Full Judgment Text
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PETITIONER:
BRIDGE & ROOF CO. (INDIA) LTD
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT:
11/09/1962
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
SINHA, BHUVNESHWAR P.(CJ)
IMAM, SYED JAFFER
SUBBARAO, K.
SHAH, J.C.
AYYANGAR, N. RAJAGOPALA
CITATION:
1963 AIR 1474 1963 SCR (3) 978
CITATOR INFO :
F 1963 SC1480 (1,3,4,9)
D 1979 SC 607 (3,4,10)
ACT:
Employees Provident Fund-Bonus-Whether excepted from
definition of ’Basic Wages’-Contribution-Whether to be paid
on bonus-Bonus, whether denotes, only Profit Bonus--Central
Government Order Validity-Employees Provident Fund Act, 1952
(19 of 1952), ss. 2(b), 5, 6, 19A.
HEADNOTE:
The petitioner No. 1 is a public limited company engaged in
a manufacture of engineering goods. In additional to basic
wages and dearness allowance payable by petitioner No. 1 it
has introduced two Production bonus schemes. Certain
difficulties and doubts having arisen on the question
whether production bonus could be taken into consideration
in calculating the contribution under s. 6 of the
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Employees Provident Fund Act, 1952, the Central Government
passed an order by which it was directed that the production
bonus payable as part of a contract of employment either at
a flat rate or at a rate linked to the quantum of work
turned out satisfied the definition of "basic wages" under
s. 2(b) of the Act. The petitioner No. 1 was further
directed to effect the recovery of provident fund and
contribution and to make deposit of arrears of contribution
in accordance with the first direction contained in the
order. Thereupon the present petition was filed under Art.
32 of the Constitution.
The main contention of petitioner No. 1 was that ,bonus’
without any qualification had been excepted from the terms
"basic wages" in the definition in s. 2(b) of the Act and
therefore all kinds of bonus were excluded from "Basic
wages". Since the section which provides for contribution
only refers to basic wages, dearness allowance and retaining
allowance no contribution need be paid on bonus. Consequ-
ently the order of the Central Government directing that
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production bonus should be included in basic wages for the
purpose of contribution under the section was invalid.
Held, that when the word "bonus" was used without any
qualification the legislature had in mind every kind of
bonus that may be payable to an employee which was prevalent
in the industrial field before 1952. It is not possible to
accept the contention of the respondent that whatever is the
price of labour and arises out of contract is necessarily
included in the definition of "basic wages" and therefore
production bonus which is a kind of incentive wage would
also be included, in view of the exceptionof all kinds of
bonus from the definition. Therefore the order of the
Central Government, which was presumably under s. 19A of the
Act, was incorrect.
M/s. Titagur Paper Mills Co. Ltd. v. Its Workmen, [1959]
Supp. 2 S.C.R. 1012, M/s. IspahaniLtd. Calcutta v. Ispahni
Employees Union, [1960] 1 S.C.R.24, The Graham Trading
Co. Ltd. v. Its Worker, [1960] 1S.C.R. 107 and
Mill owners Association v. The Rashtriya Mill Mazdoor Sangh,
Bombay, (1960) L.L.J. 1247, referred to.
JUDGMENT:
ORIGINAL JURISDICTION : Petition No. 62 of 1962.
Petition under Art. 32 of the Constitution of India for
enforcement of Fundamental Rights.
980
G.B. Pai, J. B. Dadachanji, O. C. Mathur and Ravinder
Narain for the petitioners.
Veda Vyasa and R, H. Dhebar, for respondents Nos. 1 and 2.
M.S. K. Sastri and M. S. Narasimhan, for respondent No.
4.
1962. September 11. The Judgment of the Court was
delivered by
WANCHOO, J.-The short question raised in this writ petition
under Art. 32 of the Constitution is whether production
bonus is included within the term "basic wages" as defined
in s. 2(b) of the Employees’ Provident Funds Act, No. 19 of
1952, (hereinafter referred to as the Act) Writ Petition 64
of 1962 (The Jay Engineering, Works Limited V. The Union of
India) was heard along with this petition. In that writ
petition a further question arose as to the nature of the
production bonus scheme in force in that company and parties
have been given time to file additional. affidavits in that
connection. What we say therefore: in the present case as
to reduction bonus generally may not be taken necessarily to
apply to the particular scheme in the case of writ petition
No. 64 of 1962.
