DELHI CLOm & GENERAL MILLS CO. LTD v. WORKMEN

The reference herein was made by notification dated March 4, 1966 under ss. lO(l)(d) and 12(5) of the Industrial Disputes Act for adjudication of several specified matters of which the first two read as follows :

#1. Whether in calculating the bonus table for the accounting year ending 30-6-1965 the allocation sepa rately made by the Delhi Cloth and General Mills Co. Ltd. towards the Capital and Reserves of the Delhi Cloth Mills and Swatantra Bharat Mills, the two units of the Company, is fair and reasonable? If not, what directions are necessary in this regard ?

#2. Whether the workmen of these Mills are entitled to bonus at a rate higher than 6 per cent of the wages for the accounting year ending 30-6-1965 ? If so, what directions are necessary in this regard ? . After prolonged proceedings before the Tribunal a settlement was arrived at between the Management and the Labour Unions which were parties to the reference and agreed directions given accordance therewith in regard to issue No. 1 were as follows :

#1. Balanc~sheets of D.C.M. and S.B.M. will be taken together for calculation of available surplus in accordance with the formula laid down in the Payment of Bonus Act, 1965.

#2. Interest has been charged in the profit and loss account of D.C.M. and S.B.M. units of the head-office A B c D E F G H DELHI CLOTH v. WORKMEN (Mitter, J.) 5 97 current account. Hence, no return will be claimed thereon.

#3. Interest has not been charged on capital expenditure accounts and the gratuity reserves appearing in the balance sheets of the D.C.M. and S.B.M. therefore, return on such amounts will claimed.

#4. The following method will be making a claim for return on the following amounts : followed represented by (a) The fixed capital expenditure account in the D.C.M. and S.B.M. as written down value of the Fixed assets appear ing in the balance sheet of these two units will be treated as paid up share capital of the com pany allocated to and invested in these two units and return at the rate of 81% or as provided in the Payment of Bonus Act, 1965 from time to time will be charged thereon as provided under t.he Payment of Sonus Act, 1965. (b) The gratuity reserves of these two units will be treated as reserves and return at the rate of 6% will be charged thereon as provided under the Payment of Bonus Act, 1965.

#5. The method and basis of casting balance sheets will not be unilaterally altereci or changed.

#6. The above method of charging return on paid up share capital and reserve of the above two units will be followed in future also. A B c D E F G Thereafter the parties filed a large number of documents waiving formal proof thereof. Those filed on behalf of Management were Exs. M to M-352 while three other opposite parties filed some documents each. On the basis of the docu· H ments before the Tribunal the Management and the workers made their respective calcufations which were summed up in a chart, a copy whereof was handed over to us by learned counsel for the 3ppellants. The same reads as follows : - - . . Management M-330 (Paper Book p. 200) Workers W-84 (Paper_ Book p. 213) CHART "' "' "' Ref. of Bonus Act Gross Profit Sc he- dule 2 Details Ext. DCM SBM Total As per Ext. deductions 107·14 48·93 156 ·09 uross Profits 2 3 3 4 4 4 DEDUCTIONS 35·83 Depreciation u/s 6 (a) Development rebate u/s 6 (b) 2·72 Direct taxes u/s 6 (c) as in Ex. M.-15. Return on capital under s. 6 (d) 52·24 5 ·48 27·17 1 ·30 118 ·74 Available surplus is . Allocable surplus is 60 % of Rs. 84 ·98 37 35 22 -40 306·32 Annual wage 7·31 % Rate of bonus . 0 (") l:tj Lakhs

156.09 35 ·83 2·72 10 ·09 22·47 84 ·98 50·99 306 ·32 16·64~, > ~ "' c:: ... "' ;;:; "' 8 .., ~ ... "' .., ~ "' ~ ~ \0 _, - ~ - N ~ I-' Prior charges S. 6 (a) Statutory depreciation (b) (c) (d) Sch.3 Developffient rebate Direct taxes (a) Income-tax (b) Surtax RETURN (a) Dividend on Pref. capital (b) on equity capital (c) on reserve Available surplus Allocable surplus s. 5 s. 2 Annual wage bill of au the eligible of employees (a) Payable as bonus (b) 60%

