PAYMENT OF BONUS ACT, 1965 (GUJARAT AMENDMENT)

Section 2 - Section 2

 

 In this Act, unless the context otherwise requires,-

 

(1)     "accounting year" means-

(i)       in relation to a corporation, the year ending on the day on which the books and accounts of the corporation are to be closed and balanced;

(ii)      in relation to a company, the period in respect of which any profit and loss account of the company laid before it in annual general meeting is made up, whether that period is a year or not;

(iii)     in any other case-

(a)      the year commencing on the 1st day of April; or

(b)      if the accounts of an establishment maintained by the employer thereof are closed and balanced on any day other than the 31st day of March, then, at the option of the employer, the year ending on the day on which its accounts are so closed and balanced:

Provided that an option once exercised by the employer under paragraph (b) of this sub-clause shall not again be exercised except with the previous permission in writing of the prescribed authority and upon such conditions as that authority may think fit;

 

(2)     "agricultural income" shall have the same meaning as in the Income-tax Act;

(3)     "agricultural income-tax law" means any law for the time being in force relating to the levy of tax on agricultural income;

(4)     "allocable surplus" means-

 

(a)      in relation to an employer, being a company [1] [(other than a banking company)] which has not made the arrangements prescribed under the Income-tax Act for the declaration and payment within India of the dividends payable out of its profits in accordance with the provisions of section 194 of that Act, sixty-seven per cent of the available surplus in an accounting year;

(b)      in any other case, sixty per cent of such available surplus;[2] [***]

(5)     "appropriate Government" means-

(i)       in relation to an establishment in respect of which the appropriate Government under the Industrial Disputes Act, 1947 (14 of 1947), is the Central Government, the Central Government;

(ii)      in relation to any other establishment, the Government of the State in which that other establishment is situate;

(6)     "available surplus" means the available surplus computed under section 5

(7)     "award" means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Tribunal constituted under the Industrial Disputes Act, 1947 (14 of 1947), or by any other authority constituted under any corresponding law relating to investigation and settlement of industrial disputes in force in a State and includes an arbitration award made under section 10A of that Act or under that law;

(8)     "banking company means a banking company as defined in section 5 of the Banking Companies Act, 1949 (10 of 1949), and includes the State Bank of India, any subsidiary bank as defined in the Slate Bank of India (Sub?sidiary Banks) Act, 1959 (38 of 1959), [3] [any corresponding new bank specified in the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970), [4] [any corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980),] any co-operative bank as defined in clause (bii) of section 2 of the Reserve bank of India Act, 1934 (2 of 1934),] and any other banking institution which may be notified in this behalf by the Central Government;

(9)     "company" means any company as defined is section 3 of the Companies Act, 1956 (1 of 1956), and includes a foreign company within the meaning of section 591 of that Act

(10)   "co-operative society means a society registered or deemed to be registered under the Co-operative Societies Act, 1912 (2 of 1912), or any other law for the time being in force in any State relating to co-operating societies;

(11)   "corporation" means any body corporate established by or under any Central, Provincial or State Act but does not include a company or a co-operative society;

(12)   "direct tax" means-

(a)      any lax chargeable under-

(i)       the Income-tax Act;

(ii)      the Super Profits Tax Act, 1963 (14 of 1963);

(iii)     the Companies (Profits) Surtax Act, 1964 (7 of 1964);

(iv)    the agricultural income-tax law; and

(b)      any other tax which, having regard to its nature or incidence, may be declared by the Central government, by notification in the Official Gazette, to be a direct tax for the purposes of this Act;

(13)   "employee" means any person (other than an apprentice) employed on a salary or wage not exceeding 7[twenty-one thousand rupees] per mensem in any industry to do any skilled or unskilled manual, supervisory, managerial, administrative, technical or clerical work for hire or reward, whether the terms of employment be express or implied;

(14)   "employer includes-

(i)       in relation to an establishment which is a factory, the owner or occupier of the factory, including the agent of such owner or occupier, the legal representative of a deceased owner or occupier and where a person has been named as a manager of the factory under clause (0 of sub-section (1) of section 7 of the Factories Act, 1948 (63 of 1948), the person so named; and

