Jlorch 5,

' 582

SUPREME COURT REPORTS [I 962] SUPP.

.JARDINE HENDERSON LTD.

?!.

THE WORKMEN AND ANOTHEii

(P. B.

GA.JENl)J\AGADKAR, A. K. SARKAR, and

K. N. 'VAN CHOO, , J, J.) lnduJtrial Dispute-Bon u•-A vaila/ile Surpl u.•-Determi natio!'.of-C/0.<ing Bonus- Implied tum uf agreement or ctnidtt1on of seri-1r:e-Custo1nary bonu..•L

fhe appellant is a company carr} ing on business in Calcutta an<l ha<l bcP.n paying a bonus callc<l closing bonus to its v.orkmcn at the. rate of one month's pay from 1948 to

1957, but as the profits of the appellant considerably fell in 1958, the quantun1 of closing bonus was reduced to half a month's pay; consequently, a reference \Vas made to the tribunal for dccision 1 \\'hcthcr the management ,, as jui; tified in reducing the qaantum of closing bonus to half a month's pay in 1958. The workmen claimed that closing bon,.s had been paid at a uniforrn rate from 1918 to 1957 an<l had beco1nc an implied condition of service between the workmen and appellant: in the alternative, the claim was that the payment ha<l acquire.cl the character of customary honus aud \Vas not dependent upon profits earned. by the appelLmt.

The tribunal held, that the payment of closing bonus had not become an implied condition of service and also held, that the bonus cou1cl not be hclc..I to be a cutomary bonus.

It held that there "as s11fficient available surplus to \varrant payment of one month's pay as profits bonus and ordered thas half a n1onth's bac:ic salary, be further paid as profit bonus to the \\ork1nen for the year in disputr.

Held, that the fact that a company declares dividend

t morr. or less than six percentum is no reason for changing the rate of interest allr)\\•e<l under the Full Bench formula on paid-up capital.

. field, further that custornary Uonus is ahvays connected v.•ith some festival.

As closing bonus is not r.onnectcd with anv festival it cannot he trt":ated as customary bonus of the

kid dealt \Vith the Graham's case.

Graham Tra./ing Co. J, td. v. lts workmen, (l!IGO) IS .. C. 11. 107, R. }.T. F, lia .. and Co. Ltd. Emplnytr.'s lJnio1i v. IJ. iV.

J~"lia.ll and Co. Limited. ( 1%0) 3 S. C. R. 382 and As.<ix:iated Cement Com7vmies Lt<l v. It.• Irorkmw, (1959) S. C.R. 925, referred to.

In tbe present case during the whole of the period from 1948 to 1957 when closing bonus was paid there was no loss .,.

incurred by the appellant. Further the bonus was paid only after the trading results of the year were known.

Ii eld, that taking all circumstances into account it appears that closing bonus had been paid on the basis of the trading results of the previous year and depended upon the profits

earned in the previous year, and it could not be held, that one month's pay as closing bonus was payable as an implied condition of se.rvice irrespective of profit made by the appellant.

M/B. lsphani Ltd. Ciflcutta] v. 18phani Employees Union

(1960) I S. C. R. 24, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 359 of 1961.

Appeal by special leave from the award dated April 18, 1960, of the Third Industrial, Tribunal

\Vest Bengal, in case No. VIII-153 of 1959.

B. Sen, Sukumar Ghose and B. N. Ghosh, for the appellant. D. N. Mukhe1; jee, for the respondent No.I.

1962. March 5. The Judgment of the court was delivered by

WANCHOO, J:-This appeal by special leave arises out of a question of bonus referred by the Government of West Bengal to the Third Industrial Tribunal. The appellant is a company carrying on business in Calcutta and the dispute relates to closing bonus for the year 1958. It appears that the appellant had beon paying a bonus which was called closing bonus. to its workmen at the rate of one month's pay from 1948 to 1957.

In 1958, however, as the profits. of the appellant fell considerably, the quantum of closing bonus was reduced to half a month's p<J.y.

In consequence a dispute was raised by the respondents workmen represented by two unions and their claim was that they should have been paid one month's bonus as usual. Consequently reference was made to the tribunal and the question for decision was whether the management was

Jardin• HmtUrson

Ltd. v.

The Workmen

Wanchoo J,

.!~Jint 'Htndtrso11

Ltd.

The W1trknun

Wanclioo J.

justified in reducing the quantum of closing bonus to half a month's pay in 1958 .

The case of the workmen was that the appellant had been paying two kinds of bonuses to its workmen each year, namely, (i) Puja bonus which was paid usually before the Puja festival, and (ii) closing bonus which was paid after the elosc. of the financial year ending on llfarch 31st each year. Tho workmen claimed that cloRing bonus had been paid at a uniform rate from 1948 to 19iii and this payment ha<l therefore become an implied condition of service between tho workmen and the appellant ; in the alternative the claim was that the payment had acquired tho character of customary bonus and was not dependent upon profits earned by the appellant.

