2 S.C.R.

SUPREME COURT REPORTS 883

intention was to benefit the assessee Company by the acquisition of a large blook of shares at a very much larger price than obtaining in the m'l.rket, to acquire certain agencies of a profitable character.

In our opinion, this transaction must be regarded as one on the capital side. Shares were never treated as part of the stock-in-trade. Tb.ey were not sold in the market, but were sold at a loss to another Company belonging to the same group, with the obviouR intention of setting off the losses against the profits, thus cancelling the profits, and saving them from taxation.

In the result, the appeal is allowed with costs on the respondent.

Appeal all(JWed.

EMPLOYERS IN RELATCON TO THE

BHOWRA COLLIERY

THEIR WORKMEN (P. B. GAJENDRAGADKAR, A. K. SARKAR and

K. N. WANCHOO, JJ.)

Indualrial Di1pute-Bonua-Mali1 Working in fficers bungalowa_:Whether entiUe~Ooal Mines Provident Fund and Bonus 8cheme1 Act, 1948 (46 of 1948) •· 5.

In exercise of the power conferred by s. 5 of the Coal Mines Provident Fund and Bonus Schemes Act, 1948, the Central Government frame.d a Bonus Scheme for the payment of bonus to employees of coal mines. Paragraph 3 of the scheme made every employee in a coal mine eligible for a bonus except, inl<ir alia, "a mali on domestic and persorn~I work". The question for consideration was whether under thi< paragraph the malis workin' in the officers' bungalows had any right to bonus

Held, that these malis were not entitled to any bonus under tho BontS Scheme. Paragraph 3 contemplated malis who were emplovces of thf'.: colliery owners and were yet on domestic work.

D1.nestic meant as of the home. The malis

The CommiasiontJ of

lncome~, ax, Dflhi

and RajaJthan

v . .1.\1 f°J. Na 1io'lal

Finance Ltd.

H 1d1J1alullah J.

Jc..,,,,, y30.

IfU

Bllf1'/o)wrs ;,, 8'1alio• lo u..

B/Mulr• OollU.,.

•• n,;, ".,,,_

s..., J,.

SUPREME OOURT REPORTS [1962] SUPP.

who were working in the bungalows occupied by the officers were workinit in the homes of the officers. They were there! fore, on domestic work. The work they were doing did not cease to be domestic work because the bungalows belonged not to the offici:n but to the appellant or because they were under the control and orders of the appellant. Further, these malis were on personal work. The word "personal" was tu.d in the sense of work for an individual as distinguished from work for the coal mine as an institution. These malis were undoubtedly working for the officers as individuals.

CIVIL Al>PELLATE JURISDICTION: Civil Appeal No. 96 of 1961.

Appeal by special leave from the a.ward dated December 7, 1959, of the Central Governmnt Industrial Tribunal Dhanbad in reference No. 42 of 1959.

S. 0. Banerjee and P. K. Chatterjee, for the appellant.

Janardan Sharma, for the respondent.

1962. January 30. The Judgment of the Court was delivered by

SARKAR, J.-The appellants, the Bhowra Kankanee Coal Co. Ltd., own the Bhowra and other collieries.

On the Bhowra Colliery there are a. num her of residential bungalows belonging to the appellants oocupied by their officers employed in the colliery. The appellants employ certain malis for working as such in these bungalows and their duty is to look aft.Ar and maintain the gardens there.

A dispute a.rose between the a.ppella.nts and their workmen as to whether these malis, who were fourteen in number, were entitled to bonus. By an order made on June 23, 1959, under the Industrial Disputes Act, 1947, the Government of India referred this dilpute a.long with another with which we a.re not concerned in thil case, for adjudication to the Industrial Tribunal, Dhanba.d. The Points referred concerning the diute abovementioned were in these terms :

(1) Whether the withdrawal of the benefit of bonus provided in the Coal Minee Bonus

Scheme by the management of the Bhowra Colliery from the following garden mazdoors/ malis is justified.

If not, to what relief are they entitled and from what date?

(2) Whether the garden maztloors/malis referred to above are employed on domestic and personal work within the meaning of paragraph 3 (b) of the Coal Mines Bonus Scheme, 1948 and if not, to what relief are they entitled and from what date?

The points so referred were decided by the Tribunal against the appellants by an award made on December 7, 1959, and the present appeal is against that award.

Till January 1, 1955, the Bhowra and certain other collieries managed as a group, were owned by the Eastern Coal Company Ltd., and on that date these collieries were sold to the appellants. At the time when this sale was being arranged, the work men in these collieries raised a dispute that their services should be treated as continuous inspite of the transfer of the collieries from one owner to another by the sale and that the conditions of their service and the facilities which they were enjoying under the previous owners should be guaranteed and continued by the succeeding owners, that is the appellants, after tbe latter took over the collieries.

