Case: Oriental Gas Company Limited Vs. Their Workmen

4. Though there is a common award for all the three years, as there were three references for three separate years, three appeals have been filed in respect of the directions given for each year. After the references were made by the State Government, the Oriental Gas Company Act, 1960 received the assent of the President on October 1, 1960. According to the appellant, under the said Act, its undertaking had been acquired by the Government and hence the liability to pay bonus, if any, in respect of the years, for which references had been made, is that of the State Government and not of the appellant. For this purpose the company filed an application before the Tribunal for impleading the State of West Bengal as a party to proceedings. After issuing of notice to the State Government, and after hearing the counsel for the State, the Tribunal passed order on July 16, 1962 impleading the State Government as a party. The State Government also filed in due course a written statement pleading that it has no liability whatsoever to meet the claim for bonus and that the payment, if any, will have to be made, according to the award, only by the. The Tribunal after hearing the contentions of the appellant and the State has held in the award itself that the bonus claim is to be met only by the company and not by the State government. It is on the basis of the finding in the award that ultimately the appellant has been made liable to pay the additional bonus for the years in question. The appellant in these appeals has not impleaded the State Government as a party and, therefore, it is not necessary for the Court to consider the correctness or otherwise of the findings recorded in the award that the Government has no liability whatsoever in respect of the claim for bonus in these matters5. There was no dispute before the Tribunal that the claims in respect of the three years has to be decided on the basis of the Full Bench Formula and not according to the provisions of the Payment of Bonus Act. Both the company and the two union, representing the workmen, filed calculations of available surplus in terms of the said formula. Parties were also agreed as to thet on the basis of the profit and loss account of each year.

Reasoning:
15. We will now consider the claim for rehabilitation made by the appellant. Mr. Sinha, learned counsel for the appellant, found considerable difficulty in satisfying us that the disallowance of the claim for rehabilitation by the Tribunal is in any way erroneous. There is no controversy that if this claim is to be sustained the same will have to be established by the company by proper evidence. In this connection it has to prove the original costs of the machinery as well as the multiplier and divisor16. Mr. Sinha, in particular, referred as to the evidence of the companys witness, O.P.W. 2, N. G. Goswami. A perusal of his evidence shows that he was not able to give the actual age or the year of construction of the buildings. He has further admitted that he does not have any quotation for the manufacturing of the machinery for the multipliers. O.P.W. 3, K. N. Sen, Chief Engineer, no doubt referred to many new machineries having been installed between, but he was not able to give any idea as to the value of the newly installed machineries. Similarly, he was also not able to give any evidence regarding the date when the various items of machineries were installed nor the approximate life of those machineries. The evidence of the Chief Engineer about the life of the machinery cannot be accepted as it is quite contrary to the chart prepared by O.P.W. 2 Goswami. Mr. Sinha stated that as all the records and other documents relating to the company are in possession of the Government as the undertaking has been taken over, the management experienced considerable difficulty in producing evidence before the Tribunal. We are not satisfied with this explanation given on behalf of the management. The Government was impleaded as a party at the instance of the management and if it wanted any particular document or record to be produced before the Tribunal, it could have applied to the Tribunal to direct the Government to produce such records. In the absence of any such attempt having been made by the company, the present explanation must be considered only as an excuse for not placing evidence that is necessary to support such a claimIt is nowd that the production of thes alone cannot be taken as proof of a claim as to what portion of the reserves has actually been used as working capital. The utilisation of any amount from the reserves as working capital has to be proved by an employer by the evidence by way of affidavit or otherwise after giving opportunity to the workmen to contest the correctness of such evidence by. It is also clear from the authorities reviewed in M/s. Bareilly Electricity Supply Co. Ltd. v. The Workmen and others (supra) that when return on reserves is claimed by an employer, the latter should satisfactorily prove that the amount on which the return is claimed has been actually used as working capital19. The view of the Tribunal is that the employer