D.K.Seth, J. - (1.) An application under Section 33-C(2) of the industrial Disputes Act, made before the Labour Court, seeking to recover the bonus for the year 1976-1977, was allowed by an order dated June 20, 1981 in Misc. Case No. 75 of 1980 which has been challenged by means of this writ petition. It is alleged that the workman had tendered his resignation on November 23, 1976, therefore, he has not completed 12 months of service in the year 1976-77 which ended on March 31, 1977. By reason of the terms contained in Clause (1) (iv) of the terms of settlement relating to bonus as contained in the memorandum of settlement which is Annexure-5 to the writ petition the workman having not completed 12 months' service, he was not entitled to claim the said bonus. On these facts Miss Minakshi Sharma, learned counsel for the petitioner contends that the bonus being included in Schedule III of the Industrial Disputes Act, by reason of Section 10 thereof the dispute with regard to bonus is to be referred to the Industrial Tribunal. Therefore, the Labour Court does not have the jurisdiction to decide the said case. According to her the entitlement of the workman to the payment of bonus having been disputed, the same is an industrial dispute within the meaning of Industrial Disputes Act relating to the matters specified in item No. 5 of the III Schedule triable by the Tribunal. Therefore, the award passed by the Labour Court impugned in the present writ petition is wholly without jurisdiction. Her second contention was that the workman having not been worked for 12 months' in the year 1976-77, he is not entitled to any bonus. Entitlement having been disputed, it is not an existing right which can be decided in exercise of jurisdiction under Section 33-C(2) of the Act. Any decision with regard to the entitlement of the workman would be a determination of an entitlement, beyond the scope of computation of benefit flowing from existing rights. Since in the present case the interpretation relating to the application of the said settlement is required to be done for the purpose of determining the entitlement the same cannot be said to be an existing right. In exercise of power under Section 33-C(2) according to her, the Labour Court cannot embark upon determination of entitlement. Though however, she fairly submits that in computing the benefits the court may incidentally decide the disputed matters and then it should be the finding with regard to an existing right and not a determination of entitlement.
(2.) Admittedly the workman had worked till November 23, 1976. The accounting year is April 1, 1976 till March 31, 1977 is also an admitted situation. According to the terms of settlement Clause (iv) provides for bonus in respect of the year 1972-73. The terms of settlement referred to in Annexure-5 in paragraph 1 specify that the settlement shall remain in operation till March 31, 1973. By no stretch of imagination the said settlement shall govern, the question for payment of Bonus for the year 1976-77 since the life of the settlement had expired on March 31, 1973. Then again if there is such settlement under Section 34-A of the Payment of Bonus Act, the provisions contained in the said Act would prevail upon the contract/or settlement which are inconsistent with the Act or disadvantageous to the workman. Therefore, notwithstanding the terms of settlement the provisions of Payment of Bonus Act will apply. Section 8 of Bonus Act specifies the provisions relating to eligibility to receive the payment of bonus which specify that a person who had worked thirty days in the previous year/accounting year would be eligible for bonus. In the present case the accounting year was 1976-77 and the workman having resigned on November 23, 1976, he worked seven months which is much more than thirty days. Therefore, it cannot be denied that the workman is not entitled to receive bonus.
(3.) The dispute that has been raised does not travel to the realm of Industrial Disputes. The determination as has been exercised by the Labour Court is within the ambit of Section 33-C(2) inasmuch as it is the existing right and the determination for the purpose to come to a conclusion of the existing right is ancillary or incidental to such a jurisdiction. It is not a determination of entitlement since the provisions are clear. The same being not a dispute within the meaning of Industrial Disputes, it is not necessary to refer the same to the Industrial Tribunal in terms of the matters provided in III Schedule to the Industrial Disputes Act. It is only of the determination of the existence or of an existing right. The right to receive bonus under clause 8 would prevail over all contract or award or settlement by reason of Section 34-A cannot be disputed and as such is not a dispute but is an existing right.;