#5. 201 ·78 plus 101 ·54 R.ate of bonus to each employees :i: c:') "" ' A B c 0 E F G H DELHI CLOTH v. WORKMEN (Mitter, J.) 599 The above brings out the wide divergence between the parties as to the figure of direct taxes. According to the appella.nt direct taxes which have to be deducted for computation of allocable surplus for payment of bonus are : Rs. 52-24 Jakhs by way of income-tax and Rs. 5-48 lakhs by way of surtax making a total of Rs. 57-72 lakhs, while according to the calculation of the workers direct taxes should be no more than Rs. 10-09 lakhs on the basis of Ex. M-15, one of the documents produced by the If the computation of the Management is Management itself. accepted, then the allocable surplus in terms of s. 2 ( 4) of the Bonus Act is Rs. 22-40 lakhs and the rate of bonus to each employee is 7.31 per cent while according to the computation of the workers the allocable surplus is Rs. 50-99 Jakhs and the rate of bonus should be 16.64%. In order to appreciate the viewpoints of the two parties, it is It is unneces necessary to refer to some provisions of the Act. sary to state that before the enactment of the Bonus Act of 1965 bonus used to be awarded by Iiidustrial Jribunals whenever there was a dispute between the Management and the workers, by applying the Labour Appellate Tribunal Full Bench formula formulate<;! as far back as 1950 and approved of and explained in several decisions of this Court. The Act of 1965 was passed for creating a statutory liability "for payment of bonus to persons employed in certain establishments and for matters connected therewith". Subject to certain exceptions it was made applicable to every factory or other e>tablishment in which twenty or more persons were employed on any day during an accounting year. The accounting year in the present case is 1st July 1964 to 30th June, 1965. Under s. 8 every employee is entitled to be paid by the employer in an accounting year, bonus in accordance with . the provisions of the Act. The amount of bonus is to be specified percentages of the allocable surplus of the establishment which is defined in s. 2 sub-s. ( 4) of the Act. Establishments may be of two kinds. They are either establishments in private sector or establishments in private sector. Although 'establishment' by itself has not been defined in the Act separately, s. 3 gives a clue to the meaning thereof. The said section runs as follows : "Where an establishment consists of different de partments or undertakings or has branches, whether situated in the same place or in different places, all such departments or undertakings or branches shall be treated as parts of the same establishment for the purpose of computation of bonus under this Act : Provided that where for any accounting year a separate balance-sheet and profit and loss account are ··~' 600 SUPREME COURT REPORTS [1972] I S.C.R. prepared and maintained in respect of any such depart ment or undertaking or branch, then, such department or undertaking or branch shall be treated as a separate establishment for the purpose of computation of bonus under this Act for that year, unless such department or undertaking or branch was, immediately before the commencement of tha·t accounting year treated as part of the establishment for the purpose of computation o[ bonus." Gross profits ot each establishment have to be computed in terms of s. 4 which in its turn refer to two Schedules the first to be applicable to a banking company and the other to any other case. After the ascertainment of gross profits s. 5 lays down the method of computation of available surplus. Before the amendment introduced by Act 8 of 1969 the available surplus in respect of any accounting year was to be the gross profits for the year after deducting therefrom the sums referred to in s. 6. S. 6 provided for the deduction of certain amounts from the gross profits as prior c]1arges. These are, namely, (a) any amount by way of depre ciation admissible in accordance with the provisions of sub-s. ( 1) of s. 32 of the Income-tax Act or in accordance with the pro visions of the agricultural income-tax law, as the case may be (\he provision is irrelevant for our purpose); (b) any amount by way of development rebate or development allowance which the employer is entitled to deduct from his income under the Income-tax Act; (c) subject to the provisions of s. 7 any direct tax which the employer is liable to pay for the accounting year in respect of his income, profits and gains during that year; and ( d) such further sums as are specified