The brief facts necessary for present purposes are these.
Petitioner No. 1 (hereinafter’ referred to as the Company)
is a public limited company engaged in the manifacture of
engineering goods, structural fabrication and rolling stock,
and the Act applies to the Company. The Company has a
production bonus scheme in force which provides for payment
of production bonus over and above wages fixed by the major
engineering award of 1958, published in the Calcutta gazette
dated November 5, 1958, which governs 74 major engineering
concerns in
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that region including the Company’ That award is still in
force and has fixed basic wages and dearness allowance on
time rate basis for the entire major engineering industry.
In addition to basic wages and dearness allowance payable
under the award, the Company has two production bonus
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schemes one for the hourly rated workers and the other for
the rest. It is unnecessary to go into the details of the
two schemes; but the main feature of the two schemes is that
production bonus begins to be paid on certain rates
specified in the two schemes when the output reaches 5,000
tons per year and that no production bonus is paid when the
output is less than 5,000 tons per year. It maybe added
that t,he scheme relating to the hourly rated workers has
been revised from January 1, 1962 and the main feature of
this revision is that the Scheme is now applicable to those
workers on a quarterly basis. According to this revised
scheme, production bonus begins when the output for the
quarter reaches 1300 tons, and there is no production bonus
if the output is below 1300 tons. In the case of other
staff, the old scheme is still in force, though it is stated
for the Company that negotiations are going on for revising
the old scheme, presumably to bring it into line with the
new scheme introduced for hourly rated workers since January
1, 1962.
We may now briefly refer to the relevant provisions of the
Act which require consideration. The Act provides by s. 5
for the introduction of Employees’ Provident Fund Scheme for
certain industries included in Schedule 1 to the Act. In
consequence a Provident Fund Scheme was framed in September
1952 knows as the Employees Provident Funds Scheme, 1952,
and it is applicable to the company. Section 6 of the Act
provides for contribution by the employer and the
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employee to the provident fund and this contribution is 6-
1/4 per centum of the basic wages, dearness allowance end
retaining allowance (if any) for the time being payable in
the ease of both. Section 6 further provides for certain
increased contribution; but we are not concerned with that
in the present case. Basic wages" have been defined in s.
2(b) of the Act thus :
" ‘Basic wages’ means all emoluments which are
earned by an employee while on duty or on
leave with wages in accordance, with the terms
of the contract of employment and which are
paid or payable in cash to him, but does not
include-
(i) the cash value of any food concession;
(ii)any dearness allowance (that is to say,
all cash payments by whatever name called paid
to an employee on account of a rise in the
cost of living), house-rent allowance,
overtime allowance bonus, commission or any
other similar allowance payable to the
employee in respect of his employment or of
work done in such employment,
(iii) any presents made by the employer;"
Further, s. 19A of the Act provides for the removal of
difficulties and lays down that, if any difficulty arises in
giving effect to the provisions of the Act,, and in
particular, if any doubt arises as to certain matters
including ,,whether the total quantum of benefits to which
an employee is entitled has been reduced by the employer",
the Central Government may by order, make such provision or
give such direction, not inconsistent with the provisions of
the Act, as appears to it to be necessary or expedient for
the removal of the
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doubt or difficulty, and the order of the Central Government
in such cases shall be final.
It appears that difficulties and doubts arose on the
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question whether production bonus could be taken into
account in calculating the contribution of 6-1/4 per centum
under s. 6 of the Act, and the Central Government directed
about the March 7, 1962 that the question whether production
bonus should be liable to provident fund deduction under the
Act had been reexamined by it and it had been decided that
production bonus, payable as part of a contract of
employment either at a flat, rate or at a rate linked to the
quantum of work turned out satisfied the definition of
"basic wages" under s. 2 (b) of the Act. The Company was
further directed to effect recovery of provident fund
contributions on production bonus without any farther delay
and arrear contribution in this respect payable with effect
from January 1, 1960, was also to be deposited in the
statutory fund immediately. The present petition was
thereafter filed in April 1962 and is directed against the
decision of the Central Government which was duly
communicated to the Company in March 1962.
