BINNY LTD. versus THEIR WORKMEN

)INNYLTD.

THEIR WORKMl!:N

February 15, 1972

[C. A. VAIDIALINGAM, I. D. DuA AND G. K. MITTER, 1J.]

The Payment of Bonus Act, 1965. $1'. 17 and l~Direcll'o# to' pay half yearly bonus-If justified-Payment of additional bonus-Metliod of calculation.

The appellant company was making two payments of bonus every year one for too half year ending 30th June and the other for the half year ending 3 !st Dece111ber, The payment wao on the basi• of profits earned by it and the payment was not condition of service and had nothing to do with any custom or festival. When the Payment of Bonus Act, 1%5 came into force, the appellant issued circular that as bonus was payable under Jaw only within period.of 8 months from the end·of the accounting year (the appellant's accounting year was the calendar year), no bonus was payable for the accounting year 1965 until the accoun!S for · the year are closed, and the announced payment· of one month's basic wages as advance against wages for the half year endi~g. 30th June 1965.

The questions, (l) whether the appellant was justified in.announcing the payment as advance against wages iiistead of as advance bonus, and (2) whether the respondents were justified in claiming bonus for the years 1962 and 1963, in addition to what had already been paid by the appellant were referred to the Industrial Tribunal.

On the first question the Tribunal held that the appellant was not justified ln anncunc1ng the payment towards advance wages and directed the appellant to pay profit bonus in .two instalments-one as advmce against the final declaration of bonus, and the balance; if any, as the second instalment. On the second question the Tribunal held that the question of bonus payable was to be calculated in accordance with the Labour' Appel-late Tribunal Full Bench Formula approved in AS30Ciated Cement Com-panies Ltd. v. Workmen, [19591 S.C.R.25; that in calculating the re~ on Reserves the claim of the appellant to iJtclude in the working C84>ltal the amounts sunk in \a) fixed assets and (b) capital work in progress should be disallowed; and that the claim of the appellant for provision for re-habilitation should be rejected:

In apeal to this Court. ·

HELD; (I) (a) Under the Act, bonus for particular accoiJnting'year will have to be computed in accordance with the provisions of the Act (Ill the basis of the gross profits determined at the close af the accounting year. . The Act makes pr~vision as to how the gross profits, available and allocable surplus are to be calculated, and s, 19 prescribes 8 montha from ll>c close of the accounting year as the period within which the ,bonus was to be normally paid., The scheme of the Act shows that claim for llonus can be made only after the close of the accounting year, because, groa profits and the ~vailable and allocable surplus can be worked out only at the end of the accounting year and not earlier, whereas the direction' given by the Tribunal requires the employer to make two computati~ at the end of each half y~ar. /469 E-H; 470 A-Bl

(b) The direction given by the Tribunal making it obligatory on the ntanagement to make half yearly payments of bonus apart from being .. ipposed to the scheme of the Act. runs counter to s. 19. Under the section, whether it is the minimum bonus of 4% under s. 19 or the maximum bonus of 20% under s. 11, they have to be paid only within period 'bf 8 months from the closing of the accounting year. [470 C-E]

( c) Section 17 (b) is an enabling section in favour of the employer in that it visualises situation when he may have paid during the accounting year part of the bonus payable under the Act, before the date on which such bonus becomes payable. lf the payment was by way of profit bonu8, he is entitled to deduct it from the final amount that may be payable under the Act. But that provi:;ion does not give right to an emplo)'ee to claim payment of bonus by way of part payment during the currency of the accounting year. Therefore, the mere fact that the appellant has heen making payments on previous occasions half yearly, does not confer right on the employee to 'have such payments by way of bonus in the same manner after the Act has come into force. Hence, the Tribunal had r:io jurisdiction to give direction to ~he appellant to pay bonus at the end of each half year. [471 A-CJ

(2) (a) In coa.idering the claim for return on workins capital two questions have to ·be kept in viev.·: (i) whether Reserve,, were available, and (ii) \Yhether they were used as working capital, and if $0, what was 1he- atnount used. 1477 GJ

In the present case, the Tribunal has correctly kept the two principles in view in arriving at the amount of Reserves used as working 'capital and on which return is to be allowed. The balance sheets of the appel-lant do not have any figures from which the Tribunal would be able to draw conclusion. The Tribunal, therefore, while acceptin1 the s~ents of account filed by the appellant for the two years, for showing how it had calculated the amQunt ,of Reserves utiliz.ed as working a.pita], held~ that t_he two items should be deducted; because, working capitil represents the funds required for day-to-.day work of the company and carinot include~ fixed assets, and the capital works in progress. r477 G-H; 478 A'Cl

. Workmen of M/s. Hindustan Motors Ltd. v. M/s. Hindustan Moiors Lid. & Anr. [1968] 2 S.C.R. 311 and M/s.'A/uminium Corpn. of India v. Workmen, [1969] 3 S.C.R. 832, referred to.

Therefore, the contention that the Tribunal had committed mistake Jn calculating the amount of Reserves used as working capita.I cannot be acc~pted. [478 D-EJ

(b) company should build up rehabilitation reserve takinr into con-sideration the increase in price in plant and machinery which bu to be repJaced at future date. But since it is substantial item which goes bl: reduce the available surplus and as resul~ affects the right ·of the employees to bonus, the employer will have to place all .relevant material, before the Tribunal for its scrutiny. The burden of ·proof is on the employer to prove the price of the plant and machinery, its age, the period during which it requires replacements, the cost df replacemen~ \he amount standing in the Debunture and' Reserve Funds and to what extent t.he funds at its disposal would meet the cost of replacement. If the employer fails to lead satisfactory evidence on these points his claim for rehabilitation will be rejected. Also. if company has no scheme for rehabilitation then its claim on that head must he rejected. r 479 A,E' 481 B-C]'

Azam Ja/1i Mills Ltd. v. Workme11, [1967] 2 L.L.J. 18 and National Engineering Industries Ltd. v. Workmen, [1968] 1 S.C.R. 119, referred to.

