Hindi Sahitya Sammelan vs Presiding Officer, Labour Court and Others

D.K. Seth, J.—By means of this writ petition, an award dated 31st May, 1993, passed in Misc. Case No. 54 of 1991, passed by Respondent No. 1. Labour Court Allahabad, has been challenged.

The facts of the case in brief are that the Petitioner is a registered society under the Society Registration Act, 1860 as an educational institution/ University. The examinations conducted by the society are recognised by the Government of India as well as various Universities of the country. Respondent Nos. 2 to 13 are the employees of the Petitioner who had filed an application u/s 33C(2) of the Industrial Disputes Act, before Respondent No. 1, Labour Court Allahabad claiming encashment of earned leave of 45 days, bonus for the accounting years 1983-84 and 1984-85 at the rate of 8.33 percent and fixation of their wages on reinstatement with benefits of increment with effect from 12.5.1983 till the date of application, namely. 9.6.1986. The said claim was allowed by Respondent No. 1, Labour Court by order dated 31st May, 1993, whereby the claim for bonus and for difference in wages were allowed while claim for encashment of earned leave was disallowed as not pressed.

Learned Counsel for the Petitioner while espousing the cause of the Petitioner confined his case only with regard to that part of the order by which bonus at the rate of 8.33 percent for the respective year was allowed. So far as the other part of the order is concerned, he did not press.

Respondent Nos. 3 to 13 represented through their counsel contested the case by filing counter-affidavit whereby it has been claimed that the Petitioner is a commercial establishment, which the Petitioner itself had admitted in the written statement filed before the authorities under the U.P. Shops Act, in C. B. Case No. 109/85, which is Annexure 1 to the counter-affidavit, in which in paragraph 9 it has been admitted that the Petitioner is a commercial establishment. It is also pointed out that the Petitioner had never claimed itself as an educational institution before the Labour Court.

In the rejoinder-affidavit, the Petitioner has annexed various documents in order to show that it is not a commercial establishment but an educational institution.

In support of the writ petition, learned Counsel for the Petitioner submits that the Petitioner being an educational institution or a University falls within the exception of Section 32(v)(b) of the Payment of Bonus Act. Therefore, the provisions contained in the said Act is not applicable so far as the Petitioner is concerned. If the provisions of the Payment of Bonus Act is not applicable, in that event the question remains as to whether the Respondents are entitled to the same. As soon as it becomes the question of determination of entitlement, the same does not come within the scope and ambit of Section 33C(2) of the Industrial Disputes Act and, as such, determination thereof by the Labour Court in exercise of Jurisdiction u/s 33C(2) of the Industrial Disputes Act, is wholly without Jurisdiction. Therefore, the Impugned order, so far it grants bonus, cannot be sustained and is liable to be quashed. Learned Counsel for the Respondents, on the other hand, submits that once the Petitioner has admitted that it is a commercial establishment, it is estopped from claiming itself as an educational institution or University. He further submits that the said question having not been raised before the Labour Court, Labour Court was never called upon to decide the question. Jurisdiction of the Labour Court having not been challenged, it is to be presumed that the Petitioner has waived the objection as to Jurisdiction on the same ground. He also points out to the written statement filed on behalf of the Petitioner, which is Annexure 4 to the writ petition, and submits that nowhere the said point was raised. The only ground that was made out was that the Respondents, being temporary employees, were not entitled to bonus. Relying on paragraph 1 of the said written statement, he points out that the Petitioner disputed the entitlement on the ground that the Respondents are not the members of any union. Similarly, he refers to paragraph 2 of the written statement and points out that the Petitioner has made out a case that Respondents had no existing rights because they were temporary employees. He further refers to paragraph 2 of the claim petition, which is Annexure 3 to the writ petition, and submits that the Respondents had categorically asserted that the Petitioner as a commercial establishment while dealing with the same paragraph in paragraph 5 of the written statement (Annexure 4) the Petitioner did not specifically assert that the Petitioner is an educational institution or a University.

