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Judgment
Nainar Sundaram, J.—These writ appeals, though they are coming up for admission, since we find representation for the respondents and
the learned counsel appearing for the parties made their submissions comprehensively on merits, we are proceeding to dispose of the writ appeals
on merits.
These are seven writ appeals and they are directed against the common order of the learned Single Judge in Writ Petitions Nos. 8007 to 8013
of 1988. The petitioner in the writ petition is the appellant in these writ appeals. The second respondent in each of the writ petitions is the second
respondent in each of the respective writ appeals. For the sake of convenience, we are referring to the parties as per their nomenclature in the writ
petitions.
On April 10, 1985 there was a settlement between the petitioner and its workmen represented by their union u/s 18(1) of the Industrial Disputes
Act, 1947, hereinafter referred to as Act, 1947, and the terms of the settlement are only three in number and it is better we extract them as follows
:
(1) Having regard to the wholehearted and unstinted co-operation extended by the union in achieving the various production levels by adhering to
the productivity standard and their assured co-operation to increase it further, the company hereby agrees to pay to all eligible employees as
referred to in the preamble about the number and broad description of the workmen covered by the settlement, 20 per cent of basic wages,
dearness allowance etc., as bonus as per the provisions of the Payment of Bonus Act, 1965, as in force on date of this agreement.
(2) The union hereby agrees to accept this payment in full and final settlement of all its claim toward bonus for the year 1984 and further assures full
co-operation to the management in enhancing production.
(3) The company hereby agrees to make the payment referred to above on April 12, 1985.
The admitted position is disbursement of bonus for the year 1984 as per the above settlement did take place. Subsequently the Payment of Bonus
Act, 1965, hereinafter referred to as the Act, was amended by the Payment of Bonus (Second Amendment) Ordinance, 8 of 1985, and the parties
are at loggerheads only with reference to the application of the amendments introduced to Ss. 2(13) and 12 of the Act and to the reopening of the
issue regarding bonus for the year 1984, already disbursed pursuant to the settlement. Suffice it to point out that in sub-stance the amendments
revised the ceiling in wages and enlarged the coverage of employees. The amendments were given retrospective effect from January 1, 1984.
Taking advantage of the amendments, the second respondent in each of the writ petitions, hereinafter referred to as workmen, preferred claim
petitions before the first respondent u/s 33-C(2) of Act, 1947, demanding computation of the difference in bonus payable to them for the year
ended December 31, 1984. All the claim petitions are of the year 1986. While the claim petitions were pending, the workmen of the petitioner,
through their union, chose to raise an industrial dispute, over the very same issue and by G.O.Ms. No. 192, Labour Department, dated March 2,
1988, the following questions have been referred for industrial adjudication to the Industrial Tribunal, Madras :
Whether the contention of the management that bonus for the year 1984, paid as per the settlement u/s 18(1) of the Industrial Disputes Act, 1947,
dated April 10, 1985, with reference to the provisions of the Payment of Bonus Act as in force on the date of the agreement, is full and final, is
justified; and
Whether the demand of the workmen that bonus for 1984 should be calculated and paid in terms of the Payment of Bonus (Second Amendment)
Ordinance, 8 of 1985, relating to amendments to Section 2(13) (revised ceiling in wages) and Section 12 of Payment of Bonus Act (regarding
coverage of employees) is justified and if so, to give suitable directions.
The industrial dispute is pending as Industrial Dispute No. 13 of 1988 on the file of the Industrial Tribunal Madras. The petitioner has come to his
Court by way of the writ petitions praying for the issue of writs of mandamus directing the first respondent to forbear from proceeding further with
the claim petitions on its file. Before the learned Single Judge, who heard the writ petitions, the contention raised by the petitioner centered round
the want of jurisdiction on the part of the first respondent to adjudicate the controversy of the present nature u/s 33-C(2) of the Act, 1947, and
which controversy the petitioner would say is nothing short of an industrial dispute and the petitioner would also press forth the provisions of
Section 22 of the Act to spell out an embargo for the first respondent to resolve the controversy. However, on behalf of the workmen, it was
contended that what all is required to be done by the first respondent is the computation of the entitled in terms of the statutory provisions that have
come into force and hence the matter could be dealt with u/s 33-C(2) of Act, 1947, and the controversy cannot partake the character of an
industrial dispute so as to attract Section 22 of the Act. The learned Single Judge was of the opinion that when the right to receive bonus and the
rate as well already settled, the enquiry into the impact of the amendments introduced into the Act will only partake the character of computation of
the benefits and in this view, the learned Single Judge found no lack of jurisdiction on the part of the first respondent to enquire into the claim
petitions u/s 33-C(2) of the Act, 1947. As a result the writ petitions were dismissed as already noted, these writ appeals are directed against the
common order of the learned Single Judge.
Sri S. Ramasubramaniam, learned counsel appearing for the petitioner, would submit that the workmen want only an adjudication upon and
provision for bonus by preferring the claim petitions and that it is not permissible for the first respondent u/s 33-C(2) of the Act, 1947, and further
the language of Section 22 of the Act is unambiguous when it ways ''Where any dispute arises between an employer and his employees with
respect to the bonus payable under this Act or - - - then such dispute shall be deemed to be an industrial dispute within the meaning of the
Industrial Disputes Act, 1947 (14 of 1947)'' and hence investigations and settlement of such disputes could be done only be the forum constituted
under Act of 1947, namely an Industrial Tribunal and the first respondent admittedly being not such a forum, cannot be allowed to proceed with
the claim petitions. As against this Sri A. L. Somayaji, learned counsel appearing for the workmen, would submit that his clients are before the first
respondent basing their claim on the settlement, dated April 10, 1985 and Cl. (1) of the settlement specifically refers to the payment of bonus as
per the provisions of the Act as in force on the date of the settlement, and the first respondent has only to interpret the settlement to find out as to
whether the amended provisions introduced into the Act retrospectively from January 1, 1984 should be applied to the payment of bonus, and this
the first respondent could competently do u/s 33-C(2) of Act, 1947.
