2026 LLR 128
BOMBAY HIGH COURT
Hon'ble Mr. G.S. Kulkarni, J.
Hon'ble Mr. Aarti Sathe, J.
WP No. 2024/2016, Dt/– 25-11-2025
Tech Mahindra Limited
v.
Union of India and Anr.
CODE ON WAGES, 2019 – Savings clause – Effect of – The petition has challenged the validity of section 3 of the Payment of Bonus (Amendment) Act, 2015 insofar as the provision uses the word “or the minimum wage for the scheduled employment, as fixed by the appropriate Government, whichever is higher” as inserted in section 12 of the Payment of Bonus Act, 1965 – The challenge is also in regard to the retrospective effect as given to the said provision for a period prior to 01-04-2014 – The High Court has granted stay on the retrospective application of the Amendment Act – The Code on Wages, 2019 has been brought into effect – By virtue of section 69 of the Code, the Payment of Bonus Act, 1965 (alongwith amendments), stands repealed – Section 69 of the Code on Wages would protect the action which would be taken under the provisions of the Payment of Bonus Act, 1965, which contemplates an action for retrospective recovery only for the year 2014-16 – The respondents ought not to take any coercive action for any recovery for retrospective period in the absence of any claim being made which goes back a period about 10 years – Writ petition is disposed of. Paras 5 to 10
For Petitioner: Mr. Kiran Bapat, Sr. Advocate with Mr. Anindya Basarkod, Mr. C. Nageshwaran i/b M/s. Khaitan & Co., Advocates.
For Respondent: Mr. Anil D. Yadav, Advocate in WP 2024/16.
For Respondent: Mr. P.M. Palshikar with Mr. Anil D. Yadav and Mr. A.R. Gole, Advocates in WP 2161/16.
IMPORTANT POINTS
Judgment
G.S. Kulkarni, J. & Aarti Sathe, J.–1. These are two petitions where the reliefs as prayed for by the petitioners are similar and hence, the same are being disposed of by this common order.
2. The challenge in these petitions is to the validity of section 3 of the Payment of Bonus (Amendment) Act, 2015 (No. 6 of 2016) insofar as the provision uses word “or the minimum wage for the scheduled employment, as fixed by the appropriate Government, whichever is higher” as inserted in section 12 of the Payment of Bonus Act, 1965. The challenge is also in regard to the retrospective effect as given to the said provision for a period prior to 1 April 2014. The substantive prayers as made in the first petition (Writ Petition No. 2024 of 2016) are required to be noted which read thus:
“a. This Hon'ble Court be pleased to declare that section 3 of the Payment of Bonus (Amendment) Act, 2015 (No. 6 of 2016) is illegal, unconstitutional and ultra vires in so far as the words “or the Minimum Wage for the scheduled employment, as fixed by the appropriate Government, whichever is higher” have been inserted in section 12 of the Bonus Act and the explanation, assigning the meaning of expression “scheduled employment” as assigned to it in clause (g) of section 2 of the Minimum Wages Act, 1948, has been inserted at the end of section 12 of the Bonus Act vide section 3 of the Bonus Amendment Act and to strike it down as such;
b. This Hon'ble Court be pleased to issue any appropriate writ, order or direction under Article 226 of the Constitution of India declaring that the Respondents shall not enforce the Payment of Bonus (Amendment) Act, 2015 to the extent it operates retrospectively, i.e. for any period prior to 1st April, 2015 and discriminates between scheduled employments and non-scheduled employments since such retrospective operation and discrimination is ultra vires , arbitrary and unreasonable and violative of Articles 14, 19(1)(g) and 20(1) of the Constitution.
c. This Hon'ble Court be pleased to issue any appropriate writ declaring the retrospective operation (prior to 1st April, 2015) of Payment of Bonus (Bonus Amendment Act), 2015 and also insertion of the words “or the minimum wage for the scheduled employment, as fixed by the appropriate Government, whichever is higher” in section 12 of the Bonus Act vide section 3 of the Bonus Amendment Act and insertion of explanation pertaining to the meaning of “scheduled employment” as assigned to in clause (g) of section 2 of the Minimum Wages Act, 1948 as ultra vires , arbitrary and unconstitutional.”
