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CASE NO.: Appeal (civil)  2204 of 2007

PETITIONER: M/s. Hamdard (Wakf) Laboratories

RESPONDENT: Deputy Labour Commr. & Ors

DATE OF JUDGMENT: 27/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.     2204             OF 2007 [Arising out of  SLP (Civil) No. 17526 of 2006]

S.B. SINHA, J :                  Leave granted.

       Relationship between the parties hereto is employer and workmen.   As far back in the year 1983, the appellant terminated the services of 37  workmen allegedly on the ground that they had gone on an illegal strike.  It  gave rise to an industrial dispute.  The management and its 19 workmen  entered into compromise.  One workman died during pendency of the said   dispute.  Claim of 17 workmen, therefore, survived for adjudication in the  aforementioned industrial dispute.  By an award dated 26.05.1993, the  industrial court, to which reference of the dispute was made by the  appropriate government, directed:

"\005Accordingly, the Employers are directed to  reinstate these 17 workers 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 to the effect that the amount of bonus could not be

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included in the claim application issued a recovery certificate for a sum of  Rs. 17,61,755.18.  A review application, however, was filed inter alia on the  premise that the workmen were not entitled to claim any bonus.  By an order  dated 9.11.1994, the said plea on the part of the appellant was accepted as a  result whereof the claim was reduced to Rs. 5,31,030.90.  The said direction  admittedly has been complied with.

       The workmen, however, filed another application before the Labour  Commissioner, Ghaziabad claiming bonus for the period 1987 to 1996.  In  its objection filed thereto, the appellant contended:

"It is respectfully submitted that the present claim  of Bonus for the period 1987 to 1996 have been  filed on the last date of hearing on 04.7.96.  The  workmen have earlier also filed a claim u/s 6-H(1)  vide their application dtd. 02.8.94 and also  submitted list claiming Bonus, yearly increments,  leave with wages, etc.  The predecessor of the  office Sh. Arjun Ram the then Addl. Labour  Commissioner heard the parties at length and  passed an order dtd. 26.9.94 amounting to Rs.  17,61,755.18.  The employers/ management filed  an application to review the said order on  15.10.94.  The review application was heard in  presence of the parties and the earlier order dtd.  26.9.94, was reviewed, order modified to the  extent of Rs. 5,31,030.00.  The then Addl. Labour  Commissioner rejected the claim of Bonus, yearly  increments etc. since the claim of Bonus yearly  increments etc. have already been rejected by a  competent authority the same can’t be heard again.

That the claim of Bonus does not fall in the  definition of ’wages’ as defined in Section 2(y) of  the U.P. I.D. Act, 1947 hence the said claim cannot  be maintainable U/s 6-H(1) of the U.P. I.D. Act,  1947 and deserves to be dismissed outrightly.

That the Hon’ble Labour Court (I), Ghaziabad who  passed the Award in Adj. Case No. 275/87 have  not given any consequential relief.  Hence the  workmen are not entitled to any relief/ benefit such  as Bonus, leave etc. for the period Sep. 87 to June  95.

That on perusal of the Award, dtd. 26.5.98 made  by the Hon’ble Labour Court (I) Ghaziabad, it is  specifically mentioned in the conclusion at page  No. 12 that the workmen are only entitled to 50%  back wages at the rate of wages which they were  drawing on 2.6.83."

       Rejecting the said 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

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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 this pleading of the employer that the matter  shall be referred to the Labour Court for  interpretation of the Payment/ Wage under Section  11(B) of the U.P. Industrial Disputes Act, 1947.   Since in the Award the order for payment of 50 per  cent amount of back wages has been passed, thus,  accordingly the 50% of the bonus amount at the  rate payable to other workmen of the organization  shall be payable\005"

       A review application filed thereagainst was dismissed.  A writ petition  was filed by the appellant before the Allahabad High Court aggrieved by and  dissatisfied therewith.  A learned Judge of the said Court by an order dated  9.04.2003 held:

"Coming to the facts of the Writ Petition No.  35708 of 1996, the facts being the same, claims  being only for the payment of bonus for the  disputed period.  Once the employer themselves  have paid the wages upto the month of June, 1996,  and since this Court has also rejected the writ  petition with regard to the payment of wages for  the month of July, 1996, needless to say for the  reasons and the ground stated in this judgment  with regard to writ petition No. 41691 of 1996, this  writ petition also deserves to be dismissed and is  hereby dismissed."

