Appeals Nos
416 of 1958 and 19 of 1959
Appeals by special leave from the Award dated January 13 1958 of the Industrial Tribunal Bombay in Reference I T No 218 of 1957
M C Setalvad Attorney General for India N A Pal khivala G B Pai and G Gopalakrishnan for the appellant In CA No 416 of 58 and respondent No 1 In CA No 19 of 1959
H R Gokhale section B Naik and K R Choudhury for the respondent No 1 In CA No 416 of 1958 and appellant In CA No 19 of 1959
January 20
The Judgment of the Court was delivered by GAJENDRAGADKAR J
These two cross appeals Go arise from an industrial dispute between the Standard Vacuum Refining Co of India Ltd hereafter called 538 the appellant and its workmen hereafter called the respondents
This dispute related to a claim for bonus made by the respondents against the appellant for the year commencing on January 1 1956 and ending with December 31 1956
The respondents claimed that for the relevant year they were entitled to receive by way of bonus their nine months  total earnings inclusive of all allowances and overtime and extra time earnings
After this demand was made the conciliation officer attempted conciliation between the parties but his efforts failed and so he submitted a failure report under section 124 of the XIV of 1947
The Government of Bombay then considered the said report and was satisfied that there was a case for reference of the said dispute to the Tribunal
That is how the present reference came to be made under section 125 of the Act
The respondents who have made the present claim include 648 employees amongst them 524 are operatives and 124 belong to the clerical cadre
Before the Tribunal the respondents  case was that during the conciliation proceedings the appellant had admitted its capacity to pay and to meet the entire claim of bonus made by them and so it was urged that it was unnecessary to screen the respondents  claim through the Full Bench formula
They further alleged that the appellant was not paying a living wage to the respondents and there still remained a large gap between the wage actually received by them and the living wage to which they would be ultimately entitled
According to the respondents their claim for bonus should be examined solely by reference to the gap which had to be filled up between the two wages and in determining the amount of bonus all the legitimate requirements of the respondents should be carefully considered
This claim was denied by the appellant
It denied the respondents  allegation that during conciliation proceedings it had admitted its capacity to pay the entire amount of bonus claimed by the respondents
It then specifically averred that in law the respondents were not entitled to any bonus because the 539 appellant was paying them a living wage and so one of the essential conditions for the payment of bonus namely the need to fill the gap between the actual wage and the living wage was absent in the present case
The appellant then set out its calculations in regard to the average wages paid to the different categories of respondents and supported its plea that they were not entitled to any bonus at all
It may be added that the appellant had already voluntarily paid three months  basic wages to the respondents by way of bonus but since the respondents were making a much larger claim the appellant thought it necessary to raise this general issue of law and to contend that the respondents were not entitled to any bonus at all
On these pleadings the Tribunal had to consider the said question of law but it appears that the material produced before it was so limited and meagre that it thought it would not be possible to arrive at any definite opinion on the question of what is the living wage in Bombay apparently the Tribunal also thought that it was unnecessary to do so because it has observed that the present dispute did not relate to wage scales and that the living wage was an illusive concept
Even so having broadly considered the contentions raised by the appellant it held that  the wages are fair but there is still in a large number of cases a gap between the actual wage and the living wage
 On this finding the Tribunal proceeded to examine the other contentions raised by the parties in regard to the quantum of bonus which should be awarded and it reached the conclusion that the respondents were entitled to receive five months  basic earnings  excluding dearness and other allowances and overtime  as bonus for the relevant year
Accordingly it has made an award to that effect and has issued appropriate directions in that behalf
This award is challenged by the appellant in its Civil Appeal No 416 of 1958 and it is urged by the learned Attorney General on its behalf that the tribunal should have held that the appellant was paying a living wage to the respondents and that there was no case for 540 awarding any bonus to the respondents at all during the relevant year
On the other hand the respondents challenge the award by their Civil Appeal No 19 of 1959 and it is urged by Mr Gokhale on their behalf that the tribunal was in error in not awarding the respondents a higher bonus than five months  basic wages
That is how the two cross appeals arise from the award under appeal
The learned Attorney General has criticised the approach adopted by the tribunal in dealing with the question of living wage
He contends that it was necessary that the tribunal should have carefully examined the material produced before it and should have made a definite finding one way or the other
He commented on the fact that the finding is vague and indefinite and he has contended that the tribunal should have made it clear as to what it exactly meant when it observed that in a large number of cases a gap between the actual wage and the living wage subsisted
This criticism is partly justified
We think it would have been better if the tribunal had addressed itself to the question raised before it by the appellant and made a more definite and precise finding
In this connection it must however be added that the oil companies have been raising this plea for some years past and the plea has been consistently rejected by tribunals during all these years
The present tribunal itself has had occasion to deal with this plea raised by the oil distributing companies and since the plea had never succeeded in the past and no material change had been proved in regard to the relevant year the tribunal was probably disinclined to treat the plea very seriously and that may explain the approach adopted by it in dealing with the said plea in the present proceedings
Besides the tribunal took the view and we think rightly that the material produced by the appellant in support of its plea is wholly insufficient and meagre
