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Judgment
K. Kannan, J.—The writ petition in CWP No. 358 of 1990 is at the instance of a workman assailing the order passed by the authorities under the Payment of Wages Act. Through his application filed before the Payment of Wages Authority, the petitioner had claimed two relief''s: (i) payment of incentives assured to the workmen at 10% of the margin over the targeted amount of sales of fertilizers. (ii) The petitioner had also another claim, namely, that he had not been paid wages from 20.03.1981 to 19.04.1981 and 20.05.1981 to 19.06.1981. This claim was contested by the management on the ground that the incentive was in the nature of share of profit and did not appertain to a claim for wages before the Payment of Wages Authority and it was, therefore, not maintainable. As regards the claim that the portion of his wages had not been paid during the period and illegally deducted, the Court found that the workman had not established that he had not been paid the wages during the relevant period and denied the claim. This order was upheld in appeal. At the time when the workman has filed a writ petition in CWP No. 358 of 1990, the Court has ordered notice of motion as regards his entitlement to wages which, according to him, was not paid for two months. The management was in an independent writ petition in CWP No. 329 of 1990 contending that the award of incentive by the authorities was not correct since the incentive would not come within the definition of ''wages''. The other objection was that in any event, the decision to provide for an incentive was only for Kharif/Ravi 1978-79 and it was not applicable for the subsequent years. As far as the claim to entitlement to the alleged illegal deductions made in the wages for two months, the contention of the respondent was that the workman had been proceeded with for some misconduct and he had been kept under suspension and only subsistence allowance was given to him. Subsequently, when the misconduct was proved and a punishment was imposed, it was decided that he would not be paid any more than the subsistence allowance. This itself showed that the so-called illegal deductions which the petitioner was claiming was not correct. The contention by the management was refuted in the replication filed by the workman that his entitlements were at any time declined and that any portion of the wages had been forfeited to him by way of punishment.
I have no doubt that two authorities were not justified in reasoning that the petitioner had not proved that he had not been paid his wages. It was literally in the nature of proving a negative evidence and his contention could have been shown to be not true by filing appropriate documents by the management only. However, in this case, it was not as if the petitioner did not know why certain deductions had been made. His averment in the writ petition was that the amount had been withheld to him on account of some enquiry against an alleged misconduct and that the amount should be paid. The learned counsel for the respondent would join issue on this contention by a reference to the proceedings issued on 17.11.1982 dealing with the representation of the petitioner that the penalty of stoppage of one grade increment with cumulative effect during the suspension period had been imposed and that he was not entitled to get any more than what he had been paid as subsistence allowance. I find this document itself had not been referred to by the respondent before the authority. If the petitioner was not giving any positive evidence regarding the alleged illegal deduction, it was only because in the very nature of things such evidence was not possible. The counsel for the respondent would state that the claim regarding wages itself was made only to bring his claim within the period of limitation since the incentive which he was claiming for had already expired and, therefore, he was making it appear as though that a portion of wages was also denied and, therefore, he made an aggregate claim of both incentive and wages to make it appear that the claim was within time. Whatever the motivation was, it would not justify the defendant to have withheld the document or not produce appropriate evidence explaining as to why the amount was withheld. I am unable to give credence to Ex. R2 filed by the respondent-management that the amount withheld represented the amount that was in excess over the subsistence allowance and which had been denied to him during the disciplinary proceedings. The amount itself was no more than Rs. 1,500/- and his entitlement to the same could be considered along with the prayer which is contained in the writ petition filed by the management challenging the order passed by the authorities for the incentive.
