A.N.SEN, J. -
(1.) IN the Matter of Miss Phyllis Weber (Insolvent), Ex. Parte Miss Phyllis Weber. The principal question that falls for determination in the present application is whether any amount payable by the employer as bonus to an employee who happens to be an undischarged insolvent, vests in the Official Assignee or not.
(2.) MISS Phyllis Weber, the applicant herein, works as a Steno -Typist under Indian Oxygen Limited of No. 5, Mayurbhanj Road, Calcutta. On her own application presented on the 17th of March, 1967, she was adjudicated as an insolvent by an order made by this Court on the 21st of March, 1967. At all material times she was and she still continues to be an undischarged insolvent. After her adjudication as insolvent the applicant has been paying to the Official Assignee a sum of Rs. 100 per month voluntarily and without any order of Court for payment to the creditors of the insolvent. The liability of the insolvent is well over Rs. 20,000/ -, a good part whereof has already been proved and some claims remain yet to be proved before the Official Assignee. Indoxco Employees' Credit -cum -Stores Society Limited, which happens to be a Co -operative Society formed of the employees of the company where the insolvent works is one of the creditors of the insolvent. On the 17th of April, 1970 the Secretary of the said Co -operative Society addressed a letter to the Official Assignee, informing the Official Assignee that Miss 'Weber, the insolvent applicant herein, would get a total sum of Rs. 1,427.31 paise towards payment of bonus, an ad hoc lump sum from the company, and this would be disbursed to her on 20 -4 -70 and by the said letter the Secretary requested the Official Assignee to issue suitable instructions to her to deposit the said entire amount for distribution among the creditors. Acting on the basis of the said letter the Official Assignee entered into correspondence with the insolvent and Indian Oxygen Limited, the company where the insolvent is employed, and ultimately collected from the company the said entire amount of Rs. 1,427.31 paise in spite of objections and protests of the insolvent. The insolvent has now moved this Court for an order directing the Official Assignee to pay to her the said sum of Rs. 1,427.31 paise received and withdrawn by him from Indian Oxygen Limited.
It is contended on behalf of the applicant that the amount of bonus earned by the applicant is not property which vests in the Official Assignee under Section 17 of the Presidency Towns Insolvency Act (hereinafter referred to as the said Act). The contention is that bonus payable to an employee is salary or income of the employee and in view of the provisions contained in Section 60(2) of the Presidency Towns Insolvency Act, the Official Assignee has no power or jurisdiction to take any steps against the same without any order of Court. It is, therefore, submitted on behalf of the applicant that the act of the Official Assignee in realising the money from the company is unauthorised and illegal and the Official Assignee should pay the said amount back to the applicant. On behalf of the applicant reference has been made to the decision of the Supreme Court, in the case of Raghuvanshi Mills Ltd., Bombay v. Commissioner of Income -tax, Bombay City reported in 0043/1952 : 22ITR484(SC) , and to a decision of this Court in the case of In Re: Ignatius Rohdirick reported in (1939) 43 Cal. W.N. 1194, and also to a decision of the Madras High Court in the case of Official Assignee v. Secretary, M. and S.M. Railway Employees' Co -operative Urban Bank Ltd. reported in : AIR1941Mad297 .
(3.) ON behalf of the Official Assignee it has been submitted that the amount of Rs. 100 which the insolvent is paying to the Official Assignee every month for payment to the creditors is very small, particularly in view of the heavy liability of the insolvent and the Official Assignee has taken the steps in the interest of the creditors and at the specific request of one of the creditors, namely, the said Co -operative Society which had furnished the necessary information to the Official Assignee. It is argued that the amount of money paid to the insolvent as bonus does not come within the provisions of Section 60(2) of the said Act, as the said amount is not salary or income within the meaning thereof. Reference has been made to Section 2(21) of the Payment of Bonus Act, 1965, to show that salary or wage does not include bonus. The said Section 2(21) of the Payment of Bonus Act, 1965 reads as follows: - - 'Salary or Wage' means all remuneration (other than remuneration in respect of overtime 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 land, water, medical assistance 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 form part of the salary or wage of such employee.;