The point raised is one of general importance and any positive finding on the content of the concept of a living wage in the context of today would naturally affect industrial adjudication in regard to claims of 541 bonus in all industries
That is why if the appellant was serious about its contention that the living wage standard had been reached in its wage structure it should have produced more satisfactory evidence which would have enabled the tribunal to attempt the task of concretely defining what the concept of living wage means in the context of today
Absence of sufficient and satisfactory material may also explain the approach adopted by the tribunal in dealing with this issue
At the hearing before us the learned Attorney General suggested that we should remand the case to enable his client to lead further and more satisfactory evidence
We have rejected this request
The appellant knew fully well the implications of the plea raised by it and the very large issue which the tribunal would have to consider in dealing with the merits of the said plea
If the appellant was content to support its plea on certain material and did not attempt to lead more satisfactory evidence it cannot blame the tribunal for dealing with the matter on the material such as it was
In such a case it would be futile for the appellant to ask for indulgence from this Court at this late stage
It is admitted that the appellant has paid three months  basic wages as bonus to the respondents voluntarily for the relevant year and we were told that an agreement has been reached between the parties in respect of bonus for subsequent years until 1963
They have agreed that for the two succeeding years the decision of this Court will apply and for five years thereafter a specific agreement has been reached for raising the wage structure and providing for the payment of bonus at the agreed rate
The learned Attorney General faintly suggested that the appellant has agreed to pay bonus voluntarily in this manner but the payment is gratuitous and should not affect the main plea raised by it in the present proceedings
Even so the question raised by the appellant sounds academic and unrealistic and that is another reason why it is not entitled to the indulgence for which the learned Attorney General has pressed before us
We would therefore deal with the point 542 seriously urged before us on behalf of the appellant on the material produced before the tribunal and such additional material as was brought to our notice
At the outset it is necessary to state that the plea raised by the appellant assumes that as soon as a living wage standard has been reached by any employor it would be unnecessary for him to pay any bonus to his employees
The learned Attorney General has naturally relied on the decisions of this Court as well as the decisions of industrial tribunals in support of his argument that the Full Bench formula which governs the decision of bonus disputes postulates that a claim for bonus can be entertained if two conditions are satisfied the employer must have made profit in the relevant year which after the deduction of prior charges leaves sufficient available surplus and there must be a gap between the wages actually paid to the employees and the living wage standard which they hope to reach in due course
In dealing with bonus claims industrial adjudication has so far proceeded on the assumption that in the making of profits labour makes its contribution and that since it is not receiving a living wage it is entitled to claim that the gap between the actual and the living wages should be filled by the payment of bonus for each relevant year that no doubt appears to be the result of the relevant decisions on the point Vide Muir Mills Co Ltd vs Suti Mills Mazdoor Union Kanpur 1 The Sree Meenakshi Mills Ltd vs Their Workmen 2
We will revert to this point later
Meanwhile let us proceed to examine the merits of the contention that the appellant is paying the respondents a living wage
It is well known that the problem of wage structure with which industrial adjudication is concerned in a modern democratic State involves on the ultimate analysis to some extent ethical and social considerations
The advent of the doctrine of a welfare State is based on notions of progressive social philosophy which have rendered the old doctrine of laissez J faire obsolete
In the nineteenth centurv the relation between employers and employees were usually governed 1  2   884543 by the economic principle of supply and demand and the employers thought that they were entitled to hire labour on their terms and to dismiss the same at their choice subject to the specific terms of contract between them if any
The theory of  hire and fire  as well as the theory of  supply and demand  which were allowed free scope under the doctrine of laissez faire no longer hold the field
In constructing a wage structure in a given case industrial adjudication does take into account to some extent considerations of right and wrong propriety and impropriety fairness and unfairness
As the social conscience of the general community becomes more alive and active as the welfare policy of the State takes a more dynamic form as the national economy progresses from stage to stage and as under the growing strength of the trade union movement collective bargaining enters the field wage structure ceases to be a purely arithmetical problem
Considerations of the financial position of the employer and the state of national economy have their say and the requirements of a workman living in a civilised and progressive society also come to be recognised
It is in that sense and no doubt to a limited extent that the social philosophy of the age supplies the background for the decision of industrial disputes as to wage structure
As Mrs Barbara Wootton has pointed out the social and ethical implications of the arithmetic and the economics of wages cannot be ignored in the present age 1
It is because of this socioeconomic aspect of the wage structure that industrial adjudication postulates that no employer can engage industrial labour unless he pays it what may be regarded as the minimum basic wage
If he cannot pay such a wage he has no right to engage labour and no justification for carrying on his industry in other words the employment of sweated labour which would be easily available to the employer in all undeveloped and even under developed countries is ruled out on the ground that the principle of supply and demand has lost its validity in the i  The Social Foundations of Wage Policy  by Barbara Wootton Allen  Unwin