in respect of the employer in the Third Schedule. Before the amendment of the Act in 1969 s. 7 read as follows : - "For the purpose of clause ( c) of section 6, any direct tax payable by the employer for any accounting year shail, subject to the following provisions, be cal culated at the rates applicable to the income of the employer for that year, namely : - (a) in calculating such tax no account shall be taken of--· (i) any loss incurred by the employ.;or in respect of any previous accounting year and carried forward under any law fo1' the time being in force relating to direct taxes; (ii} any ·arrears of depreciation which the -employer is entitled to add to the amount of ·the allowances for A B c D E F G A B c D E F G H DELHI CLOTH v, WORKMEN .(Mitter,/;) 6°'1 depreciation for any following accounting year or years under sub-section ( 2) of section 32 of the Income-tax Act; (iii) any exemption conferred on the employer under section 84 of the Income-tax Act or of any deduction to which he is entitled unde'r sub-section (1) in; mediately of section I 01 of the Act, as in before the commencement of the Finance Act, 1965; (b) where the employer is a religious or a charit able institution to which the provisions of section 32 do n~t apply and the whole or any part of its income is exempt from tax under the Income-tax Act, then, with respect to the income so exempted, institution shall be treated as if it were a company in which the public are substantially interested within the meaning of that Act; ( c) where the employer is an individual or a Hindu undivided family, the tax payable by such em ployer under the Income-tax Act shall be calculated on the basis that the Income derived by him estal:ilishmiint is his only · income; ( d) where the income from any employer inc!µdes any profits and gains derived from the export of any goods or merchandise out of India and any rebate on such income is allowed under any law for the time being in force relating to direct taxes, then, no account shall be taken of such rebate; ( e) no account shall be taken of any rebate (other than development rebate or development allowance) or credit or relief or deduction (not hereinbe!ore men tioned in this section) in the payment of any direct tax ailowed under any law for the time being in force relating to direct taxes or under the relevant annual Finance Act, for the development of arty industry." Section 3 is the key to the Act in that it fixes the res or the property which Is to provide the allocable surplus for the distri bution of bonus in ternis of the Act. This must be an establish ment artd a question directly arises when there are a number qf establishments in common ownership as to how the allocable If s. 3 had no proviso to it, all surplus is to be found out. departJiients, · underta~ings or branc~es, be they complete fac tories or .not, for turnmg out commerc1al products under common ownership could be treated as one establishn_ient. for the purp?.se of computation of bonus. A company which 1s a legal emrty 602 SUPREME COURT REPORTS [ 1972] l S.C.R. ~wning and . running factories of diverse characters whether situate at the same place or located at different places would in such eventuality, form one establishment for the purpose of the Act. . The proviso to the section however shows that the legisla ture mtended that each of these factories is to be treated as a ~eparate esta_blishment for the purpose of computation of bonus 1f a sel?arate balance sheet and profit and loss account were pre-· pared m respect thereof unless such a factory was, immediately before the commencement of the acc9unting year, treated as a part and parcel of the company i.e., the establishment. In other words, if different units or branches or departments had been treated separately for the purpose of computation of bonus and separate balance sheet and profit and Joss accounts had been prepared in respect thereof, they were not to Jose their separate identity as establishments because of the main provision of s. 3. Once it is ascertained that a branch, department or a factory is an establishment by itself under the Act, sections 4 to 7 are to have effect in respect of that establishment by themselves without the impact or connection with other branches, departments or factories even if they subserve a common cause. Gross profits of such an establishment like the two mills before us would have 'to be calculated in terms of the Second Schedule to the Act by taking the net profit as per profit and loss account and adding thereto