Dismissed

Subhash Chand v. Raj.Rajya Sahkari Tilhan Utpadak Sangh

Rajasthan HC4 Nov 2009CW/1626/1996

Case brief

AI extract

What is this about?

In this writ petition, employees of Rajasthan Rajya Sahkari Tilhan Utpadak Sangh challenged an order refusing bonus on grounds of discrimination and non-eligibility. The Court held that as the employer is a 'relief undertaking' under the 1961 Act, legal proceedings are suspended, barring writ jurisdiction, especially as no fundamental right to livelihood was infringed.

What did the court decide?

The writ petition was dismissed due to lack of jurisdiction and suspendability of legal proceedings against the relief undertaking.

Subhash Chand Vs Raj.Rajya Sahkari Tilhan… — Pension and Retirement Benefits | Rajasthan HC (2009)

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CW 1626/96

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//1//

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In the High Court of Judicature for Rajasthan Jaipur Bench **

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Civil Writ Petition No.1626/1996 Subhash Chand & Others Versus Rajasthan Rajya Sahkari Tilhan Uptpadak Sangh Limited (Tilam Sangh), Jaipur & Anr

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Date of Order ::: 04/11//09

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Hon'ble Mr. Justice Ajay Rastogi

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Mr. Nishant Vyas, for petitioners Ms Anisha Jain, for respondents

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Instant petition has been jointly
filed by (31) petitioners who are employees of
respondent-Rajasthan Rajya Sahkari Tilhan
Utpadak Sangh Limited (“Tilam Sangh”), Jaipur,
assailing order dt.20/10/95 (Ann.2) whereby
two conditions have been stipulated for grant
of bonus @ 8.33% for the year 1994-95 under
Payment of Bonus Act, 1965 (“Bonus Act”).

¶9

As alleged, petitioners employees of
respondents-Tilam Sangh which is a society
duly registered under Rajasthan State Co-
operative Societies Act, 1965 on 03/07/90. It
appears from cause title that some of
petitioners were appointed after creation of
respondent-Tilam Sangh, while some of them
were working in RAJFED & in other Co-operative
Societies but their services appear to have
been transferred after creation of Tilam Sangh

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CW 1626/96

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//2//

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under some administrative decision of State
Government.

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Respondent-Tilam Sangh despite having
incurred losses in the year 1992-93, declared
payment of bonus for the year 1992-93 vide
order dt.28/10/1993 (Ann.1). However, there
was no order placed on record for declaration
of bonus for the year 1993-94; but respondent-
Tilam Sangh passed order dt.20/10/95 (Ann.2)
holding that the bonus @ 8.33% for the year
1994-95 shall be payable to employees who
fulfilled conditions referred to therein and
first condition was confined to those having
worked in RAJFED but joined Tilam Sangh on its
creation and second condition related to those

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having completed six years' service as on
31/03/1995.

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Counsel for petitioner submits that
order impugned (Ann.2) is discriminatory and
contrary to law and of Bonus Act, and all such
employees having worked for not less than
thirty days in an accounting year are entitled
to payment of bonus and all the petitioners
being permanent employees having worked in
1992-93 & 1993-94, are entitled for payment of
bonus under Bonus Act, more so when they were

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CW 1626/96

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//3//

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paid bonus in earlier years; and withdrawal
thereof vide order impugned is not legally
sustainable. Counsel further submits that the
Bonus Act is applicable to all the employees
and they are entitled for minimum bonus U/s 10
of Bonus Act @ 8.33% for relevant years in
question – denial whereof is in violation of
Art.14 of the Constitution.

¶19

Respondents filed their reply to the

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petition wherein it has been averred that
respondent-Tilam Sangh is declared to be a
relief undertaking U/s 4 of Rajasthan Relief
Undertaking (Special Provisions) Act, 1961
(“Relief Act”) and is yet “relief undertaking”
for which notification has been issued by
State Government from time to time; as such
present petition is not maintainable. Upon
uplifting “relief undertaking”, remedy U/s 22
of Bonus Act can certainly be availed of by
petitioners, if feel aggrieved.

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It has also been averred that while
respondent-Tilam Sangh is “relief undertaking”
no legal proceedings before any court or
Tribunal could be instituted, as referred to
in S.4(1)(b) with its explanation; remedy

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CW 1626/96 //4//

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U/Art.226 of the Constitution being extra-
ordinary, ordinarily could not have been
availed of by them.

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Apart from preliminary objection, on
merits, it has been further averred that upon
respondent-Tilam Sangh having been created on
03/07/90, one is entitled for payment of bonus
U/s 16 of Bonus Act only if establishment is
running in profit in five accounting years.