70 544 matter of employment of human labour and that it is the duty of the society and the welfare State to assure to every workman engaged in industrial operations the payment of what in the context of the times appears to be the basic minimum wage
This position is now universally recognised
In dealing with wage structure it is usual to divide wages into three broad categories the basic minimum wage is the bare subsistence wage above it is the fair wage and beyond the fair wage is the living wage
It would be obvious that the concepts of these three wages cannot be described in definite words because their contents are elastic and they are bound to vary from time to time and from country to country
It would be difficult and also inexpedient to attempt the task of giving an adequate precision to these concepts
What is a subsistence wage in one country may appear to be much below the subsistence level in another the same is true about a fair wage and a living wage what is a fair wage in one country may be treated as a living wage in another whereas what may be regarded as a living wage in one country may be no more than a fair wage in another
Several attempts have nevertheless been made to describe generally the contents of these respective concepts from time to time
The most celebrated of these attempts was made by Mr Justice Higgins in his judgment in 1907 in a proceeding usually referred to as the Harvester Case
Sitting as President of the Commonwealth Court of Conciliation and Arbitration the learned Judge posed the question as to what is the model or criterion by which fairness or reasonableness is to be determined and he answered it by saying that  a fair and reasonable wage in the case of an unskilled labourer must be ail amount adequate to cover the normal needs of the average employee regarded as a human being living in a civilised community 1 1 Cited by Foender in Better Employment Relations  178 545 In their work  Industrial Democracy  published in 1920 Sidney and Beatrice Webb observed that there is a growing feeling not confined to trade unionists that the best interests in the community can only be attained by deliberately securing to each section of the workers those conditions which are necessary for the continuous and efficient fulfilment of its particular function in the social machine  p 590
In 1919 the Commissioner of the Bureau of Labour Statistics conducted a tentative budget enquiry in the United States of America and analysed the objects with reference to three concepts namely the pauper and poverty level the minimum of subsistence level and the minimum of health and comfort level the last was taken for determining the standard of a living wage
This classification was approved by the Royal Commission on the Basic Wage for the Commonwealth of Australia and it proceeded through norms and budget enquiries to ascertain what the minimum of comfort level should be
The Commission quoted with approval the description of minimum health and comfort level in the following terms   This represents a slightly higher level than that of subsistence providing not only for the material needs of food shelter and body covering but also for certain comforts such as clothing sufficient for bodily comfort and to maintain the wearer s instinct of self respect and decency some insurance against the more important misfortunes death disability and fire good education for the children some amusement and some expenditure for self development  1
According to the United Provinces Labour Enquiry Committee wages were classified into four categories poverty level minimum subsistence level the subsistence plus level and the comfort level 2
The third category would approximate to the fair wage and the fourth to the living wage
According to the South Australian Act of 1912 the living wage means  a sum 1 Cited in the Report of the Committee on Fair Wages published by the Government of India Ministry of Labour pp5 and 62 Ibid
546 sufficient for the normal and reasonable needs of the average employee living in a locality where work under consideration is done or is to be done 
On the other hand the Queensland Industrial Conciliation and Arbitration Act provides that the basic wage paid to an adult male employee shall not be less than is  sufficient to maintain a well conducted employee of average health strength and competence and his wife and  a family of three children in a fair and average standard of comfort having regard to the conditions of living prevailing among employees in the calling in respect of which such basic wage is fixed
and provided that in fixing such basic wage the earnings of the children or wife of such employee shall not be taken into account  1
The Fair Wages Committee which made its Report in 1949 broadly accepted the view expressed by the Royal Commission on the basic wage for the Commonwealth of Australia which we have already cited
According to the Committee  the living wage should enable the male earner to provide for himself and his family not merely the bare essentials of food clothing and shelter but a measure of frugal comfort including education for the children protection against ill health requirements of essential social needs and a measure of insurance against the more important misfortunes including old age 2
 The Committee emphasised that  the minimum wage must provide not merely for the bare sustenance of life but for the preservation of the efficiency of the worker
For this purpose the minimum wage must also provide for some measure of education medical requirements and amenities  3
In this connection it would be useful to refer to the observations made by Philip Snowden in regard to the concept of living wage
These observations are generally cited with approval by industrial tribunals
Said Snowden  it may be possible to give 1 Cited in the Report of the Committee on Fair Wages published by the Government of India Ministry of Labour p 5
2 Ibid
3 Cited in the Report of the Committee on Fair Wages published by the Government of India Ministry of Labour p
8 547 a precise or satisfactory definition of a living wage but it expresses an idea a belief a conviction a demand
The idea of a living wage seems to come from the fountain of justice which no man has ever seen which no man has ever explained but which we all know is an instinct divinely implanted in the human heart
A living wage is something far greater than the figures of a wage schedule
It is at the  same time a condemnation of unmerited and unnecessary poverty and a demand for some measure of justice 1
 On the problem of converting the concept of living wage into monetary terms this is what Snowden had said  The amount of the living wage in money terms will vary as between trade and trade between locality and locality