       An intra-Court appeal preferred thereagainst was dismissed by a  Division Bench by reason of the impugned judgment holding:

"\005The accepted translation of these two Hindi  words as amongst learned counsel appearing is  "wages and allowances".  A submission is made  that the definition of the word "wages" in the U.P.  Industrial Disputes Act, 1947 specifically excludes  bonus.  Therefore, it is argued, the mention of  wages in the award cannot include bonus and the  passing of the Labour Commissioner’s order under  Section 6-H(1) including bonus is without  authority as the original award cannot be said to  have included it.

In our opinion, this argument suffers from a  fallacy.  The definition of the word "wages" is  meant for construing the U.P. Industrial Disputes  Act.  Such definition in the Act is not meant to  govern or limit the use of the word "wages" made  by any and every authority exercising jurisdiction  under the Act or passing orders under the Act.  The  Labour Court’s award mentioning the phrase  "wages and allowance" has to be read in its proper

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and normal context.  The Labour Commissioner  did not in any manner misconstrue the said two  words in including bonus within the term wages  and allowances.  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 submit that bonus being a part of  ’remuneration’, a claim in relation thereto can also be made under the  Payment of wages Act.  It was submitted that the claim petition was not filed  for enforcement of the award but as an independent claim in terms of the  provisions of the Payment of Bonus Act in regard whereto an application  under Section 6-H(1) of the Act before the Labour Commissioner was  maintainable.  Strong reliance in this behalf has been placed on Sanghi  Jeevaraj Ghewar Chand & Ors. v. Secretary, Madras Chillies, Grains Kirana  Merchants Workers’ Union & Anr. [(1969) 1 SCR 366] and Kohinoor  Tobacco Products Pvt. Ltd., Adyal v. Presiding Officer, Second Labour  Court, Nagpur and Others [AIR 1986 Bom 340].

       The term ’Wages’ has been defined in Section 2(y) of the Act in the  following terms:

"2(y)   ’wages’ means all remuneration capable of  being expressed in terms of money, which would,  if the terms of employment, expressed or implied,  were fulfilled, be payable to a workman in respect  of his employment, or of work done in such  employment, and includes\027    ( i )   such allowances (including dearness  allowance) as the workman 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;  but does not include \027   ( a )   any bonus;  ( b )   any contribution paid or payable by the  employer to any pension fund or provident fund or  for the benefit of the workman under any law for  the time being in force; ( c )   any gratuity payable on the termination of  his service;"                                                 [Emphasis supplied]

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       Section 2(rr) of the Industrial Disputes Act, 1947 defining the term  ’Wages’ is in pari materia with Section 2(y) of the Act, 1947.

       The term "salary or wage" has been defined under Section 2(21) of  the Payment of Bonus Act as under:

"(21) "salary or wage" means all remuneration  (other than remuneration in respect of over-time  work) capable of being expressed in terms of  money, which would, if the terms of employment,  express or implied, were fulfilled, be payable to an  employee in respect of his employment or of work  done in such employment and includes dearness  allowance (that is to say, all cash payments, by  whatever name called, paid to an employee on  account of a rise in the cost of living), 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 remuneration (whether by  way of salary, allowances, or otherwise) expressed  in terms of money or capable of being so  expressed which would, if the terms of  employment, express or implied, were fulfilled, be  payable to a person employed in respect of his  employment or of work done in such employment,  and includes- (a) any remuneration payable under any award or  settlement between the parties or order of a Court; (b) any remuneration to which the person  employed is entitled in respect of overtime work or  holidays or any leave period; (c) any additional remuneration payable under the  terms of employment (whether called a bonus or  by any other name); (d) any sum which by reason of the termination of  employment of the person employed is payable  under any law, contract or instrument which  provides for the payment of such sum, whether

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with or without deductions, but does not provide  for the time within which the payment is to be  made; (e)  any sum to which the person employed is  entitled under any scheme framed under any law  for the time being in force, but does not include- (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; (2) the value of any house-accommodation, or of  the supply of light, water, medical attendance or  other amenity or of any service excluded from the  computation of wages by a general or special order  of the State Government; (3) any contribution paid by the employer to any  pension or provident fund, and the interest which  may have accrued thereon; (4) any travelling allowance or the value of any  travelling concession; (5) any sum paid to the employed person to defray  special expenses entailed on him by the nature of  his employment; or (6) any gratuity payable on the termination of  employment in cases other than those specified in  sub-clause (d)."

