THE PAYMENT OF BONUS ACT, 1965 - FAQ
B.Sc., LL.B., FCS., FCMA.,
1) What is the Object of the Payment of Bonus Act, 1965?
The object of the Act is to maintain peace and harmony between labour and capital by allowing the employees to share the prosperity of the establishment reflected by the profits earned by the contributions made by capital, management and labour.
2) To which establishments is the Act applicable?
The Act is applicable to:
a. (a) every factory
b. (b) every other establishment employing 20 or more persons.
The Government can, however, apply the Act to any establishment employing less that 20 but not less than 10 persons. An establishment to which the Act applies shall continue to be governed by the Act irrespective of any fall in the number of person employed therein. {Section 1}
3) Are the establishments in public sector covered by the Act?
According to sub-section (2) of Section 20, save as otherwise provided in sub-section (1), nothing in the Act shall apply to the employees employed by any establishment in public sector. By the said sub-section (1) the provisions of the Act are made applicable in relation to an establishment in public sector which sells any goods produced or manufactured by it or renders any services in competition with an establishment in private sector and earns income from such sale or services or both an quantified in the said sub-section.
4) Who are entitled to be paid bonus?
Every employee who is drawing a salary or wage upto ` 10000.00 per month (w.e.f. 1-4-2006) and who has worked for minimum period of 30 days in a year is entitled to be paid bonus. {Section 2(13) & 8}
5) Is the ceiling limit of a salary or wage of an employee fixed under Section 2(13) of the Act illegal and invalid?
The provision imposing the ceiling is constitutionally valid.
6) Can an employee be held ineligible for payment of Bonus under the Act on the ground that he is a managerial employee?
An employee, irrespective of whether he is managerial or not, so long as he came within the definition of employee by virtue of drawing salary falling within the maximum prescribed under Section 2(13) of the Act, he would be eligible for payment of bonus under the Act.
7) Is a seasonal worker entitled to get bonus?
Section 8 relates to the eligibility for bonus. The only requirement of that section is that the employee should have worked in an establishment for not less than thirty working days in an accounting year. Therefore, if a seasonal worker has worked in an establishment for more than thirty working days, he shall be entitled to get bonus.
8) What is to be included in and excluded from a salary or wage for the purpose of calculating bonus?
For the purpose of calculation of bonus a salary or wage includes a basic salary or wage and dearness allowance but does not include other allowances, overtime salary or wage, house rent allowance, traveling concessions, bonus, employer's contribution to provident fund, retrenchment compensation, gratuity or commission. {Section 2(21)}
9) Is an employee entitled to get bonus on the basis of his entire salary or wage?
If an employee is drawing a salary or wage not exceeding ` 3,500.00 per month, he is entitled to get bonus on his entire salary or wage. If an employee is getting a salary or wage exceeding3500.00 per month, but not exceeding ` 10000.00 per month, the bonus payable to him is to be calculated as if his salary or wage were ` 3500.00 per month. An employee getting a salary or wage exceeding ` 10000.00 per month is not entitled to get bonus. {Section 12}
10)What is the amount of minimum bonus payable by the employer to his employees every year?
The employer is bound to pay to his employees every year a minimum bonus of 8.33% of the salary or wage or `100.00, whichever is higher, whether be has any allocable surplus or not. {Section 10}
11)What is the amount of maximum bonus payable by the employer to his employees in any year?
When in any year the allocable surplus exceeds the amount of minimum bonus payable to the employees, the maximum bonus payable by the employer to his employees in that year is 20% of the salary or wage. {Section 11}
12)What is the meaning of "available surplus" and "allocable surplus" and What is the connection between allocable surplus and bonus?
Bonus payable under the Act is linked with profits. The employer has to calculate "gross profits" of his establishment in the manner specified in section 4. Then from "gross profits" so calculated he has to deduct the sums referred to in section 6 as prior charges. The balance is called "available surplus". A percentage of the available surplus calculated in accordance with the provisions of sub-section (4) of section 2 is called "allocable surplus". Where, in respect of any year the allocable surplus exceeds the amount of minimum bonus payable to the employees, the employer must pay to every employee in respect of that year bonus in proportion to the salary or wage earned by the employee during the year subject to a maximum of twenty percent of such salary or wage. {Subsection 2(4), 4 , 5, 6 & 11}
13)What is the principle behind fixing a minimum and maximum limit for payment of bonus?