But the idea is that every workman shall have a wage which will maintain him in the highest state of industrial efficiency which will enable him to provide his family with all the material things which are needed for their health and physical well being enough to enable him to qualify to discharge his duties as a citizen2
It is in this broad and idealistic sense that article 43 of the Constitution has referred to the living wage when it enunciates the Directive Principle that the State shall endeavour inter alia to secure by suitable legislation or economic organisation or in any other way to all workers agricultural industrial or otherwise work a living wage conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities
This Court has recognised this idealistic position of the concept of living wage in the case of Express Newspapers Private Ltd vs The Union of India 3
It would thus be obvious that the concept of a living wage is not a static concept it is expanding and the number of its constituents and their respective contents are bound to expand and widen with the development and growth of national economy
That is why it would be impossible to attempt the 1 Philip Snowden  The Living Wage  p 1
2 Ibid
3  79 82
548 task of determining the extent of the requirement of the said concept in the context of today in terms of rupees annas and pies on the scanty material placed before us in the present proceedings
We apprehend that it would be inexpedient and unwise to make an effort to concretise the said concept in monetary terms with any degree of definiteness or precision even if a fuller enquiry is held
Indeed it may be true to say that in an under developed country it would be idle to describe any wage structure as containing the ideal of the living wage though in some cases wages paid by certain employers may appear to be higher than those paid by others
As observed in its Report by the Commission of Enquiry on  Emoluments and Conditions of Service of Central Government Employees 1957 59   taking a standard family as consisting of four members of whom only one is an earner the average income of a family at the highest figure during the nine years ending in 1957 58 would work out at Rs 1166 per annum or about Rs 97 per mensem
The minimum wage cannot be of the order of Rs 125when on the basis of the national income the average for a family works out only to Rs 97 per mensem
 Therefore looking at the problem of industrial wages as a whole it would not be possible to predicate that our wage structure has reached even the level of a fair wage
It is possible that even so some employers may be paying a very high wage to their  workmen and in such a case it would be necessary to examine whether the wages paid approximate to the standard of the living wage but in deciding this question the proper approach to adopt would be to consider whether the wage structure in question even approximately meets the legitimate requirements of the components consti tuting the concept of a living wage
For that purpose it may not be essential and on the material produced before us it is not even possible first to determine what in terms of money those constituents would denote in the context of today
The learned Attorney General s argument that we should first determine independently what amount in terms of rupees annas and pies would be treated as a living wage today 549 obviously ignores the complexity of the problem and the poverty of the material adduced by the appellant in the present proceedings
There is another aspect of this question to which we must incidentally refer
We are dealing with the contents of the living wage in the present appeal not for the purpose of fixing a wage structure the contention raised by the appellant is that since the wages paid to the respondents have reached the stage of a living wage there is no gap between the actual wage and the living wage and so there is no occasion to make a claim for bonus
While dealing with this contention there would be no justification for ignoring the idealistic character of the living wage is specified in article 43 of the Constitution  and so it would be necessary to enquire whether the wage in question satisfies the tests laid down by the Royal Commission on the basic wage for the Commonwealth of Australia which has been endorsed by the Fair Wages Committee s Report and broadly approved by this Court in the Express Newspapers  case 1
The question which we must now consider is whether the appellant has succeeded in showing that its wage structure has reached the standard of the living wage which has been specified as one of the ultimate objectives by article 43 and which is the ideal that the working population of the country hopefully looks forward to achieve
Before the tribunal the Union filed statements to show that the wage structure prevailing amongst the respondents is no more than the need based minimum wage
In support of this plea they referred to the resolution which has been unanimously passed at the 15th Session of the Indian Labour Conference held in New Delhi on July 11 and 12 1957
This resolution makes a declaration about the wage policy which should be followed during the Second Five Year Plan
The Tripartite Committee which passed the resolution considered the relevant notes placed before it and held that they would be useful as background material for 1 550 wage fixation
It then took note of the difficulties in assessing quantitatively the individual importance of various factors affecting wage fixation such as product ivity cost of living the relation of wages to national income and so on and proceeded to discuss the wage policy with specific reference to minimum wages and fair wages
With regard to the minimum wage fixation it was agreed that the minimum wage was need based to ensure the minimum human needs of the industrial worker irrespective of any other considerations
To calculate the minimum wage the Committee accepted the following norms and recommended that they should guide all wage fixing authorities including Minimum Wage Committees Wage Boards adjudicators etc
ii Minimum food requirement should be calculated on the basis of a net intake of calories as recommended by Dr Aykroyd for an average Indian adult of moderate activity
iii Clothing requirements should be estimated at a per capita consumption of 18 yards per annum which would give for the average workers family of four a total of 72 yards
iv In respect of housing the rent corresponding to the minimum area provided for under Government s Industrial Housing Scheme should be taken into consideration in fixing the minimum wage
v Fuel lighting and other I miscellaneous  items of expenditure should constitute 20 of the total minimum wage