In the present case, the averment in the written statement of the res-pondents,· that the appellant's machinery was among the most modern and .. no provision for rehabilitation was necessary, was not controverted by the appellant. The balance sheets for the two years showed that some amounts were spent on machinery. But when the respondents were contesting the claim of the appellant on the ground that it had no scheme of rehabilitation and that it had not spent any amount by way of replaoo-ment, it was the duty of the appellant to have made proper claim and to adduce evidence regarding that aspect. Mere production of balance sheets , and profit and Joss accounts and adding note in the statements -0[ account filed that the figure is 'subject to claim for rehabilitation' will not entitle the appellant to sustain its claim for rehabilitation. More<>Yer, lhe appellant had large Reserves to meet rehabilitation expenses. It had also floated debenture for buying new machinery. r481 G-H; 482A-C, Dl

Further, in determining the claim of an employer far rehabilitation, two factors are essential to be ascertained, namely, (i) the multiplier, which has to be done by reference to the purchase price of the machin!"Y and the price "hich has to be paici for replacement; and (ii) the divl'IOr, which has to be done by deciding the probable life of the machinery. [479 E~FJ

Ho110rary Secretary, South India Mil/owners' Assn. v. Secretary Coim-bato,.. District Textile Workers' Union, [1962] SUpp. 2 S.CR. 926 and M /s. Gan110n Dunkerley &. Co .. v. Their' Workmen, A.I.R. 1971 S.C. 2567, re!erred to.

In the present case no material was placed before the Tribunal by the appellant from which the multiplier and divisor can be properly- worked <mt. [481 E-P) "

lberefore, the Tribunal was justifiOd in bplding that the appellant had not made out its claim for making provision for rehabilitation. [411'2 C-Dl

( c) The equitable method of aDocating the available surplus between the company and its workmen is to distribute (,()% as bonus to the w<>rlan"1 leaving the remaining 40% to the company. In the pr.sent case, the method of calculation adopted for 1962, by the Tribunal, shows that the amount of 'bonus awarded by the Tribunal together with the amount already paid by the appellanr exceeded (,()% and the award of the excess was not justified. [484 A-CJ

Ml s. Ganncn Dunkerley &. Co. v. Their Workmtn, A.I.R. 1.9'11 S.C. 2567. referred to.

Civil Appeals Nos. 1291

CIVIL APPELLATE JURISDICTION: and 1292 of 1967 ,,

Appeals by special leave from the awatd dated June 30, 1967 of the Addi1ional Industrial Tribunal, Bangalore m A.I.D. Nos. 6 and 8 of 1966.

0. P. Malhotra and D. N. Gupta, for the appe11ant.

l. N. Keshava and K. Rajendra Chowdhary, for respondents Nos. 2 and 3.

Vineet Kumar, for respon'dents No5. 4 to 10.

The Judgment of the Court was delivered by

V aidialiDgam. 1. These two appeals, by specal leave, are directed against the common Award, dated June 30, 1970 of the Additional Industrial Tribunal, Bangalore, in two References,

A.I.Ds. 6 and 8 of 1966.

On December 8, 1965, the Government of Mysore referred to the Industrial 'tribunal for adjudication the following question :

· . "Is 1the Management of the Bangalore Woollen, Cotton and Silk Mills C!)mpany Limited, Bangalore, justified in announcing payment of one month's basic wages as advance against wages for the half-year ending June 1965 instead of declaring this' payment as an ad-vance against payment of bo1Vi~ as was being done all these years ?

If not, what other relief the workers are entitled to?"

This was numbered as Reference No. A.I.D. 6 of 1966. Civil Appeal No. 129'1 of 1967 is directed against that part of the order of the Tribunal regarding ithis Reference. · · .

On March 5, 1966, the Government of Mysore referred to

the same Tribunal for adjudication the following question :

"Whether. the demand. of the workers of Bangalore Woollen, Cotton and Silk Mills Co., Ltd., Bangalore, for additional bonus for the year 1962 and 1963 at the rate of 2 months additional bonus and 4 months additional bonus on total wages respectively is justified.

If not, to what other relief or reliefs a:re the work-men c;ll'titled ?"

This Reference was numbered as A.J.D. 8 of 1966. Civil Appeal No. 1292 of 1967 is directed against that part of the order of the Tribunal regardinjl this Reference. Both the appeala are

by the Company.

We will ·first take up Civil Appeal No. 1291 of 1967. The appellant was making two 1>8ymetl'!S of bonu8 every year, one.for the half-year ending 30th June and half-year ending 30th De. cember. The accounting year is the Calendar year. The balf yearly payments were unilaterally declared by the appellant and not on the basis of any aJU"eemell'I: between the pal'lies. The quantum of bonus that was paid for each half-year was also not cbostant. Half-yearly payments were made at the end of the half-year when

the working result of 'the said year was known and if there was sufficient profit to pay bonus. The payment of bonus for the half-years also depended upon the approximate estimate that the Directors used to make about their prospective future earnings for the ne~t half-year. According to the appellant the bonus amounts were paid out of profits. As the Payment of Bonus Act, 1965 (hereinafter to be referred as the Act) had come into force on August 28, 1965, the appellant issued circular to 1he efP>..ct that for the half-year ending June 30, 1965, payments will be made a' advance of wages equivalent to I/ 6th of the basic earnings of the. employees. In this circular there is reference to the Payment of Bonus Ordinance 1965, promulga~.!d on May 29, 1965 and that under the terms of the Ordinance, bonus is payable only within period of 8 months from the end of the accounting year. The circular fu~ther states that no bonus is payable for the accounting year 1965 unti) the accounts for the year are closed. It was fur-ther mentioned that the amounts are paid as advance wages in view of the representations made by the employees. The circular further mentioned that the amounts paid as advance wages will be set off against the bonus that may be found payable for the ac-counting year 1965 and that if no bonus is payable, the amount paid will be adjusted against the wages due for any month after March, 1966.