The principle behind fixing a minimum and maximum limit for payment of bonus is that the rate of bonus should not fluctuate widely from year to year.
14)What is the principle of set on and set off of allocable surplus?
The principle of set on and set off of allocable surplus is as follows:
Where for any year the allocable surplus exceeds the amount of maximum bonus payable to the employees, then, the excess shall, subject to a limit of twenty percent of the total salary or wages of the employees, be carried forward for being set on in the succeeding year and so on to be utilized for the purpose of payment of bonus.
Where for any year there is no available surplus, or the allocable surplus in respect of that year falls short of the amount of minimum bonus payable to the employees, and there is no amount or sufficient amount carried forward and set on which could be utilized for the purpose of payment of the minimum bonus, then, such minimum amount or the deficiency, as the case may be, shall be carried forward for being set off in the succeeding year and so on. {Section 15}
15)Can any amount be deducted from the bonus?
(1) If in any year the employer has paid any amount to an employee as customary bonus, then he can deduct such amount from payable to the employee for that year.
(2) If an employee is found guilty of misconduct causing financial loss to the employer, then the employer can deduct the amount of loss from the amount of bonus payable to the employee for the year in which he was found guilty of misconduct. {Subsection 17 & 18}
16)What is the meaning of customary bonus?
Customary bonus is bonus which is being paid by way of tradition or custom at a uniform rate over a number of years and which has no link with profit.
17)What is the time limit for making payment of bonus to the employees?
If there is no dispute about payment of bonus, bonus must be paid within a period of 8 month from the close of the accounting year. If there is a dispute about the payment of bonus pending before any authority, bonus must be paid within one month from the date on which the award in respect of such dispute becomes enforceable or the settlement in respect of such dispute comes into operation. In all cases bonus must be paid in cash. {Section 19}
18)What is the remedy provided under the Act for recovering bonus due but not paid?
If any bonus is due to an employee under a settlement, award or agreement, he can make an application for its recovery to the Government and the Government may issue a certificate to the Collector to recover the same as an arrear of land revenue. Such application should be made within one year from the date on which bonus became due to the employee from the employer. {Section 21}
19)How to raise a dispute about bonus payable under the Act?
A dispute about bonus payable under the Act will have to be raised by the employees concerned in accordance with the provisions of the Industrial Disputes Act, 1947, or any corresponding State law, as is applicable to them, as such a dispute is deemed to be an industrial dispute within the meaning of such laws. {Subsection 22 & 39}
20)What are the offences under the Act and what is the punishment for them?
If any person contravenes any provision of the Act or any rule made thereunder; or fails to comply with any direction given to him; he would be punished with imprisonment upto 6 months, or with fine upto ` 1000.00 or with both. {Section 28}
21)Is it open to the employer to pay bonus based on production or productivity?
It is open to any employer to pay bonus linked with production or productivity instead of bonus based on profits, if there is an agreement to that effect between him and his employees, but subject to the provisions of the Act in respect of payment of minimum and maximum basis. {Section 31A}
22)Are there any categories of employees who are excluded from the application of the Act?
The employees of Life Insurance Corporation of India, Reserve Bank of India, Unit Trust of India, Central Government and State Government industrial establishments and Universities and other educational institutions are some of the excluded categories. {Section 32}
23)Is it open to employees and employers to agree for grant of bonus under a formula different from that under the Act?
Employees can enter into an agreement or a settlement with their employer for granting them bonus under a formula different from that under the Act, i.e. bonus linked with production or productivity; but subject to the provisions of the Act in respect of payment of minimum and maximum bonus. {Subsection 31A & 34}
24)Can workmen of an establishment claim the bonus payable under the Payment of Bonus Act, 1965, over and above attendance bonus?
As attendance bonus which was being paid by the establishment was outside the purview of the Payment of Bonus Act, 1965, workmen of the establishment can claim the bonus payable under the Act over and above the attendance bonus.
25)Is the Government competent to exempt any establishment from the mandatory provision of the Act regarding payment of minimum bonus?
Both sections 10 and 36 are contemporaneous provisions in the Act. It is patent from the phraseology of section 36 that the Government has the competence to exempt any establishment even from section 10 notwithstanding that section 10 is mandatory.
26)Is it permissible under the Act to exempt any establishment from the provisions of the Act?
The Act permits the Government to exempt any establishment from all or some of the provisions of the Act for a specified period and subject to specified conditions if, having regard to the financial position and other relevant circumstances of the establishment, it is of opinion that it will be in public interest to do so. {Section 36}
27)Can an establishment whose application under Section 36 of the act for exemption for a particular period is rejected by the Government, make a second application for the same period?