On the other hand the contention of the appellant was that the payment of closing bonus at a uniform rate of one month's pay for ten years previous to 1958 had not in faot turned the payment into an implied condition of service as this bonus was of the nature of profit bonus and it.s payment depended upon the prpfits made by the appellant.

It was urged further that the very fact that this bouus was paid after the accounts for the year were made up and the profit ascertained showed that it was a bonus depending upon profits ; the circumstance that it was paid at a uniform rate for sometime was only fortuitous, particularly as tho appellant had increased the Puja bonus as its profits increased in order to holp the workmen at festival time. As to the alternative ca.so of customary bonus, the appellant cont-Ondcd that this bonus had no connection with any fcAtiyaJ and wa8 paid after the state of profits e:;, rned by the appellant was known and therefore could not be demander! aa a customary bonus.

Finally, appellant pleaded that if closing bonus was treated a.s profit bonus there was no available surplus to justify tho grant of

any further amount as bonus besides half a month's pay which the appellant had already given to the workmen.

The tribunal came to the conclusion that it had not been proved .that the payment of closi?g bonus had become an implied condition of servrne

and in that connection relied on the decision of this Court in Messrs. lspahani Limited Calcutta v.

Ispalwni Employees' Union. (') Further, it held that the bonus could uot be held to be a customary bonus as there was nothing to show that it had been paid even in a year of loss. It therefore negative the case of the workmen that closing bonus of one month's pay was payable every year after the accounts were closed either as an implied condition of service or as a customary bonus. The tribunal then went into the question whether any further amount besides half a month's pay which had already been paid by the appellant as bonus could be awarded as profit bonus on the basis of the Full-Bench formula approved by this Court in the Associated Cement Companie-~ Limited

v. Its Workmen('). It held that there sufficient available surplus to warrant payment of one month's pay as profits bonus and therefore ordered that half a month's basic salary be further paid as profit bonus to the workmen for the year in dispute. It is this decision of the tribunal which has been assailed before us by the appellant.

So far as profit bonus is concerned, the main contention on behalf of the appellant is that the tribunal went wrong in allowing 2 1/2 per centum interest on paidup capital and that it should have allowed, 6 per centum interest, which is the usual amount allowed under the Full-Bench formula.

The reason why the tribunal allowed 2 1/2 per centum interest was that the appellant had paid dividend at 2 1/2 per centum in that year as its

(l) [1960] 1 S.C.R. 24. \2) (1959] s.c.R. 92~,

Jardine Hinder son Ltd. v.

TM Workmen

WanchOD J.

Jardiru Htntkr•on

Lid.

The Workmen

Wonchoo J.

586 SUPREME OOURT REPORTS [19112] SUPP.

profits harl show a considerable fall. W c are of opinion th&t the tribunal wa.s wrong in allowing only 2 1/2 per centum 'interest on paid-up capital on the ground that the actual dividend doclared by the appellant was only 2 l/2 per cent.um for that year.

The return on paid-up capita.I provided in the .Full Bench formula is not linked with actual dividends that. might be declared by a company. Many a time companieR declare dividends higher than six per centum. But under the formula they are usually allowed Aix per centum interest on paid-up ea.pita] irrcspecti\'e of the dividends declared.

It is only where a company can make out an exceptional case for allowing more than six per contum interest on paid-up capital thn, t the tribunal can award moro.

Similarly it. is onl.Y when an exceptional Calle is made out for allowing less than six per cent.um interest that thn tribunal would be justified in allowing Jes•. We arc of opinion that the fact that a company declares rfr; idend at more or less than six per centum

i• no rea8on for ch1mging the rate of inwrest allowed under the Full-Bench formula on paid up capital. In the present case no reP..son lms h'"'ll shown beRides th•' fact th1t the di\' id"nd declared was less than Rix per cent.um to rerluco t.Jw usual rate of interest from six por cent.um to 2 1 /2 per ccntum We arc therefore of opinion that the tribunal should have allowed six per centum interest mi paid-up capital in this coasc and that. would increase the amount due under this head from Rs. 5 lacs to Hs. 12 lacA. It is not dispukd by lcarnerl counAel for the rnspondcnts that if six per centum interest is allowed on paid-up c1tpital in this caAe as is usually done there will be no justificittion for allowing more ns profit bonus than what the appellant has already giwn. In the result t.hc tribunal's award of half a month's further 11a.ges as bonus on th!l grom1d that. there . is available surplus to justify it must be 8ct aside,

Learned counsel for the respondents however submitted that even though no further bonus could be allowed on the basis of the Full-Bench formula, the workmen were entitled to one month's pay as closing bonus either as an implied condition of service or as a customary bonus.

