- (1.) D. K. Seth, J. By means of this writ petition an award dated 31st May, 1993, passed in Misc. Case No. 58 of 1991, passed by respondent No. 1, Labour Court Allahabad, has been challenged.
(2.) THE facts of the case in brief are that the petitioner is a registered Society under the Society Registration Act, 1860 as an education institution/ University. THE examinations conducted by the Society are recognised by the Government of India as well as various Universities of the country. Respondent Nos. 2 to 13 are the employees of the petitioner who had filed an application under Section 33-C (2) of the Industrial Disputes Act, before respondent No. 1, Labour Court Allahabad claiming encashment of earned leave of 45 days, bonus for the accounting years 1983-84 and 1984-85 at the rate of 8. 33 percent and fixation of their wages on reinstatement with benefits of increment with effect from 12-5-1983 till the date of application namely 9-6-1986. THE said claim was allowed by respondent No. 1, Labour Court by order dated 31st May, 1993, whereby the claim for bonus and for difference in wages were allowed while claim for encashment of earned leave was disallowed as not pressed. Learned counsel for the petitioner while espousing the cause of the petitioner confined his case only with regard to that part of the order by which bonus at the rate of 8. 33 percent for the respective year was allowed. So far as the other part of the order is concerned, he did not press. Respondent Nos. 3 to 13 represented through their counsel contested the case by filing counter- affidavit whereby it has been claimed that the petitioner is a commercial establishment,, which the petitioner itself had admitted in the written statement filed before the authorities under the U. P. Shops Act, in C. B. Case No. 109/85, which is Annexure-1 to the counter-affidavit, in which in paragraph-9 it has been admitted that the petitioner is a commercial establishment. It is also pointed out that the petitioner had never claimed itself as an educational institution before the Labour Court.
(3.) IN the rejoinder-affidavit, the petitioner has annexed various docu ments in order to show that it is not a commercial establishment but an educational institution. In support of the writ petition, learned counsel for the peti tioner submits that the petitioner being an educational institution or a University fails within the exception of Section 32 (v) (b) of the Payment of Bonus Act. Therefore, the provisions contained in the said Act is not applicable so far as the petitioner is concerned. If the provisions of the Payment of Bonus Act is not applicable in that event the question remains as to whether the respondents are entitled to the same. As soon as it becomes the question of determination of entitlement, the same does not come within the scope and ambit of Section 33-C (2) of the Industrial Disputes Act, and, as such, determination thereof by the Labour Court in exercise of jurisdiction under Section 33-C (2), of the Industrial Dispute! Act, is wholly without jurisdiction. Therefore, the impugned order so far it grants bonus, cannot be sustained and is liable to be quashed. Learned counsel for the respondents, on the other hand, submits that once the peti tioner has admitted that it is a commercial establishment, it is estopped from claiming itself as an educational institution or University. He further submits that the said question haying not been raised before the Labour Court was never called upon to decide the question. Jurisdiction of the Labour Court having not been challenged, it is to be presumed that the petitioner has waived the objection as to jurisdiction on the same ground. He also points out to the written statement filed on behalf of the petitioner, which is Annexure-4 to the writ petition, and submits that nowhere the said point was raised. The only ground that was made out was that the respon dents, being temporary employees, were-not entitled to bonus. Relying on Paragraph-1 of the said written statement, he points out that the petitioner disputed the entitlement on the ground that the respondents are not the members of any union. Similarly, he refers to Paragraph-2 of the written statement and points out that the petitioner has made out a case that respondents had no existing rights because they were temporary employees. He further refers to Paragraph-2 of the claim petition, which is Annexure-3 to the writ petition, and submits that the respondents had categorically asserted that the petitioner as a commercial establishment while dealing with the same paragraph in Paragraph-5 of the written statement (Annex ure-4) the petitioner did not specifically assert that the petitioner is an educational institution or a University.;