well as the rule of ejusdem generis in view it seems to us that
particular types of institutions such as hospitals, social welfare institutions, the chambers of commerce alone are intended to be covered under this
clause, and not every type of institution including the statutory Corporation like the Board carrying on the seami-commercial activities.
Therefore, if this is the view to be taken, certainly a semi-commercial organization like the Housing Board cannot fall under the exemption
clause, under S. 32(v)(c). This is the reason why I referred the statement in relation to the profits. Even otherwise, irrespective of the profit being
made, if there is the statutory liability, that cannot be avoided once it is held to be an establishment. In order to obviate the difficulty what is now
urged before me is that a dispute under the Industrial Disputes Act ought to be raised as required under S. 20(2) of the Act where such a remedy
is provided, and that it is not open to the petitioner to approach the Court and invoke the extraordinary writ jurisdiction. This requires me to refer
to S. 20(2) of the Act. If there is a dispute as to the quantum, undoubtedly, it can be only by way of industrial disputes or again if there is a dispute
as to the application of this act to an establishment in public sector, that also can be only by way of Industrial Disputes. That is clear by looking into
the Legislative history. It is clear that originally under S. 32, clause (x) was sought to be introduced as employees employed by any establishment in
public sector, save as otherwise provided under the Act. However, that was omitted by Act 66 of 1980. This was based upon the
recommendations of the Bonus Commission contained in paragraphs 4, 6, 15, 20 etc. ...... Institutions like the Reserve Bank of India, Industrial
Finance Corporation etc., have also been specifically excluded from the scope of the Act. I may now refer to paragraph 18.8 of the report of the
Bonus Commission.
Talking generally in the light of what has been said earlier, we feel that a practical rough and ready but objective yardstick for assessment of the
competitive character of public sector enterprises is necessary. And we recommend, therefore, that if not less than 20 per cent of the gross
aggregate sales turnover of a public sector undertaking consists of sales or services and/or products which complete with the products and/or
services produced or sold by units in the private sector, then such undertakings should be deemed to be competitive and our formula apply to such
units. We recommend further that in the event of any disputes in particular cases as to whether any anomalous and marginal cases fall within or
outside the dividing line of being ''20 per cent competitive'' the machinery for deciding them should be that recommended by us in paragraphs
19.23 Chapter XIX for the settlement of bonus disputes generally.
It is in this connection S. 20 of the Act becomes very relevant. That is extracted below :
Application of Act to establishments in public sector in certain cases : 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 20 per cent of the gross income of the establishment in public sector for that year, then, the provisions of
this Act shall apply in relation to such establishment in public sector as they apply in relation to like establishment in private sector.
(2) Save as otherwise provided in sub-S. (1) nothing in this Act shall apply to the employees employed by an establishment in public sector.
Therefore, only when a question arises as to the applicability of this Act to any public sector undertaking, that has to be agitated by way of
industrial disputes. At no point of time, it was ever claimed that the Housing Board is a public sector undertaking. On the contrary, it was only
claimed that it has necessary exemption under S. 32(v)(c) of the Act. Therefore, I hold that this plea that it is a public sector undertaking cannot be
accepted.
It is true, as a proposition of law, there cannot be any estoppel against any statute. But where a benefit under S. 32(v)(c) of the Act was
conferred upon the Housing Board and throughout it was of the view that bonus was payable to the workman and in fact even budgetary
provisions had been made, I should hold that having obtained exemption on this basis, it is not open to the Housing Board to turn round now and
say that statutory exemption is available to it. This is not a case of estoppel against a statute. On the contrary it should be held that it is a waiver of
a benefit conferred on it. Therefore, squarely the ratio of the decisions of the Supreme Court reported in AIR 1971 SC 2230 and ILR 1948 Mad
214 would apply. In fact whenever the question of bonus came up, the workmen were confronted with an order of exemption. That of course is
operative till the accounting year 1977-78 but not beyond that which is the subject matter of dispute since I have recorded earlier what is stated by
Mr. Dolia learned counsel for the petitioner, restricting the prayer to the accounting year 1978-79 onwards. Accordingly the writ petition will stand
allowed and the decision regarding payment of bonus will have to be arrived at expeditiously as possible, at any rate, not later than 31st March,
1983. I make it clear that the minimum bonus that has to be paid under the Act to the workman, will be from the accounting year 1978-79
onwards. No costs.