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Judgment
K. Chandru, J.—Heard both sides.
These writ petitions have been filed by the Broadcasting Corporation of India, (Prasar Bharati) Doordarshan Kendra, Chennai 5, challenging the
common order passed by the 1st respondent, Labour Court dated October 29, 2004.
All the writ petitions were admitted on July 20, 2005. Notices were issued to the contesting workmen. Pending the writ petitions, this Court
directed an interim stay on the condition that the petitioner Prasar Bharati deposits the entire back wages as ordered by the Labour Court to the
credit of respective Claim Petitions within 8 weeks, failing which the interim stay was directed to be vacated. Mr. M. Damodaran, learned
Additional Central Government Standing counsel stated that the said order has been complied with.
The contesting respondents moved the Labour Court u/s 33-C(2) of the Industrial Disputes Act claiming bonus on the basis that they have put in
more than 30 days'' work each from the year 1995 till the date of filing of the application, namely October 2000. Though the Department had paid
bonus at the rate of 8.3% for other employees, the contesting respondents were not paid bonus. Therefore, they are entitled to get bonus at the
rate of 8.3% on the annual earnings. The claim petitions assigned different numbers.
Notices were ordered to the petitioner Corporation. The petitioner Corporation filed counter statements in all the claim statements dated May
25, 2001. The petitioner Corporation claimed that the contesting respondents were engaged only 6 to 10 days in a month, which did not exceed
120 days'' in a year. The Corporation had paid non-productivity linked bonus (ad hoc bonus) like other Central Government employees covered
by the Circular dated September 28, 2000 issued by the Government of India. If at all any bonus as per the said Notification was to be claimed,
the casual labourers are entitled for bonus only if they had worked for 206 days in 1 case of 5 day week system or 240 days'' in case 6 day week
system for each year and that too only when they had services for 3 years and more. Therefore, the contesting respondents are not eligible for
bonus as announced by the Central Government. Further, it was stated that Prasar Bharati Act, 1990 was enacted to take over the erstwhile All
India Radio and Doordarshan u/s 11 of the Prasar Bharati Act. The employees were to exercise option to become employees of the Corporation.
Until such time, they will be treated as the Central Government servants. Only the Rules relating to Central Government will apply to them. Many
of the workmen have moved the Central Administrative Tribunal resisting the move by the Government to redeploy them to the new Corporation
under the Prasar Bharati Act. It is also stated that Claim Petitions u/s 33-C(2) of the Industrial Disputes Act is not maintainable and hence they
prayed for dismissal of the Claim Petitions.
Before the Labour Court, one Robinson was examined on the side of the workmen as P. W. 1. On the side of the petitioner Corporation one
Raman Kutty was examined as R.W. 1. The petitioner Corporation have filed 6 documents and they were marked as Exhibit R.1 to R.6. The
memorandum dated September 28, 2000 was also filed and marked as Exhibit R-4.
The workmen gave written arguments. They contended that they are workmen under the provisions of Section 2(s) of the Industrial Disputes
Act and employees u/s 2 of the Payment of Bonus Act, 1965. They also stated that the petitioner Corporation is covered u/s 2(11) of the Payment
of Bonus Act. Inasmuch as it is a ''commercial establishment'', it is also an industry within the meaning of Section 2(j) of the Industrial Disputes Act,
1947. Therefore, notwithstanding the minimum number of days required under the Office Memorandum of the Government of India but as per the
provisions of the Bonus Act, they were eligible to get pro-rata bonus
The petitioner''s witness R.W.1 had admitted that the persons like the contesting respondents being casual labourers need not give any option
and no such provisions are available.
The Labour Court on the basis of these materials, came to the conclusion that the Payment of Bonus Act, 1965 will apply to the Corporation.
Relying upon the Government of India directives in respect of calculating wages for casual workmen, wherein the Government of India directed
that if the casual workers perform the work of a regular employee, they should be paid at the rate of 1/30th of the pay of the minimum pay scale
payable for 6 days work including D.A. Based upon the said calculation, the Labour Court came to the conclusion that the workmen are entitled
for a minimum bonus notwithstanding the fact that they were not covered by the office memorandum marked as Exhibit R-4.
The Labour Court by relying upon Section 10 of the Payment of Bonus Act held that the pro-rata bonus is payable to the workmen. Nowhere
the Labour Court found that whether the provisions of the Payment of Bonus Act are applicable to Prasar Bharati. On the other hand, the fact that
the contesting respondents are workmen under the provisions of the Industrial Disputes Act, will not ipso facto make them eligible for bonus under
the provisions of the Payment of Bonus Act. In fact the application of the Payment of Bonus Act has to be considered strictly in terms of the
Payment of Bonus Act. The fact that they are covered under the provisions of the Industrial Disputes Act will not automatically cover them under
the Payment of Bonus Act. This was held so by the Supreme Court vide its judgment in Workmen of Tirumala Tirupathi Devasthanam Vs.