the various amounts therein mentioned and deducting the amounts like capital receipts, profits of and receipts relating to business outside India etc. The gross profits to be computed for the purpose of bonus would not be the same as to be computed under the Indian Companies Act or the Income-tax Act. Under s. 5 of the Act the available surplus in respect of the two units would be the gross profits computed under s. 4 as reduced by the prior charges mentioned in sub-els. (a) to (b) of section 6. All these amounts le., gross profits, available surplus deductible from gross profits would be notional amounts in that they would not be the amounts which would be computed under the Companies Act for submission to the shareholders or for assessment under the Income-tax Act to the taxing authorities. S. 7 cl. (a) of the Act further illustrates the point that the direct taxes which are to be deducted as prior charges are not to be the same as would be assessed bv the income-tax authorities under the Income-tax Act. That the calculation of direct taxes would be on a notional basis is also emphasised by els. (b), ( c), (d) and (e) of s. 7. The net result seems to be that the le.l!islature intended that subject to the exoress provisions mentioned, the employees of a particular establishment should be entitled to bonus under Act without any consideration to facts or matters not mentiQned A B c D E F G H J DELHI CLOTH v. WORKMEN (Mitter, J.) 603, A in the Act. The employer is to be treated as a separate juristic person liable· to pay bonus to -the employees as if the establish ment was his only venture, no matter how he fares in his other ventures. Even if the sum total of his activities in respect of his ventures resulted in a loss for the accounting year, he would have to pay bonus subject to the maximum specified in section B 10 of the Act to each employee of the establishment which was making profits. Th<: profits or losses of the other establishments, although they may form part of the composite whole accounting to be done under the Companies Act or the assess ments to be made under the Income-tax Act, would be wholly alien to co, nsideration and comoutation of bonus of the profit- c making establishments in terms of the Act. The balance sheet and the profit and loss account of the Delhi Cloth and General Mills as on 30th June 1965 and for the year ended 30 June i965 were Exs. M-5 to M-7 before the Tribunal while Exs. M-8 to M-10 are the corresponding docu- ments for the Swatantra Bharat Mills. There is no dispute between the .Parties with regard tci the figure of gross profits in terms of the Second Schedule to the Bonus Act as shown in the main chart Ex. M-330 of the Management. The gross profits for tlii\'"Delhi Cloth Mills was Rs. 107 .14 lakhs and that for Swatan tra Bharat Mills Rs. 48.95 lakhs totalling Rs. 156-09 lakhs. There is also no dispute that the statutory depreciation in terms of s. 6(a) of the Act was Rs. 17,52,048 for the Delhi Cioth Mills and Rs. 18,30,969 for Swatantra Bharat Mills the tot3l whereof comes to Rs. 35.83 lakhs. The corresponding figures for the development rebate of the two mills add up to 2-72 lakhs but whereas according to Ex. M-330 the direct tax i.e., the sum of income-tax and surtax in respect of these two units should be Rs. 52.24 lakhs and Rs. 5.48 lakhs totalling Rs. 57.72 lakhs, the employees claim that the figure should be no higher than Rs. 10.09 lakhs in terms of Ex. M-15. Income-tax Act It is well known that under the Indian total profits' and gains of a business are to be worked out in terms of s. 28 of the Income-tax Act, 1951. Under s. 29 the income referred to in s. 28 is 'to be computed in accordance with the provisions contained in ss. 30 to 43-A. S. 30 shows what reduc tions are to'be allowed in respect of rent, rates, taxes etc. for pre mises used for the purpose of a business or profession. S. 31 specifies the amounts deductible in respect of repairs and insur ance of machinerv, olant and furniture used for the purpose of the business. S. 32 ·deals with depreciation allowable under the Income-tax Act. It contains elaborate provisions as to how the depreciation is to be worked out. S. 33 provides for compu~ation in respect of the plant or machinery. of development rebate D F G H ··l 604 SUPREME COURT REPORTS ( 1972 J 1 s.c.R. S. 33-A provides for development allowance. S. 33-B provides for ~0111putation of rehabilitation allowance. S. 34 Jays down the conditions for the allowance of depreciation and development rebate. Ss. 35, 35-A, 35-B, 35-C and 