The issue of the above circular led to the Unions concerned raising dispute with the Management that the payment of bonus irt the end of each half-year has become condition of service of the workmen as the same was being paid for several decades with-out any relation to profits. The appellant was charged by the Unions of having changed the conditions of service by offering to make payments as advance against wages instead of payment by way of bonus. As conciliation proceedings failed, the work-men resorted to strike in December 1965, which led to the Reference being made by the State Government on December 8, 1965, No. A.I.D. 6 of 1966.The short stand taken by the appellant before the Tribunal was that the payments were being made as bonus 11'1 the end of each half-year on the basis of the profits earned by the Company. Such payment was voluntary act of the appellan!t and related to profit and it had not become condition of service of the em-ployees. The further case of the appellant is that as· the Act had CO!lJe into force, bonus is governed by the provisions of the Act and that bonus is to be paid only within eight months after the close of the year of account, i.e., December 31, 1965.

The Unions pleaded that the payment of bonus at the end of each half-year, which was being done for long number of years,

has become .ll. condition of serviee and too amounts paiq were not related to the profits earned by the Company. The Unions furtller contended that the Act has not in any manner afiected the right of the employees getting bonus in the manner paid by the appellant namely, at the end of every half-year.

The Tribunal has recorded the following findings : The pay·

ment of bonus was not settled condition of service, but is de· pendent upon the profits earned during the half·yGar. Payments made by the appellant at the close of the half-year cannot be con· sidered as customary or festival bonus and that the appellant has made no change in the conditions of service of rthe workmen by altering the quantum of bonus. Though bonus was paid at the close of each half-year, the quantum of such bonus varied de-pending upon the profits earned by the Company. The Company has no doubt been paying for long time profit bonus in two instalments, namely, in the month of August for the half year end· ing 30th June and in the month of March or April of the succeed· ing year for the half-year ending 31st December. The coming into force of the Act has not created any right in the appellant to withhold the payment for each half-year as it used to do. The appellant will be entitled to deduct the amount of bonus paid for the first half year from the amount of bonus payable to its em· p!oyees under the Act in respect of the accounting year and the employees will be entitled to receive only the balance for th" £ second half-year. On these findings the Tribunal held that the ap-pellant was not justified in announcing the payment of the amount. towards advance wages under the circular dated August 28, 1965. In the end <the Tribunal gave direction to the effect that the ai>Pellant is liable to pay profit bonus in two insta!ments--Olle as advance against the final declaration of bonus to oo paid dur-ing the last week of August or first week of September and the balance, if any, was to be paid in the month of March or first week of April of the succeeding year. It further gave direction that the first payment that is to be paid is to be as advance against pay-ment of bonus and not as against wages.

Mr. Malhotra, learned counsel for the appellant, has cha!· Ienaed . t,be above directions given by the Tribunal. The counsel pointed out that after the OOllling into force of t'he Aot, the rights and liabllitiOB·of the parties, re~g bonus, are governed by its provisiODI. · Under the Act, the compurtalions of the available and allocable ~rplus have to be made on the basis of the gross-profits .asceitained e.t the end of the relevant accounting year and the.pay· ment of bqnus has to be made within eight months of the close of the 11ccou,ntin11; year. As the Act envisages payment of only one. bonus, at the end of tho aci:ountiug year, .after computation qf the amount as per llhe Act, the· ~on given by the Tribunal

regarding paymell"t of half-yearly bonus is illegal and contrary to · the provisions of the Act. This direction, the counsel pointed out. given by the Tribunal, will apply not only to the year 1965, but also to all succeeding years.

On .the other hand, Mr. H. K. Puri, learned counsel for the respondents Nos. 2 and 3, whose contentions have been.accepted by the counsel for the other respondents, urged '!hat the Act does not prohibit an employer from paying bonus at the end of each half-year. The appellant has been paying bonus in two instal· ments, nan1ely, at the end of each half-year. It is always open !O the appellant, both by virtue of the provisions of the Act and the direction given by the Tribunal to deduct when paying final bonus at the end of the accounting year. any amounts that may have been paid for the first half-year. Therefore, accordinit to Mr. Puri. the directions Jtiven by '!he Tribunal are neither illegal nor con· trary to the provisions of the Act.

We are not inclined to accept the con~ntion of Mr. Puri. We have already referred to the findings of '!he Tribunal to the effect that the amount that was paid by the appellant as bonus at the end of each half-year was on the basis of the profits earned by i't. The Tribunal has re.iected the claim of the Unions that the pay· mcnt of bonus, in the manner claimed by them, was not condi-tion of service and th:it the payment had nothing to do with any custom or festival. These findings have not been and in fact could not be challenged by the respondents. There is also no contro-versy that payment of bonus for the accounting year 1965 is governed by the provisions of the Act. If so, the question is whether the directions given by the Tribunal and referred to above. can be supported by the provisions of the Act.

The Act has come into force with effect from August 28. 1965. As provided under sub-section ( 4) of seotion 1, it applies to all accounting years commencing on any day in the year 1964 and in respect of every subsequent accountinl!: year. ·Section 2 defines amongiit others the expressions, "accounting year", "al!o· cable surplus", "available ·surplus" and "~ross profits" Section 4 deals with •the computation of gross-profits. So far as the· appel-lant is concc;ned, under s. 4, cl. (b) the gross-profits are to be calculated in the manner specified in the Second Schedule. Sec-tion 5 provides for computation of available surplus. It is to be ascertained after deducting from the gross-profits the various items, referred to in s. 6. Section 6 deals with the items to be deducted as prior charges from the gross-profits. makes it obligatory on an employer ·to pay minimum bonus to the employees in an accounting year of 4% of his salary or wages or Rs. 40/- whichever is higher. This payment is irrespective of the