has not satisfactorily proved this claim. The attempt of Mr. Sinha was that the unions did not dispute the figures mentioned in thes and, on the other hand, they only required certain further information on certain particulars. In this connection he referred us to the Orders Nos. 19, 26 and 33 passed by the Tribunal as well as the application filed by the union asking for particulars. We do not see in those orders any indication that the unions have accepted as correct the statements contained in those. What the orders show is only a recording of the documents filed by the company which include, and the application of the union was only that they should have inspection of thes and that they should have further information on certain aspects. Therefore, neither the orders passed by the Tribunal, nor the application filed by the unions gave any indication that thes filed by the appellant have been accepted as correct in all particulars without any further proof20. Mr. Sinha, no doubt, referred us again to the evidence of Goswami, O.P.W. 2, the Accountant of the company. A perusal of his evidence shows that he was only regarding what was contained in thes which anybody could have done. The counsel pointed out that there has been non of this witness regarding the particulars mentioned in the. In view of the nature of the evidence given by this witness, there was absolutely nothing for the unions toe him. Mr. Sinha further urged that going by the statements mentioned in the, it is clear that some portion of the reserves at least must have been utilised as working capital. In our view the matter cannot be decided on such a guess work. As the appellant has not placed any satisfactory evidence or material before the Tribunal, the latter was justified in declining to allow return on reserves, as claimed by the appellant. From this it follows that the amounts claimed as return on reserves used as working capital in the statements of the appellant have to added back for each year22. Prima facie there is some force in the contention of Mr. Sinha that the Tribunal has not given as much attention that is necessary to consider whether there will be available surplus for payment of bonus at a uniform rate for two months for each of these three years. In this connection we must point out the Mr. Mukherji, learned counsel for respondent No. 1, urged that the deduction allowed by the Tribunal in respect of interest on bank deposits for each of these years is not justified. Therefore, he urged that, apart from adding back the amount claimed as return on reserves and annual rehabilitation, the Tribunal should have also added the amount accrued to the appellant by way of interest on bank deposits. He further urged that there has been very exhorbitant deductions made by the appellant by way of office expenditure, managing agents commission and remuneration and salaries of the officialsWe must point out that there is no material placed before us by the appellant as to how exactly the payment of one months bonus has been adjusted in their accounts. Mr. Sinha, however, referred us to the memorandum of settlement dated October 14, 1958. According to Mr. Sinha this settlement will show that for the year8 and, the company has paid one months basic wage as bonus taking into consideration the trading profits. There is also a clause therein that the company has agreed to give an advance of 1/2 months basic wages to all employees and that the said advance shall not be recovered until the claim for additional bonus in excess of one months basic wages already paid by the company is adjudicated upon by the Tribunal. Mr. Mukherji, however, pointed out that there is a further statement in this settlement that one months bonus referred to therein is to be paid before the pooja holidays25. The Tribunal has gone into this aspect and it has found that the appellant has been paying customary pooja bonus from 1942 or 1947 onwards. But as that payment was stopped in 1958 that led to a conciliation proceeding resulting in the settlement on October 14, 1958. It is not necessary for us to consider this aspect any further, as we will presently show from the calculations to be made, that there will be available surplus for payment of bonus for the years7 and, at any rate, though the amount of bonus for the latter year cannot be at the rate of two months wages26. The unions claimed 50% of the available surplus and, therefore, it is clear that they cannot get anything more than this rate. We will now consider the available surplus for each for the years30. We make it clear that the amount paid as advance as half months basic wages under the settlement dated October 14, 1958 cannot be recovered by the appellant nor adjusted towards the claims allowed in favour of the workmen in these appeals. As per orders of this Court at the time of granting stay, the appellant will have also to pay interest in respect of any amount due under this judgment and which have been paid to the workmenTo conclude the workmen will be entitled to :(ii) The workmen will be entitled only to a sum of Rs. 1, 28, 930 as bonus in the year(iii) For the year9 the workmen will not be entitled to any bonus at all.