The nature and scope of the proceeding u/s 33-C(2) of the Act, 1947, have been many times looked into and settled by the highest Court in the
land, and the first rule is that such proceeding is generally in the nature of an execution proceeding. The said proceeding cannot take in an
investigation as to the right of the claimant to relief and the corresponding liability of the opponent, including the question as to whether the
opponent is liable or not and adjudication upon the same. However, such proceeding where the right has been already founded, can take in an
investigation as to the extent of the opponent''s liability, if any. For the purpose of making the requisite computation u/s 33-C(2) of the Act, 1947,
it may be open to the Labour Court to interpret the award or the settlement on which the right of the workman rests. This is on the principle that it
is permissible for the Executing Court to interpret the decree for the purposes of execution. But this principle cannot be availed of to enlarge the
right or to bring in a new right, especially when there is a dispute over the same. Here the controversy does not center round a bare interpretation
of the settlement. Larger questions are involved. One is as to the application of the amended provisions of the Act to the situation spoken to in the
settlement. The other is with regard to the question as to whether the disbursement under the settlement already done could be reopened and the
difference claimed. These questions in our view can only partake the character of an industrial dispute and cannot be made to stand only at the
level of a bare interpretation of the settlement; and they fall outside the purview of a proceeding u/s 33-C(2) of the Act, 1947.
The matter could also be looked at from the angle of Section 22 of the Act, as contended by the learned counsel for the petitioner. The question
requiring investigation into and adjudication upon is nothing short of industrial dispute, with reference to the bonus payable under the Act. We have
no ambiguity in our mind over this. There could be very many facets of the questions. But looked at from all angles, they only partake the character
of and fit in as an industrial dispute, over the payment of bonus under the Act. The workmen themselves had no ambiguity in their mind over this.
They consciously, through their union, have raised the industrial dispute over the questions, obviously, not oblivious to Section 22 of the Act. The
industrial dispute is properly before the Industrial Tribunal, Madras, awaiting adjudication. If it is an industrial dispute, certainly the Labour Court
cannot resolve it, in the claim petitions. In Aranha (Major D.) v. Universal Radiators, Coimbatore, & Ors. 1974 II LLN 260, a Bench of this
Court took note of the effect of Section 22 of the Act and held that a claim for bonus by a workman u/s 33-C(2) of Act, 1947, is not competent.
We feel obliged to call the following passage occurring in the said pronouncement in Para 2, at page 261 :
In our opinion, the learned Judge was right Section 33-C(2) is a machinery section. Even so, it has been construed by Court to have a wide
scope, the computation embracing not merely simple arithmetical calculation. Whatever claim may or may not be attracted within the scope of
Section 33-C(2), an industrial disputes as defined in the Act, as we think will not clearly be within the purview of that provision. This is because of
the scheme of the Industrial Disputes Act, which provides for a specific forum and procedure for adjudicating industrial disputes. Section 22 of the
payment of Bonus Act, 1965, deems any dispute that arose between an employer and his employees with respect to the bonus payable under the
Act to be an industrial dispute within the meaning of the Industrial Disputes Act, 1947. That being so, such a dispute will have to be adjudicated in
the regular way and not resolved by an application u/s 33-C(2). Our attention was invited to Section 39 of the Payment of Bonus Act, but that
does not assist us or compel us to take a different view. Our view is not Section 22 of the Payment of Bonus Act overrides Section 33-C(2) of the
Industrial Disputes Act. But when Section 22 of the former Act deems a dispute with respect of bonus payable under the Act to be an industrial
dispute within the meaning of the Industrial Disputes Act, then the forum and the procedure under the Industrial Disputes Act will be the only
means by which the dispute can find a solution and it is not through Section 33-C(2).
We are in respectful agreement with the ratio enunciated by the earlier Bench. The result of our above discussion is that the claim petitions before
the first respondent are totally incompetent because what is being sought to be adjudicated upon is only an industrial dispute and the industrial
dispute has already been properly raised and the Industrial Tribunal, Madras, is seized of the same in Industrial Dispute No. 13 of 1988 and in this
view the petitioner is entitled to the appropriate relief. Though the prayer in the writ petitions is for the issue of writ of mandamus, the appropriate
writs to be issued will be of prohibition. Accordingly, we allow these writ appeals, set aside the common order of the learned Single Judge in the
writ petitions referred to above and those writ petitions will be ordered issuing writs of prohibition, prohibiting the first respondent from proceeding
with the claim petitions referred to the prayers in the writ petitions. No costs.
The workmen certainly must find at the earliest the result of their agitation and it will lead to the benefit of both the sides if the agitation by the
workmen which is now properly before the Industrial Tribunal, Madras, is investigated into the adjudicated upon with expedition. Accordingly we
direct the Industrial Tribunal Madras, to whom a copy of this judgment shall be marked, to take up Industrial Dispute No. 13 of 1988 and dispose
it of with expedition, and in any event, before the end of July, 1992.