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PETITIONER: EMPLOYERS IN RELATION TO THE BHOWRA COLLIERY

       Vs.

RESPONDENT: THEIR WORKMEN

DATE OF JUDGMENT: 30/01/1962

BENCH:

ACT:      Industrial  Dispute-Bonus-Malis   Working  in officers  bungalows-Whether   entitled-Coal  Mines Provident Fund  and Bonus Schemes Act, 1948 (46 of 1948) s. 5.

HEADNOTE:      In exercise of the power conferred by 5. 5 of the Coal  Mines Provident  Fund and  Bonus Schemes Act, 1948,  the Central  Government framed a Bonus Scheme for  the payment  of bonus  to employees of coal mines.  Paragraph 3  of the scheme made every employee in  a coal  mine  eligible  for  a  bonus except,  infer  alia,  "a  mali  on  domestic  and personal work". The question for consideration was whether under  this paragraph the malis working in the officers’ bungalows had any right to bonus. ^      Held, that  these malis  were not entitled to any bonus  under the  Bonus  Scheme.  Paragraph  3 contemplated  malis  who  were  employees  of  the colliery owners  and were  yet on  domestic  work. Domestic meant as of the home. The malis 884 who were  working in the bungalows occupied by the officers,  were   working  in  the  homes  of  the officers. They  were therefore,  on domestic work. The work  they were  doing did  not  cease  to  be domestic work  because the  bungalows belonged not to the  officers but  to the  appellant or because they were  under the  control and  orders  of  the appellant. Further,  these malis  were on personal work. The word "personal" was used in the sense of work for  an individual as distinguished from work for the  coal mine  as an institution. These malis were  undoubtedly  working  for  the  officers  as individuals.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION:  Civil  Appeal No. 96 of 1961.      Appeal by  special leave from the award dated December  7,   1959,  of  the  central  Government Industrial Tribunal Dhanbad in reference No. 42 of 1959.      S.C. Banerjee  and P.  K. Chatterjee, for the appellant.

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    Janardan Sharma, for the respondent.      1962. January  30. The  Judgment of the Court was delivered by      SARKAR,   J.-The   appellants,   the   Bhowra Kankanee Coal  Co. Ltd.,  own the Bhowra and other collieries. On  the Bhowra  Colliery there  are  a number of  residential bungalows  belonging to the appellants occupied  by their officers employed in the colliery.  The appellants employ certain malis for working  as such  in these bungalows and their duty is  to look  after and  maintain the  gardens there. A  dispute along between the appellants and their workmen  as to whether these malis, who were fourteen in  number, were entitled to bonus. By an order made  on June 23, 1959, under the Industrial Disputes  Act,   1947,  the  Government  of  India referred this  dispute  along  with  another  with which we  are not  concerned  in  this  case,  for adjudication to  the Industrial Tribunal, Dhanbad. The Points  referred concerning  the dispute above mentioned were in these terms:           (1)  Whether   the  withdrawal   of  the      benefit of  bonus provided  in the Coal Mines      Bonus 885      Scheme  by   the  management  of  the  Bhowra      Colliery   from    the    following    garden      mazdoor/malis is  justified. If  not, to what      relief are they entitled and from what date?           (2) Whether  the  garden  mazdoors/malis      referred to  above are  employed on  domestic      and  personal  work  within  the  meaning  of      paragraph 3  (b)  of  the  Coal  Mines  bonus      Scheme, 1948  and if  not, to what relief are      they entitled  and from what dates The points      so referred  were  decided  by  the  Tribunal      against the  appellants by  an award  made on      December 7,  1959, and  the present appeal is      against that award.      Till January  1, 1955, the Bhowra and certain other collieries managed as a group, were owned by the Eastern  Coal Company  Ltd., and  on that date these collieries  were sold  to the appellants. At the time  when this  sale was  being arranged, the workmen in  these collieries raised a dispute that their services  should be  treated  as  continuous inspite of the transfer of the collieries from one owner  to   another  by  the  sale  and  that  the conditions of  their service  and  the  facilities which they were enjoying under the previous owners should  be   guaranteed  and   continued  by   the succeeding owners,  that is  the appellants, after the  latter  took  over  the  collieries.  At  the instance of  the  conciliation  officer  appointed under the  Act this  dispute  was  settled  by  an agreement made  on January  14, 1955, to which the Conciliation  officer  the  workmen  the  previous owners and  the appellants were parties. Paragraph 3 of  this agreement  provided as follows: "Agreed that  the  existing  service  conditions  and  the facilities will be continued, excepting pension."      Now in  1948 an  Act called  the  Coal  Mines Provident Fund  and Bonus  Schemes  Act  had  been passed by s. 5 of which the Central Government was 886

