Case: The Management Of Marina Hotel Vs. The Woremen

that year would also come to Rs. 85,000 or so. Thus the profits in the year 1954-55 appear to be more or less the same as in the year 1953-54. In the circumstances there is no reason to interfere with the award of three months wages as bonus for the year 1954-55.7. Leave. The contortion of the appellant in this connection is that the Tribunal was not justified in awarding 15 days casual-cum-sickness leave in view of the provisions of S. 22 of the Delhi shops and Establishments Act, (No. VII of 1954), as that provides for a maximum of 12 days for sickness-cum-casual leave. This matter was considered by this Court in Messrs. Dalmia Cement (Bharat) Ltd. New Delhi v. Their Workers, AIR 1960 SC 413 and it was pointed out that the position with regard to sickness-cum-casual leave was that S. 22 fixed a maximum of12 days total leave for sickness or casual leave with full wages, and it was not open to the tribunal to disregard this peremptory direction of the Legislature. In this case the Tribunal was aware of the provisions of S. 22 of the Delhi shops and Establishments Act; but in spite of that it decided to grant 15 days sickness-cum-casual leave instead of 12 days which was the maximum provided under the Act. This in our opinion was illegal and the amount of casual-cum-sickness leave must be reduced to12 days as provided in the Act.8. It was urged on behalf of the respondents that the kitchen of the hotel would be a factory and the Delhi shops and Establishments Act would not apply to the kitchen staff at any rate. This point however was not raised in the written-statement where the respondents case was that the Act did not debar the workmen from demanding mare leave than what was provided therein. It is not in dispute that the Delhi Shops and Establishments Act applies to this hotel. Whether the kitchen of the hotel would be a factory and thus the staff working in the kitchen would be exempt from the operation of the Delhi Shops and Establishments Act is a question which cannot be decided in the present appeal in the absence of facts. In the circumstances the order of the Tribunal with respect to casual-cum-sickness leave is modified as indicated above.9. Provident Fund. Learned counsel for the appellant has stated that the Employees Provident Funds Act (No. XIX of 1952) has been extended to the hotel industry and in the circumstances he is not pressing the appeal so far as it relates to provident fund, as the provisions in the award relating to provident fund are in accordance with the provisions of the Employees Provident Funds Act.10. Scales of Pay. The workmen had demanded certain scales of pay; but the Tribunal has fixed scales which are somewhat lower than those demanded by the workmen. The Tribunal was of opinion that the scales fixed by it were in accordance with the scales prevailing in some hotels in the Delhi area; in particular it referred to the scales in the Cecil and Grand hotels, which are more or less similar. The appellant however relies on the statement of Lakshmi Chand Narula, Hony. Secretary of the Delhi Caterers Association, who stated that the Marina Hotel was in B category. Our attention was also drawn to the statement of D. D. Singh, Secretary, Hotel Workers Union on behalf of the respondents who stated that the workers placed the Marina Hotel in category A, which included almost all the hotels in New Delhi and Civil Lines Delhi. The Grand and Cecil hotels are in Civil Lines Delhi and Singhs contention was that they were comparable, though he did not say so in so many words. The appellant contends that as the Marina Hotel is in B category, according to Narula, it cannot be compared with the Grand and Cecil Hotels. The evidence of Shri Narula however does not show in which category the Cecil and Grand hotels are. But on the whole Singhs evidence shows that the Marina Hotel is in the same category as the Cecil and Grand hotels. In any case in this state of the evidence, we see no reason to disregard the view of the Tribunal that the Marina hotel was not inferior to the Cecil and Grand hotels in any way. If that is so, scales of pay fixed by the Tribunal which are more or less similar to the scales in the Cecil and Grand hotels cannot be objected to; nor are the scales intrinsically so high as to call for reduction. We also see no reason to disregard the view of the Tribunal that the appellant has the capacity to pay the scales of pay fixed by it. It is true that profits have gone down since 1954-55. Even so there is no reason to hold that the Tribunal was wrong in the view that the hotel would be able to bear the increase in the wage-bill due to the introduction of these scales of pay. We therefore see no reason to interfere with the scales fixed by the Tribunal.11. Dearness Allowances. The dearness allowance fixed by the Tribunal is in accordance with the present scale. The workmen were demanding Rs. 35, but the Tribunal has fixed Rs. 20 per month and has provided that where a workman takes his meals at the hotel the amount will be reduced by Rs. 15; but where he lives in accommodation provided by the hotel but does not take his meals there the amount will be reduced by Rs. 5; further where he both lives and takes his mean in the hotel there will be no dearness allowance paid to him. We see no reason to disagree with the view taken by the Tribunal in this behalf, particularly when it is in accordance with what was prevalent in the hotel from before according to the award of Shri Dulat of May 17, 1950.