Management and Another, .
In paragraph No. 2 of the above said judgment, the Supreme Court observed held as follows:
The Tirumala Tirupathi Devasthanam, a vast and unique religious organisation in the country, is certainly not founded for making profit and
attracts people who want to offer worship to Shri Venkateshwara but then the specific question with which we are concerned is whether the
transport operation by the administration falls within the category of institutions within the meaning of Section 32(v)(c). Is the Transport
Department so merged in and integrated with the Devasthanam as to be incapable of independent identity? Is the Transport Industry run by the
Devasthanam sufficiently spread as to be treated as an institution in itself? There is no doubt, as the Tribunal has rightly held, that it is an industry
but the further question arises whether it is an institution in the context and within the text of the Payment of Bonus Act. This question has not been
properly appreciated by the Tribunal. Secondly, assuming that it is an institution, it does not necessarily follow that Section 32 is excluded. On the
other hand, there must be proof that the Transport Department (a) is an institution; and (b) established not for the purpose of profit. The Tribunal
has not correctly appreciated the import of this latter requirement. It has been found that profits made in some years are ploughed back whatever
that may mean. It is also found that the motive for running the industry of transport was to afford special facilities for the pilgrims. These by
themselves do not clinch the issue whether the institution has been established not for purposes of profit, nor are we satisfied that merely because in
the administrative report of the Devasthanam, there is mention of the transport establishment as a remunerative enterprise, that is decisive of the
issue.
The provisions of the Payment of Bonus Act are not applicable to the Prasar Barati. Section 32(iv) of the Act reads as follows:
(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.
A perusal of the said provision will show that inasmuch as Prasar Bharati is functioning under the authority of Department of the Central
Government, or a local authority is not covered by the provisions of the Payment of Bonus Act. Even then such an issue cannot be gone into u/s
33-C(2) of the Industrial Disputes Act.
In the present case, the workers did not plead the application of the Bonus Act not in their claim statement. Only in the written arguments filed
before the Labour Court, they made such a claim. This had deprived the petitioner to take a definite stand on the question of application of the
Bonus Act. Therefore, the order of the Labour Court is unsustainable and liable to be set aside.
Mr. Damodaran, the learned Additional Central Government Standing counsel also contended that since Prasar Bharati is covered by the
provisions of the Administrative Tribunal Act, 1985, this Court has no jurisdiction to deal with the same. Such a contention raised by the Standing
counsel overlooks the judgment of the Supreme Court in Director, Government of India Vs. General Secretary, Central Government Small-Scale
Industries Organisation Employees'' Union and Another, in Paragraph No. 4 held as follows:
We will first take up the appeal which is directed against the order of the Central Administrative Tribunal dated March 3, 1992 dismissing the
review petition. A perusal of the said order of the Central Administrative Tribunal shows that while observing that there was delay in the filing of the
review petition, the Tribunal has proceeded on the basis that the Tribunal would have been inclined to condone the long delay but since the review
petition is devoid of substance it did not feel inclined to do so. The Tribunal has considered the matter on merits as to the jurisdiction of the
Tribunal to deal with the application u/s 19 of the Administrative Tribunals Act and has held that the Tribunal had jurisdiction to entertain the
application against the award made by the Industrial Tribunal. The said view of the Central Administrative Tribunal is not in consonance with the
law laid down by this Court in Ajay D. Panalkar v. Pune Telecom Deptt. wherein it has been laid down that the Administrative Tribunal constituted
under the Administrative Tribunals Act, 1985 has no jurisdiction to adjudicate upon the finding of the Industrial Tribunal. In view of the said
decision, the order dated March 3, 1992 passed by the Central Administrative Tribunal rejecting the review application cannot be upheld and the
said review application must be allowed. The order dated March 3, 1992 passed by the Central Administrative Tribunal is, therefore, set aside, the
delay in the filing of the review application is condoned and the said review application is allowed and the judgment of the Central Administrative
Tribunal dated August 31, 1990 passed in O.As. Nos. 403 of 1989 and 94 of 1990 is set aside.
Therefore, the objection with regard to jurisdiction raised by the petitioner is overruled.
In the light of the above, all the writ petitions stand allowed The impugned order of the Labour Court stands set aside. The connected
Miscellaneous Petition stands closed. In view of the fact the writ petitions are allowed, it is open to the petitioner Corporation to withdraw the
amounts lying in deposit with the Labour Court. No costs. The connected Miscellaneous Petitions stand closed.