M/S. Tulsidas Khimji v. Their Workmen

Wanchoo, .T. The appeal before this (1) ~1960) 3 s.c.R. 382. 1962 Tu/sidas Khimji v. T/,sir W' rkmsn Ayyangar J. .. Tulaiias Khimj i •• Th1i1 W nkmen .Ayµn1~r J. 704 SUPREME COlJftT REPORTS [1963] Court was hy special lc:we from an award of the Industrial Tribunal and the case of the appellants - the employees was tha,t they were entitled to a bonus irrespective of profit on a scale which they set out: The Tribnnal negatived the case of the employees to bonus on all the three grounds upon which bonus was payable, viz., profit bonus, as an implied condition of service and thirdly as custo- - mary bonus. Dealinir with the question of customa· ry bonus of one month's basic wa.ges of the Subor­ dinate staff, the learned Judge said : "This payment of one month's basic wage as bonus at puja appears to have continued uninterrupted from the time it started in 1942 or thereabout upto the time the dispute arose in 1954. The payment was invariably of one month's basic wage and it appears that it was paid e>en in a year of loss." On this ground the appeal was allowed it regard to this item. Lastly, in the ,11 anagement of Tookln.i Experimental 8trttion v. Workmen, (1) the judgment was pronounced by Gajendragadkar, J. (who in<Ji· dentally was a member of the Bench which decided each of the three earlier cases). Dealing with Puja bonus the learned Judge observed : "Customary puja bonus undoubtedly pre· vails in many industries in Bengal but there are certain tests w hieh have to be applied in determining the validity of the claim. The amount by way of puja bonus, it must be shown, has been consistently paid by the emp­ loyer to his employees from year to year at the ~amP rate, that it has benn paid even in year ofloss and that it has no relation to the profit made by the employer during the rele· vant year. The course of cond1rnt spreading over a reas0nably k.ng period between the (I) [1962] l S.C.R. 557, I 1 S.d.R. Sl1P&EME COURT REPORTS 705 employer and the employees in the matter of payment of puja bonus is of considerable im­ porta.nce in de'.lling with the claim of custo­ mary puja bonus (vide The Graham Trading Co. (India.) Ltd. v. Its Workmen)." The question now for considemtion is whether on these authorities, reasonably construed it is or it is not a necessary condition for the establishment of a claim to customary bonus th".l.t it has been paid in a year of loss. The extracts that I have made from the judgment of this Court in the Graham Trading Co.'.s case where it is referred to a~s the third condition and the specific reference to loss in the three other decisions, particularly bearing in mind the fact tha.t the same members of the Court had taken part in these several decisions, and Gajendraga.dkar, J. took part in all the four, I feel unable to hold that the learned Judges did not in­ tend this to be an essential condition. In the Graham case the reason for the insistence of this conditions is stated viz. that it is only a payment during a year when there is loss that would nega­ tive the payment being a bounty. In these circums­ ta.noes I do not consider it possible to , construe these judgments as laying down that payment dur­ ing a year of loss was merely a relevant circums­ tance and not a necessary condition. If~ as I lrnve pointed out earlier, what the Court is now called on to do is only to construe theso dechions, and not consider the question afresh, I feel compelled to hold that in these several decision this Court did lay down that this was a sine qua non for making good the claim. It was suggested during the course of the argu­ ment that there was no difference between a. loss of one rupee for the year and a profit of a similar sum----. and that if the decisions were literally understood it would lead to an unreasbt1abJe result, forwhersas 1902 Tu/sidas Khimji , .. Their Workmen --- A.Jy :ngar J, 1961 T ulsl~"-' Khimji v. TMir 1' Of' km en 706 SUPREME COURT REPORTS [1963) t,he claim wonld be excluded in the event of a loss­ even though the same be nominal, even the existen­ ce of a nominal profit would enable the claim to be established. I agree that we are not construing a statute and that in the context in which the con­ dition has been laid down, viz., that it should negative the vayment being by way of bounty, the expression loss should be understood in the sense of an inadequacy of profit which would not justify the payment of that bonus. But where the profits are adequate to enable the payment of the bonus, it appears to me that these decisions clearly lay down that the right to customary bonus is not established; for atl explained in the Graham Trading Coy's case, the piiyment being by way of bounty would not then be oxcluded. In this connection it has to be borne in mind that when the right to customary bonus is held to be established, the workmen are entitled to it in future years even in an year of loss and a.fortiori so in a year when the profits are inadequate to justify that payment. In these circumstances it stands to reason that there must be an earliar year in which payment has been made in such circumstances as to serve as a precedent for the future, i.e., to establish the custom for payment iu later years. Is in the present case it is admitted that there has been an adequacy of profits to justify the payment of one month's bonue during Diwali during all the earlier years the declaration granted by the Tribunal i8 without justification and the finding in that regard has to be set aside. The result therefore is that I would allow the appeal in part, reduce the profit bonus to basic wages for two months including the one month's basic wage as bonus already paid, and delete the declaration as to customary bonus. BY CouRT-ln view of the judgment of the majority, the appeal stands dismis!ed with Costs. '