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empowered to  frame a bonus scheme for the payment of bonus  to the  employees  of  coal  mines,  The Central Government had framed a Bonus Scheme under this provision in 1948 and since then the previous owners had  been paying the malis employed for the bungalow gardens belonging to the Bhowra Colliery, bonus in  terms of  it. In  1951 they once stopped the bonus  but that  caused an  industrial dispute and they  thereupon restored  the bonus.  Upto the acquisition  of   the  Bhowra   Colliery  by   the appellants they position thus was that these malis had been  receiving bonus since 1948 excepting for a short period during which it had been stopped as earlier mentioned. After they became the owners of the  Bhowra   Colliery,  the   appellants  however stopped the  payment of bonus to these malis. This raised the  industrial dispute  which had  led  to this appeal.      Paragraph 3  of the Bonus Scheme framed under the Act,  so far  as relevant for this case, is in these terms:      Paragraph 3.  Except as  hereinafter provided every employee in a coal mine to which this Scheme applies shall be eligible to qualify for a bonus,           Exceptions:- An  employee in a coal mine      shall not  be entitled  to a  bonus under the      Scheme for the period during which-           (a) ...........................................           (b)   he is  employed as a mali, sweeper                or demestic servant on demestic and                personal work;           (c) ......................................... One of  the questions  raised in  this  appeal  is whether the  bungalow malis were entitled to bonus under this  paragraph.  The  appellants  contended before the  Tribunal that  malis as  a class  were excepted from  the benefit  of the Bonus Scheme by the provision 887 in exception  (b) in  this paragraph. They further contended in the alternative that these malis were excepted in  any event  because they were In malis employed on  domestic and personal work within the meaning of  the exception.  The Tribunal  rejected these contentions  of the  appellants and held (a) that these  malis were  entitled  to  bonus  under paragraph 3  of the  agreement of January 14, 1955 and (b)  that they  were not  employed on domestic and personal  work and  were therefore  not within the exception. For these reasons the Tribunal held that the withdrawal of the bonus by the appellants was not justified.      It is  not clear  on what ground the Tribunal held that  the malis  were entitled to bonus under paragraph 3. of the agreement of January 14, 1955. It may be that the Tribunal thought that the Bonus Scheme framed  by the  Central Government formed a condition of service of the malis or a facility to which they  were entitled and which the appellants undertook by the agreement of January 14, 1955, to continue. If  this was  the point of view, then of course the  further question still remains whether the malis  were on  domestic and personal work for