(ii)      in relation to any other establishment, the person who, or the authority which, has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent;

(15)   "establishment in private sector" means any establishment other than an establishment in public sector;

(16)   "establishment in public sector" means an establishment owned, controlled or managed by-

(a)      a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);

(b)      a corporation in which not less than forty per cent of its capital is held (whether singly or taken together) by-

(i)       the Government; or

(ii)      the Reserve Bank of India; or

(iii)     a corporation owned by the Government or the Reserve Bank of India;

(17)   "factory" shall have the same meaning as in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948);

(18)   "gross profits" means the gross profits calculated under section 4;

(19)   "Income-tax Act" means the income-tax Act, 1961, (43 of 1961);

(20)   "prescribed" means prescribed by rules made under this Act;

(21)   "salary or wage" means all remuneration (other than remuneration in respect of over-time work) capable of being expressed in terms of money, which would, if the terms of employment, express or implied, were fulfilled, be payable to an employee in respect of his employment or of work done in such employment and includes 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), but does not include-

(i)       any other allowance which the employee is for the time being entitled to;

 

(ii)      the value of any house accommodation or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of food grains or other articles;

(iii)     any travelling concession;

(iv)    any bonus (including incentive, production and attendance bonus);

(v)      any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the employee under any law for the time being in force;

(vi)    any retrenchment compensation or any gratuity or other retirement benefit payable to the employee or any ex gratia payment made to him;

(vii)   any commission payable to the employee.

Explanation. -Where an employee is given in lieu of the whole or part of the salary or wage payable to him, free food allowance or free food by his employer, such food allowance or the value of such food shall, for the purpose of this clause, be deemed to from part of the salary or wage of such employee;

 

(22)   words and expressions used but not defined in this Act and defined in the Industrial Disputes Act, 1947 (14 of 1947), shall have the meanings respectively assigned to them in that Act.

[STATE AMENDMENTS

 

[Gujarat

 

[5] [In Section 2

 

The words "ten thousand rupees", the words "twenty-one thousand rupees" shall be substituted.]]]

 

Section 12 - Calculation ofbonuswith respect to certain employees

 

[6] [12. Calculation of bonus with respect to certain employees.--

Where the salary or wage of an employee exceeds [7] [seven thousand rupees or the minimum wage for the scheduled employment, as fixed by the appropriate Government, whichever is higher]  per mensem, the bonus payable to such employee under section 10 or, as the case may be, under section 11, shall be calculated as if his salary or wage were [8] [seven thousand rupees or the minimum wage for the scheduled employment, as fixed by the appropriate Government, whichever is higher] per mensem.]

 

[9] [Explanation.-For the purposes of this section, the expression ''scheduled employment'' shall have the same meaning as assigned to it in clause (g) of section 2 of the Minimum Wages Act, 1948 (11 of 1948)]

 

[STATE AMENDMENTS

 

[Gujarat

 

In Section 6

 

[10] [(i) for the words "three thousand and five hundred rupees" at both the places where they occur, the words "seven thousand rupees or the minimum wage for the scheduled employment, as fixed by the appropriate Government, whichever is higher" shall respectively be substituted;]

 

[11] [(ii) the following Explanation shall be inserted at the end, namely:-

 

'Explanation:-For the purposes of this section, the expression "scheduled employment" shall have the same meaning as assigned to it in clause (g) of Sec. 2 of the Minimum Wages Act, 1948 (11 of 1948).']]]

Section 26 - Maintenance of registers, records, etc

Every employer shall prepare and maintain such registers, records and other documents in such form and in such manner as may be prescribed.

 

(1)     If the person committing an offence under this Act is a company, the company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of the commission of the offence shall be deemed to be guilty of the

offence and shall be liable to be proceeded against and punished accordingly :

 

Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

 

(2)      Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or that the commission of the offence is attributable to any neglect on the part of any director, manager, managing agent or any other officer of the company, such director, manager, managing agent or such other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

 

Explanation.-- For the purposes of this section--

 

(a)      "company" means any body corporate and includes a firm or other association of individuals; and

(b)      "director" in relation to a firm, means a partner in the firm.