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]3. The appellant, as we have already mentioned, relies on the observations of this Court in the case of Voltas Ltd, 1961-l Lab LJ 323 : (AIR 1961 SC 941  ). However, we are of opinion that those observations can not help the appellant. It cannot be disputed that even taking into account the amount received by the workmen through distribution of service charges and tips, there is still a gap between their existing income and the living wage.Coming now to the available surplus for the year 1953-54, the Tribunal found that the net profits were Rs. 98343 and was of opinion that taking into account the prior charges three months bonus would be justified as the monthly wage-bill was about Rs. 5500 per month. The Tribunal, however, did not make a chart in accordance with the Full Bench formula to work out the available surplus. It said that even making allowance for the prior charges there was a substantial surplus to allow payment of three months bonus. The main attack of the appellant is directed to this infirmity in the Tribunals judgment. It appears however that the appellant also did not submit a chart showing the available surplus, according to its calculations as is usually done in such cases by an employer. The reason for this apparently was that the balance sheet and the profit and loss account of the appellant are maintained in a rather peculiar way from which it was not easy to work out the figures according to the Full Bench formula. There is no doubt however that the net profits were above Rs. 98,000 in 1953-54. Depreciation was already provided for in the profit and loss account and as the Tribunal had taken into account net profits it was not necessary to allow any further depreciation, for the net profits had been arrived at after charging depreciation. As for rehabilitation it seems to us that there is hardly any scope for rehabilitation in the present case, for we find from the profit and loss account that repairs and replacements which would include what is understood as rehabilitation are charged as expenses. As for income-tax, it appears that the rate was 45 per centum in the relevant year. The income-tax would thus work out to about As. 44,000 leaving a balance of about As. 54,000. Then comes 6 per centum return on paid-up capital. The balance-sheet shows As. 6,000 as paid-up capital on which the appellant would be entitled to Rs. 360. But, it has been urged before us that the business was purchased for As. 60,000 and that should so be treated as capital. It is enough to say that even it this is a fact there was no evidence of it before the Tribunal and the balance-sheet did not show this figure as capital. In the circumstances the appellant cannot in the absence of proof claim that the capital on which 6 per centum interest should be allowed is Rs. 60,000. It will however be open to the appellant to prove this in subsequent years if it can. The last of the prior charges is return on working capital. On that also there was no evidence worth the name as to what amount was used as working capital. In the circumstances the award of three months bonus cannot possibly be challenged beforefurther find that in the profit and loss account for the year 1953-54 there is an item of over Rs, 13,000 for refund of water charges which has been claimed as extraneous income unrelated to the efforts of labour. If this amount is deducted from the profit of 1953-54 the profit in that year would also come to Rs. 85,000 or so. Thus the profits in the year 1954-55 appear to be more or less the same as in the year 1953-54. In the circumstances there is no reason to interfere with the award of three months wages as bonus for the year 1954-55.Provident Fund. Learned counsel for the appellant has stated that the Employees Provident Funds Act (No. XIX of 1952) has been extended to the hotel industry and in the circumstances he is not pressing the appeal so far as it relates to provident fund, as the provisions in the award relating to provident fund are in accordance with the provisions of the Employees Provident Fundsappellant contends that as the Marina Hotel is in B category, according to Narula, it cannot be compared with the Grand and Cecil Hotels. The evidence of Shri Narula however does not show in which category the Cecil and Grand hotels are. But on the whole Singhs evidence shows that the Marina Hotel is in the same category as the Cecil and Grand hotels. In any case in this state of the evidence, we see no reason to disregard the view of the Tribunal that the Marina hotel was not inferior to the Cecil and Grand hotels in any way. If that is so, scales of pay fixed by the Tribunal which are more or less similar to the scales in the Cecil and Grand hotels cannot be objected to; nor are the scales intrinsically so high as to call for reduction. We also see no reason to disregard the view of the Tribunal that the appellant has the capacity to pay the scales of pay fixed by it. It is true that profits have gone down since 1954-55. Even so there is no reason to hold that the Tribunal was wrong in the view that the hotel would be able to bear the increase in the wage-bill due to the introduction of these scales of pay. We therefore see no reason to interfere with the scales fixed by thedearness allowance fixed by the Tribunal is in accordance with the present scale. The workmen were demanding Rs. 35, but the Tribunal has fixed Rs. 20 per month and has provided that where a workman takes his meals at the hotel the amount will be reduced by Rs. 15; but where he lives in accommodation provided by the hotel but does not take his meals there the amount will be reduced by Rs. 5; further where he both lives and takes his mean in the hotel there will be no dearness allowance paid to him. We see no reason to disagree with the view taken by the Tribunal in this behalf, particularly when it is in accordance with what was prevalent in the hotel from before according to the award of Shri Dulat of May 17, 1950.