36 provide for special allowances. When the total income is ascertained after provid mg for the many allowances ,specified in the Act, income-tax is charged in respect of the total income of the previous year or previous year as the case may be, at rates laid down in the Finance Act for the relevant year. The Companie, Act however is· not concerned with any other allowance except the one for depreciation under s. 32 of the Income-tax Act and the amounts deductible by way of development rebate or deve!opment allow ance under the said Act. ~hart of ·It mi1st follow from the above that· the liability for direct tax under s. 6(c) must be the one which would have to be computed by principles followed in the Income-tax Act. In other words, the liability under s. 6( c) must be the notional liability of a the - prior venture of which the gross profits are known and rebate and charges by way of depreciation and development development allowance have been computed. The calculation of income-tax in Ex. M-330 proceeds on the basis that the gross profits are Rs. 156.09 fakhs and the depreciation and deveiop ment rebate allowable under s. 6(a) .and (b) are Rs. 38.55 lakhs leaving a margin of Rs. 117 .54 lakhs for computation of income If this tax is quantified at 45 % of the said balance it comes tax. to Rs. 52 .24 lakhs as shown in the -calculation Management and surtax thereon would be Rs. 5 .48 lakhs. The respondents do not dispute that the figures for income-tax and surtax would be as shown by the Management if their basic cal culation is correct: but according to them the Manar.cment m11st accept the figure give;n 1n Ex. M-15. Ex. M-15 proceeds on the basis that the total liability of the company being Rs. 16.00 lafhs as shown at page 4 of the Directors' report to the share holders under the Indian Companies Act for the year er.tied 30th June 1965, the same would be allocable to the two units of Delhi Cloth Mills and Swatantra Bharat Mills in the proportion of fu. 7.37 lakhs and Rs. 2.24 lakhs. These figures however have no bearing on the computation of the liability to tax under s. 6 ( c) of the Bonus Act for the two particular units involved in this case. It was argued at one stage by the respondent~ that. cl. (c) of s. 6 is not related to els. (a) and (b) of the s~.;d section. If that were so, there is no reason why the tax liability at 45% should not be calcufoted on the whole of the gross profits i.e., Rs. 1 '.'ili.09 lakhs. Rx M-15 was anparently prepar~d on the basis that the total ta11; liabiliiv for income-tax nu~11oscs of all the various units .under the ownership of the Delhi Cloth and A c F G H I i " A B c 0 E F G H DELHI CLOTH v. WORKMEN (Mitter, J.) 605 General Mills Company Ltd. being Rs. 16 Jakhs, Rs. 7.85 !akhs and Rs. 2.24 lakhs would be attributable to the working results of Delhi Cloth Mills and Swatantra Bharat Mills. If the difect tax liability be as quantified by the Management in Ex. M-330 the available surplus in terms ot s. 5 of the Act is Rs. 37.35 fakhs and allocable surplus under the Act being 60% thereof is to be quantified at Rs. 23.40 Jakhs which works out to 7 .31 per cent on che annual wage bills of all the eligible employees totalling Rs. 306.32 lakhs. The Act being a self-contained and self-sufficient Act except in so far as it refers to the other enactments therein mentioned, and in particular the Indian Income-tax Act, it becomes irr~le­ vant to consider the application of the Full Bench formula of the Labour Appellate Tribunal for the computation of bonus before the Act of 1965 was enacted. Equally in our view it is unnecessary to refer to the observations of this Court in The Sree Meenakshi Mills Ltd. v. Their Workmen.,(') or to Ml s. Tulsidas Khimji v. Their Workmen(') relied on by learned counsel Mr. Phadke for some of the respondents. The Act is a complete Cude and the provisions thereof must have effect of their own force. So far as the mills before us are concerned, the gross profits must be computed in terms of Second Schedule to the Act and the available surplus mentioned in s. 5 in terms of ss. 6 and 7 of [!JC Act. Where a branch or undertaking has to be taken as an establishment under the proviso to s. 3 for the purpose of the Act, the gross profits, prior charges, the available surplus and the allocable surplus have all to be found out by applying that fiction to the branch or establishment. When the fiction is to have effect with regard to all other matters, it is not possible tl' hold that for the purpose of computation of direct tax it has to be given