[An Act to provide for the payment of Bonus to persons employed in certain establishments and for matters connected therewith]
Be it enacted by the Parliament in the sixteenth year of the Republic of India as follows :
1. Short title, extent and application-
This Act may be called the Payment of Bonus Act,1965.
It extends to the whole of India
Save as otherwise provided in this Act, it shall applies to-
every factory; and
every other establishment in which twenty or more persons are employed on any day during an accounting year
Provided that the appropriate Government may, after giving not less than two months’ notice of its intention so to do, by notification in the official gazette
2. Definitions - In this Act, unless the context otherwise requires, -
"Accounting year" means –
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 :
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;
In any other case –
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
Provided that an option once exercised by the employer under para. (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 –
In relation to an employer, being a company other than a banking company which has not made the arrangements prescribed under the Income-tax Act for the declaration and payment within Indian of the dividends payable out of its profits in accordance with the provisions of Sec.194 of that Act, sixty-seven per cent of the available surplus in an accounting year ;
In any other case, sixty per cent of such available surplus
(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, 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 Sec.5 ;
(7) "Award" means an interim or a final determination of any industrial dispute or of any question relating thereto 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 Sec. 10-A of that Act or under that law;
(8) "Banking company" means a banking company as defined in Sec.5 of the Banking Companies Act, 1949 (10 of 1949), and includes the State Bank of India, any subsidiary bank as defined in the State Bank of India (Subsidiary Bank) Act, 1959 (38 of 1959), any corresponding new bank specified in the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, (5 of 1970), any corresponding new bank constituted under Sec.3 of Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980] any co-operative bank as defined in Cl. (bii) of Sec.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 in Sec.3 of the Companies Act, 1956 (1 of 1956), and includes a foreign company within the meaning of Sec.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-operative 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 –
Any tax chargeable under –
The Income-tax Act;
The Super Profits Tax Act, 1963 (14 of 1963);
The Companies (Profits) Surtax Act, 1964 (7 of 1964);
The agricultural income-tax law; and
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 three thousand and five hundred 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 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 Cl. (f) of sub-section (1) of Sec.7 of the Factories Act, 1948, the person 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 section" means any establishment other than an establishment in public sector;
(16) "Establishment in public sector" means an establishment owned, controlled or managed by-
A Government company as defined in Sec. 617 of the Companies Act, 1956 (1 of 1956) ;
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 Cl. (m) of Sec.2 of the Factories Act, 1948 (63 of 1948) ;
(18) "Gross profits" means the gross profits calculated under Sec.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 overtime 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 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 –
Any other allowance which the employee is for the time being entitled to ;
The value of any house accommodation or of such of light, water, medical attendance or other amenity or of any service of any confessional supply of food grains or other articles;
Any traveling concession ;
Any bonus (including incentive, production and attendance bonus) ;
Any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the employees under any law for the time being in force ;
Any retrenchment compensation or any gratuity or other retirement benefit payable to the employees or any ex gratia payment made to him ; (vii) Any commission payable to the employee.
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 form part of the salary or wage of such employees.
(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.
3. Establishments to include departments, undertakings and branches - Where an establishment consists of different departments or undertakings or has branches, whether situated in the same place or in different places, all such departments or undertakings or 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 respect of any such department or undertaking or branch, then, such department or undertaking or breach shall be treated as separate establishment for the purpose of computation of bonus under this Act for that year, unless such department or undertaking or branch was immediately before the commencement of that accounting year treated as part of the establishment for the purpose of computation of bonus.
4. Computation of gross profits. –
The gross profits derived by an employer from an establishment in respect of any accounting year shall -(a) In the case of a banking company, be calculated in the manner specified in the First Schedule ;
(b) In any other case, be calculated in the manner specified in the Second Schedule.
5. Computation of available surplus –
The available surplus in respect of any accounting year shall be the gross profits for that year after deducting there from the sums referred to in Sec.6.:
Provided that the available surplus in respect of the accounting year commencing on any day in the year 1968 and in respect of every subsequent accounting year shall be the aggregate of –
The gross profits for that accounting year after deducting there from the sums referred to in Section 6 ; and
An amount equal to the difference between –
(i) The direct tax, calculated in accordance with the provisions of Section 7, in respect of an amount equal to the gross profits of the employer for the immediately preceding accounting year; and
(ii) The direct tax, calculated in accordance with the provisions of Section 7, in respect of an amount equal to the gross profits of the employer for such preceding accounting year after deducting there from the amount of bonus which the employer has paid or is liable to pay to his employees in accordance with the provisions of this Act for that year.]
