Appeals Nos 473  474 of 1957
Appeals by special leave from the judgment and order dated the 27th July 1955 of the Labour Appellate Tribunal of India at Calcutta in Appeal No Cal
257 of 1954
MC Setalvad Attorney General for India Ms J B Dadachanji section N Andley and Rameshwar Nath Advocate of Ms Rajinder Narain  Co with him for the appellants
SK Mukherjee and P K Ghosh for the respondents
26 1959
May 6
WANCHOO J
These are two connected appeals by special leave against the decision of the Labour Appellate Tribunal in an industrial matter
Appeal No 473 is by Messrs Ispahani Ltd hereinafter called the company and appeal No 474 is by the employees of the company represented by Ispahani Employees  Union hereinafter called the workmen
They will be disposed of by one judgment
There was a dispute between the company and its workmen on a number of matters which was referred by the Government of West Bengal to the adjudication of the Second Industrial Tribunal by an order of December 17 1953
There were a number of matters which had to be adjudicated upon but of these only two now survive namely 1whether the workmen are entitled to puja bonus for 1953 and 2whether the workmen are entitled to receive from the company any benefits for the period of service rendered by them under Messrs M M Ispahani Ltd A few facts may be set out here to give the background of this dispute
Originally there was another company called Messrs M M Ispahani Ltd which was carrying on business in Calcutta since December 1934 before the partition of India
Shortly before the partition took place Messrs M M Ispahani Ltd transferred their registered head office from Calcutta to Chittagong now in Pakistan
That company thus became a Pakistani company after August 1947
It however continued to own properties in India and carried on some business in Calcutta on a small scale
The company was incorporated on September 15 1947 and took over the good will and trading rights of Messrs M M Ispahani Ltd and also purchased the stock in trade properties and assets of that company
Most of the shares of the company were however held by Messrs M M Ispahani Ltd and the business of the company was of the same nature and was carried on in the same premises with the same telegraphic address 27 and with the same workmen on the same remuneration
Further the company continued to pay puja bonus at the rate of one month s wages from 1948 up to 1952
As no bonus was paid in 1953 a dispute arose between the company and the workmen which was referred for adjudication along with other matters
The Industrial Tribunal held that it had not been established that puja bonus had been paid at the uniform rate of one month s wages for a sufficiently long time and for unbroken period and therefore rejected the claim for puja bouns for 1953
On the other question relating to whether the workmen were entitled to receive from the company any benefits for the period of service rendered by them under Messrs M M Ispahani Ltd it held that the workmen were entitled to take into account the service rendered by them under Messrs M M Ispahani Ltd in the matter of benefits due under the law during their service under the company
This award led to two appeals one by the company on the question of benefits arising from the service rendered under Messrs M M Ispahani Ltd and the other by the workmen with respect to puja bonus for the year 1953
The Labour Appellate Tribunal allowed both the appeals
It held on the question of bonus that it had been proved that puja bonus had become a term of employment and the workmen were therefore entitled to bonus at the rate of one month s wages for the year 1953
As to the benefits arising out of the service rendered by the workmen under Messrs M M Ispahani Ltd it held that there was termination of employment of the workmen when Messrs M M Ispahani migrated to Pakistan and the employment of the workmen by the company was fresh employment and they therefore were not entitled to any benefits arising out of their employment under Messrs M M Ispahani Ltd Both the company and workmen applied for special leave to appeal to this Court against the decision of the Appellate Tribunal insofar as it was against them
The applications were granted and that is how the matter has come up before us
28 We shall first take up the appeal of the company relating to puja bonus for the year 1953
Two points have been urged in this behalf namely 1the Appellate Tribunal had no jurisdiction to interfere with the finding of the Industrial Tribunal as it was a finding of fact and 2even if the Appellate Tribunal had jurisdiction its decision is incorrect in law
Puja is a special festival in Bengal and it has become usual with many firms there to give bonus before puja to their workmen
This matter came up before the Appellate Tribunal in Mahalaxmi Cotton Mills Ltd Calcutta vs Mahalaxmi Cotton Mills Workers  Union1 In that case puja bonus was claimed as a matter of right payable by the employer at a special season of the year namely at the time of the annual Durga Puja
This right was not based on the general principle that labour and capital should share the surplus profits available after meeting prior charges
It was held in that case that this right rested on an agreement between the employer and the employees and that the agreement might be either express or implied
Where the agreement was not express circumstances might lead the tribunal to an inference of implied agreement
The following circumstances were laid down in that case as material for inferring an implied agreement 1 The payment must be unbroken 2 It must be for a sufficiently long period and 3 The circumstances in which payment was made should be such as to exclude that it was paid out of bounty
The Appellate Tribunal further pointed out that it was not possible to lay down in terms what should be the length of period to justify the inference of implied agreement and that would depend upon the circumstances of each case
It also pointed out that the fact of payment in a year of loss would be an important factor in excluding the hypothesis that the payment was out of bounty and in coming to the conclusion that it was as a matter of obligation based 11952 L A C 370 29 on implied Agreement
As to the quantum of bonus it was laid down that even if payment was not at a uniform rate throughout the period the implied agreement to pay something could be inferred and it would be for the tribunal to decide what was the reasonable amount to be paid as puja bonus
The tests laid down in that case have since been followed in a number of cases by the Industrial Tribunals and the Labour Appellate Tribunal
We do not think it necessary to refer to all those cases
It may now be taken as well settled that puja bonus in Bengal stands on a different footing from the profit bonus based on the Full Bench formula evolved in The Millowners  Association Bombay vs The Rashtriya Mill Mazdoor Sangh Bombay 1