The Government has no power to entertain the second application for the same period.
28)Is an establishment employing employees to whom the Payment of Bonus Act is not applicable because of Section 32 of the Act required to seek any specific exemption under Section 36 of the Act?
An exemption under Section 36 of Act from all or any of the provisions of the Act may be sought by an establishment to which the Act is applicable and whose employees are otherwise entitled to bonus. In the case of establishment employing employees to whom the Act is not applicable because of Section 32, the question of seeking any specific exemption under Section 36 of the Act does not arise.
29)Are the newly set up establishments exempted from paying bonus to their employees?
The newly set up establishment is exempted from paying bonus to its employees in the first five years following the year in which the employer sells the goods produced or manufactured by him. If, however, the employer derives profit in any of the first five year, he has to pay bonus for that year. The provisions of set on and set off are not applicable in such cases. {Section 16}
30)Can an establishment be deemed to be newly set up by reason of a change in the ownership of the establishment?
When the ownership of an establishment is transferred from one person to another, the establishment remains the same and it cannot be said to be a new establishment in the hands of the transferee.
31)In what circumstances an employee is disqualified from receiving bonus?
If an employee is dismissed from services for (a) fraud; (b) riotous or violent behaviour while on the premises of the establishment; (c) theft, misappropriation, or sabotage of any property of the establishment; he is disqualified form receiving bonus. {Section 9}
32)Is an employee, who is illegally dismissed from service and whose dismissal is set aside by the Labour Court, entitled to get bonus for the years during which he was out of service due to the dismissal, despite the provision of Section 8 of the Act that an employee is entitled to be paid in an accounting year, bonus provided he has worked in the establishment for not less than thirty working days in that year?
Section 8 of the Act speaks of an employee working in the establishment for not less than thirty working days in an year to make him eligible for bonus for that year. But, when an employee, for no fault of his and involuntary, is prevented from working in the establishment for the prescribed number of days, it does not axiomatically follow that he is ineligible for bonus.
33)Is an employee, who is dismissed from service on the ground that he had committed theft, fraud and dishonesty in connection with the business of the establishment in the accounting year 1984-85, disqualified from claiming bonus for the accounting year 1981-82?
If the employee is entitled to bonus for the accounting year 1981-82, the employer cannot say that the payment will not be made because the employee is dismissed on some future date.
34)Is an employee entitled to be paid bonus for the period during which he is laid off and is paid lay off compensation?
According to section 14 of the Act an employee shall be deemed to have worked on the days on which he has been laid off. During the period of lay-off he is paid lay-off compensation which is not excluded from the purview of the definition of wages under the Act. He is therefore entitled to be paid bonus for the period.
35)Is an employee entitled to be paid bonus for the period during which he is suspended from employment and is paid subsistence allowance?
An employee must be taken to have not worked during the period of his suspension. During the period of his suspension he is paid subsistence allowance which is not salary or wages for work done and which is not an amount paid by way of remuneration. He is therefore entitled to be paid bonus for the period.
36)If a management has a number of departments, undertakings or branches, should they be treated as separate establishments or as one composite establishment?
If an establishment consists of different departments or undertakings or has branches, whether situated in the same place or in different places, unless a separate balance-sheet and profit and loss account are prepared and maintained in respect of them, all such departments of undertakings or branches should be treated as parts of the same establishment for the purpose of computation of bonus, and once they are treated as parts of the same establishment, they should be continued to be treated as such. {Section 3}
37)Is the employer required to maintain any registers under the Act?
Every employer is required to maintain, in the prescribed form, the following three registers:
a. a register showing the computation of the allocable surplus;
b. a register showing the set-on and set-off of the allocable surplus;
c. a register showing the details of the amount of bonus payable to each of employees, the amount of deductions if any, and the amount actually paid.
The employer is also required to send, in the prescribed form, an annual return to the Inspector appointed under the Act. The time limit for sending the annual return is thirty days from the expiry of the time limit specified in section 19 for payment of bonus. {Section 26 & Rule 4 and 5}
[Published in 'Jurisonline' during MAY,2012]
[Published in 'Jurisonline' during MAY,2012]
Answer for Question No. 35.
ReplyDeletePl. clarify whether "he is therefore entitled or not entitled to be paid bonus for that period"