Decided on November 29,1965


Cited Judgements :-



- (1.)BY this petition under Art. 226 of the Constitution the petitioner-company (hereinafter called the company) prays for the quashing of the award dated 26 April 1961 of the industrial tribunal III, Uttar Pradesh, Allahabad. The fact of the case in brief, as contained in the petition, are that the company carries on the business of manufacture of biris. The company suffered some losses in the years 1958-59 and 1959-60. The company did not, therefore, distribute any bonus to the workmen for these two years. The workmen raised a dispute and claimed that bonus be paid to them.
(2.)THE State Government by an order dated 25 October 1960 referred the following dispute to the industrial tribunal III, Uttar Pradesh, Allahabad (hereinafter called the tribunal):
"Matter of dispute. - Should the employers be required to pay any bonus to their workmen for the years 1958-59 and 1959-60? If so, at what rate and with what other details?"
The dispute was registered and the parties filed their written statements and also led oral evidence before the tribunal. The tribunal gave its award on 26 April 1961 and held that the biri-makers concerned with the present dispute are "workmen" within the meaning of the Uttar Pradesh Industrial Disputes Act (hereinafter called the Act) and rejected the accounts of the company as inaccurate and calculated the available surplus in a tabular form for the two years in dispute. The tribunal, therefore, allowed bonus to the workmen for each of the two years, i.e., 1958-59 and 1959-60, at the rate their one month's average earning during those years. The tribunal further ordered that the workmen who had put in less than three months in either year will not be entitled to any bonus in that year and that the workmen who worked for more than three months but less than twelve months in any year will get proportionate bonus in that year. It was further ordered that the workmen who were dismissed for misconduct in any of these two years will not get any bonus for the year in which they were dismissed. This award was published in the Uttar Pradesh Gazette dated 17 June 1961.
Feeling aggrieved by the award the company has come to this Court under Art. 226 of the Constitution and prays that the award be quashed. Two counter-affidavits have been filed, one by Sukhbir Singh Rawal, additional regional conciliation officer, and the second by Mohammed Shafiq, secretary of the Biri Mazdoor Parishad, Rai Bareilly. The company has filed its rejoinder-affidavit. I have heard Sri S. C. Khare, the learned counsel appearing for the company, and Sri K. P. Agarwal, the learned counsel appearing for the workmen, Sri Khare contended that the persons who manufacture biris for the company are not workman within the meaning of the Act but are independent contractors over whom the company has no control and they were not entitled to any bonus. The learned counsel also submitted that the tribunal erred in rejecting the company's accounts and in calculating available surplus on purely speculative basis without deducting necessary prior charges such as depreciation, rehabilitation charges, profit on capital investment, etc. Sri Khare, therefore, urged that the award suffers from an error apparent on the face of the record and is without jurisdiction and is liable to be quashed.

(3.)SRI K. P. Agarwal, on the other hand, contended that the persons who manufacture biris for the company are workmen and are, therefore, entitled to get bonus and further that the tribunal rightly rejected the company's accounts and that the tribunal was also correct in calculating available surplus and had deducted necessary prior charges. "Workman" is defined in S. 3(m) of the Act as follows:
"'workman' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute includes any such person who has been dismissed, discharged or retrenched in connexion with, or as a consequence of that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person: (i) * * * (ii) * * * (iii) * * * (iv) * * * This definition is exhaustive and lays down who is included as a workman in the definition and who is excluded. The definition quoted above does not say that only a workman on monthly basis will be a workman and that piece-raters such as the workmen connected with the manufacture of biris, as in the instant case, will not be workmen. Sri Khare relied upon Chintaman Rao and another v. State of Madhya Pradesh [1958 - II L.L.J. 252]. In this case there was an agreement between the management of a bidi factory and an independent contractor that the contractor should receive tobacco from the management and supply them rolled in biris for consideration. He was not under the control of the factory management and he could manufacture bidis wherever he pleased. The management could not regulate the manner of discharge of his work. His liability was discharged by his supplying bidis and delivering them in the factory. The terms of the contract between the management and the contractor did not enjoin on the latter to work in the factory. On these facts it was held: "That the contractor in this case was not employed by the management as worker but was only independent contractor who performed his part of the contract by making bidis and delivering them at the factory."


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