The claim for puja bonus in Bengal is based on either of two grounds
It may either be a matter of implied agreement between employers and employees creating a term of employment for payment of puja bonus or secondly even though no implied agreement can be inferred it may be payable as a customary bonus
In the present case we are concerned with the first category namely that based on an implied agreement creating a term of employment between the employer and the employees and so we shall confine ourselves to that category
It was this kind of bonus which was considered by the Appellate Tribunal in Mahalaxmi Cotton Mills cause 2
We are of opinion that the tests laid down in that case for inferring that there was an implied agreement for grant of such a bonus are correct and it is necessary that they should all be satisfied before bonus of this type can be granted
This brings us to the two questions raised on behalf of the company as set out above
The first question namely that the Appellate Tribunal had no jurisdiction to interfere with the finding of the Industrial Tribunal that begin a question of fact can be easily disposed of
We are of opinion that the decision whether there is an implied term of employment is a mixed question of fact and law and not a pure question of fact
This is similar to the decision for example on a question whether a custom has been 1 2 1952 LAC370 30 established or whether adverse possession has been proved or whether a Hindu family has ceased to be joint as a matter of law accepting the facts proved
The Appellate Tribunal will therefore have jurisdiction to consider whether on the facts proved before the Industrial Tribunal an inference in law can be drawn that an implied term of employment for grant of puja bonus has been established
The Appellate Tribunal therefore had jurisdiction to consider this matter
The next question is whether in law the decision of the Appellate Tribunal drawing the inference of an implied term of employment in this case is correct
The undisputed facts here are these The workmen when they were in the employ of Messrs MM Ispahani Ltd always used to get puja bonus at the rate of one month s wages
This was asserted by the workmen in their written statement and the company did not deny it in its reply
All that it said was that the practice or custom prevalent at the time of Messrs MM Ispahani Ltd and the payment of bonus by that company were immaterial and did not bind the company
This averment impliedly admitted that Messrs M M Ispahani Ltd used to pay puja bonus as alleged by the respondents
The company practically took over the business from Messrs MM Ispahani Ltd and it was found that it had been paying bonus ever since it came into existence from 1948 right up to 1952 without any break at the rate of one month s wages and that this bonus was paid even in the years in which the company suffered loss
In the circumstances it was established in this case that 1 the payment was unbroken and 2 it was not paid out of bounty due to profits having arisen for it was paid in some years of loss also
The only other question that remains is whether it had been paid for a sufficiently long period in order to justify the inference that it was an implied term of employment
The length of the period depends on the circumstances of each case and what may be a short period not justifying an inference of an implied term of employment in one case may be long enough in another
In the present case since the appellant has paid the bonus 31 continuously since its birth we agree with the Appellate Tribunal that the circumstances justify the inference of an implied term of employment for payment of puja bonus at the rate of one month s wages every year
The appeal of the company must therefore fail
Turning now to the appeal of the workmen on the question of benefits we are of opinion that the decision of the Appellate Tribunal on this question also is correct
It is true that the company practically took over the business of Messrs M M Ispahani Ltd But as pointed out by the Appellate Tribunal when Messrs M M Ispahani Ltd transferred their headoffice from Calcutta to Chittagong the question arose of retrenching those employees who were not willing to go to Chittagong in view of the expected partition of India
In these circumstances the company when it came into existence in September 1947 agreed to employ those employees of Messrs M M Ispahani Ltd whose services were likely to be terminated
These employees
apparently agreed to the termination of their services with Messrs M M Ispahani Ltd and therefore obtained settlement of their claims for provident fund and also received all arrears of salary from them
They were thereafter appointed after withdrawal of their provident fund by the company
There was no express or implied undertaking given by the company regarding continuity of service and the employees joined the provident fund of the company afresh
In the circumstances the decision of the Appellate Tribunal on this question is correct and the appeal of the workmen must also fail
We therefore dismiss both the appeals and in consequence order the parties to bear their own costs of this Court
Appeals dismissed


Summary:
A communal riot broke out in a town between some Sindhi refugees and the local Muslims
The trouble started in a locality where most of the shopkeepers were Sindhis
The goods in the Muslim shops there were scattered and some Muslims lost their lives
Alarm spread to another locality where the shops of appellant and his brother both Muslims were situated and the people there including the appellant started closing their shops
The family of the appellant s brother had taken shelter in the appellant s portion of the building through a hole in the wall between the two portions of the building in which the two shops were situated
A mob collected there and approached the appellant s locality and looted his brother s shop and began to beat the doors of his shop with lathis
The appellant fired two shots from his gun which caused the death of one Sindhi and injured three other Sindhis
The question for determination was whether the appellant acted in his right of private defence Held that the facts of the case afforded a right of private defence to the appellant under the provisions of the Indian Penal Code
The circumstances in which he was placed were amply sufficient to give him a right of private defence of the body even to the extent of causing death as the appellant had no time to have recourse to the authorities and has reasonable grounds for apprehending that either death or grievous hurt would be caused either to himself or to his family
These things could not be weighed in too fine a set of scales or in golden scales