[STATE AMENDMENTS

 

[Gujarat

 

[12] [After Section 26

 

The following section shall be inserted, namely:-

 

"34A.  Compounding of offences

 

(1)     Any offence punishable under sub-section (1) of section 29, section 31 and section 32 may, either before or after the institution of the prosecution, on an application by the alleged offender, be compounded by such officer or authority as the State Government may, by notification in the Official Gazette, specify in this behalf for the amount of rupees five thousand:

 

Provided that the State Government may, by notification in the Official Gazette, amend the compounding amount specified above:

Provided further that the offence committed of the same nature shall be compoundable only for the first three offences:

 

Provided also that such offences shall be compounded only after the alleged offender has acted to the satisfaction of such officer or authority that such offence is not continued any further:

 

Provided also that when an offence is compounded on an application by the employer, then seventy-five per cent. of the compounding amount received from him, shall be paid wherever it is feasible to the concerned worker or equally amongst the workers and if any workmen are not identifiable then the remaining amount shall be deposited in the Gujarat State Social Security Board constituted under the Unorganised Workers' Social Security Act, 2008 (33 of 2008).

 

(2)     Where an offence has been compounded under sub-section (1), no further proceedings shall be taken against the offender in respect of such offence and the offender, if in custody, shall be discharged.".]]]

Section 29 - Offences by companies

(1)     If the person committing an offence under this Act is a company, every, person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

 

Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

 

(2)     Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. 

 

Explanation.--For the purposes of this section,--

 

(a)      "company" means any body corporate and includes a firm or other associa?tion of individuals; and

(b)      "director", in relation to a firm, means a partner in the firm.

 

[STATE AMENDMENTS

 

[Gujarat

 

[13] [After Section 29

 

The following section shall be inserted, namely:-

 

"29A. Compounding of offences

 

(1)     Any offence punishable under this Act or the rules made thereunder may, either

before or after the institution of the prosecution, on an application by the alleged offender, be compounded by such officer or authority as the State Government may, by notification in the Official Gazette, specify in this behalf for such amount as specified in the Table below:

 

TABLE

 

Provided that the State Government may, by notification in the Official Gazette, amend the compounding amount specified in the Table above:

 

Provided further that the offence committed of the same nature shall be compoundable only for the first three offences:

 

Provided also that such offences shall be compounded only after the alleged offender has acted to the satisfaction of such officer or authority that such offence is not continued any further:

 

Provided also that when an offence is compounded on an application by the employer, then seventy-five per cent. of the compounding amount received from him, shall be paid to the concerned employee or equally amongst the employees and if any employees are not identifiable, then the remaining amount shall be deposited in the Gujarat State Social Security Board constituted under the Unorganised Workers' Social Security Act, 2008 (33 of 2008).

 

(2)     Where an offence has been compounded under sub-section (1), no further proceedings shall be taken against the offender in respect of such offence and the offender, if in custody, shall be discharged.".]]]

Section 38 - Power to make rules

[14] [(1) The Central Government may, subject to the condition of previous publication, by notification in the Official Gazette, make rules to carry out the provisions of this Act.]

 

(2)    In particular, and without prejudice to the generality of the foregoing power, such rules may provide for--

 

(a)      the authority for granting permission under the proviso to sub-clause (iii) of clause (1) of section 2 ;

(b)      the preparation of registers, records and other documents and the form and manner in which such registers, records and documents may be maintained under section 26 ;

(c)      the powers which may be exercised by an inspector under clause (e) of sub?section (2) of section 27 ;

(d)      any other matter which is to be, or may be, prescribed.

 

(3)   Every rule made under this section shall be laid as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days, which may be comprised in one session [15] [or in two or more successive sessions], and if before the expiry of the session [16] [immediately following the session or the successive sessions aforesaid], both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

 

[STATE AMENDMENTS

 

[Gujarat

 

[17] [In Section 38

 

The following sub-section shall be substituted, namely:-

 

"(1) The Central Government may, subject to the condition of previous publication, by notification in the Official Gazette, make rules to carry out the provisions of this Act.".]]]