a go-by and the actual realities of the situation only in respect of the amount of tax payable under the Income-lax Act for all the establishments which have tO suffer taxation together allowed to displace the fictional or notional liability. In the present case, it so happens that the bulk of the profits of the company (the Delhi Cloth and General Mills Comj:rllny Ltd.) cam2 frum •hese two units : some of the other units suffered losses while still others were not equally profit-m;;king. If the argument raised on behalf of the workmen was to be accepted and if it so happened that the. other units were greater profit-making branche.s than these tw~ units, greater tax Iiabi~ty inight fall on these umts thereby reducmg the percentage of ~nus due to the employees of these units as a whole. That certamly was not the object with which the enactment was passed. S. 7 (I) [1958] S.C.R. 878. (2) [1963] I S.C.R. 675. 606 SUPREME COURT REPORTS [1972] l S.C.R. of the Act itself shows that the matters extraneous to the working of the establishment in the particular year were not to be taken into account although they could not be ignored for computing tax 1iability under the Indian Income-tax Act. Strong reliance was placed by learned counsel for the appel lant on the decisioJt of this Court in Metal Box Co. v. Work men('). Counsel for the respondents made valiant efforts to persuade us to hold that many of the observations therein were obiter and as such the case should either be distinguished or be not followed as a precedent for the determination of the question before us. While no doubt the dispute in that case was some what different from the one which we have to resolve and there are some distinguishing features in that case, namely, that the Court was not called upon to examine the computation of the figures of gross profits etc. for an establishment which came within the proviso to s. 3 the observations bearing on the question of the computation of direct tax under s. 6 ( c) of the Act are certainly in point. It was pointed out there at p. 775 : ''What s. 7 really means is that the Tribunal has to compute the direct taxes at the rates at which the in come, gains and profits of the employer are taxed under the Income Tax Act and other such Acts during the accounting year in question. That is the reason why s. 6 ( c) has the words "is liable for" and the words "income, gains and profits''. These words do not, however, mean that the Tribunal while computing direct taxes as a prior charge has to assess the actual taxable income and the taxes thereon." With respect, we entirely agree _with the above observation and in our view no useful purpose will be served by referring to the other observations bearing on a question with which we are not directly concerned. In M/s. Alloy Steel Project v. The Workmen( 2 ) where the project was owned, controlled and managed by a Government Company, viz., Messrs Hindustan Steel Ltd., and separate balance sheet and profit and loss accounts of the undertaking were maintained, it was held that the claim of the workmen that the project was a part of the Hindustan Steel Ltd. should be upheld and its employees placed on the same footing as the other em ployees of the steel company was rejected inasmuch as the project which was started in the year 1964-65 made no profits right up to the year 1967-68. (1) [1969] I S.C.R. 750. (2) [197111 S.C. Cases 536. A B c D E F G H A B c D DELHI CLOTH v. WORKMEN (Mitter, /.) 607 In the result, we hold that the direct taxes under s. 6 ( c) of the Act were properly _quantified by the appellants in their calcu lation shown in Ex. M-330 and the Tribunal went wrong in assess ing that liability on the basis of Ex. M-15. The award will therefore. be set aside and modified _t9 provide for bonus being given to !he workers at 7 .31 per cent of their annual wage bill. The appeal is therefore allowed as indicated above, but, in the circumstances of the case, we make no order as to costs. ORDER At the suggestion of the Court, the Advocate for the appel lant renewed the offer to pay ten per cent of the wages of the employees as bonus for the relevant year. The offer was accepted on behalf of tlie employees by their Advocates. The award will, accordingly, stand modified, and the provision of. ten per cent of wages as bonus be inserted therein. The payment of bonus will be made before Diwali, 1971. There will be no liability to pay judgment regard to the agreement of the parties will accordii!lgly interest. Our having stand modified. s.c. Appeal allowed.