       Different statutes, enacted by the Parliament from time to time,  although beneficial in character to the workmen, seek to achieve different  purposes.  Different authorities have been prescribed for enforcing the  provisions of the respective statutes.  The authority under the Payment of  Wages Act is one of them.

       In view of the fact that diverse authorities exercise jurisdiction which  may be 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 event any dispute arises in giving effect thereto.   

       The Labour Court in its award directed reinstatement of 17 workmen  on the original post and payscale.  No increment was granted; no continuity  of service was directed.  What was directed was payment of 50% of the  backwages/ allowance while considering the question of backwages.   

       Definition of ’wages’ within the meaning of the Act does not include

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"bonus".  It, however, includes allowance.  Payment of Bonus Act also  excludes bonus for the purpose of calculating the amount of bonus to be  determined in terms of Section 10 thereof.

       Presiding Officer of the Labour Court is a judicial authority.  He is  supposed to know the definition of ’wages’ as contained in the Act.  The  rights and obligations of the parties were being determined only under the  Act and not in terms of any other law.   

       An award made in favour of one party and against the other must be  clear and certain.  A person keeping in view the limited relief granted in  favour of one party to the dispute may not question the correctness or  otherwise thereof.  With a view to ascertain the certainty in regard to the  meaning of the words used by a competent court of law and that too by an  experienced judicial officer, they must be given the same meaning which are  given in a statute.   

       A judgment, it is trite, must be reasonable.  It must be construed in  such a manner so as not to offend the provisions of any statute.  It must not  be held to be contrary to any statutory provisions.

       In Gajraj Singh and Others v. State of U.P. and Others [(2001) 5 SCC  762], a 3-Judge Bench of this Court held:

"\005A doubt arising from reading a judgment of the  Court can be resolved by assuming that the  judgment was delivered consistently with the  provisions of law and therefore a course or  procedure in departure from or not in conformity  with statutory provisions cannot be said to have  been intended or laid down by the Court unless it  has been so stated specifically."

                Bonus either in its ordinary meaning or statutory ones would not  include wages.   

       What is a ’bonus’ within the meaning of a provision before the  coming into force of Payment of Bonus Act, 1965 came up for consideration  before this Court on various occasions.  Although reference thereto may not  be strictly necessary, as the learned counsel appearing for the parties have  referred to the same, we may take notice thereof.

       In 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\005"

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       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 include the same, he would have explicitly said so.   Even now, under the Payment of Wages Act, bonus does not come within  the purview of wages.  The decision was rendered when Payment of Bonus  Act had not been enacted.

       The question came up for consideration, yet again, in Bala  Subrahmanya Rajaram v. B.C. Patil and Others [(1958) SCR 1504] wherein  bonus was equated with remuneration but therein the question which arose  for consideration was the quantum of bonus and in that context the court  went into the question as to whether the same can be claimed under the  provisions of the Payment of Wages Act.  When the bonus was considered  to be a part of remuneration, what was in the mind of this Court, was the  definition of ’wages’ under the Payment of Wages Act, as it existed at the  relevant time.  In the factual matrix obtaining therein, this Court held that  ’bonus’ would come within the purview of the term ’remuneration’.   Evidently, ’bonus’ would not come within the meaning of the said term as it  stands now and in view of the controversy involved herein, particularly, in  view of the fact that ’bonus’ now stands explicitly excluded by reason of the  Payment of Wages (Amendment) Act, 1957 which came into effect from  1.04.1958.  This Court therein had no occasion to consider the question with  which we are beset with.