The incentive which the petitioner was claiming was on the basis of the proceedings issued on 12.06.1978. The quantification of the incentive was, "10% of the gross margin accrued to the Corporation on the sale of fertilizers over and above the minimum targets............". This refers to only the target period Kharif/Ravi 1978-79. The amount which was quantified for this period was Rs. 330/-. The petitioner was making a claim not for this year only but also for subsequent years which the authority had quantified at Rs. 15,721.70. The objection by the management was that there had been no offer of incentive for the subsequent period. The order passed by the authorities was on the basis that it was not withdrawn subsequently and, therefore, it must be understood that the incentive was to be continued for the subsequent years as well. The petitioner would make his own assertion that it was meant to the subsequent years as well and would read to me the evidence of the Secretary of the respondent-Corporation where he had suggested to the Secretary that this incentive was to be continued to subsequent years as well. I cannot allow for an artificial extension of a benefit for a period which the proceedings themselves do not indicate. The petitioner must make out a case of a clear undertaking for incentive as his entitlement and cannot make an inference which was non-sequitur. The authorities below were clearly wrong in their approach in assuming that if it was not withdrawn subsequently for subsequent years, it must be taken that the benefit must be available for the subsequent years as well. Such an approach was possible if the incentive was referred to generally as payable and not merely restricted to a particular party. That is not the language of the proceeding that we find under P1 and P2. In P2 the expression used reads thus, please refer to this office letter No. PAIC/78/205/510-594, dated 12.6.1978 vide which minimum targets for sale during Kharif/Rabi 1978-79 were fixed.........". If there was no particular proceeding providing for extension for subsequent periods, it will be wrong for the authorities to grant the benefit for the subsequent period as well. I cannot take a suggestion made to management witness as proof. I will hold that the finding regarding the petitioner''s alleged entitlement to incentive was not a correct basis.
On a point of law, the learned counsel for the respondent contends that the incentive does not fall within the definition of "wages" contained u/s 2(vi)(i) of the Payment of Wages Act. The Act details 6 exceptions and the first clause of exception is reproduced as under:-
2(vi)(1) any bonus (whether under a scheme of profit sharing or otherwise) which does not form part of the remuneration payable under the terms of employment or which is not payable under any award or settlement between the parties or order of a Court
A decision of the Andhra Pradesh High Court in Sarvaraya Textiles Ltd. Vs. Allada Lakshmana Rao and Another, where referring to the bonus voluntarily declared on the basis of profits made, the Court held that in terms of the definition contained under the Payment of Wages Act, the same could not be claimed as wages payable. If there is an exception to a definition, the exception must be strictly construed. If the exception lists specifically 6 categories and one category referred to is bonus and in parenthesis it refers to the manner in which the bonus was payable, then it should be applied only for a bonus or anything which is in the nature of bonus. The learned counsel wants to give the explanation that a bonus could be either a scheme of profit sharing or otherwise and the use of expression "otherwise" must include also a situation where a payment in addition to wages is made which is not in a scheme of profit sharing. The bonus itself is not at all times only a share of profit, for, the Payment of Bonus Act itself determines a minimum amount as payable whether a Company makes a profit or not. There are statutory compulsions for payment of bonus under certain circumstances. An employer can decide to pay bonus on a scheme which is not merely in the nature of profit sharing. The expression "otherwise" must be read ejusdem generis. It must be restricted therefore to some payment which is in the nature of bonus. An incentive which is paid at a particular percentage over the targeted sale cannot be treated as bonus or a bonus in any other scheme other than profit sharing. I cannot therefore find that the claim which the petitioner was making did not fit into the meaning of wages. This may seem merely an academic exercise since I have already found that the entitlement which the court below was finding for the petitioner was on an erroneous basis. However, I have addressed the point only for completion of consideration for the points urged before me.
On an overall consideration, if the petitioner were to be treated as being entitled to a portion of the wages withheld, it should be seen that the petitioner has arrived by the benefit more than what he was entitled to, by a wrong provision made for the incentive for the period which he was not entitled to. The amount which the respondent has been compelled to pay through the order passed by the authorities below is much more than the amount which was found to be paid by the petitioner. It is more man offset by amount paid in excess to the petitioner. I would not like to reopen the issue and make the petitioner-workman to pay at this length of time, though I have held that the order directing the incentive to the workman was erroneous. I will still not find a reason to make an amount of what the respondent has been compelled to pay to be reclaimed by the management from the workman. Even while upholding the respective contentions of parties, I hold that the respondent shall not be entitled to recover the same and will treat the amount due to it as offset by the liability which it had to bear for payment of portion of salary to the petitioner. Surely, the difference in amounts leaves a residue that must belong to the management but I exercise my discretion not to allow for it and cast a liability on the workman, at this length of time. In the result, there shall be no further financial liability of one against the other. Both the writ petitions are disposed of on the above terms.