6. Sums deductible from gross profits –
The following sums shall be deducted from the gross profits as prior charges, namely :
Any amount by way of depreciation admissible in accordance with the provisions of sub-section (1) of Section 32 of the Income-tax Act, or in accordance with the provisions of the agricultural Income-tax law, as the case may be
Provided that where an employer has been paying bonus of his employees under a settlement or an award or agreement made before the 29th May, 1965, and subsisting on that date after deducting from the gross profits notional normal depreciation, then the amount of depreciation to be deducted under this clause shall, at the option of such employer (such option to be exercised once and within one year from that date) continue to be such notional normal depreciation;
Any amount by way of development rebate or investment allowance or development allowance which the employer is entitled to deduction from his income under the Income-tax Act ;
Subject to the provisions of Section 7, any direct tax which the employer is liable to pay for the accounting year in respect of his income, profits and gains during the year ;
Such further sums as are specified in respect of the employer in the Third Schedule.
7. Calculation of direct tax payable by the employer –
Any direct tax payable by the employer] for any accounting year shall, subject to the following provisions, be calculated at the rates applicable to the income of the employer for that year, namely :
In calculating such tax no account shall be taken of –
Any loss incurred by the employer in respect of any previous accounting year and carried forward under any law for time being in force relating to direct taxes ;
Any arrears of depreciation which the employer is entitled to add to the amount of the allowance for depreciation for any following accounting year or years under sub-section (2) of Section 32 of the Income-tax Act ;
Any exemption conferred on the employer under Section 84 of the Income-tax Act or of any deduction The Orient Tavern which he is entitled under sub-section (1) of Section 101 of that Act, as in force immediately before the commencement of the Finance Act, 1965 (10 of 1965) ;
(b)Where the employer is a religious or a charitable institution to which the provisions of Section 32 do not apply and the whole or any part of its income is exempt from tax under the Income-tax Act, then, with respect The Orient Tavern the income so exempted, such institution shall be treated as if it were a company in which the public are substantially interested within the meaning of that Act ;
(c) Where the employer is an individual or a Hindu undivided family, the tax payable by such employer under the Income-tax Act shall be calculated on the basis that the income derived by him from the establishment is his only income ;
(d) Where the income of any employer includes any profits and gains derived from the export of any goods or merchandise out of India any rebate on such income is allowed under any law for the time being in force relating to direct taxes, then, no account shall be taken of such rebate ;
(e) No account shall be taken of any rebate [(Note: Subs. by Act 66 of 1980) other than development rebate or investment allowance or development allowance)] or credit or relief or deduction (not hereinafter mentioned in this section) in the payment of any direct tax allowed under nay law for the time being in force relating to direct taxes or under the relevant annual Finance Act, for the development of any industry.
8. Eligibility for bonus –
Every employee shall be entitled to be paid by his employer in an accounting year, bonus, in accordance with the provisions of this Act, provided he has worked in the establishment for not less than thirty working days in that year.
9. Disqualification for bonus –
Notwithstanding anything contained in this Act, an employee shall be disqualified from receiving bonus under this Act, if he is dismissed from service for-
(a) fraud; or
(b) riotous or violent behaviour while on the premises of the establishment; or
(c) theft, misappropriation or sabotage of any property of the establishment.
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 employer has any allocable surplus in the accounting year :
Provided that there an employee has not employed fifteen years of age at the beginning of the accounting year, the provision of this section shall have effect in relation to such employee as if for the words "one hundred rupees", the words "sixty rupees" were substituted.
11. Payment of maximum bonus - (1) Where in respect of any accounting year referred to in Sec.10, the allocable surplus exceeds the amount of minimum bonus payable to the employees under that section, the employer shall, in lieu of such minimum bonus, be bound to pay to every employee in respect of that accounting year bonus which shall be an amount in proportion to the salary or wage earned by the employee during the accounting year subject to a maximum of twenty per cent of such salary or wage.
(2) In computing the allocable surplus under this section, the amount set on or the amount set-off under the provisions of Sec.15 shall be taken into account in accordance with the provisions of that section.
12. Calculation of bonus with respect to certain employees –
Where the salary or wage of an employee exceeds two thousand and five hundred rupees per mensem, the bonus payable to such employee under Sec.10, or as the case may be, under Sec.11, shall be calculated as if his salary or wage were two thousand and five hundred rupees per mensem.