At the instance of the Conciliation Officer appointed under the Act this dispute was settled by an agreement made on January 14, 1955, to which the Conciliation Officer the workmen the previous owners and the appellants were parties. Paragraph 3 of this agreement provided as follows :

"Agreed that the existing service conditions and the facilities will be continued, excepting pension."

Now in 1948 an Act called the Coal Mines Provident Fund and Bonus Schemes Act had been passed by s. 5 of which the Central Government was

Emplfl1"'S in &lolion lo tM Blwwro Collifry

Their Worknun

Sarllor J,

g~,,.

R#olin to tJw B•-• c.llU.J

Tlr.ir ""*-

empowered to frame a bonus scheme for the pay ment of bonus to the employees of coal mines, The Central Government had framed a. Bonus Scheme

under this provision in 1948 and sinoe then the previous owners had been paying the ma.lie employ ed for the bungalow gardens belonging to the Bhowra.

Colliery, bonus in terms of it. In 1951 they once stopped the bonus but that caused an industrial dispute and they thereupon restored the bonus.

Upto the acquisition of the Bhowra Colliery by the appellants the position thus waa that these ma.lie had been receiving bonus since 1948 excepting for a. short period during which it had been stopped as earlier mentioned. After they became the owners

of the Bhowra Colliery, the appellants however stopped the payment of bonus to these ma.Us. This

raised the industfri.I dispute which had led to tliis appeal.

Paragraph 3 of the Bonus Scheme framed under the Act, so far as relevant for this case, is in the11e terms :

Paragraph 3. Except a.a hereinafter provided every employee in a coal mine to which this Scheme applies shall be eligible to qualify for a. bonus,

ExoeptionB :- .An empleyee in a. coal mine shall not be entitled to a bonus under the Scheme for the period during which-

(a.} .................................................. . (b} he is employed as a ma.Ii, sweeper or demestio servant on demestic and persona.I work; ( c) e • o o o o o o o o o o O Oo • • O O O • O 0 O o O' O O oO o 0 o' O O O O o o o o I' 0 o o o o 0 One of the questions raised in this appeal is whether the bungs.low ma.lie were entitled to bonus under thill

para.graph. The appellants oontended oofore the Tribunal that ma.lie a.s a. class were excepted from the benefit of the Bonus Scheme by the provision

in exception lb) in this paragraph. They further contended in the alt<'rnati ve that thee malis were excepted in any event because they were malis employed on domestic and personal work within the meaning of the exception. The Tribunal rejected these contentions of the appellants and held (a) that these malis were entitlPd to bonus under paragraph 3 of the agreement of January 14, 1955 and (b) that they were not employed on dome.stic and personal work and were therefore not within the exception.

For these reasons the Tribunal held that the withdrawal of the bonus by the appellants was not justified.

It is not clear on what ground the Tribunal held that the malis were entitled to bonus under paragraph 3 of the. agreement of January 14, 1955.

It may be that the Tribunal thought that the Bonus Scheme framed by the Central Government formed a condition of service of the malis or a facility to which they were entitled and which the appellants undertook by the agreement of January 14, HJ55, to continue. If this was the point of view, then of course the further question still remains whether the malis were on domestic and personal work for if they were, then they would not be entitled to the bonus as a facility or a condition of their service under the Scheme.

It was however contended on behalf of the respondent workmen in this Court that the right to bonus was a condition of the service of t.he Malis and a facility to which they were entitled independently of the Bonus Scheme and that this is what the Tribunal had held. The record however is not very clear on thi8 question. The appellants dispute the contention of the workmen and further say that in any event the Tribunal had no jurisdiction to decide that question for the question referred to it was the right of the malis to bonus uncler the Bonus Scheme.

Employers tn Relation le. the Bhowra Collilry

Vo Their W01kmlll

Sarkar J.

tHI - ~·"' ~,..,., ....... c.11;,,,

•• n.;, w .. 1 ....

s.t.J.

We think that the appellants' contention is well foundt,'<l..

What had been referred was the question "whether the withdrawal of the benefit of bonus provided in the Coe.I Mines Bonus Scheme

.. .... is justified". Un the language of the order of reference it seems to us that the dispute referred WM as to the right as provided in the Bonus Scheme and not as to any othe.r right. This also was the workmen's oa.se before the Tribunal as a.ppoe.rs from its written statement filed there.

