Section 28: Establishments to include departments, undertakings and branches

The Code on Wages, 2019 (Act No. 29 of 2019) • Official Statutory Text & Plain English Practice Guide

Statutory Mandate
Chapter IV: Payment of Bonus
Competent Labour Forum
Act No. 29 of 2019

Legal Commentary & Landmark Judgments: Section 28

Section 28 enacts the principle of establishment unity for bonus determination, providing that all departments, undertakings, and branches of an establishment, whether situated in the same place or different places, must be treated as parts of the same establishment for bonus calculation, unless separate audited balance sheets have been historically maintained.

  • Presumption of Composite Establishment Unity: Prescribes that different branches, undertakings, or departments of a business entity are presumed to form a single integrated establishment for pooling gross profits and allocable surplus.
  • Independent Accounting Exception Proviso: Section 28 proviso allows a branch or undertaking to be treated as a separate establishment if separate balance sheets and profit & loss accounts are prepared and maintained for it for the accounting year.
  • Bar on Opportunistic Accounting Reversal: Prohibits an employer from treating a branch as a separate unit if it was historically treated as part of the composite establishment for bonus payment, preventing opportunistic segregation of loss-making units.
Key Landmark Precedents:
  • Alloy Steel Project v. The Workmen (1971) 1 SCC 536: The Supreme Court held that separate undertakings of a large corporate entity cannot be artificially clubbed or separated to manipulate bonus liability; independent financial accounting and distinct operational identity must be established.
  • Workmen of the Straw Board Manufacturing Co. Ltd. v. Straw Board Manufacturing Co. Ltd. (1974) 4 SCC 681: The Supreme Court formulated the 'functional integrality' and 'unity of finance, employment, and management' tests to determine whether branches form one single establishment for statutory labor liabilities.
Courtroom Practice & Strategic Litigation Guidance:

Multi-locational companies operating diverse divisions must maintain distinct, audited standalone books of account if they intend to pay branch-specific bonuses. If a company historically published consolidated balance sheets and distributed uniform bonuses across all branches, it cannot unilaterally isolate an unprofitable branch to pay minimum 8.33% bonus while paying 20% elsewhere; the Tribunal will enforce historical consolidated accounting.