T.K.THOMMEN - (1.) THIS civil appeal by special leave is directed against judgment dated 17-12-1987 of the High Court of Bombay in Writ Petition No. 1048 of 1982 (reported in 1988(l) Bom CR 386) instituted by the appellant, which is a Co-operative Credit Society. The Ist respondent is a Federation representing the employees of the appellant amongst others.
(2.) SETTING aside the award of the Industrial Tribunal, the High Court held that the appellant was liable to pay its employees bonus at the rate of 20 per cent of its total annual earning for the years 1975-76, 1976-77 and 1977-78. The principal contention urged at the Bar against the impugned judgment is that the High Court went wrong in directing the appellant to pay bonus without regard to various amounts invested by it as permitted under the relevant ' provisions of the Maharashtra Co-operative Societies Act, 1960 (the "Co-operative Societies Act") and other amounts carried forward to its Reserve Fund. The appellant's counsel contends that the High Court did not correctly read the provisions of S. 6(d) of the Payment of Bonus Act, 1965 (the "Bonus Act") and item (4) of the Third Schedule to the said Act. Counsel further contends that the High Court was not justified in placing reliance on the Explanation to the Third Schedule to the Bonus Act as it has no relevance to co,-operative societies. The Explanation, 'the says, is relevant only to items (1), (2) and (3) of the Third Schedule to the Bonus Act. We shall now read the relevant provisions. S..6.of the Bonus Act refers to various sums which are deductible from gross profits. It reads : "6. Sums deductible from gross profits. The following sums shall be deducted from the gross profits as prior charges, namely ... (d) such further sums as are specified in respect of the employer in the Third Schedule." The employer in question being a co-operative society, it is item (4) of the Third Schedule to the Bonus Act that is applicable. That reads: JUDGEMENT_89_3_1989Html1.htm
(3.) IN column (3) of item (4), two types of amounts are deductible from the gross profits, as prior charges. Firstly, 8.5 per cent of the capital invested by a co-opetative society in its establishment is deductible. Secondly, amounts carried forward to a Reserve Fund in compliance with any provisions of law relating to co-operative societies are also deductible. The expression 'capital' is not defined under the Bonus Act. It must, therefore, be understood in the sense in which that expression is generally understood. That means all amounts which are classified as capital in contrast to revenue must qualify for deduction subject to the limit of 8.5 per cent, provided such capital is invested by the society in its establishment as evidenced by its books of accounts at the commencement of the accounting year. Any such capital up to 8.5 per cent is thus deductible. Further more all sum which have been carried forward in respect of the relevant accounting year to a Reserve Fund as required under any law applicable to co-operative societies for the time being in force are also deductible from gross profits. This means that Reserve Fund created in terms of S. 66 of the Co-operative Societies Act is deductible under item (4) of the Third Schedule to the Bonus Act. S. 66 reads: "66. (1) Every society which does, or can. derive : we a profit from its transactions shall maintain a Reserve Fund. (2) Every society shall carry at least onefo4rth of the net profits. each year to the Reserve Fund; and such Reserve Fund may subject to the rules made in this behalf, if any, be used in the business of the society or may, subject to the provisions of S. 70, be invested, as the State Government may by general or special order direct, or may, with the previous sanction of the State Government, be used in part for some public purpose likely to promote the objects of this Act, or for some such purpose of the State, or of local interest : Provided that, the Registrar may, having regard to the financial position of any society or class of societies, fix the contribution to be made to the Reserve Fund under this sub- section at a lower rate, but not lower than one-tenth of the net profits of the society or societies concerned." Accordingly, all such amounts held by the society as Reserve Fund in terms of S. 66 of the Co-operative Societies Act must qualify for deduction. The minimum Reserve Fund that is required to be maintained by S. 66 of the Co-operative Societies Act is one-fourth of the net profits. of each year. If larger amounts are carried forward to the Reserve Fund in terms of S. 66, all such amounts will come within the ambit of item (4) of the Third Schedule to the Bonus Act and qualify for deduction. Accordingly, we hold that 8.5 per cent of the capital invested by the society in its establishment, as disclosed by its books of accounts, together with amounts carried forward to a Reserve Fund in compliance with IS. 66 and other provisions of the Co operative Societies Act read with the rules made thereunder (See Rule 54 'of the Maharashtra Co-operative Societies Act, 1960) will be deductible in terms of S. 6 of the Bonus Act.;