The main contention of the Company is that bonus without any
qualification has been expected from the terra ",basic
wages" in the definition in s. 2(b) of the Act. Therefore,
all kinds of bonus whether it be profit bonus or production
bonus or attendance bonus or festival bonus either as an
implied condition of service or as a customary payment, are
excluded from "basic wages". Farther, s.6 which provides
for contribution only refers to basic wages, dearness
allowance and retaining allowance (if any) and contributions
have to be made at the appropriate rate on these three
payments and not on bonus which is not included in s. 6 It
is urged that when the Act was passed
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in 1952 the legislature was aware of the various kinds of
bonus which were being paid by various Concerns in various
industries and when it decided to exclude bonus without any
qualification from the term "(basic wages" as defined in s.
2(b), it was not open to the Central Government to direct
that production bonus should be included in basic wages for
the purposes of contribution under s. 6. Besides this
contention based on the interpretation of the word "bonus"
in s. 2(b), it is further contended that if the word "bonus"
therein excludes production bonus the provision would be
unconstitutional as it would be hit by Art. 14 of the
Constitution inasmuch as production bonus is not a general
feature of all industrial concerns but has been introduced
only in some. The result of including production bonus
within basic wages would be that some concerns where
production bonus prevails would be contributing to the
provident fund at a much higher rate than others where no
production bonus prevails.
The petition has been opposed on behalf of the Union of
India and also on behalf of the two trade unions, which are
existing in the Company. It is contended for the
respondents that wages are the price for labour and arise
out of contract, and the use of the term "basic wages"
merely indicates that a certain part of the total wages is
being separated for certain purposes only. Therefore
production bonus being in the nature of incentive wage must
be included in the definition of the term "basic wages" in
s. 2(b), as basic wages there defined are "all emoluments
which are earned by an employee while on duty or on leave
with wages in accordance with the terms of the contract of
employment and which are paid or payable in cash to
him......... Therefore, production bonus being in the nature
of an incentive wage is included
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in the terms "all emoluments" in the definition of "basic
wages", for production bonus is earned by an employee while
on duty in accordance with the terms of the contract
of,employment. It is further submitted that when the word
"bonus"’ was "used in el. (ii) of the exceptions to s. 2(b),
it only referred to profit bonus, as it was well established
before 1952 that the use of the word "bonus" without any
qualification referred to profit bonus only in industrial
adjudications. Therefore, when cl. (ii) of the exceptions
to s. 2(b) excepted "bonus" without any qualification it
referred only to profit bonus and not to any other kind of
bonus.
The main question therefore that falls for decision is as to
which of these two rival contentions is in consonance with
s. 2 (b). There is no doubt that ",basic wages" as defined
therein means all emoluments which are earned by an employee
while on duty or on leave with wages in accordance with the
terms of the contract of employment and which are paid or
payable in cash. If there were no exceptions to this
definition, there would have been no difficulty in holding
that production bonus whatever be its nature would be
included within these terms. The difficulty, however,
arises because the definition also provides that certain
things will not be included in the term "basic wages", and
these are contained in three clauses. The first clause
mentions the cash value of any food concession while the
third clause mentions any presents made by the employer.
The fact that the exceptions contain even presents made by
the employer shows that though the definition mentions all
emoluments which are earned in accordance with the terms of
the contract of employment, care was taken to exclude
presents which would ordinarily not be earned in accordance
with the terms of the contract of employment.
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Similarly, though the definition includes "all emoluments"
which are paid or payable in cash, the exception excludes
the cash value of any food concession, which in any case was
not payable in cash. The exceptions therefore do not seem
to follow any logical pattern which would be in consonance
with the main definition.