Section l O

fact whether Company has or has not earned profits in an ac· countinl!; year. But this provision is subject to ithe provisions of ss. 8 and 13. Section 11 provides for payment of bonus subject to maximum of 20% of the salary or wages, if the conditions mentioned. therein are satisfied. Section 17 enables an employer, who has paid .during any accounting year Puja Bonus or other customary bonus or part of the bonus payable under the Act before the due date, to deduct the amount so paid from the amount of bonus payable by him to an employee under the Aot in respect of that accounting year. It further provides th!!t under such cir· cumstances the employee will .be entitled to receive only the balance. Seotion 19 fixed the tinie limit for payment of bonus. If there is dispute regarding payment of bonus pending before any authority, the .bonus will have to be paid within month from the date, on which the Award becomes enforceable or ithe settle-ment comes into operation. In any other case the bonus will have to be paid within period of eight months from the close of the accounting year. Under ithe proviso to s. 19, power is given to the appropriate Government to extend the period of eight months in accordance with the provisions contained therein. Section 34 provides that the Act exoopt as otherwise provided in the section, shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the terms of any Award, agreement, settlement or contract of service made before May 29, 1965.

We. have referred to some of the relevant provisions of the Aot. From perusal of the scheme of the Act, it is clear that the bonus for particular accounting year will have to be computed in accordance with the provisions of the Act on the basis of the gross-profits which are determined at the close of the accounting year. The Act itself provides as to how the gross-profits are to be calculated and the available and allocable surplus arrived at. The Act also provides the outer limit, the period within which bonus has to oo paid. It further gives the employer right to deduct any amount that any have been paid during the accountil).g year as part of .the bonus payable under the Act.

It will be seen ·from the scheme of the Act that the claim f6r bonus can be made only after the close of the accouttting year and in accordance with the provisions of the Act. The gross-profits can be calculated only· at the end of the accountirig year' and the available and allocable surplus can also be worked out only at the end of the. accounting year. There is no question of an employer computing the gross-profits, available and allocable surplus in the middle of an accoilnting year or at any time before the close of the relevant accountinl!; year. The direction l!;iven by the Tribti· nal really amounts to the employer having to make two .2-1031 Sip CI/72

computations at the end of each half-year. No doubt, the Tribunal ha.s given direction to the effeet that any amount paid for the first half~year can be deducted when the final bonus is paid at the end of t]je accounting year. Even without any such comideration be· in!f shown by the Tribunal allowing an employer to so deduct, section 17 iiself clearly gives such right to an employer. We are not impress~d with the contention of Mr. Puri that as there is no prohibition .in the Act against an employer making the paymel1t by way of bonus at the end of half year, the direction given by the Tribunal can be sustained.

Mr. Puri referred us particularly to the provisions contained

in s. 17 of the Act. He pointed out that though time limit is fixed bys. 19, the Act itself as is evident from s. 17, clearly en· visages payment of bonus at the end of each half year. We are not inclined to accept this contention of Mr. Puri. The direc-tion given by the Tribunal making !t obligatory on the Manage-D!ettt to make half yearly payment of bonus, apart from being opposed to the scheme of the Act, also runs counter to the provi-sions of s. 19. Whether it is the minimum bonus of 4% under s •. 10 or t}te maximum bonus of 20% under s. 11, they have to be paid, as is made clear by s. 19, only within the period mentioned therein. It may be that an employer voluntarily pays amount during the accouating year by way of- part bonus which he is en· titled to take into account and adjust when making final payment at the close of the accounting year. It is one thing to say that an 1'11lployer can make voluntary paY1Dent, but it is different thing for the Tribunal to give direction to that effect.

Section 17 on which reliance is placed by Mr. Puri is as

follows :

"Where in any acC®nting year-

(a) an employer haS paid any puja bonus or other cu&to.mary' bonus to an employee; or

(b) an emploJ'Cl' has ~d part of !lie . qonus pay· able under this· Act to an employee before the date on which such bonus becomes PllYl!ble,

then, the cnployer shall be entitled to deduct the lllllOUllt ofbo11119 so Paid froni .the·"'3101Jnt of bonua pay-· able by bbil to'the eniplilyee undu tbl1 'Act in resiieot of that aee<>i.illlim vear 'lilld 1he em,,loyee atrall be' entitled to 1'ecei\re aniy'llbe balance."

Clallse (.&) Ids po "1Jlllica~ ·as 1hlJ :Tribunal has catejClri-·~ ~~ that·~ u :!10 qu.esaoo of .Hr paymeat by way.ill pWJa bonus Or• otller cuatlllilarr ~ Even thein, if uy SllCll bon'os

has been p~d, the employey is entitled to deduct the same ~om the amount of bonus payable under the. Act. Clause (b) JS an enabling section in favour of the emplo}'er in that it visualises situation or contingency where he may have paid during the ac-countin11: year part of bonus payable under the Act "before tbz date on which such bonus becomes payable". If an employer has paid any amount during an accounting year by way of part of the bonus he is entitled to deduct the same from the final amounts that n:ay be payable under the Act. That provision does not give riJ?ht to an employee to claim payment of bonus even by way of part payment during the currency of tlie accounting year. If so, the Tribunal has also no jurisdiction to give direction to an

employer to pay bonus at the end of each half-year.

In tl!is case, it is no doubt, seen tha't the appellant has been paying bonus at the end of each half-year. But the Tribuna1 has found that such payment has not become condition of service. Therefore by the mere fact that the appellant has been making payments on previous occasions every half-yearly, does not confer right on the employee to have such payments by way of bonus in the ~ame manner even after the Act came into force,.

