The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.131 of 2021 M/s. Oriental Security Services, Saheed Nagar, Bhubaneswar, Dist: Khurda …. Petitioner Mr. Somanath Mishra, Advocate -Versus- Dilip Kumar Parida & Another …. Opposite Parties Mr. Rajendra Krushna Bose, Advocate For Opposite Party No.2 Mr. B. Baral, Advocate for Opposite party No.1 CORAM:
Legal Reasoning
MR. JUSTICE K.R. MOHAPATRA MR. JUSTICE R.K. PATTANAIK
Decision
Order No. ORDER 13.09.2023 04. 1. Award dated 16th March, 2020 (Annexure-4) passed by the learned Central Government Industrial Tribunal-cum- Labour Court, Bhubaneswar (for brevity “CGIT”) in I.D. Case No. 60 of 2017 is under challenge in this writ application, whereby the Petitioner-Management has been directed to take necessary steps for making payment of arrear bonus amount to the Workman- Opposite Party No.1 within a period of two months from the date of publication of the award in the Official Gazette. Page 1 of 5 2. It is submitted by Mr. Mishra, learned counsel that the Workman-Opposite Party No.1 is an employee of the Petitioner-Management and was deployed at Opposite Party No.2-Indira Gandhi National Open University (IGNOU). The Opposite Party No.1 raised an industrial dispute alleging non- payment of the bonus for the financial year 2010-11 to 2015-16 which was referred to the CGIT for adjudication of the following reference; “Whether the demand of the union to pay Bonus @ 8.33% for the financial year 2010-11 to 2015-16 to the workman Sri Dillip Kumar Parida, Ex-Security Guard by the mgt. of M/s. Oriental Security Services the during establishment of PE i.e. IGNOU as per provision of law is legal and justified? If so, what relief the workman is entitled to.” the period of his employment at 3. It is submitted that the Opposite Party No.1-Workman filed his statement of claim stating that he was not paid bonus for the financial year 2010-11 to 2015-16 @ 8.33%. The Petitioner-Management took a specific stand before the CGIT that the opposite party No.1 being engaged in an educational institution is not entitled to bonus in view of Section 32 (v)(b) of the Payment of Bonus Act, 1965 (for brevity “the Act”). The relevant portion of Section-32 reads as under; “Section-32- Act not to apply to certain classes of employees.- Nothing in this Act shall apply to- XXX XXX (v) employees employed by- (a) …. (b) universities and other educational institutions……” … …. …. Page 2 of 5 4. It is his submission that Opposite Party No.1 was deployed at IGNOU, which is a University for which he is not entitled to the bonus. The CGIT did not take the same into consideration and passed the impugned award directing the Petitioner-Management to pay the arrear bonus within a period of two months from the date of publication of the award in the Official Gazette. Hence, this writ application has been filed. 5. It is also his submission that while adjudicating the reference, the CGIT recorded a specific finding and observed that the IGNOU being the principal employer should pay the bonus to the Petitioner-Management which should thereafter be paid to the Opposite Party No.1-Workman. It is erroneously held that an educational institution being an ‘industry’ under the Industrial Disputes Act, 1947, the provisions of the Act may be attracted which is per se illegal being contrary to the aforesaid provision of law. He, therefore, prays for setting aside the impugned award. 6. Mr. Baral, learned counsel for submits that the Opposite Party No.1-Workman is an employee of the Petitioner- Management. The Petitioner-Management being an outsourcing agency deployed the Opposite Party No.1 at Opposite Party No.2-University. Thus, the rider under Section 32 (v)(b) of the Act is not applicable to the case of the Opposite Party No.1. He further submits that in view of the agreement dated 15th January, 2016 (Annexure-1) arrived at between Petitioner, Opposite Party No.1 and Opposite Party No.2 under Section Page 3 of 5 12(3) of the Industrial Disputes Act, 1947, Opposite Party No.1-Workman is entitled to get minimum bonus @ 8.33%. Thus, the CGIT has committed no error in directing the Petitioner to make the payment of arrear bonus. 7. Mr. Bose, learned counsel for opposite party No.2 submits that there is no agreement between the Petitioner and Opposite Party No.2 to pay bonus to the employees deployed in IGNOU. It is also not the case of the Opposite Party No.1- Workman that since the Management has not paid the bonus, it should be paid by the principal employer-Opposite Party No.2. The observation made by the Tribunal is only a clarification with regard to the provision under Contract Labour Regulation (Abolition), Act. As such, it has got no binding effect of the Opposite Party No.2 in view of the specific direction made by the CGIT. He, therefore, submits that the Petitioner- Management is only liable to pay the bonus. 8. Considering the rival contentions of the parties, this Court finds that undisputedly, the Opposite Party No.1- Workman is an employee of the Petitioner-Management which is a Security Service Agency. It provided manpower service to IGNOU by deploying the Petitioner. Thus, the restriction under Section 32(v)(b) of the Act is not applicable to the case of the Petitioner-Management, which is neither a University nor an educational institution. In addition to above, there was an agreement between the Petitioner-Management and Opposite Party Nos.1 and 2 to make payment of minimum bonus @ Page 4 of 5 8.33% to the Opposite Party No.1-Workman. Considering the materials on record, learned CGIT came to a categorical conclusion that Opposite Party No.1-Workman is entitled to payment of bonus and it is to be paid by the Petitioner- Management. 9. In view of the discussions made above, we find no infirmity in the said direction in the award under Annexure-4. Accordingly, the writ petition being devoid of any merit stands dismissed. (K.R. Mohapatra) Judge Judge Balaram (R.K. Pattanaik) Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-Sep-2023 10:03:23 Page 5 of 5