Then we come to el. (ii). It excludes dearness allowance,
house-rent allowance, overtime allowance, bonus, commission
or any other similar allowance payable to the employee in
respect of his employment or of work done in such
employment. This exception suggests that even though the
main part of the definition includes all emoluments which
are earned in accordance with the terms of the contract of
employment, certain payments which are in fact the price of
labour and earned in accordance with the terms of the
contract of employment are excluded from the main part of
the definition of "basic wages". It is undeniable that the
exceptions contained in el. (ii) refer to payments which are
earned by an employee in accordance with the terms of his
contract of employment. It was admitted by counsel on both
sides before us that it was difficult to find any one basis
for the exceptions contained in the three clauses. It is
clear however from cl. (ii) that from the definition of the
word "basic wages" certain earnings were excluded, though
they must be earned by employees in accordance with the
terms of the contract of employment. Having excluded "
dearness allowance" from the definition of "basic wages". a.
6 then provides for inclusion of dearness allowance for
purposes of contribution. But that is clearly the result of
the specific provision in s.6 which lays down that
contribution shall be 6-1/4 per centum of the basic wages,
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dearness allowance and retaining allowance (if any). We
must therefore try to discover some basis for the exclusion
987
in cl. (ii) as also the inclusion of dearness allowance and
retaining allowance (for any). in s. 6. Itseems that the
basis of’ inclusion in s. 6 andexclusion in cl. (ii) is
that whatever is payable in all concerns’ and is earned by
all permanent employees is included for the purpose, of
contribution under s. 6, but whatever is not payable by all
concerns or may not be earned by all employees of a concern
is excluded for the purpose of contribution. Dearness
allowance (for examples is payable in all concerns either as
an addition to basic wages or as a part of consolidated
wages where a concern does not have separate dearness
allowance and basic wage Similarly, retaining allowance is
pay able to all permanent employees in all seasonal
factories like sugar factories and is therefore included in
a. 6; but house-rent allowance is not paid in many concerns
and sometimes in the same concern it is paid to some
employees but not to others, for the theory is that house-
rent is included in the payment of basic wages plus dearness
allowance or consolidated wages. Therefore, house-rent
allowance which may not be payable to all employees of a
concern and which is certainly not paid by all concern is
taken out of the definition of "basic wages", even though
the basis of payment of house rent allowance where it is
paid is the contract of employment. Similarly, overtime
allowance though it is generally in force in all concerns is
not earned by all employees of a concern. It is also earned
in accordance with the terms of the contract of employment;
but because it may not be earned by all employees of a
concern it is excluded from ,basic wages". Similarly,
commission or any other similar allowance is excluded from
the definition of "basic wages" for commission and other
allowances are not necessarily to be found in all concerns;
nor are they necessarily earned by all
988
employees of the same concern, though where they exist they
are earned in accordance with the terms of the contract of
employment. It seems therefore that the basis for the
exclusion in cl. (ii) of the exceptions in s. 2 (b) is that
all that is not earned in all concerns or by all employees
of concern is excluded from basic wages. To this the
exclusion of dearness allowance in cl. (ii) is an,
exception. But that exception has been corrected by
including dearness allowance in s. 6 for the purpose of
contribution. Dearness allowance which is an exception in,
the definition of "basic wages", is included for the purpose
of contribution by s. 6 and the real exceptions therefore in
el. (ii) are the other exceptions beside dearness allowance,
which has been included through s. 6.
This brings us to the consideration of the question of
bonus, which is also an exception in el. (ii). Now the word
"bonus" has been used in this clause without any
qualification. Therefore, it would not be improper to infer
that when the word "bonus" was used without any
qualification in the clause, the legislature had in mind
every kind of bonus that may be payable to an employee. It
is not disputed on behalf of the respondents that bonuses
other than profit bonus were in force and well-known before
the Act came to be passed in 1952. For example, the Coal
Mines Provident Fund and Bonus Schemes Act, No. 46 of 1948,
provided for payment of bonus depending on attendance of
employees during any period. Besides the attendance bonus,
four other kinds of bonus had been evolved under industrial
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law even before 1952 and were in force in various concerns
in various industries. There was first production bonus,
which,. was in force in some concerns long before 1952 (see
989
Messrs. Titaghur Pa_per Mills Co. Limited v. Its Workmen).
