Mill Mazdoor Sabha, Bombay vs Khetan Industries (Private) Ltd., No. 2, Bombay and Others

The facts which have led to the reference of these applications to the Full Bench are briefly as follows.

In five references,

(1) Reference (I.C.) no. 152 of 1964 between Mill Mazdoor Sabha, Bombay v. Khetan Industries (Private), Ltd., Bombay,

(2) Reference (I.C.) No. 47 of 1964 between Mill Mazdoor Sabha, Bombay v. Kapoor Printing Works, Bombay,

(3) Reference (I.C.) No. 175 of 1964 between Mill Mazdoor Sabha v. Central Weaving and Manufacturing Company, Bombay,

(4) Reference (I.C.) No. 178 of 1964 between Mill Mazdoor Sabha, Bombay v. Swastik Textile Mills, Bombay, and

(5) Reference (I.C.) No. 198 of 1964 between Mill Mazdoor Sabha, Bombay v. K. B. Hosiery Industries, Bombay,

the demands for bonus were rejected because there was no available surplus. Review applications were filed in all these references in which it was contended that the Payment of Bonus Ordinance applied to all these cases, by virtue of S. 34 under which, despite any awards to the contrary, the minimum bonus under S. 10 had to be paid to all workmen. Reliance was placed on the following words of S. 34 :

"Save as otherwise provided, the provisions of this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the terms of any award, agreement, settlement or contract of service made before the commencement of this Ordinance."

As the matter was of importance it was referred to the Full Bench. Sri Tulpule contends before us that though subsequently the Payment of Bonus Act was passed the Ordinance is applicable to applications for review made at the time when the Bonus Ordinance was in force and before the Payment of Bonus Act was passed. We do not agree. Section 33 of the Payment of Bonus Act is as follows :

"Where immediately before 29 May, 1965 any industrial dispute regarding payment of bonus relating to any accounting year, not being an accounting year earlier than the accounting year ending on any day in the year 1962, was pending before the appropriate Government or before any tribunal or other authority under the Industrial Disputes Act, 1947, or under any corresponding law relating to investigation and settlement of Industrial disputes in a State, then, the bonus shall be payable in accordance with the provisions of this Act in relating to the accounting year to which the dispute relates and any subsequent accounting year, notwithstanding that in respect of that subsequent accounting year no such dispute was pending."

From the wording it is very clear that only to those cases which were pending on 29 May, 1965 or immediately before it, the Act would apply, provided it relates to the years mentioned therein. Both the parties agree that these disputes were not pending on 29 May, 1965 or immediately before that. To such cases the Payment of Bonus Act would not apply. Sri Tulpule relies on the following words of S. 40(2) of the Payment of Bonus Act :

"Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under this Act as if this Act had commenced on 29 May, 1965."

He says that because he has filed an application when the Ordinance was in force, the Ordinance would apply, and not the Act. This contention cannot be accepted. The act done, which is saved, is the one which is done under the Ordinance. The applications were filed under S. 95 of the Bombay Industrial Relations Act. They were not acts done under the Ordinance or acts as contemplated in S. 40(2) of the Act.

In reply, Sri A. T. Joshi on behalf of the employers says that no review applications lie because the decisions were correct according to the law at that time, and subsequent alteration or amendment of the law cannot be a ground for review. Sri Tulpule, in reply to this, says that this is true but as the Ordinance expressly provided that it will be applicable notwithstanding any law or award to the contrary, the Ordinance would apply and review lies. It was further urged that Ss. 33 and 34 of the Ordinance infringe Art. 19 of the constitution. It is unnecessary to decide these points as the review applications fail on other grounds.

All the review applications are therefore rejected.