       In Sanghi Jeevaraj Ghewar Chand (supra), this Court took into  consideration the history of the term "bonus" stating that a claim in regard to  bonus can be raised under the provisions of the Industrial Disputes Act.   Having regard to Sections 22 and 39 of the Payment of Bonus Act, it was  stated:

 "\005If a dispute, for instance, were to arise as  regards the quantum of available surplus, such a  dispute not being one falling under Section 22,  Parliament had to make a provision for  investigation and settlement thereof. Though such  a dispute would not be an industrial dispute as  defined by the Industrial Disputes Act or other  corresponding Act in force in a State, Section 39  by providing that the provisions of this Act shall  be in addition to and not in derogation of the  Industrial Disputes Act or such corresponding law  makes available the machinery in that Act or the  corresponding Act available for investigation and  settlement of industrial disputes thereunder for  deciding the disputes arising under this Act. As  already seen Section 22 artificially makes two  kinds 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 t he Industrial  Disputes Act, the Industrial Disputes Act is

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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 of those  Acts for investigation and settlement of disputes  which may arise under this Act. The distinction  between Section 22 and Section 39, therefore, is  that whereas Section 22 by fiction makes the  disputes referred to therein industrial disputes and  applies the provisions of the Industrial Disputes  Act and other corresponding laws for the  investigation and settlement thereof, Section 39  makes available for the rest of the disputes the  machinery provided in that Act and other  corresponding laws for adjudication of disputes  arising under this Act. Therefore, there is no  question of a right to bonus under the Industrial  Disputes Act or other corresponding Acts having  been retained or saved by Section 39. Neither the  Industrial Disputes Act nor any of the other  corresponding laws provides for a right to bonus.  Item 5 in Schedule 3 to the Industrial Disputes Act  deals with jurisdiction of tribunals set up under  Sections 7, 7-A and 7-B of that Act, but does not  provide for any right to bonus. Such a right is  statutorily provided for the first time by this Act."

       The Labour Court was not determining any right under the Payment  of Bonus Act.  It was while making its award determining the rights and  liabilities under the Act.

       It, therefore, must have in mind the provisions of the Act alone.  The  aforementioned decisions, therefore, have no application to the facts and  circumstances of the present case.

       When an interpretation clause uses the word "includes", it is prima  facie extensive.  When it uses the word "mean and include", it will afford an  exhaustive explanation to the meaning which for the purposes of the Act  must invariably be attached to the word or expression.  [See G.P. Singh’s  Principles of Statutory Interpretation, 10th Edition, Pages 173 and 175]

       Recently, in N.D.P. Namboodripad (Dead) by LRs. v. Union of India  (UOI) and Ors. [2007 (4) SCALE 361], this Court held:

"17. If the words ’and includes’ were intended to  rope in certain items which would not be part of  the meaning, but for the definition, then Rule 62  would have specified only ’dearness pay’ as the  item to be included but not ’pay’. If pay, dearness  allowance and other allowances were already  included in ’emolument’ with reference to its  general or normal meaning, as contended by  appellant, there was no reason to specifically again  include ’pay’ in Rule 62. Inclusion of ’pay’ and  ’dearness 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

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’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 of Section 22 of the Payment of Bonus Act could have been  raised as an industrial dispute in the light of the decision of this Court in  Sanghi Jeevaraj Ghewar Chand (supra).  The decision of the Full Bench of  the Bombay High Court in Kohinoor Tobacco Products Pvt. Ltd (supra), in  our opinion, to that extent is not correct.  When the statute provides for a  remedy in a particular manner, the same cannot be achieved by filing an  application which subserves a different purport and object.   

       Such an application was, thus, not maintainable under Section 6-H(1)  of the Act which corresponds to Section 33C(1) of the Industrial Disputes  Act.  Even the jurisdiction of a Labour Court in terms of Section 33C(2) of  the Industrial Disputes Act would be limited.   

       An application under Section 33C(1) of the Industrial Disputes Act,  1947 must be for enforcement of a right.  If existence of right, thus, is  disputed, the provisions may not be held to have any application.

       The Labour Commissioner in view of the decision of this Court in  Muir Mills Co. Ltd (supra) has evidently committed a manifest error in  opining that bonus is deferred wages.  Once it is excluded from the purview  of the term ’wages’ under the Act, such a view was impermissible in law,  particularly, when the appellant denied and disputed the right of the  workmen to claims.  Both the learned Single Judge and the Division Bench  of the High Court also fell to the same error.  The learned Judges even did  not address themselves the right questions.  They, thus, misdirected  themselves in law.

       We, therefore, are of the opinion that the impugned judgment cannot  be sustained which is set aside accordingly.  The appeal is allowed.  No  costs.