(1) Then there was festival or puja bonus which was in force
as an implied term of employment long before 1952 (see
Messrs. Ispahani Limited Calcutta v. Ispahani Employees’
Union) (2). Then there was customary bonus in connection
with some festival (see The Graham Trading Co. (India)
Limited v. Its Workmen). (3). And lastly, there was profit
bonus the principles underlying which and the determination
of whose quantum were evolved by the Labour Appellate
Tribunal in the Mill owners’ Association v. The Rashtriya
Mill Mazdoor Sangh, Bombay. (4) The legislature therefore
could not have been unaware that these different kinds of
bonus were being paid by different concerns in different
industries, when it passed the Act in 1952. Therefore,
unless the contention on behalf of the respondents that
bonus when it was used without qualification can only mean
profit bonus is sound, it must be held that when the
legislature used the term "bonus" without any qualification
in cl. (ii) of the exception in s. 2 (b), it must be
referring to every kind of bonus which was prevalent in the
industrial field before 1952. The contention therefore of
the respondents that when the term "bonus" was used in
industrial law before 1952 without any qualifying term it
meant only profit bonus and nothing else, requires careful
consideration." We do not think however that this contention
is well founded. It is true, as will appear from the terms
of reference in various cases of profit bonus that the word
"profit" was not used as a qualifying word before the word
"bonus" in such cases. It may also be that in many cases
where a particular type of bonus was in dispute, say,
attendance or "puja bonus, the qualifying word "attendance"
or "puja" was use in references. But it appears that where
a reference
1. [1959] Supp. 2 S.C.R. 1012. 2. [1960] 1 S.C.R. 24.
3. [1960] 1 S. C. R. 107. 4. [1950] I.L.J. 1247.
990
was in connection with profit bonus, the usual practice was
to make the reference after qualifying the word bonus" by
the year for which the profit bonus was claimed. For
example, we may refer to the case of Millowners’ Association
Bombay v. The Bashtrya Mill Mazdoor Sangh. (1) Therein para
16 at p. 1252, we find the term of reference in Reference
No. 1 of 1948 (Millowners’ Association Bombay v. The
Employees in the Cotton Textile Mills Bombay) in these
terms-
"Re : Bonus for the year 1947"
It seems therefore that when reference was with respect to
profit bonus, the term "bonus" though not qualified by the
word "profit" bad always been limited by specifying the year
for which the bonus was being claimed. Though, therefore,
it may be true that literally speaking, the word ",profit"
was not used to qualify the word "’bonus" when references
were made with respect to profit bonus, the matter was put
beyond controversy that the use of the word "bonus" without
any qualification was with reference to profit bonus by
adding the year for which the bonus was being claimed. It
would therefore be not right to say that in industrial
adjudications before 1952, bonus without any qualifying word
meant profit bonus and nothing else. Further though the
word "profit" was not used to qualify the word "bonus", the
intention was made quite clear when profit bonus was meant
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by using the words "for the year so and Sol# after the word
"bonus". We are therefore not prepared to accept that where
the word "bonus" is used without any qualification it only
means profit bonus and nothing else. On the other hand, it
seems to us that the use of the word "bonus" without any
qualifying word before it or without any limitation
1. (1950) L.L.J. 1247.
991
as to year after it must refer to bonus of all kinds known
to industrial law and industrial adjudication before 1952.
The reason for the exclusion of all kinds of bonus is also
in our opinion the same which led to the exclusion of house-
rent allowance, overtime allowance, commission and any other
similar allowance, namely, that payment of bonus may not
occur in all industrial concerns or it may not be made to
all employees of an industrial concern (as, for example,
attendance bonus) and that is why bonus of all kinds was
also excluded from the definition of the term "basic wages".
The Act is an All-India Act applicable to all industries
mentioned in Sch. I and to all concerns engaged in those
industries; and the intention behind the exclusion seems to
be to make the incidence of provident fund the same in all
industrial concerns, which are covered by the Act so that it
was necessary to exclude from the wide definition of ,basic
wages" given in the opening part, all such payments which
would not be common to all industries or to all employees in
the same concern. We have already . pointed out that to
this principle, only dearness allowance in cl. (ii) is an
exception; but that exception has been corrected by the
inclusion of dearness allowance in s.6. We are therefore of
opinion that there is no reason why when the, word "bonus"
is used in el. (ii) without any qualifying word, it should
not be interpreted to include all kinds of bonus which were
known to industrial adjudication before 1952 and which must
therefore be deemed to be within the knowledge of the
legislature.
