Heard Shri Chandra Bhan Gupta, learned counsel for the petitioner, learned Standing Counsel for respondent nos. 1 to 4 and Ms. S.R. Gupta, who has put in appearance on behalf of respondent no. 5.
With the consent of the learned counsel for the parties, this petition is being disposed of under the Rules of the Court without calling for a counter affidavit.
The petitioner claims to be a charitable hospital run and administered by a society registered as charitable society under the provisions of Societies Registration Act.
Respondent no. 5, Workers' Union moved an application before the Additional Labour Commissioner that the petitioner-employer has not paid the minimum bonus. The proceedings were contested by the petitioner by filing objection and ultimately vide order dated 19.06.2003, Deputy Labour Commissioner overruled the objection that petitioner was a charitable institution, hence, outside the purview of Payment of Wages Act and held that employer has not paid the minimum statutory bonus to which the workmen were entitled and since the amount was not quantified by respondent no. 5, he further directed the Workers' Union to make a claim of the quantified amount of bonus from the petitioner-employer within a period of one week and if the payment is not made, then an appropriate application may be moved afresh for recovery of the said amount. The order passed by the Deputy Labour Commissioner was challenged by the petitioner before this Court by filing Writ Petition No. 27918 of 2003. Vide order dated 25.07.2003, this Court stayed the effect and operation of the impugned order dated 19.06.2003 and the matter remained pending. The writ petition came to be dismissed by means of an ex parte order dated 12.05.2011 since no one appeared on behalf of the petitioner.
It is alleged that an application to recall the order dated 12.05.2011 filed by the petitioner is pending. After dismissal of the writ petition and vacation of the interim order, respondent no. 5 moved an application dated 19.10.2011 under the U.P. Industrial Peace (Timely Payment of Wages) Act, 1978 (hereinafter referred to as Act of 1978) claiming a sum of Rs.1,10,509/- as minimum statutory bonus for 56 workmen at the rate of 8.33% for the year 2001-02. Petitioner again contested the proceedings by taking an objection that it was a charitable institution, hence, is outside the purview of the Bonus Act and not liable to pay any bonus. The question was sub-judice before this Court in writ petition which came to be dismissed ex parte and a recall application is pending. An objection with regard to the applicability of the provisions of Act of 1978 was also taken.
Additional Labour Commissioner, Kanpur overruled the objections filed by the petitioner holding that since statutory minimum bonus has been claimed which is covered under the definition of wages as provided under Section 2 (vi) (c) of the Payment of Wages Act, 1936 and the writ petition filed by the petitioner challenging on the ground that it was a charitable institution having already been dismissed, issued a certificate for recovery of the said amount as arrears of land revenue. Aggrieved by the same, the petitioner has approached this Court.
It is vehemently contended that Additional Labour Commissioner has failed to consider the objection raised by the petitioner that the provisions of Act of 1978 are only applicable in the case of industrial establishment. Section 2 (a) of the Act of 1978 defines industrial establishment as under.
"(a) "industrial establishment" means any factory, workshop or other establishment in which articles are produced, processed, adopted or manufactured with a view to their use, transport of sale."
Section 3 of the Act of 1978 provides for recovery of the wages in certain industrial establishments as arrears of land revenue.
Thus, taking aid of the aforesaid sections, learned counsel for the petitioner urged that admittedly petitioner is a hospital, hence, is not covered under the definition of Industrial establishment, as such, the application filed by respondent no. 5 before Additional Labour Commissioner under Section 3 of the Act of 1978 was not maintainable.
Miss S.R. Gupta, though has tried to justify the order passed by the Additional Labour Commissioner, but in view of the definition clause of industrial establishment and Section 3, it is clear that the provisions of Act of 1978 are only applicable in the case of industrial establishment and a Eye hospital can, by no stretch of imagination, be said to be a factory, workshop or any other establishment in which any production is undertaken so as to be covered under the definition of industrial establishment.
Since the petitioner is not an industrial establishment, provisions of the Act of 1978 are not applicable and, as such, order dated 04.01.2012 passed by Additional Labour Commissioner directing recovery of the amount of bonus under the provisions of the Act of 1978 is without jurisdiction and is hereby quashed.
The writ petition, accordingly, stands allowed.
However, this order shall not stand in the way of respondent no. 5 in enforcing the order dated 19.06.2003 passed by Deputy Labour Commissioner, respondent no. 2 under the provisions of any other Statute providing for the said remedy.
16.01.2012 VKS