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if they  were, then  they would not be entitled to the bonus  as a  facility or  a condition of their service under the Scheme.      It was  however contended  on behalf  of  the respondent workmen in this Court that the right to bonus was  a condition of the service of the malis and  a   facility  to  which  they  were  entitled independently of the Bonus Scheme and that this is what the  Tribunal had held. The record however is not very  clear on  this question.  The appellants dispute the  contention of the workmen and further say  that   in  any  event  the  Tribunal  had  no jurisdiction  to  decide  that  question  for  the question referred to it was the right of the malis to bonus under the Bonus Scheme. 888      We think  that the  appellants’ contention is well founded.  What  had  been  referred  was  the question   "whether the  withdrawal of the benefit of bonus  Provided in  the Coal Mines Bonus Scheme ...... is justified". On the language of the order of reference  it seems  to  us  that  the  dispute referred was  as to  the right  as provided in the Bonus Scheme  and not  as to any other right. This also was the workmen’s case before the Tribunal as appears from its written statement filed there. In the statement  of case  filed in this appeal also, the  respondent   took  the   same  position.   We therefore think that if the Tribunal had held that the malis  were entitled  to the  bonus under  the agreement of January 14, 1955 independently of the Bonus Scheme  it had exceeded its jurisdiction and its award cannot be upheld.      The question still remains as to whether on a proper construction  of paragraph  3 of  the Bonus Scheme these  malis had  any right  to bonus. That was  undubitably  the  question  referred  to  the Tribunal. The words requiring construction are "on domestic and  personal work".  The  Tribunal  held that malis  working in  bungalows belonging to the appellants  were  not  working  for  the  home  or household of  private persons  or individuals  and were therefore  not on domestic work. It also held that as  the malis  work under  the direction  and control of  the appellants  and were  liable to be transferred from  one bungalow  to another  or  to some other work they were not on personal work. We are  unable   to  accept   this  construction   of paragraph 3 of the Bonus Scheme. Domestic means as of the  home. We  feel no doubt that the malis who were working  in the  bungalows  occupied  by  the officers were working in the home of the officers. They were,  therefore, on  domestic work. The work they were  doing would  not cease  to be  domestic work because  the bungalows  belonged not  to  the officers but to the appellants. Whether a work 889 is domestic  or not  would depend  on its  nature. Suppose an  officer has  employed his own mali for working in  the bungalow  garden, that  mali would surely be  on domestic work. This is not disputed. The nature  of that  work would not change because the the  mali was  working not under the orders of the officer  occupying the  bungalow but under the appellants,  nor  because  the  bungalow  did  not

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belong to  the officer  but to the appellants. Nor for the  same reason  does the fact that the malis were employed  by the  appellants and  not by  the officers make  any differences The fact that Malis might be transferred to other jobs and cease to be malis  altogether  is  also  irrelevant.  On  such transfer they  might become entitled to bonus. The exception in  paragraph 3  deprives  them  of  the bonus only for the time they are malis on domestic and personal work.      Paragraph 3, of the Bonus Scheme contemplated malis who  were employees  of the  colliery owners and  were  yet  on  domestic  work.  The  Tribunal thought that  paragraph 3  only contemplated cases of malis  appointed by  the officers who were paid some allowance  by the colliery owners for keeping malis in  the gardens of the bungalows occupied by them. It may be that malis to engaged would be the employees of  the colliery  owners,  as  the  term employee is  defined in  the Act  under which  the Bonus Scheme  was framed,  but we see no reason to restrict malis  on domestic  work referred  to  in paragraph 3  to such  malis only.  As we have said earlier, whether  a malis  on domestic work or not would depend  on the  nature of  the work.  As the work which  the malis  with whom  we are concerned did, was domestic work. these malis must be deemed to be  within the exception mentioned in paragraph 3. They  would not  cease to  be malis on domestic work  because   they  had   been  working  in  the bungalows belonging  to  the  appellants  or  were under their control and orders.      We further feel no difficulty in holding that 890 these  malis  were  on  personal  work.  The  word "personal" is  obviously used in the sence of work for an  individual as  distinguished from work for the Coal  mine as an institution. These malis were undoubtedly   working    for   the   officers   as individuals. Therefore they were on personal work.      For these  reasons in  our view  the malis in the present  case were  not entitled  to any bonus under the  Bonus Scheme.  As in  our  opinion  the order of  reference does not raise any question as to whether  the malis were entitled to bonus apart from the Bonus Scheme, it is unnecessary for us to express any opinion on that question and we do not do so.      The result is that this appeal allowed and we set aside  the award  of the Tribunal in so far as it is  concerned with  the two  points of  dispute earlier set  out which had been referred to it. We do not  think it  a fit case to make any order for costs.                                    Appeal allowed.