This brings us to the consideration of the contention raised
on behalf of the respondents that wages are the price for
labour and arise out of contract, and that whatever is the
price for labour and arises out of contract, was intended to
be included in the definition of "basic wages"
992
in s.2(b), and that only those things, were excluded which
were a reward for labour not arising out of the contract of
employment but depending on various other considerations
like profit or attendance. It may be, as we have pointed
out earlier, that if there were no exceptions to the main
part of the definition in s.2(b), whatever was payable in
cash as price for labour and arose out of contract would be
included in the term "basic wages", and that reward for
labour which did not arise out of contract might not be
included in the definition. But the main part of the
definition is subject to exceptions in cl. (ii), and those
exceptions clearly show that they include even the price for
labour. It is therefore not possible to accept the
contention on behalf of the respondents that whatever is
price for labour and arises out of contract is include 1 in
the definition of "basic wages" and therefore production
bonus which is a kind of incentive wage would be included.
This court had occasion to consider production bonus in
Messrs. Titaghur Paper Mills Co. Ltd. v. Its Workmen, (1)
It was pointed out that "the payment of production bonus
depends upon production and is in addition to wages. In
effect, it is an incentive to higher production and is in
the nature of an incentive wage". rho straight piece rate
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plan where payment is made according to each piece produced
is the simplest of incentive wage plans. In a straight
piece rate plan, payment is made according to each piece
produced and there is no minimum and the worker is free to
produce as much or as little as he likes, his payment
depending upon the number of pieces produced. But in such a
case payment for all that is produced would be basic wage as
defined in s. 2(b) of the Act, even though the worker is
working under an incentive
(1) [1959] Supp 2 S. C.R. 10 12.
993
wage plan. The difficulty arises where the straight piece
rate system cannot work as when the finished product is the
result of the co-operative effort of a large number of
workers each doing a small part which contributes to the
result. In such a case the system of production bonus by
tonnage or by any other standard is introduced. The core of
such a plan is that there is a base or a standard above
which extra payment is earned for extra production in
addition to the basic wages which is the payment for work
upto the base or standard. Such a plan typically guarantees
time wage upto the time represented by standard performance
and gives workers a share in a savings represented by
superior performance. The scheme in force in the Company is
a typical scheme of production bonus of this kind with a
base or standard upto which basic wages as time wages are
paid and thereafter extra payments are made for superior
performance. This extra payment may be called incentive
wage and is also called production bonus. In all such cases
however the workers are not bound to produce anything beyond
the base or standard that is set out. The performance may
even fall below the base or standard but the minimum basic
wages will have to be paid whether the base or standard is
reached or not. When however the workers produce beyond the
base or standard what they earn is not basic wages but
production bonus or incentive wage. it is this production
bonus which is outside the definition of "basic wages" in s.
2 (b), for reasons which we have already given above. The
production bonus in the present case is a typical production
bonus scheme of this kind and whatever therefore is earned
as production bonus is payable beyond a a base or standard
and it cannot form part of the definition of "basic wages"
in s. 2 (b) because of the exception of all kinds of bonus
from that definition. We are therefore of opinion that
994
production bonus of this type is excluded from the
definition of "basic wages" in P. 2 (b) and therefore the
decision of the Central Government, which was presumably
under s. 19A of the Act, to remove the difficulty arising a
out of giving effect to the provisions of the Act, by which
such a bonus has been included in the definition of "basic
wages" is incorrect. In view of this decision, it is
unnecessary to consider the effect of Art. 14 in the present
case.
We therefore allow the petition and hold that production
bonus of the typical kind in force in the Company is
excepted from the term "basic wages" and therefore the
decision of the Central Government communicated to the
Company on March 7, 1962, that provident fund contributions
must also be made on the production bonus earned by the
employees in ’his Company, must be set aside. As this
petition was heard along with petition No.64 of 1962 and the
main arguments were in that petition, we order parties to
bear their own costs.
Petition allowed.
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