From the above discussion it follows that the directions given by the Tribunal in A.I.D. No. 6 of 1966 have to be set aside. __

Now coming to Civil Appeal No. 1292 of 1967, as mentioned earlier, it is a2ainst that part of the Award of the Tribunal in A.J.D, No., 8 of 1966. The question 1that was referred to !he Tribunal has also been extracted in the earlier part of the judg-ment. That relates to claim for additional bonus for the years 1962 and 1963. There is no controversy that 'the appellant has already paid for the year 1962, three months basic wages as bonus. Similarly for the year 1963 also four months basic wages as bonus has already been paid. The claim was for two months total wap,cs as additional bonus for 'the year 1962 and four months' total wages as additional bonus for the year 1963. The findings recorded by the Tribunal in A.I.D. No. 6 of 1966 regarding the nature of ·bonus paid to the employees have been adopted for thi~ reference also. The respondents-Unions do not challenge those findings. Therefore, even in respect of .!Pe years 1962 and 1963, what is P.,ayable is only profit bonus .. JJ:'here is also no contro-versy 'Iha~ for thele two years the quantum of bonus payable has to be calculated in accordance with what is known as the Labour Appellate Tribunal Full Bench :Formula, which has been approved by this Court in The Associated Cement Companies Ltd., Dwarka Cement Works, Dwarka v. Its Workmen and Another(!). BOth the parties have filed ·statements of calculations according to (I) [19'9J S.C.R. 92S.

the said Fonnula. The statements Bxs. M.1 and M.2 filed by the Management represent the c0mputation of available surplus for the years ended December 31, 1962 and 1963 respectively. Ex. M.l is as follows: ·

"THE BANGALORE WOOLLEN, COTTON & SILK MILLS CO. LTD.

Statement showing the computation of available surplus for the year ended 31st December,' 1962 (Under L.A. 'T, Formula/

We have preparod the above statement from the audited accounts of the Company and is in accordance therewith. The return on Capital and Re!cJvt>S is as claimed by the Company.

lllegible Chartered Accountants."

Similarly Ex. M2 regarding the year 1963 is as follo\\'S :

"THE BANGALORE WOOLLEN, COTTON & SILK MILLS CO. LTD.

Statement showing the computation of available surpJus for the year ended 31st December 1963 (Under L· A. T. Formula)

We have prepared the above statement from tht; audited accounts of .the co1npany and c'rtify that it is in accordance therewith. The return ~n capital and reserves is, as claimed by the company.

Sd. Illeg~bile Chartered Accountants.

The Tribunal has accepted as correct the gross-profits as given by the appellant in these two exhibits for the two years in question. Even though the Unions contested the return on Prefe-rence Share Capital at 7 .8 % , the Tribunal has rejected their ob-jections. It has held that under the Preference Share Regulations Act, the Company is bound to pay 7.8% on Preference Share Capital. The Workmen did not raise any coll'lroversy regardi11g the return on Ordinary Share Capital at 6%. The Tribunal, therefore, accepted the figures given in both Exs. M. 1 and M. 2 and to the return of Ordinary Share Capital. But the controversy arose about the claim made by the appellant regarding return on Reserves employed during the two years. It will be noted that neither in Ex. M. 1 nor in Ex. M. 2 the appellant has made any claim for rehabilitation excepting adding note to the statement that they &re subject to claim for rehabilitation.

The two points in controversy between the parties regarding these two :years were : ( 1) The claim for Return on Reserves and (2) Provision for. Rehabilitation.

these two :years were : ( 1) The claim for Return on Reserves

We will first take up the question regarding the claim of the appellant for return on Reserves. In Ex. M. 1, the appellant has claimed sum of Rs. 178733.00 as 4% return on Rs. 44468315.00 being the amount employed in business. Similarly in Ex. M.2, for the year 1963, it had claimed Rs. 1877518.00, being 4% re-turn on Reserves on Rs. 46937947.00, employed in the business. The Unions contested the claim of the appellant on the ground that they are not entitled to any return on Reserves. The appel-lant had filed two statements Exs. Ml(a) and M.2(a) for the years 1962 and 1963 respectively, showing how the amounts claimed as Reserves employed in business have been arrived at. Ex. M.1 (a) for the year 1962 is as follows :

,,THE BANGALORE WOOLLEN, COTTON & SILK MILLS CO. LID.

Year ended 31st December 1962.

Reconciliation of c.apital employed in the business during the year ended 31st December. 1962.

"As at 31-12-1961:

Exhibit M.2(a) for the year 1963 is as follows :-

"THE BANGALORE WOOLLEN, COITON & SILK MILLS CO. LTD.

Year ended 31st December, 1963.

Reconciliation of Capital employed during the year ended 31-12-1963.

LESS: Sundry Creditors 7686123 Due to Directors . 65278 Unclaimed Dividends 22837 Provision for Taxation 2305645 Proposed Dividends 1481400 Provision for Gratuity 1706251 Officers Retiring Fund 25799· (Fund less investments) 13293333 ----59687947 Less Share Capital 12750000 ----Rs. 46937947'" ---

It will be seen that the last figures: shown in both the state• ments have been clalined by the appellant as Reserves employed in business for each of these two years.

The Tribunal after reference to the evidence of the Char~ tered Accou..!ltant, M.W.l, has held that the amounts which. should have been used as Working Capital are those mentioned in Exs. M.l(a) and M.2(a), less the fixed assets and capital works in progress. ·The Tribunal has further held that the working capi-tal cannot .include fixed assets nor the capiial works in progress,. as they represent the funds required· for day to day work of the· Company. According to the Tribunal these fixed assets have been accumtilated over years and they cannot form part of the working capital. However, the Tribunal accepted the claim of the appellant that the other items in Exs. M.l(a) and M.2(a), namely, investments, interest accrued on investments, stores and spare parts, raw materials, process stocks, finished stocks, sundry debtors, advances etc. are the amounts available to be used as working ca~taj. On this reasoning the Tribunal held. that in cal- · culating the return on working capital, the amounts mentioned in Ex.M.1(1!) and M.2(a) less the amount sunk in fixed assets and working capital in progress1 have to be deducted. On this basis it deducted from Rs. 44468315, sum of Rs. 43139570,'and fixed sum of R~. 1328745, as Reserves employed in business during· the year ended December 31, 1962. On this amount it allowed· sum of Rs. 53150/- as return on Reserves at 4 % for the year 1962.