So far as customary bonus is concerned, it is enough to say that customary bonus of the nature dealt with in Graham Trading Co. Ltd,. v, Its Workmen(l) is always connected with some festival. In the present case it is not in dispute that the closing bonus is not connected with a, ny festival and therefore cannot be treated as customary bonus of the kind dealt . with in Graham's case.

This was pointed out by this Court in B. N. Elias & Co. Ltd,. Employees' Union v. 13.N.Elias & Co. Limited, (2) where it was observed that it was difficult to introduce the payment of customary bonus between employer and employees where terms of service are governed by contrnct, express or implied, except where the bonus may be connected with a festival,. whether puja in Bengal or some other equally important festiv!;11 in any other part of the country. Therefore as closing bonus is admittedly not connected with any festival it cannot be allowed as a customary bonus of the type considered in Graham's case( 3 ).

Turning now to the question whether payment of one month's pay as closing bonus has become an implied condition of service, the first point to be noticed is that closing bonus was always paid after the trading results of the year were known. Under these circumstances it would not be improper to infer that closing boims was dependent upon profits made by the appellant, f'or it was paid only after profits for the previous year had been ascertained.

In the present case during the whole of the period from 1948 to 1957 when the closing bonus was paid

(1) [1960] 1s.c.R.107.

(2) [1960] 3 S, C.R. 332.

(3) [1960] 1S.C.R.107,

J ardint Hender•rm

Ltd.

The orkmen

Wanchoo J.

Jardine Htndtrsnn

Ltd.

Th 1 IV ortnum

there was no loss incurred by tho appellant. As was pointed out in lspaliani's ca.e the "fact that bonus was paid during a year of loss also would ho an important circumstance in coming to the conclusion th; it pa, vmf)nt was a matter of obligation baRed on an implied agreement. In the present ca.se that important circumstance is absent.

The absence of this oirr:umstancc along with the fact that the bonus was paid only after the trading results of the year were knmvn and therefore in all probability depended upon the profits would show that it could not be a matter of obligation based upon implied agreement.

BPsides it appears that this company formerly belonged to another owner and merged with thn appellant in 1946. When the former company was the owrwr it does not appear that it paid any closing bonus as such from 1940 t.o 1945.

Even after the appellant took over no payment was made in

194() and 194 7. It was only from 1948 after the

tradin~ rnsults for the year ending on 1Iarch 31, 1948 11ere known that oud mm1th'8 basic wages hegau to be paid 1i.s closing bonus in a.dditiu11 to puja bonus which was origin:dly paid at tho rate of one month's basic wages but which was gradually increased to two months' basic wages from '1951i, For the year in dispute the appellant has paid two months' puja bonus; but it reducer! tho closing

bonus from one month to half 11 month's basic wages because of the fall in profits which fell from Rs. 27 lac' in 1957 to a little over Rs. 15 lacs in 1958.

It i8 clear therefore that the closing bonus has not been pa.id from tho beginning when th() appellant took

over the business of the previous company, though it was paid at a. uniform rato fr1>m 1!148 to 1957. It may be mantioncd that in 1 fl!i9 when profits went up again the appellant has paid one month's pay S\8 closing bonus. Taking therefore all the circumstances into account it appears that closing bonqs 4as

38.C.R.

SUPREME COUR'i: REPORTS 589

been paid on the basis of the trading results of the previous year and depended upon the profits earned in the previous year. In the .oircumstances it cannot be held that one month's pay as closing bonus is payable as an implied condition of service irrespective of the profit made by the appellant. It seems to have been of the nature of profit bonus, even though it may have been paid at a uniform rate for ten years.

We therefore allow the appeal, set aside the order of the tribunal and reject the claim of the. workmen for any closing bonus over and above that paid by the appellant for the year 1958.

In the circumstances we order the parties to bear their own costs.

Appeal aUowed.

THE MANAGEMENT OF INDIAN CABLE CO.,

LTD., CALCUTTA

ITS WORKMEN

(B. P. SINHA, C.J., K. SuBBA Rao, N. Ra.r.AGOPA.LA

AYYANGAR, J. R. MuDHOLKAR and T. L.

VENK.AT.AR.AM.A AIY.AR, JJ.) Industrial Dispute-Closure of branch-Retrenchment of workmen-Right to be absorbed in other branches-Branch if an industrial establishment-Individual dispute and industrial dispute-DiBtinction-Dispute raised by majority of workmen if an industrial dispute-Competence of State Government t~ make reference-"lndustrial dispute" "industrial establishment", meaning of-Industrial Dispute. Act, 1947 (14 of 1947), ss. 2(k), 10, 25G.

Section 25-G of the Industrial Disputes Act, 1947 provided : "Where any workman in an industrial csta: blishment •... is to be retrenched and he belongs to a

Jardine ilendersen '

Lit.

V, The W 011'mtn

Wonchoo J.

1961 ·-- March 6.