On the other hand, learned Counsel for the Petitioner has referred to Annexure-5, which is a letter issued by the Employee''s Provident Funds, Varanasi to the Petitioner regarding the modification of Schedule head and the date of coverage. By the same letter, under the Employees Provident Funds, the date of coverage was fixed with effect from 1st March, 1982 and the schedule head was determined as an educational institution and required the Petitioner for compliance thereof. He also refers to the letter Issued by the Regional Provident Funds Commissioner. U.P., which is Annexure-6 to the writ petition and points out that the Petitioner has been held to be a University on enquiry. He has further relied on a letter issued by the Government of India, which is Annexure-7 to the writ petition. in which the examinations held by the Petitioner were treated as equivalent to different degrees of the Universities as specified therein and which were to be recognised by the Universities. Relying on those documents, learned Counsel for the Petitioner submits that the alleged admission made in the written statement, contained in Annexure-CA. 1 to the counter-affidavit, cannot be treated as waiver. He further submits that in the written statement, contained in Annexure-4, the allegation made by the Respondents that the Petitioner is a commercial establishment, has been denied. The objection that the dispute does not come within the purview of Section 33C(2) of the Industrial Disputes Act, is encompassing the present objection as well. It was his objection that the Petitioner not being a profit making institution does not come within the purview of the Payment of Bonus Act.

After having heard learned Counsel for the parties, it appears that admittedly the Petitioner did not take the point that the Petitioner being an educational institution does not come within the purview of the Payment of Bonus Act. But the point was taken that the dispute whether the Petitioner is entitled to bonus, is a dispute within the meaning of Section 4(K) of the U.P. Industrial Disputes Act, and, as such, it cannot be adjudicated upon u/s 33C(2) of the Industrial Dispute Act.

Reading the entire written statement and particularly paragraph 5 where the Petitioner has denied that it is a commercial establishment as has been sought to be made out in the claim petition by the Respondents raises doubt as to the entitlement. Section 33C(2) deals with the existing rights. It can only compute the money due arising out of bonus and can undertake exercises for expeditious computation of the money due out of the existing rights but it has no jurisdiction while exercising Jurisdiction u/s 33C(2) to embark upon any field where it is necessary to decide and determine the entitlement of a particular benefit. The entitlement having been disputed, it cannot be said that the question was not, therefor, before the Labour Court. The Labour Court ought to have decided the question of Jurisdiction on the ground of dispute in respect of entitlement before embarkment upon the exercise of computation.

By now It is well-established that the proceedings u/s 33C(2) are in the nature of execution proceeding and therefore, this does not Involve right of claimant to relief and the corresponding liability of the employer as to whether the employer is at all liable or not. The workman cannot put forward a claim in an application u/s 33C(2) in respect of the matter not based on existing right. Reliance may be placed on Central Inland Water Transport Corporation Limited Vs. The Workmen and Another, , Punjab Beverages Pvt. Ltd., Chandigarh Vs. Suresh Chand and Another, , P.K. Singh and Others Vs. Presiding Officer and Others, .

Admittedly, the Petitioner is a Society. Under the provision of the Society Registration Act, 1860, only societies established for the promotion of literature, science or the fine arts or for the diffusion of useful knowledge, the diffusion of political education or for charitable purpose are covered. As provided in Section 1, a society has to conform to the provisions contained in Section 20 of the said Act which specifies the class of the society that can be registered as a society. A commercial establishment does not come within the purview of the said provision. Therefore, even on that account any decision by the Labour Court directing the payment of bonus, amounts to determination of entitlement by holding that the Petitioner is not a society and that it is a commercial establishment. When it was asserted by the Respondents that the Petitioner was a commercial establishment and it was a society under the Societies Registration Act, and the Respondents having made the Petitioner party as a society, then any order passed laying onus on the Respondents would have the effect on the decision that it is not a society, as soon as it is disputed that the Petitioner is a society and not a commercial establishment as contended by the Respondents, the burden remains on the Respondents to prove that the Petitioner was a commercial establishment. The Labour Court could not have avoided to decide the same. The overlooking of the said question by the Labour Court does not render the claim of the Respondents as an existing right.