 Having set forth these norms the Committee recognised the existence of instances where difficulties may be experienced in implementing its recommendations and so it added that wherever the minimum wage fixed went below its recommendations it would be incumbent on the authorities concerned to justify the 551 circumstances which prevented them from adherence to the norms prescribed by the Committee
Having thus unanimously agreed on the content of the need based minimum wage the Committee proceeded to observe that as regards fair wages it was agreed that the Wage Board should go into the details in respect of each industry on the basis of the recommendations contained in the Report of the Committee on Fair Wages
The respondents treated this unanimous resolution as the basis for their claim that the wages paid to them by the appellant were no better than the need based minimum contemplated by the said resolution
Accordingly they set out the diet requirements extracted from Health Bulletin No 23 and converted the said requirements into monetary terms at Rs 123 75 nP Having thus arrived at the calculation of the value of the diet requirements of workmen ExsU 4 and U 5 they proceeded to make calculations about the money content of the need based minimum wage at Rs 209 70 exhibit U 6
This conclusion has been reached on the basis that the minimum diet requirements would be Rs 123 75 nP clothing requirements would be Rs 9  rent would be Rs 42 and miscellaneous expenditure at 20 of the total of the three preceding items would be Rs 34 95 nP
Their case was that in view of the fact that Rs 209 70 nP approximates to the standard of the need based minimum wage the claim that the wage structure of the appellant has reached the living wage standard cannot be sustained
On the other hand the appellant sought to justify its claim principally on the calculations made by the Textile Labour Committee which had made its report in 1940
It may be pointed out that in its statement exhibit C 6 the appellant has used the expressions  fair wage  and  living wage  somewhat indiscriminately and seems to have assumed that the norms prescribed by the Tripartite resolution had relation to a fair wage and not the need based minimum wage
That however does not appear to be accurate According to 71 552 the Textile Committee s report the money content of the living wage in 1940 was Rs 50 to Rs 55 per month
This total is taken as the basis by the appellant in making its relevant calculations
The appellant has then referred to the norms prescribed by the Tripartite resolution and has assumed that the total of the need based minimum wage would be Rs 40 14 0 and since there had been a rise in the cost of living after 1940 the appellant has multiplied Rs 41 by 35 which gave the amount of Rs 14350 nP
Thus according to the appellant the need based minimum would not be the said amount of Rs 209 as calculated by the respondents
Then the appellant added that even if Rs 55was taken as the equivalent of the living wage in 1940 and the same is multiplied by 3 5 one gets Rs 19250 nP and that should represent the living wage in the relevant year
Having thus reached the figure of Rs 19250 nP as the monetary value of the living wage in the relevant year the appellant purported to support its plea that its wage structure had reached the status of a living wage by relying on the average wages paid by it to the respective categories of its employees
Taking the class of operatives which comprises 524 workmen the average wage packet consisting of the basic salary the dearness allowance and the value of the amenities supplied by the appellant to them equals Rs 27365 nP
The average wages in regard to the 124 clerks reach the figure of Rs 37011 nP and the average wages for the total employees taken together reach the figure of Rs 30116 nP According to the appellant whichever figure is taken it is much above Rs 19250 nP and that must lead to the inference that the living wage standard has been reached by the appellant
That is how both the parties presented their respective contentions before the tribunal and before us
We have already indicated that the appellant s calculations are made on the assumption that the figure of Rs 50 to Rs 55 per month can be taken 553 to be the monetary content of the living wage in 1940
In support of this assumption the appellant strongly relies on the Textile Committee s report
This Committee was appointed in 1940 and was charged with the duty of conducting an investigation into the question of adequacy of wages in cotton textile industry of the Province of Bombay and to kindred matters relating to the industry
It was asked to enquire inter alia into the adequacy or inadequacy of wages earned in relation to a living wage standard and if it found that in any occupation centre or unit of the industry wages were inadequate it was asked to enquire into and report upon the reasons therefor
The Committee realised that the data supplied before it was insufficient but nevertheless it thought that it would be possible to consider the broad constituents of the concept of the living wage and use the said measure  not for the determination of a dispute or the grant of an award but only for ascertaining in a general manner whether the present level of earnings is or is not adequate in relation to it The Committee then examined the material which was available to it it took the view that the living wage standard should be determined in respect of the family unit and for its calculation it converted the total number of members in the family into standard consumption units according to the formula evolved by Dr Aykroyd in his Health Bulletin No 23
According to this formula each family was assumed to consist of a workman his wife and two dependents or children and their consumption units were treated respectively as 18 and 06 each respectively the total consumption units thus being 30
Then the Committee considered the problem of housing and the expenditure on rent and other items of expenditure such as clothing fuel and lighting and miscellaneous
In regard to the housing the Committee thought that for a family of four 180 sqft may be held as the minimum in Bombay though according to it the floor area may be put a 554 little higher in less overcrowded places
It is on these calculations that the amount of Rs 55 was held by the Committee to be the monetary value of the living wage standard
Naturally enough the appellant treats this conclusion as the foundation for its claim that it is paying a living wage to the respondents
In our opinion it would be unreasonable and unsafe to treat the conclusions of this Committee as to the monetary value of the living wage in 1940 as sound and to make it the basis of our calculations today