3. We find from the record that the Division Bench of this Court by order dated 13 June 2016, considering the orders passed by the Karnataka High Court, Allahabad High Court and other High Courts, granted stay to the retrospective application of the impugned provision. In this view of the matter, considering the legal position that the Act being a Central Act, by virtue of the stay granted by the said High Courts, observing that such orders of stay would operate throughout India, this Court also stayed the retrospective application of the Amendment Act and directed that no coercive steps be taken against the petitioners for recovery of the amount prior to 31 March 2016. The said order is required to be noted which reads thus:—
“Learned Counsel appearing on behalf of the Petitioners seeks time to take instructions. By this petition, the validity of section 1, sub-clause (2) of the Payment of Bonus (Amendment) Act, 2015 is challenged. Learned senior Counsel Mr. Darius Khambatta submits that the Karnataka High Court, Allahabad High Court and other High Courts have granted stay to the retrospective application of the said Act. Since, the Act in question is a Central Act, by virtue of the stay granted to the retrospective application, which is provided by section 1, sub-clause (2) of the said Act, stands stayed throughout India. The Respondents to file reply within 2 weeks. In the meantime, retrospective application of the said Act is stayed, and no coercive steps shall be taken against the Petitioners for recovery of the amounts due prior to 31st March, 2016. S.O. to 27th June, 2016.”
4. Notably during the pendency of the petitions, it appears that the Union of India filed several transfer petitions including to transfer the present petition before the Supreme Court, under Article 139A(1) of the Constitution read with Order XL of the Supreme Court Rules 2013, praying that the proceedings as pending before the several High Courts be transferred to the Supreme Court, for deciding the challenge as raised in the said petitions being similar and as noted by us hereinabove. By an order passed on the batch of transfer applications dated 11 July 2022, the Supreme Court rejected the transfer applications. On such backdrop, the present proceedings have remained pending consideration of this Court.
5. There is another substantive development touching the present proceedings has taken place, as contended by Mr. Palshikar, learned Counsel for Union of India namely that the Central Government by issuance of a notification dated 21 November 2025 published in the Gazette of India appointed 21 November 2025 as the date on which “The Code on Wages, 2019” (29 of 2019) (for short ‘the Code') to be brought into effect. By virtue of section 69 of the Code, the Payment of Bonus Act, 1965 [alongwith the amendments] assailed, stands repealed, hence, as on date it does not find a place on the statute book. Section 69 of the Code reads thus:
“ 69. Repeal and Savings.
(1) The Payment of Wages Act, 1936, the Minimum Wages Act, 1948, the Payment of Bonus Act, 1965 and the Equal Remuneration Act, 1976 are hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the enactments so repealed including any notification, nomination, appointment, order or direction made thereunder or any amount of wages provided in any provision of such enactments for any purpose shall be deemed to have been done or taken or provided for such purpose under the corresponding provisions of this Code and shall be in force to the extent they are not contrary to the provisions of this Code till they are repealed under the corresponding provisions of this Code or by the notification to that effect by the Central Government.
(3) Without prejudice to the provisions of sub-section (2), the provisions of section 6 of the General Clauses Act, 1897 shall apply to the repeal of such enactments.”
6. The fact however remains that section 69 of the Code would protect the action which would be taken under the provisions of Payment of Bonus Act, 1965, which according to the petitioners, contemplates an action for retrospective recovery only for the financial year 2014 to 2016 which is subject matter of challenge.
7. Insofar as the present proceedings are concerned, as noted hereinabove, the impugned Amendment Act itself was stayed by an order dated 13 June 2016. Admittedly, no recovery was initiated during the pendency of the present proceedings, also in view of such interim orders which continue to operate till date. Significantly, none of the employees who would otherwise be willing or entitled for such benefit, has asserted their claim. In such context, we are informed by Mr. Bapat, learned Senior Counsel for petitioners that insofar as the first petition is concerned, it is an I.T. establishment and that it would not be possible even to trace the employees who were in service at the relevant time, i.e. during the financial year 2014-2015 and 2015-2016. In any event, it is almost a period of 10 years and hence, even otherwise any occasion of coercive steps being taken by the respondents against the petitioners in respect of any such employees who have not raised any claim would not arise. In our opinion, considering such peculiar facts of the case, the matter needs to rest at this. The respondents ought not to take any coercive action in the above circumstances for any recovery for such retrospective period in the absence of any claim being made which goes back to a period about 10 years.
8. The facts in the companion petitions would not be different as what has been observed above in the first petition.
9. In this view of the matter, the proceedings ought not to be taken any further. They are required to be disposed of. Accordingly, they are disposed of in the aforesaid terms.
10. Disposed of. No costs.