Similarly, for the year 1963, it deducted from Rs. 46937947, sum of Rs. 45229423, and fixed sum of Rs. 1708524/-as Reserves employed in business during that year. On this amount it a'llowed ~· 68340/- as return on Reserves at 4 % .

Mr. Malhatra, learned counsel for the appellant, while accept-ing that the principle adopted by the Tribunal in this regard is.

correct, contended that it had made mistake in calculation. According to the learned counsel, the claim must have been allowed in the manner calculated by the appellant. In this con-nection, the learned counsel pointed out that e\-en in cases where the evidence regarding the utilisation of Reserves as Working Capital as cla.imed by the Company, is not very satisfactory, this Court, on the bas\s of the balance sheets, which indicated that some amount must have been used as working capital has allowed such claim. In this connection, he relied on Workmen.of Mis: Hi1u/11s1an Motors Ltd. v. Mis Hindustan Motors Ltd., and An-other(') and Messrs. Aluminium Corporation of India v. Their Workmen(').

We may straightway say that these decisions do not assist the appellant. In the· case before us it is not necessary to do any guess work as the appellants wants us to do. The appellant has filed g1atements showing how it has calculated the amount of Reserws utilised as working capital and we have to find out whether the calculations made by it are. correct. In fact, Mr. Malhotra has not been ab]!l to point out from ~he balance sheets, as to what amount, according to the appellant, can be considerd to have been used as working capital. In the two decisions, relied on by him, the company concerned was llble to refer to ithe figures in the balance sheets from which this Court was able to draw conclu-sion regarding the approximate amount that would have been utilised as working capital. The position before us is el}tircly different.

On the other hand, Mr. Puri, learned counsel for the respon-dents, referred us to the balance sheets for the years in question regarding tb_e share capital of 1the company being shown as Rs. 12750000/-. The counsel further pointed out that the said share capHal must have been sunk in acquiring the fixed assets and for capital works in progress and, therefore, the Tribunal was justified in deducting the amount of fixed assets and capital works in progress shown in Exs. M.l(a) and M.2(a) from the totaI shown by the appellant in those statements. The counsel further urged that in considering the claim for return on working capital two questions have to be kept in view: ( 1) Whether the Reserves were available, and if they were (2) whether they were used as working capital and if so what is that amount. The Tribunal in our opinion, bas c9rrectlv kept these two principles in view in arriving at the amount of Reserves used as working capital and on which retui;n is to be allowed. We see no error committed by the Tribunal in the calculation made for arriving at the Reserves. which must have been used as working capital, especially as the evidence on the side of the appellant was very unsatisfactory. Even the appellant has deducted the amount of share capital before (1) [1968] 2 S.C.R. 311. (2) [1969] 3 s.c.c. 832:

arriving at the final figures mentioned in Exs. M.l (a) and M.2 (a). But the appellant was claiming Ute whole of the. final amount shown..in these two statements as Reserves. used as work-ing capital, which it was not certainly entitled to in law.

We have :Jready pninted out that the Tribunal has held that the working capital cannot include fixed assets nor tlr~ capital works in progress as i'I represents •the funds required for day to day running of the Company. The Tribunal has further held that the appellant is entitled to deduct investments, interest accrued on investments etc. which have been shown in Bxs. M.1 (a) and M.2(a) on the ground that they must be considered to be the amounts available to be used as working capital. These findings have .not been challenged by the learned counsel for the appel-lant. The appellant has also filed d•!tails of Reserves employed in the busin.ess during the years ended 31st December, 1962 and 1963 as shown in Exs. M.l(b) and M.2(b) respeotively. Even there the appellant has deducted the share capital before giving final figures."'

tlr~ capital

Therefore, the contention of Mr. Malhotra that the Tribunal has committed mistake in calculating the amount of Reserves used as working capital for these two years, cannot be accepted. If so, i'I follows that the amount fixed. by the Tribunal as return at 4% an Reserves used as working capital for these two years, is correct

The second question that arises for consideration is the claim ·made by the appellant for provision for rehabilitation for the two years and which claim has been re.iected by the Trib~. The claim made by ¢he appellant for provision for rehabilitation for 1he year 1962 was Rs. 18030871.00 and for the year 1963 Rs. 18062336.00. 'Thus the appellant was claiming for each year provision being made of more than crore of rupe.-..s for re-habilitation. . The ;ippellant has filed chart Ex. M.8 giving the calculations for the year 1962, its claim for rehabilitation for Rs. 18030871.00. If the claim for rehabilitation is accepted, then the result will .be that there will be no profits at all from and out of which any bonus can be paid for the years in question.

'The claim of the appellant has been opposed by Mr. I. N. Keshava, learned counsel for the first respondent and His conten· ·tions have been adopted by the counsel appearing for the other respondeIYts--Uriions. The claim of the appellant is opposed mainly on two grounds, namely, (1 ) that the appellant has no scheme for .rJ:habilitation for the relevant years and (2) in any event there were huge Reserves available from which the claim for rehabilitation can be easily met. The Tribunal has rejected Che claim for rehabilitation both oh the grounds that the appeTiant

has no scheme for rehabilitation and that the rehabilitation claim can be adequately met .with from the hul\e Reserves of nearly four crores of rupees that the appellant had.

It must be noted that Rehabilitation Reserve is substantial item which goes to reduce <the available surplus and as result affects the right of the employees to receive the bonus. Hence the emplo~r will have 'IO place all relevant materials and the Tribu-nal will have to scrutinize them carefully and to be satisfied that the claim is justified. It is no doubt true that it is but proper in the larger interest of the industry as well as the employees that proper rehabilitation Reserve should be built up taking into con-c sideration the increase in price in plant and machinery which has to be replared at future date and by determination of multiplier and its divis~. It is also clear from the decisions of this Court that if Company has no scheme for rehabilitation, then of course, its claim on that head must be rejected. tvide Azam Jahi Mills, Ltd. v. Their Workmen(')]. Further, since it is the employer who seeks replacement costs, it is for him to satisfy the Tribunal as to what wii(be the overall cost of replacement and in doing so, it is he who has to discharge this burden by adducing proper evi-dence and giving other pa~ty an opportunity to test the correct-ness of that evidence by cross-examination. [vi de National En-gineering Industries Ltd. v. Its Workmen(')].