Incidentally the method of multiplying the figure deduced by the Committee by 35 is materially defective
The proper approach to adopt would be to evaluate each constituent of the concept of the living wage in the light of the prices prevailing today and thus reach a proper conclusion  but apart from it the main objection against adopting the figure reached by the Committee is that even in 1940 the said figure could not be properly regarded as representing anything like a living wage standard
The object with which the Committee proceeded to hold its enquiry was in a sense negative it was to determine the question as to how far the prevailing wages were deficient having regard to some reasonable concept of a living wage standard
The material before it was insufficient to determine satisfactorily the money content of the said concept and the Committee itself was conscious that its calculations were bound to be broad and general and conditioned by the data available to it and what is more important conditioned by the notions of social justice then prevailing
Since 1940 the concept of social justice has made very great progress and the Constitution of the country has now put a seal of approval on the ideal of a welfare State
Besides it may seem entirely unrealistic to talk of a living wage in the light of our national economy in 1940 and to evaluate its content at Rs 50 to Rs 55 per month
It is obvious that the Committee was really thinking of what is today described 555 as the minimum need based wage and it found that judged by the said standard the current wages were deficient
In its report the Committee has used the word  minimum  in regard to some of the constituents of the concept of living wage and its calculations show that it did not proceed beyond the minimum level in respect of any of the said constituents
Therefore though the expression living wage standard has been used by the Committee in its report we are satisfied that Rs 50 to Rs 55 cannot be regarded as anything higher than the need based minimum wage at that time
If that be the true position the whole basis adopted by the appellant in making its calculations turns out to be illusory
All that the calculations made by the appellant would show is that the wages paid to the respondents are somewhat higher than what would be required by the concept of the need based wage
It is obvious that between the need based wage and the living wage there is a very long distance
This conclusion is strengthened by some of the observations made by the Commission of Enquiry on  the Emoluments and Conditions of Service of Central Government Employees 
In its report the Commission has referred to the Tripartite resolution on the need based minimum wage and in the light of the exhaustive material produced before it and after consulting experts and specialists whose advice was available to it it has reached the conclusion that a the minimum remuneration worked out according to the recommended formula may be of the order of Rs 125  as compared to Rs 5250 which with some exceptions is the upper limit of minimum wages fixed under the law b that it would be about 70 to 80 higher than the rates generally prevailing in the organised sectors of industry where wages are fixed either by collective bargaining or through conciliation and adjudication proceedings and c that it would be well above the highest wages ie Rs 112 in cotton textiles industry in Bombay average for 1958 which any considerable number of unskilled workers are at present getting in the country p 65
We may incidentally add that having regard to its terms of reference the Commission did not feel it advisable to recommend the increase of the Central employees  wages to the level of the need based minimum for reasons set out by it in its report
That is why it thought it reasonable to recommend that  the minimum remuneration payable to a Central employee which at present is Rs 75 per mensem should be increased to Rs 80 per mensem p 74
Reverting to the components of the concept of the living wage once again it may be relevant to observe that the principal component of the dietary requirements of a workmarn s family is generally examined in the light of Dr Aykroyd s formula According to Dr Aykroyd in dealing with diet it is well to remember the distinction between an optimum and an adequate diet
An optimum diet is one which ensures for the functioning of the various life processes at their very best whereas an adequate diet maintains these processes but not at their peak levels
Dr Aykroyd however took the view that having regard to our national economy even an adequate or balanced diet may not be within the reach of every one and so he observed that  it would be wise to effect a compro
mise by temporarily sacrificing the ideal to the necessity of making the improvement economically possible
 With this object he has tabulated the requirements of the improved diet which contains the 1 Health Bulletin No23 The Nutritive Value of Indian Foods and the Planning of satisfactory Diets By Dr Aykroyd and revised by Dr V N Patwardhan Published by the Nutrition Research Laboratories Indian Council of Medical Research Coonoor
557 essential nutrients but which would not be as costly as the balanced diet
Now there can be no doubt that in dealing with the monetary value of the content of the concept of the living wage it would not be enough to evaluate the diet requirement with reference to the improved or even the balanced diet
The improved vegetarian diet which has generally been taken into account in making the relevant calculations would be wholly inappropriate in making calculations with regard to a living wage
Under the living wage a workman would be entitled to claim an optimum diet as prescribed by Dr Aykroyd
Similarly the requirements as to clothing and residence which have been recognised in the Tripartite resolution though appropriate in reference to a need based minimum wage would have to be widened in relation to a living wage
Besides in determining the money value of the living wage it would be necessary to take into account the requirements of good education for children some amusement and some expenditure for self development  and it is hardly necessary to emphasise that the content of these requirements cannot be easily converted into terms of money and they would obviously vary from time to time and would show an expansive tendency with the growth of national economy and with the advent of increasing prosperity for the nation as a whole and for any given industry in particular
In this connection it may be pertinent to observe that in deciding the question as to whether the living wage has been introduced by any employer normally it would be necessary to examine the wage structure paid to the relevant working class as a whole