In the statement of oase filed in this appeal also, the respondent took the same position. We therefore think that if the Tribunal had held that the ma.lie were entitled to tho bonus under the agreement of January 14, 1955 independntly of the Bonus

Schme it had exceeded its jurisdiction and its a.ward cannot be upheld.

The question still remains &a to whether on a pro per construction of paragraph 3 of the Bonus Scheme these inalis had any right to bonus. That

was undubita.bly the question referred to the Tribu. n&I.

The words requiring construction a.re "on domestic and persona.I work". The Tribunal held that ma.lie working in bungalows belonging to the appellants were not working for the home or household of privat~ persons or individuals and were therefore not on domestic work. It also held that &a the malis work under the direction and control of the appellants and were liable to be tre.ll8ferred from one bungalow to another or to some other work they were not on persona.I work. We are unable to accept this construction of para.graph 3 of the Bonus Scheme. Domestic means 118 of the home. We feel no doubt that the ma.lie who were working in the bungalows occupied by the officers were working in the home of the office111. They were, therefore, on domestic work. The work they were doing would not cease to be domestic work because tho bungalows belonged not to the

officel'll but to the appellants. Whether a work

is domestic or not would depend on its nature.

Suppoe an officer has employed his own mali for working in the bungalow garden, that mali would surely be on domestic work. This is not disputed.

The nature of that work would not change because the mali was working not under the orders of tho officer occupying the bungalow but under the appellants, nor because the bungalow did not belong to the officer but to the appellants. Nor for the same reason does the fact that the malis were employed by the appellants and not by the officers make any difference. The fact that Malis might be transferred to other jobs and cease to be malis altogether is also irrelevant. On such transfer they might become entitled to bonus. The exception in paragraph 3 deprives them of the bonus only for the time they are malis on domestic and personal work.

Paragraph 3, of the Bonus Scheme contemplated malls who were employees of the colliery owners and were yet on domestic work.

The Tribunal thought that paragraph 3 only contemplated cases of malis appointed by the officers who were paid some allowance by the colliery owners for keeping malis in the gardens of the bungalows occupied by iliem. It may be that malis so engaged would be the employees of the colliery owners, as the term employee is defined in the Act under which the Bonus Scheme was framed, but we see no reason to restrict malis on domestic work referred to in paragraph 3 to such malis only. As we have said earlier, whether a mali is on domestic work or not would depend on the moture of the work. As the work which the malis with whom we are concerned did, was domestic work, these malis must be deemed to be within the exception. mentioned in paragraph 3. They would not cease to be malis on domestic work because they had been working in the bungalows belonging to the appellants or were under their control and orders.

We further feel no difficulty in holding that

EmployfTJ ia lltlation to th.

Bhowra Oalli11')

Tluir Worlnm

Barkat J.

E,,, sin Relation 14 tAt Bh0W1a Collin.1

\'.

TJ., ir Wor4:mtn

Se1Ur J.

I96Z

J-ry 30.

these malis were on persona.I work.

The word "persona.I" is obviously used in the Bt'nce of work for an individual as distinguished from work for the Coal mine as a.n institution. These malis were undoubtedly working for the officers as individuals.

ThereCore they were on persona.I work.

For these reasons in our view the malis in the present case were not entitled to any bonus under the Bonus Scheme. As in our opinion the order of ruference does not raise any question as to whether the malis were entitled to bonus apart

from the Ronus ::icbeme, it is unnecessary for us to ex presa any opinion on that question and we do not do so.

The result is that this appeal is allowed and we set aside the award of the Tribunal in so far as it is concerned with the two points of dispute earlier set out which had been referred to it. \\e do not think it a fit ca.so to make any order for cos ta.

Appe, al allowe.d.

GIRJA SHANKAR KASH! HAM

THE GUJABAT SPlNNING &

WEAVING CO. LTD. (P. B. GAJENDRAGADKAR, A. K. SARKA!! and K. :N'.

WANC!tOO, , TJ.) lndu.tria/ Dilpuk-Erclu8ive right of Reprt3entalive Union to repreaent emplnyee•-Bomhay IndU81rtal Relatinns Act

(Xlo/ 1947) ••, 27A, J2, JJ, 42 (4).

The Gujarat Spinning & Weaving Co. Ltd., closed its business on May 14, 1953, and •old its asscrs to Tarun Commercial Mills Co. Ltd. The old company had discharged all its workmen when it closed its business.

The new company restarted the business after a week an<l took in its service the workmen of the old rompany.

When the closure took place a dispute was pending hetween the old company and its v.orkmen lvith respect to bonus. l'hc rextile Labour Associa tion, which is a Representative Union of the textile wockers in the city of Ahmedabad, filed an application before the Labour