- (1.) BY means of a notification dated 28th November, 1972 the State Government under Section 4k of the Industrial Disputes Act referred the following two disputes for adjudication to the Industrial Tribunal, respondent No. 2; (1) Kya Sevayojkon Dwara parishist 'ka' me ullikhit shramikon ko arthik varsh 1970-71 ka bonus bhugtan na kiya jana uchit tatha/athwa vaidhanik hai? Yadi nahi to, we kis dar evam anya kis vibran sahit bonus pane ke (2) Kya sevayoikon dawara parshist' kha' me ullikhit shramikon ko 1970-71 ka vibhinna daron par bonus vitarit karna uchit tatha Vaidhanik hai? Yadi nahi, to sambandhit sabhi shramik kis dar se bonus pane ke adhikari hain evam anya kis vivran sahit?
(2.) WRITTEN statements were exchanged between the employer, the petitioner, and the union representing the workmen concerned which has been impleaded as respondent No. 1 to the writ petition. The validity of the reference was challenged by the employer on the ground that by reason of Section 39 of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966, the dispute which had been raised should have been referred to a Tribunal constituted under Industrial Disputes Act, 1947. This contention was repelled by the presiding officer of respondent No. 2 by an order dated 22nd February, 1973. The award impugned was given by the Tribunal that the persons who were engaged by the concern for packing of beedis were merely Thekedars and not the employers of the concern within the meaning of the Payment of Bonus Act, 1965 (hereinafter referred to as the Bonus Act.) While discussing this question the Tribunal held as follows: 'evidence shows' that they were receiving payment of their wages directly from the employer and not through any intermediary and also getting weekly off-day. They worked in the premises of the concern as they worked for the concern, even if they had no fixed hours of duty So long as there was middlemen or intermediary between the employer and the packers, the relationship of employer and employee would be deemed to exist between them and they would be entitled to receive bonus like all other employees.
(3.) THE Tribunal found that bonus had not been paid to the workmen in accordance with the provisions of the Bonus Act and that the action of the employer in paying the bonus to the workmen named in Annexure (kha) at varying rates, therefore, improper and also illegal. It was held that "all the persons named in Annexure (kha) were the employees of the concern at its two Branches at Jhansi and Garish Pathak and were entitled to get bonus for the accounting year. " In the award it was observed that the employer had not disclosed its profit for the year in question although he was called upon to file the profit and loss account and the computation chart. This, according to the Tribunal, was deliberate on the part of the employer. It was observed in the award that the presiding officer had consequently no material before him on the basis of which the available surplus of the concern could be worked out. The operative part of the award is in the following terms: My award, in the circumstances, is that the employer shall calculate the available and allocable surplus for the accounting year 1970-71 in accordance with the provisions of the Payment of Bonus Act, 1965 and distribute bonus at uniform rate to all the employees named in the two Annexures. The amount of bonus which has already been paid to some of the employees, shall be suitably adjusted against the amount found payable to them after the computation of the available and allocable surplus. The required action must be completed by the employer within on e month and the payments made within six weeks from the date of publication of the award in the Official Gazette.;