It is well established that the claim for bonus is recognised on the basis of the contribution made by the working class as a whole to the profits of the employer and we think it would be invidious and on principle unreasonable to isolate 558 a few cases where higher wages may be paid and to claim immunity from the payment of bonus in respect of such cases
In the absence of special circumstances prima facie the most expedient method to adopt would be to take the average of the wages paid to the relevant working class as a whole
It is however unnecessary to pursue this matter further and to pronounce a definite decision on it because as we have just indicated even taking the clerical category where the average works highest at Rs 37011 nP we feel no hesitation in holding that the said average is much below the standard living wage
The said average is much above the need based minimum and may fall in the medium level of a fair wage but that itself would show that it is much below the standard of the living wage
Similarly Rs 27365 nP which is the average of the operatives as well as Rs 30116 nP which is the average of the operatives and the clerical staff taken together may be regarded as constituting wage structure which is above the need based minimum structure and may be treated as approximating to the lower level of the fair wage
One has merely to take into account the various constituent elements of the living wage to realise that these averages fall far short of the standard of the living wage
In reaching such a conclusion it is hardly necessary first to arrive at a concrete determination as to the money value of the living wage
In our opinion taking the broad aspect of the concept of the living wage into consideration and bearing in mind its idealistic and expanding character it would be possible and not very difficult either to say about a given wage such as the one with which we are concerned in the present appeal that it does not reach the standard of a living wage
We must accordingly hold that the claim made by the appellant that it is paying a living wage to its employees cannot be sustained
It still remains to consider some of the decisions to which our attention was invited
In Standard Vacuum Oil Company
In that connection the tribunal referred to the Textile Committee s report and assumed that Rs 50 to Rs 55  that is to say on an average Rs 52 8 0 represented the money value of a living wage in 1940
On that assumption the tribunal made certain calculations and held that its award may be regarded as the first approximation towards attaining the living wage standard
The learned Attorney General has relied on this decision in support of his argument that the basis supplied by the Textile Committee s report was treated as valid for the pur pose of determining the money value of the living wage
For the reasons which we have already indicated we must hold that the tribunal was in error in treating Rs 52 8 0 as the money value of the living wage even in 1940
The same comment falls to be made about the calculations made by the Labour Appellate Tribunal in Burmah Shell etc Oil Companies in Madras vs Their Employees 1
In that case the Appellate Tribunal thought that if 50 be added to the minimum wage of the employees that may assist them to attain the goal of the living wage and this conclusion was based on the Textile Committee s report
Similarly the calculations made by the Industrial Tribunal Madras in Workers of section V O C Ltd Standard Vacuum Employees  Union vs Standard Vacuum Oil Co Ltd 2 suffers from the same infirmity
Therefore the three industrial decisions on which the appellant relied cannot assist it in establishing its contention that a living wage is paid to the respondents
In Burmah Shell Oil Storage and Distributing Co of India Ltd Bombay vs Their Workmen 3 the Labour Appellate Tribunal had occasion to consider the content of the living wage
In that connection it referred to the Report of the Fair Wages Committee and observed that the level of national income in India is so low that the country is unable to afford to prescribe by law a minimum wage which would correspond to the concept of a living wage
 The rudder is set in 1 2 3  72 560 the direction of a living wage observed the Appellate Tribunal  but the destination is not yet within sight the gradual emergence of a welfare State will naturally help but even here progress is necessarily slow 
In our opinion this statement shows the correct approach to the problem of determining the content of the concept of the living wage
In Standard Vacuum Oil Company vs Their Employees 1 the Labour Appellate Tribunal was called upon to consider the plea that the companies were paying a living wage to their employees
In dealing with the said contention the Appellate Tribunal observed that the measurement of the living wage standard in terms of money has not been prescribed by law of the country nor as far as we are aware has been determined anywhere in any scientific basis 
In its opinion it was not possible nor necessary to fix the amount with exactitude which should form the minimum living wage after an exhaustive enquiry for considering the question of bonus because according to the principle laid down the whole gap between the existing wages and the living wage need not be filled up
That is why it thought that it would be sufficient for the purpose if an approximate idea can be formed by taking into account the approximate expenditure on the necessary items of requirements of the living wage standard
On these considerations the plea raised by the companies was rejected
It would thus be seen that the oil companies have been persistently making the claim before the industrial tribunals that they need not be called upon to pay bonus to their employees on the ground that they are paying them a living wage and this plea has so far been consistently rejected
As we have already pointed out it may partly be because of this trend of industrial decisions that in the present proceedings the tribunal did not think it necessary to deal with the point elaborately or to make a definite finding
Before we part with this appeal we ought to add that if we had upheld the appellant s claim it would have been necessary for us to consider the relevance 1 561 and validity of the respondents  alternative claim that in case living wage is paid by the appellant to them they should be allowed a share in the profits made by the appellant during the relevant year on the basis of profit sharing
It is true that industrial adjudication so far has consistently emphasised the fact that the payment of bonus is intended to fill the gap between actual wages and the living wage
