- (1.) THE only question that is involved in these two rules is whether sick wages paid by the petitioners to the workers of their collieries are to be taken into consideration for the purpose of calculating the quarterly bonus under the Coal Mines bonus Scheme (hereinafter referred to as the Scheme) framed under section 5 of the Coal Mines Provident Fund, Family Pension and bonus Schemes Act, 1948, hereinafter referred to as the Act. 5. (1973) Special Civil Application No. 2466 of 1972, decided by vaidya and Dudhia, JJ. , on June 20, 1973 (Unrep. ). 6. (1963) Special Civil Application No. 1855 of 1962, decided by tambe and Palekar, JJ. , on January 12, 1963 (Unrep. ).
(2.) IT is not disputed that the petitioners have been paying bonus to the workers of their collieries but in calculating the bonus they did not take into consideration the wages paid to the workers for the period they were on sick leave. The respondents, the Regional Labour Commissioner and the Labour Enforcement Officer insist that such wages are to be considered in calculating the bonus payable to the workers.
(3.) IN order to resolve the question it is necessary to refer to the provisions of the Scheme. Clause (b) of paragraph 2 of the Scheme defines 'basic earnings' as meaning the total cash emoluments, whether earned while on duty or while on leave with pay, but excluding all payments for food concessions, dearness, house rent and other similar allowances, overtime, commission, presents or donations. Paragraphs 4, 5 and 5-A of the Scheme lay down qualifications for bonus in coal mines in certain States. We are concerned with paragraph 4, for it lays down the qualifications for bonus in coal mines in west Bengal ana Bihar. Paragraph 4 is as follows: "4. An employee in a coal mine in West Bengal or Bihar shall qualify for a bonus from his employer in respect of the quarter commencing on the first of January, 1948 or any subsequent quarter, provided he put in attendance in the coal mine during that quarter for not less than 54 days if a category 1 employee, or for not less than 66 days if a category II employee. " Paragraph 6 of the Scheme provides for allowances for leave, etc. and is as follows: "6 (1) For the purposes of paragraphs 4, 5 and 5-A of this scheme, leave (including sick leave) granted by the employer to an aggregate of 21 days in a calendar year or, where an employee has availed himself of earned leave (including accumulations)the actual number of days of such leave plus 5 days in a calendar year, whichever is higher and days of lay-off as defined in clause (kkk) of Section 2 of the Industrial Disputes Act, 1947 and days of idleness caused by any lock-out which is illegal under sec. 24 of the said Act and days of absence from work on account of compulsory attendance in a Court of Law, shall count as days of attendance. (2) If on any working day in any period or quarter, as the case may be, an employee is on maternity leave or is unable to attend work owing to temporary disablement the number of days for which he must put in attendance to qualify for bonus under paragraphs 4, 5 and 5-A shall be reduced by 70 per cent, of such working days if a category I employee, or 85 per cent, of such working days if a category II employee. Explanationin calculating the 70 per cent or 85 per cent, of such working days, a fraction less than half shall be disregarded and not less than half shall count as one. (3) If in any period or quarter any day, other than the weekly holiday, is observed as a paid holiday in any coal mine, the number of days for which the employees must put in attendance in such period or quarter to qualify for bonus under paragraphs 4, 5 and 5-A shall be reduced by the number of such paid holidays falling in such period or quarter. In the event of dispute as to whether a day is a paid holiday or not the decision of the chief Commissioner (Central) shall be final. " Paragraph 7 of the Scheme relates to the amount of bonus of which sub-paragraph (2) and its proviso are relevant. Sub-paragraph (2) runs as follows: "7 (2) The amount of bonus payable to an employee in respect of quarters subsequent to the quarter ending on September 30, 1967 shall be ten per cent. (10%) of the basic earning of the employee, for work done in that quarter in the coal mine wherein he qualifies for bonus: provided that the basic wage portion of the wage paid to an employee for paid holidays and leave with wages in such period or quarter shall also count toward basic earnings for the purpose of calculation of bonus. ";