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TMI Blog2007 (4) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... rkers on duty on the original post and payscale within one month after the date of publication of this Award. So far as the question of back-wages is concerned, these workmen are to be paid 50% of their wages/ allowances which they were getting on 2-6-83, for the period 1-8-87 till the date of their joining the duty, within 2 months of publication of this Award. As regards the deceased Komal Singh, his Provident Fund, Insurance money and wages/ allowances upto 30-9-91 to be calculated in the same manner as was paid on 2-6-83 and 50% of the same is to be paid by the Employer to his wife Smt. Shakuntala. This is my Award in this dispute." The said award ultimately attained finality as the writ petition preferred thereagainst by the appellant was dismissed by an order dated 3.11.1995. A Special Leave Petition filed thereagainst has also been dismissed. On or about 2.08.1994, an application purported to be under Section 6-H(1) of the U.P. Industrial Disputes Act, 1947 (for short "the Act") claiming backwages and bonus was filed wherein the total amount of claim was for a sum of Rs. 20,70,020.44. The Additional Labour Commissioner, however, on an objection raised by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention, however, the Labour Commissioner, Ghaziabad, by an order dated 8.08.1996 held: "After hearing the parties, I have come to the conclusion that after the publication of the Award, the employer has made the payment of wages to the workmen but did not attribute them the work. Therefore, these all workmen are completely entitled for the bonus, because bonus is deferred wage. All workmen are entitled for the bonus at the rate on which other workmen have been paid bonus in the organization. Therefore, the Management shall calculate the same for the period from 6.11.93 till the year 94-95. The another issue is related to the grant of bonus for the period prior to the publication of Award. In the Award in question, the Hon ble Labour Court has passed the order only for payment of the 50% of the wages to the Workmen on the issue of back wages. In this regard, the recovery order passed by the Previous Ld. Addl. Commissioner does not include the amount of bonus. The Hon ble Court has not used the word "other benefits" alongwith the Pay and allowances. But, in my opinion, the bonus is deferred wages and the same is included in the Pay and salary. Therefore, I do not agree with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owances. Simply put, whatever the other similarly situated workers got during the period the seventeen workmen were kept out of employment, and whatever the seventeen workmen would have got themselves had they not been put out of employment improperly, they were to get 50% of all that. That is the plain and simple reading of the Labour Court s award. The order of the Labour Commissioner has proceeded on this basis. As such the challenge by way of the second writ petition to payment of 50% bonus also fails." Mr. Dinesh Dwivedi, learned senior counsel appearing on behalf of the appellant, would submit that in view of the definition of wages contained in Section 2(y) of the Act and Section 2(21) of the Payment of Bonus Act, in terms whereof bonus is neither wages nor allowance; the Labour Commissioner committed a manifest error in directing payment thereof on the spacious plea that it is deferred wages. It was urged that in order to interpret a judgment, the terms used therein, in the event of any ambiguity, must be interpreted in the light of the statute operating in the field. Mr. Bharat Sangal, learned counsel appearing on behalf of the respondents, on the other hand, would s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving), but does not include- (i) any other allowance which the employee is for the time being entitled to; (ii) the value of any house accommodation or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles; (iii) any travelling concession; (iv) any bonus (including incentive, production and attendance bonus); (v) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the employee under any law for the time being in force; (vi) any retrenchment compensation or any gratuity or other retirement benefit payable to the employee or any ex gratia payment made to him; (vii) any commission payable to the employee. Explanation . -Where an employee is given in lieu of the whole or part of the salary or wage payable to him, free food allowance or free food by his employer, such food allowance or the value of such food shall, for the purpose of this clause, be deemed to from part of the salary or wage of such employee;" Section 2(vi) of the Payment of Wages Act, 1936 defines "wages" in the following terms: "(vi) "wages" means all r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e overlapping to some extent, the courts while interpreting the provisions of the statutes must interpret them in such a manner so as to give effect thereto. Section 6-H(1) of the Act provides for a proceeding which is in the nature of an execution proceeding. The said provision can be invoked inter alia in the event any money is due to a workman under an award. They cannot be invoked in a case where ordinarily an industrial dispute can be raised and can be referred to for adjudication by the appropriate government to an industrial court. The authorities to determine a matter arising under Section 6-H(1) of the Act and an industrial dispute raised by the workmen are different. Section 6-H(1) of the Act, it will bear repetition to state, is in the nature of an execution provision. The authority vested with the power thereunder cannot determine any complicated question of law. It cannot determine a dispute in regard to existence of a legal right. It cannot usurp the jurisdiction of the State Government under Section 11-B of the Act. A Labour Commissioner is not a judicial authority. In view of Section 11-B of the Act, it is for the State Government to construe an award, in the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Muir Mills Co. Ltd. v. Suti Mills Mazdoor Union, Kanpur [(1955) 1 SCR 991], this Court held: "It is therefore clear that the claim for bonus can be made by the employees only if as a result of the joint contribution of capital and labour the industrial concern has earned profits. If in any particular year the working of the industrial concern has resulted in loss there is no basis nor justification for a demand for bonus. Bonus is not a deferred wage. Because if it were so it would necessarily rank for precedence before dividends. The dividends can only be paid out of profits and unless and until profits are made no occasion or question can also arise for distribution of any sum as bonus amongst the employees. If the industrial concern has resulted in a trading loss, there would be no profits of the particular year available for distribution of dividends, much less could the employees claim the distribution of bonus during that year" Bonus may be a deferred wage but the same must be construed in a different context. When used in the context of backwages and that too 50% of it, the same would not include backwages. It is expected that had the Labour Court intended to inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of disputes therein referred to industrial disputes and having done so applies the provisions of the Industrial Disputes Act and other corresponding law in force for their investigation and settlement. But what about the remaining disputes? As the Act does not provide any machinery for their investigation and settlement, Parliament by enacting Section 39 has sought to apply the provisions of those Acts for investigation and settlement of the remaining disputes, though such disputes are not industrial disputes as defined in those Acts. Though, the words "in force in a State" after the words "or any corresponding law relating to investigation and settlement of industrial disputes" appear to qualify the words "any corresponding law" and not the Industrial Disputes Act, the Industrial Disputes Act is primarily a law relating to investigation and settlement of industrial disputes and provides machinery therefor. Therefore the distinction there made between that Act and the other laws does not seem to be of much point. It is thus clear that by providing in Section 39 that the provisions of this Act shall be in addition to and not in derogation of those Acts, Parliament wanted to avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arness pay and non-inclusion of dearness allowance or other allowances in the definition of emolument is significant. The definition in Rule 62 is intended to clarify that only pay and dearness pay would be considered as emolument for purposes of calculating pension. The words and includes have been used in Rule 62, as meaning comprises or consists of." There is yet another aspect of the matter which cannot be lost sight of. A claim for bonus in the context of Section 22 of the Payment of Bonus Act can be raised only by raising an industrial dispute. It cannot be raised by way of an execution application. If a claim had been made under an award, the same attained finality when the amount payable thereunder had been calculated. Bonus was a subject matter of claim in the first application filed under Section 6-H(1) of the Act. The amount payable thereunder had been determined. Another application under Section 6-H(1) of the Act for the purpose of enforcement of award, therefore, was, in our opinion, not maintainable. When the second application was filed, the same was de hors the award. It was an independent claim. Such an independent claim, thus, on a plain reading o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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