Obviously no occasion has so far arisen to consider whether a claim for bonus can be made even after the standard of living wage has been attained because no employer has so far succeeded in showing that a living wage standard has been reached
We are making these observations because we wish to make it clear that our decision in the present appeal should not be taken to mean that as soon as a living wage standard is reached no claim for bonus can be made by the workmen that is a question which may have to be considered on its merits if and when it arises
Until the stage is reached where a plea that living wage is paid can be reasonably made and proved it is desirable that industrial adjudication in regard to the payment of bonus should not be unnecessarily complicated by raising such a plea from year to year
That takes us to the appeal preferred by the respondents
The tribunal did not think it necessary to work out calculations because according to the bonus formula it was conceded that the available surplus in the hands of the appellant was very large
It however took into account the wage scales and salaries in the appellant s concerns and other relevant factors and concluded that awarding five months  bonus  strikes a fair balance between the conflicting standards of the workmen and the company 
Mr Gokhale contends that five months  bonus is too meagre and that the respondents were entitled to a much higher rate of bonus
On the other hand the learned Attorney General contends that we should put a ceiling in the matter of awarding bonus so that excessive claims for bonus would be discouraged
In our opinion it would be inadvisable and inexpedient to put such a ceiling in the matter of awarding bonus
562 It is now well established that in awarding bonus industrial adjudication has to take into account the legitimate claims of the industry its shareholders who are entitled to claim a return on the investment made by them and the workmen
This Court has consistently refused to lay down any rigid rule or formula which would govern the distribution of the available surplus between the three claimants
The decision of this question must inevitably depend on a proper assessment of all the relevant facts
If wages are small and the profits are high then the workmen would be entitled to have a high rate of bonus
Indeed if an employer makes consistently high profits and the wages continue to be low it may justify the increase in the wage structure itself  in other words the award of bonus would have some relation to the wages paid to the employees
It is also true that unreasonably high or extravagant claims for bonus cannot be entertained just because the available surplus would justify such a claim
As has been observed by the Labour Appellate Tribunal in Burmah Shell Oil Storage and Distributing Co of India Ltd Bombay vs Their Workmen 1 care must be taken to see that the bonus which is given is not so excessive as to create fresh problems in the vicinity that upset emoluments all round or that it creates industrial discontent or the possible emergence of a privileged class
The impact of the award of bonus in an industrial dispute on comparable employments or on other employments in the region cannot be altogether ignored though its effect should not be over estimated either
Having regard to the fact that the distribution of available surplus must inevitably depend in each case on its own facts this Court has generally refused to interfere with the decision of the tribunal on the ground that any decision on the question of distribution should be left to its discretion
In the present case the 1 563 tribunal has considered all the relevant factors and has come to the conclusion that five months  bonus would meet the ends of justice
We do not see any reason to interfere with this award
In the result both the appeals fail and are dismissed
There will be no order as to costs in both the appeals
Appeals dismissed


Summary:
The respondent served on the Railway Administration a composite notice under s 77 of the Indian Railways Act and under section So of the Code of Civil Procedure and sued for price of goods and for loss on account of nondelivery
The claim was resisted by the Railway Administration on pleas amongst others that the suit was not maintainable without an effective notice under section 77 of the Railway Act and that the suit was barred because at the date of the suit the period of limitation prescribed by article 31 of the Indian Limitation Act had expired
A full bench of the Allahabad High Court upheld the decree of the trial court in favour of the respondent holding that a claim for compensation for non delivery of goods was a claim distinct from the claim for compensation for loss destruction or deterioration of the goods and to the enforcement of a claim of the former variety by action in a court of law under section 77 was not a condition precedent
Held that section 77 of the Indian Railways Act imposes a restriction on the enforcement of liability declared by section 72 of the Act and prescribes a condition precedent to the maintainability of a claim for compensation for goods lost destroyed or deteriorated while in the custody of the railway Administration who are bailers and not insurer of goods
The section is enacted with a view to enable the railway administration to make enquiries and if possible to recover the goods and deliver them to the consignee and to prevent stale claims
Failure to deliver goods is the con sequence of loss or destruction and the cause of action for it is not distinct from the cause of action for loss or destruction 83 648 Held further that merely because articles 30 and 3r of the Indian Limitation Act prescribe different points of time from which the limitation is to run for suits against carriers it cannot be inferred that the claim covered by either article is not for compensation for loss destruction or deterioration of the goods and the said articles 30 and 31 cannot be projected upon sections 72 and 77 of the Indian Railways Act for holding that suit for compensation for non delivery of goods does not fall within section 77
The Madras and Southern Mahratta Railway Co Ltd vs Haridoss Banmalidoss Mad 871 Hill Sawyers and Co vs Secretary of State Lah
133 Martab Ali vs Union of India  Union of India vs Mitayagiri Pullappa ILR 1958 AP 323 Assam Bengal Railway Co Ltd vs Radhika Mohan Nath and Others and Bengal Nagpur Railway Co Ltd vs Hamir Mull Chhagan Mull and Another Pat 106 approved
Governor General in Council and Others vs Mahabir Ram and Another 1953 ILR
I All 64 and Jais Ram Ramrekha Das V GIP Railway and Another 1929 ILR 8 Pat
545 overruled