Over and above, an inapt drafting does not preclude the Court from looking into the real nature of the question in dispute. The Court cannot close its eyes on the glaring facts, which clearly takes away jurisdiction and allow Injustice to continue. It is the principal duty of the court to do justice. A misstatement does not confer Jurisdiction when there is none.

The admission as contended by the Respondents made by the Petitioner in the written statement, contained in Annexure C.A.1, cannot be treated as an admission having the effect of estoppel by the Petitioner, inasmuch as the said written statement was not affirmed by an affidavit and aided by the fact that the said written statement is contrary to the constitution of the Petitioner itself. The document referred to in Annexure-5 to the writ petition shows that the Petitioner has been recognised as an educational institution by the provident fund authority who has conducted the enquiry and found the same to be a University. On enquiry, as recorded in Annexure-6 to the writ petition, and the recognition by the Government of India that the degrees conferred by the Petitioner is equivalent to certain degrees conferred by the Universities, prima facie establishes that the Petitioner is an educational institution. That apart the Petitioner being a society, the same cannot be a commercial establishment.

Section 32 of the Payment of Bonus Act provides that: A.W.C. 37

Nothing in this Act shall apply to:

(i) employees employed by any Insurer carrying on general Insurance business and the employees employed by the Life Insurance Corporation of India;

(ii) seamen as defined in clause (42) of Section 3 of the Merchant Shipping Act, 1958 (44 of 1958);

(iii) employees registered or listed under any scheme made under the Dock Workers (Regulation of Employment Act, 1948 (9 of 1948), and employed by registered employees;

(iv) employees employed by 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;

(v) employees employed by:

(a) the Indian Red Cross Society or any other institution of a like nature (including its branches;);

(b) universities and other educational Institutions;

(c) institutions (Including hospitals, chambers of commerce and social welfare Institutions) established not for purposes of profit;

(vi) employees employed through contractors on building operations."

The reading of the said section clearly Indicates that the provisions of the Payment of Bonus Act would not apply in respect of such institution as that of the Petitioner, inasmuch as the Petitioner claims that the same comes within the class of "other educational Institution." Therefore, the question involves as to whether Respondents are entitled to bonus and that was to be decided and determined not in the case u/s 33C(2) which is beyond the scope and ambit of the said section.

In the view of the matter, the Impugned order dated 31st May, 1993 so far as it relates to the determination of payment of bonus cannot be sustained and. as such, is set aside. So far as other part of the impugned order dated 31st May, 1993 is concerned it is not interfered with and is sustained. The matter is hereby referred back to the Labour Court for deciding afresh only in respect of the question of computation of bonus. The Labour Court, before proceeding to compute the money due on account of bonus as claimed by the Respondents, shall decide the question of dispute relating to entitlement only. in case, the Labour Court finds that it is not called upon to decide the entitlement and that the benefits of bonus flows from the existing rights, then only it would compute the same after a certified copy of this order is produced before the Labour Court. The Labour Court shall issue notices to both the parties fixing a date for submission of additional statement or written statement, as the case may be, by either of the parties. The Labour Court shall allow the parties to produce such documents or adduce such evidence as each of them may like on a date fixed by the Labour Court in respect of their respective submissions. Thereupon the Labour Court shall proceed to decide the issue as to whether the claim of the Respondents flows from an existing right or the right/entitlement is to be determined and decided after giving a reasonable opportunity of being heard to either of the parties. The entire proceedings as directed above, should be completed by the Labour Court as expeditiously as possible preferably within a period of six months from the date a certified copy of this order is produced before it. Both the parties will co-operate in the matter of early disposal of the case and shall not ask for any adjournments unless It is unavoidable.

Accordingly, a writ of certiorari do issue with exception indicated above together with the direction as mentioned hereinbefore.

The writ petition is, thus, disposed of. There shall be no order as to costs.