It is also' now well-settled that in determining the claim of the employer for rehabilitation, two factors are essential to be ascer-tained, namely, ( 1) the multiplier, and that has to be done by reference to the purchase price of the machinery and the price which has to be paid for rehabilitation or replacement; and (2) the determination of the diviser and thait has to be done by decid-ing the probable life of the machinery. [vide The Honorary Secretary, South India Millowners' Association and others v The Secretary Coimbatore District Textile Workers' Union(') and Mis Gannon Dunkerley and Co. Ltd. and another v. Their Work-men(')].

Mr. Malhotra, learned counsel for the appellant, very strongly relied on the statement Ex. M.S. as well as the evidence of M.W. 2, ithe Mill Manager and M.W. 3, the Assistant Officer, Efficiency Section of the Mill, in support of his contention that the appellant has scheme for rehabilitation and that the claim made by the appellant for making provision for rehabilitation is proper. The counsel also pointed out that the evidence of these two witnesses clearly establishes that most of the items of machi-H nery have long out lived, their normal age of 25 years. and

2) [1969J 1 s.c.R. 779. (4) A.I.R. 1971 S.C. 2567.

therefore they require replacemeait in order to ensure proper pro-duction. The counsel further pointed out that the rejection by the Tribunal .of the claim made by the appellant, on 'the basis that the life of the textile machinery is only 25 years, is .not correct and that the view of the Tribunal that the normal age is more than 25 years is opposed to the decisions of this Court.

So far as the age of the machinery is concerned, it is no doubt true 1that in The Honorary Secretary, South India Mil/owners' Association and others v. The Secretary Coimbatore District .'f.exti/e Workers' Union([1]), this Court, after reference to the evidence adduced confirmed the findings of the Tribunal 'i:hat the estimated life of the textile machinery in question should be taken to be 25 years, but in the said decision itself it is observed as follows :

"We are not prepared 'to accept either argument be-cause, in our opinion, the life of the machinery in every case has to be determined in the light of evidence adduced by the parties."

But it is unnecessary for us to pursue this aspect further as we are disallowing ~he entire claim for rehabilitation.

Mr. Malhotra, also criticised the view of the Tribunal that in this case the evidence of the witnesses on the side of the appellant clearly shows that the. machines are working very efficiently though they have been running for over 50 years. On the other hand, the counsel ur,ged that the principle to be borne in mind, when considering the claim for rehabilitation, is that 'the life of the machinery is the period during which it is estimated to work with reasonable efficiency and not the period during which it has actu-ally been operated, that is, till it becomes too deteriorated for use. No doubt the last proposition enunciated by the counsel in the abstrtact is correct; but the question is whether 1the appellant has discharged its burden of satisfying the Tribunal that it had scheme for rehabilitaition and whether it had placed the necessary mate-rials for the purpose of working out the multiplier and the diviser.

Mr. Keshava, learned counsel for the first respondent, refer-red us to the written statement filed by one of the Unions, Binny Mills Labour Association, wherein it has specifically stated that the plant and machinery owned by the Mills are among~t the most modern machineries and that no provision for rehabilitation is necessary. The appellant, it is pointed out, in its reply state-ment did not controvert these averments. Even in the statements Exs. M. 1 and M. 2, filed by the appellant, no claim for rehabili-ta~tion has been made. He also referred to ithe evidence of

(1) [1962] Supp. 2. S.C. R. 926.

M.Ws. 2 and ~. and pointed out that their evidence does not show that the Company had any scheme for rehabilitation. On ·thei;e grounds, the counsel pointed out that the appellant has not placed sufficient materials before the Tribunal to. sustain its claim for rehabilitation.

8 It must be emphasised that in _dealing with the claim of an employer for rehabilitation, as pointed out earlier, the onus of proof is on the employer. He has to prove the price of the plant and the machinery, its age, the period during which it requires replacement, the cost of replacement, the amount standing in the Debentures and Reserve Funds and to what extent the funds at its disposal would meet the cost of replacement. If the employer fails to lead satisfactory evidence on these ppints, the result will be that the claim for rehabilitation will have to b! itotally rejected. It is no doubt true that chart Ex.M. 8 has been filed by the appellant and N:.W. 3, the Assistant Officer, Efficiency Section, has spoken regarding the same. But he has admitted ~hat the original quotations received from the do.lalers regarding the price of new machinery for the purpose of replacement have nat been produced before the Tribunal. He has further admitted that the appellant has not produced the lel!ters written by it calling for quotations regarding the price of the machinery. He has further admitted that no charts have been produced to show the value of the machineries in 1962 .. The multipliers, according to this witness, have been adopted as advised by the appellant's Legal Adviser. It is clear from the above answers of the witness that there is no material placed before the Tribunal by "the appellant from which the multiplier and diviser can be properly worked out for the purpose of considering the claim for rehabilitation. In fact the Mill Manager, M. W. 2 has stated that the company has floated debenture for 1 i crore for buying new machinery. This clearly shows that the appellant had no scheme for rehabilitation and that explains the r~son why it had not made any provision for rehabili-tation.Mr. Malhotra, then urged that at any rate the Tribunal itself has proceeded on the basis that some amount for rehabilitation is necessary to be provided for each year. Based on this observa-tion ·of ihe Ttibunal, 100 counsel pointed out that the appellant ~hould be allowed at least the amount that it has actually spent for replacement of machineries in the years 1962 and 1963. Accor· ding to himJ!. sum of Rs. 2619608 and Rs. 2124102 have been spent in the years 1962 and 1963 rcspcctiwly for machinery and plant installed in those years. In this conneotion m referred us to the balance sheet and profit and. loss accounts for these two years and stres9':d that the Tribunal has committed an error in not

allowing at least these amounts by way of provision for rebabiU-rtation.