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It is clear that as per S.16 only
after fifth year following the accounting year
of sale of goods produced or manufactured by
the employer, the bonus is payable only in
respect of accounting year in which employer
derives profit from such establishment and
such bonus shall be calculated in accordance
with provisions of Bonus Act relating to that
year. In instant case, as per letter dt.
18/01/08 of Rajasthan State Co-operative
Oilseed Growers' Federation Ltd., respondent
Tilam Sangh derived losses in the years 1990-
91 to 2006-2007 except in year 1998-99 –
extract whereof reads ad infra:

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CW 1626/96

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//5//

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 (Sum in Lacs)

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*Year*	*Cash Profit/Loss*	*Net Profit/Loss*
1990-91	(+) 42.04	(-) 109.05
1991-92	(-) 325.37	(-) 530.18
1992-93	(-)1366.66	(-) 1679.77
1993-94	(-)0681.30	(-) 1097.81
1994-95	(-)1267.58	(-) 1956.06
1995-96	(-)1113.87	(-) 1760.29
1996-97	(-)1168.43	(-) 1718.46
1997-98	(-)1462.94	(-) 2040.54
1998-99	(+) 770.53	(+) 196.51
1999-2000	(-) 1460.87	(-) 1998
2000-2001	(-) 1055.70	(-) 1542.56
2001-2002	(-) 0972.96	(-) 1315.44
2002-2003	(-) 0691.07	(-) 0821.82
2003-2004	(-) 0859.81	(-) 0973.15
2004-2005	(-) 0873.81	(-) 0987.09
2005-2006	(-) 0915.17	(-) 1015.19
2006-2007	(-) 0361.29	(-) 0461.28

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Thus, employer Tilam Sangh derived losses in
relevant five accounting years and therefore,
even otherwise, petitioners are not entitled
for payment of bonus under the Bonus Act. As
regards bonus erroneously paid for accounting
year 1992-93, contrary to statute, it will not
confer right to pay the bonus in subsequent
year, and any decision having been taken
erroneously, will not confer further right in
seeking prayer for payment of bonus for
subsequent years, also.

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CW 1626/96

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//6//

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It has not been disputed by Counsel

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for petitioners that respondent-Tilam Sangh is
still “relief undertaking” under notifications
having been issued by State Government from
time to time for an industrial undertaking
being exempted from suit or legal proceedings
and even if pending shall not proceeded with
during the period while it remains “relief
undertaking” as explained in S.4(1)(b) of the
Act, 1961.

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In the facts & circumstances of the
case, remedy available U/s 22 of Bonus Act
could not have been availed of by petitioners
which have constrained them to approached this
Court. Of course, remedy is available to

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petitioners under Bonus Act, which is
ordinarily to be availed of but respondent-
Tilam Sangh being a “relief undertaking”,
certainly statutory remedy could not be
availed of by them during the period, the
establishment remained “relief undertaking”.

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As regards remedy available to
petitioner of invoking extra ordinary
jurisdiction of this Court U/Art.226 of the
Constitution, certainly cannot be said to be
barred or being covered U/s 4 of the Act,
1961. But the facts remains that if in view of

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CW 1626/96

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//7//

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availability of statutory remedy being
suspendedforinstitutingsuit/legal

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proceedings against such establishment which
is “relief undertaking”, whether writ court

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should exercise jurisdiction U/Art.226 of the
Constitution in all situation.

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It is not the case where the

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fundamental rights of petitioners are being
infringed or they are deprived of livelihood
covered U/Art.21 of the Constitution. However,
only question which requires consideration
herein is as to whether petitioners are
entitled for payment of bonus under Bonus Act,
1965. In the opinion of this Court, since
institution of suit or legal proceedings stand

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suspended under the Act, 1961 against
respondent-TilamSanghbeing“relief

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undertaking”, this Court would not like to
exercise its writ jurisdiction U/Art. 226 of
the Constitution, particularly when neither

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their fundamental rights nor right of
livelihood are being infringed.

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In Ishaq Mohd etc. Vs. Jaipur Metals &

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Elect. Ltd (1988(1) RLR 157) this Court
observed that while invoking writ jurisdiction
in case of Company being “relief undertaking”
under the Act, 1961, this Court can entertain

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CW 1626/96

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//8//

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petition and grant relief but in that case,
services of writ petitioners were dispensed

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with after having rendered service for 30
years and they were deprived of their
livelihood in an arbitrary manner.

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In instant case, question raised for
consideration is with regard to entitlement of
payment of bonus which can certainly be
examined by appropriate authority in terms of
mechanism provided U/s 22 of Bonus Act and it
requires appreciation of material on record in
regard to entitlement and as to whether if
they are entitled to payment of bonus, to what
percentage, which can be decided and computed
only after adjudication; more-so when it has

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been alleged that respondent-Tilam Sangh was
deriving losses consistently since the year

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1990 – statement in this regard has been

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placed on record quoted supra. In such
circumstances, this Court would not like to

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exercise its extra-ordinary jurisdiction
U/Art. 226 of the Constitution.

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Consequently, writ petition fails and

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is hereby dismissed.

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( Ajay Rastogi), J.

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K.Khatri/p.8/
1626CW96RsrOctNov4.doc

Subhash Chand v. Raj.Rajya Sahkari Tilhan Utpadak Sangh

Case brief

What is this about?

What did the court decide?

Subhash Chand v. Raj.Rajya Sahkari Tilhan Utpadak Sangh

Case brief

What is this about?

What did the court decide?

What the court decided

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