13. Proportionate reduction in bonus in certain cases - Where an employee has not worked for all the working days in an accounting year, the minimum bonus of one hundred rupees or, as the case may be, of sixty rupees, if such bonus is higher than 8.33 per cent of his salary or wage for the days he has worked in that accounting year, shall be proportionately reduced.
14. Computation of number of working days. –
For the purposes of Sec. 13, an employee shall be deemed to have worked in an establishment in any accounting year also on the days on which –
(a)he has been laid off under an agreement or as permitted by standing orders under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Industrial Disputes Act, 1947 (14 of 1947) or under any other law applicable to the establishment
(b) he has been on leave with salary or wage ;
(c) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(d) the employee has been on maternity leave with salary or wage, during the accounting year.
15. Set-on and set-off of allocable surplus –
(1) Where for any accounting year, the allocable surplus exceeds the amount of maximum bonus payable to the employees in the establishment under Sec.11, the, the excess shall, subject to a limit of twenty per cent of the total salary or wage of the employees employed in the establishment in that accounting year, be carried forward for being set-on in the succeeding accounting year and so on up to and inclusive of the fourth accounting year to be utilized for the purpose of payment of bonus in the manner illustrated in the Fourth Schedule.
(2) Where for any accounting 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 in the establishment under Section 10, and there is no amount or sufficient amount carried forward and set on under sub-section (1) 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 accounting year and so on up to and inclusive of the fourth accounting year in the manner illustrated in the Fourth Schedule.
(3) The principle of set-on and set-off as illustrated in the Fourth Schedule shall apply to all other cases not covered by sub-section (1) or sub-section (2) for the purpose of payment of bonus under this Act.
(4) Where in any accounting year any amount has been carried forward and set-on or set-off under this section, then, in calculating bonus for the succeeding accounting year, the amount of set-on or set-off carried forward from the earliest accounting year shall first be taken into account.
16. Special provisions with respect to certain establishments –
(1)Where an establishment is newly set up, whether before or after the commencement of this Act, the employees of such establishment shall be entitled to be paid bonus under this Act in accordance with the provisions of sub-section (1-A), (1-B) and (1-C).
(1-A) In the first five accounting years following the accounting year in which the employee sells the goods produced or manufactured by him or renders services, as the case may be, from such establishment, bonus shall be payable only in respect of the accounting year in which the employer derives profit from such establishment and such bonus shall be calculated in accordance with the provisions of this Act in relation to that year, but without applying the provisions of Sec.15.
(1-B) For the sixth and seventh accounting years following the accounting year in which the employer sells the goods produced or manufactured by him or renders services, as the case may be, from such establishment, the provisions of Sec.15 shall apply subject to the following modifications namely :
For the sixth accounting year –
Set on or set-off, as the case may be, shall be made in the manner illustrated in the Fourth Schedule taking into account the excess or deficiency, if any, as the case may be, of the allocable surplus set-on or set-off in respect of the fifth and sixth accounting year ;
(ii) For the seventh accounting year - Set-on or set-off, as the case may be, shall be made in the manner illustrated the Fourth Schedule] taking into account the excess of deficiency, if any, as the case may be, of the allocable surplus set-on or set-off in respect of the fifth, sixth and seventh accounting years.
(1-C) From the eighth accounting year following the accounting year in which the employer sells the goods produced or manufactured by him or renders services, as the case may be, from such establishment, the provisions of Sec.15 shall apply in relation to such establishment as they apply in relation to any other establishment.
Explanation I - For the purpose of sub-section (1), an establishment shall not be deemed to be newly set up merely by reason of a change in its location, management, name or ownership.
Explanation II – For the purpose of sub-section (1-A), an employer shall not be deemed to have derived profit in any accounting year unless –
(a) he has made provision for that year's depreciation, to which he is entitled under the Income-tax Act or, as the case may be, under the agricultural income-tax law ; and
(b) the arrears of such depreciation and losses incurred by him in respect of the establishment for the previous accounting years have been fully set-off against his profits.
Explanation III – For the purposes of sub-sections (1-A), (1-B) and (1-C) sale of the goods produced or manufactured during the course of the trail running of any factory or of the prospecting stage or an oil-field shall not be taken into consideration and where any question arises with regard to such production or manufacture, the decision of the appropriate Government, made after giving the parties reasonable opportunity of representing the case, shall be final and shall not be called in question by any court or other authority.]
The provisions of sub-sections (1), (1-A), (1-B) and (1-C) shall, so far as may be, apply to new departments or undertakings or branches set up by existing establishments