It is no doubt true that these amounts are shown in the sche-dules to the balance sheets for the years concerned. Admittedly, there is_ no such claim made in 1the written statement filed by. the appellant before the Tribunal. When the Unions were constest-ing the claim of the awellant on the ground that it bas no scheme for rehabiliitation and that it has not spent any amount by way of replacement of old machinery, it was the duty of the appellant to have ma4e proper claim and it should have adduced evidence regarding that aspect before the Tribunal. Mere production of balance sheet and profit and Joss accounts by themselves will not entitle the appellant to sustain its claim for rehabilitation. For all the reasons given above, it is clear that 1the Tribunal was justified in holding that the appellant has not been able to make out its claim for making provision for rehabilitation. In this view the Tribunal was justified in rejecting this claim of the appel-lant.

We may also state that the Tribunal is also of lhe view that the appellant has large Reserves with which it can meet rehabili-tation expenses of the machinery. In this connection the Tribu-nal has also referred to the evidence on the side of the appellant, that even according to the appellant rehabilita[1]tion will have to be completed only within eight years from 1962 and that only sum of rui>ees eighty Jakhs will be required •for each year. On •this reasoning the tribunal has held that this amount of rupees eighty lakhs can be ea5ily met with from the large Reserves available with the appellant. It is not necessary for us to consider this aspect further because we have already agreed with. the findings of the Tribunal that the appe!lant has no scheme for rehabilitation and that it has not placed any satisfactory evidence before the Tribu-nal in support of its claim.

The last point that arises for consideration is regarding the available surplus for the years 1962 and 1963 as calculated by the Tribunal and the award by it of 1 /3rd of the amount as additional bonus for the two years after deducting the bonus already paid by .the appellant. The Tribunal, after re.jecting the appellant's claim for rehabilitation and also allowing return on Reserves used as working capital in 'the manner, already referred to, had arrived at the. available surplus for the year 1962 in the sum of'Rs. 2635914 and for the year 1963 at Rs. 4904987. The appellant filed statement Ex. M. 4 showing the amount of bonus already paid for the year~ 1962 and 1963 to all employees drawing total of Rs. 500/- and less per mensem: From that statement it is seen that for the year 1962· it had paid sum of Rs. 1441455 and for the year 1963 sum of Rs. 1960795. On the basis of the avail-able surplus worked out for the years 1962 and 1963, the balance

What the Tribunal has done is to distribute 1/3rd of the amouat shown as balance above, for each of the years as addi-ti.onal bonus. That results in the workmen getting Rs. 398153 representing 25 days basic wages as additional bonus for the year 1962. Similarly, the workmen get Rs. 981397 representini two months basic wages as additional bonus for the year 1963.

Therefore, i<t will be seen that the total bonus that the work-men wi!I get for each of the years will be as follows :

. From the available surplus of Rs. 2635914 in 1962, the .work-men will get total sum of Rs. 1839608 as bonus for that year which works out to more than 60% of the available aurplus.

Similarly for the year 1963 th~ figures are as follows : .

From the available surplus of Rs. 4904987 in.· 1963, thc-workmen will get sum of Rs. 2942192 for that year which works" out more or less about 60% of the available surplus, falling short by sum of Rs. 800/-. ,

Mr. Malhotra, learned counsel for the ·appellant attacked the method of calculation adopted by the Tribunal. According to him the Tribun11l should not have fixed more than 60% of the available surplus as bonus payable for year. On the other hand, th·: amounts of bonus now awarded by the Tribunal and already paid by the appellant exceed 60%. Jn our opinion, there is consider-able force in the contention of the Learned counsel. The avail-U able surplus, as found by lb~ Tribunal for the year 1962 is Rs. 2635914. Working out roughly 60% of this surplus to be distributed as bonus to the workmen, the amount of bonus will be aboui Rs. 1581600. The appellant has admittedly paid sum of Rs. 1441455. The balance that tthe workmen will be entitled to will be Rs. 14.9145.00, whereas the Tribunal has directed the apJ"llant to pay for this year by its Award sum of Rs. 3~153. The award of this amount is not justified.

So far as 1963 is concerned, the available surplus as found by the Tribunal is Rs. 4904987. 60% of this available surplus, to which the workmen will be entitled to will be Rs. 2942992. On the other hand, the total amount that the workmen will get as per o the award includi111t the amount already paid by the appellant as bonus is Rs. 2942192. The appellant will have to pay only an additional sum of Rs. 800/. to make up 60%. There is no appeal by the Unions and therefore the bonus awarded for the year 1963 does not require any interfereno:.

In alloc~ting the available surplus between the company and the workmen, it has been held by this Court that it will be eguit-able if roughly 60% of the surplus is distributed as bonus to the workmen and the Company is left with the remaining 40%. The Company will get in addition to this 40%, the benefrt of the Income-tax rebate on the 60% bonus payable to the workmen. !vide Mis. Gannon Dunkerley and Co. Ltd. and anotlrer v. Their workmen([1])]. We have ·adopted the same principle jn the·~ase on hand.

To conclude the Award of the Industrial Tribunal in A:J.D. No. 6 of 1966 is set aside and Civil Appeal No. 1291 of 1967 is allowed. Ture will be no order as to costs.

The Award of the Industrial Tribunal in A.I.D. No. 8 of 1966 is modified to the following extent: For tthe year 1962 the appellant will be liable to pay as additional bonus only sum of Rs. 140145 inste1d of sum of Rs. 398153 as directed by the Tribunal in the Award. To this extent Civil Appeal No. 1292 of 1967 is allowed in part. In other respects, it is dismissed. There ·will be no or.der as to costs. 'V.P.S.

(I) A.l.R.1971, S.C. 2S67