TMI Blog2003 (12) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;Act'). The appellant transacts its business mainly through Primary Banks which are its members. The members of the Apex Bank belonging to the area of operation of the particular Primary Bank automatically become members of the concerned Primary Bank from the date of registration. Staff of the Primary Banks except class IV employees are drawn from the Apex Bank out of the cadre maintained by it in terms of clause 70 of the model by- laws applicable to the Primary Banks. The respondent no.1-union raised a demand stating that it is entitled to bonus at the rate applicable to employees of the Apex Bank. The claim was resisted by the Primary Banks on the ground that they are separate entities with separate Balance Sheet and Profit and Loss accounts and have a distinct cooperative and corporate identity under the Act and, therefore, is not required to pay bonus at the same rate as the employees of the Apex Bank in terms of Payment of Bonus Act, 1965 (in short 'the Act'). Accepting the writ petition filed by respondent no.1-union, learned Single Judge of the Punjab and Haryana High Court directed payment of bonus at the rate payable to the staff working with the Apex Bank, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ches, whether situated in the same place or in different places, all such departments or undertakings of branches shall be treated as parts of the same establishment for the purpose of computation of bonus under this Act. Provided that where for any accounting year a separate balance sheet and profit and loss account are prepared and maintained in respondent of any such department or undertaking or branch then, such department or undertaking or branch shall be treated as a separate establishment for the purpose of compensation of bonus under this Act for that year, unless such department or undertaking or branch was immediately before the commencement of that account year treated as part of the establishment for the purpose of computation of Bonus. 10. Payment of Minimum Bonus Subject to the other provisions of this Act, every employer shall be bound to pay to every employee in respect of the accounting year commencing on any day in the year 1979 and in respect of every subsequent accounting year a minimum bonus which shall be 8.33 per cent of the salary or wage earned by the employee during the accounting year or one hundred rupees, whichever is higher, whether or not the em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evious period such department or undertaking or branch was treated as a part of the establishment for the purpose of computation of bonus. Similarly, third proviso to Section 34 deals with modalities for working out entitlement for bonus. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Survey [1880 (5) QBD 170, (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha (AIR 1961 SC 1596) and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta (AIR 1965 SC 1728); when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the gross profit such amounts as are detailed in Section 6 of the Act. The inevitable result is that the gross profit has to be worked out and therefrom the prior charges mentioned in clauses (a) to (d) of Section 6 are to be deducted. Gross profit is determined in terms of Section 4 of the Act. In case of non-banking companies, it is calculated in the manner prescribed in the Second Schedule while in case of banking company it is calculated in the manner specified in the First Schedule. The payment of minimum bonus is provided in Section 10 of the Act and is fixed at 8.33 percentage of the salary or wages earned by the employee. The entitlement of higher bonus comes in case the allocable surplus permits payment of higher bonus in terms of the applicable formula. A reading of the impugned judgment shows that the High Court was of the view that Rule 21 had overriding effect vis-vis Section 34, by referring to Section 34-A of the Act. The view is clearly untenable. Rule 21 was interpreted to mean as if all other provisions of the Act had to give way to Rule 21. It is really not so. Sections 34 and 34-A make the position clear. The Primary Banks have independent corporate existenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
