HUKUM CHAND JUTE MILLS LTD v. SECOND INDUSTRIAL TRIBUNAL, WEST BENGAL & Ors.

What is material to notice is that the demand and the denial, the reference and the adjudication and, finally, the special leave itself revolved round customary bonus. The specific case of the Manage ment was that customary bonus could no longer be payable, in view of the provisions of the 1976 amendment. A statutory fatality was sought to be spelt out of its provisions before the Tribunal and before us. We emphasize this to exclude a hazy, though half-hearted plea mentioned by Shri G. B. Pai for the appellant that here the bonus was based on agreement and no agreement as such could avail in view of s. 34, read with s. 31A, (as amended by the 1976 Act). Apart from the Jaw relied on, it is somewhat startling that bonus paid by settlement between the parties qua customary bonus at least since 1962-63 (see page 4 of the Paper Book) should be anathematized as untenable. in 1976, suggesting that labour law, viewed from the social justice angle, is making headway steadily backwards. Even so, we will examine the law as the statute speaks. The payments over the years have been of customary bonus. The demand for 1976, which alone directly concerns us, is also for cus tomary bonus. The dispute referred is of customary bonus. The The award has upheld the tenability of customary bonus. The special leave. petition complained about the legality of customary bonus and customary objection bonus. > D E JI 647 HUKAM CHAND JUTE MILLS V. INDUSTRIAL TRIBUNAL (Krishna Iyer, !.) the order granting leave clinched the issue by treating the dispute as one for customary bonus. Likewise, throughout, the only defence of the management was the lethal impact on customary or other bonus, save profit or productivity-based bonus of Act 23 of 1976. impact So of the l 976 amendment on the customary bonus claim which other wise was valid and, indeed, was honoured by the appellant by pro gressively escalating rates by agreement. This part of the narration may be concluded by excerpting the order granting leave : the sole question the soundness of legicidal • "Mr. Pai states on behalf of the petitioner-Management that if they fail on the legal issue, namely, because of the amendment in the Bonus Act customary bonus is not pay able, then they will not ask for the trial of that issue on merits and straightway they will pay the customary bonus they have been paying as per the agreement dated In view of this undertaking we grant special 20-3-1975. leave to app::al and even if the appellants succeed in this appeal, they will not ask for costs against the workmen concerned.'' The Bonus Act (1965) was a complete code but was confined to profit-oriented bonus only. Other kinds of bonus have flourished in Indian Industrial law and have been left uncovered by the Bonus statute cannot Act. The legislative universe spanned by the said therefore affect the rights and obligations belonging to a different world or claims and conditions. This has, in the Mumbai Kamgar's case(') exhaustively dealt with the anatomy of the Bonus Act, its functional scope its modalities and its operational frontiers to reach the follow ing conclusion : "It is clear further from the long title of the. Bonus Act of 1965 that it seeks to provide for bonns to p::rsons employ ed 'in certain establishments' -not in all establishments . Moreover, customary bonus does not require calculation of profits, allocable surplus, because it is a payment founded on long usage and justified often by spending Qn festivals and the Act gives no guidance to fix the quantum of festival bonus; nor does it expressly wish away such a usage. The conclusion seems to be fairly clear, unless we strain judicial sympathy countrarywise, that the Bonus Act dealt with only profit bonus and matters connected therewith and did not govern customary, traditional or contractual bonus. (I) [1976] 3 S.C.R. 591, 608-609. .J ~ '». ill .- • •· A B c D E F G H I 648 SUPREME COURT REPORTS [1979] 3 S.C.R. The end product of our study of the anatomy and other related factors is that the Bonus Act spreads the canvas wide to exhaust profit-based bonus but beyond frontiers is not void other cousin claims bearing the caste name 'bonus' flourish-miniatures of other colours ! The Act is neither proscriptive nor predicative of other existences." After dealing with Ghewar Chand's case('), the Court arrived at the final view that "A disc~rning and concrete analysis of the scheme of the Act and the reasoning of the Court leaves us in no doubt that it leaves untouched customary bonus."(') This ruling has our concurrence and, indeed, the principal plea of Shri Pai, counsel for the appellant, is that the effect of the 1976 amending Act has been left open in that decision a'nd that is precisely the justification for his submission that the new provisions nullify all kinds of claims of bonus except pmfit-or-productivity-based bonuses, having regard to ss. 31 A and 34A brought the statute Act. Counsel made his goal-oriented submissions by taking us through the new provisions. As we have stated earlier many of the statutory modifications brought about in 1976 in the then wisdom of Parlia ment have been repealed and the original position restored in 1977 by the later wisdom of the new Parliament. However, we are con cerned only with the import and effect of the few provisions incorpo rated by Act 23 of 1976. . The fundamental fact which we must reiterate is that the Bonus Act before the 197 6 amendment bad nothing to say on bonu~ not oriented on profit. What then was the departure made ? Did it travel beyond the broad territory of the original statute and invade other forms of bonus ? Apart from the clauses which we will presently deal with, a key to the understanding of the changes is the long title. The long title of the Bonus Act was also amended in 1976 and the substituted one runs thus : "An Act to provide for the payment of bonus to persons employed in certain establishments on the basis of profits or on the basis of production or productivity and for matters connected therewith." The clear light that we glean from the new long title is con intent of Shri Pai's argument. Specifically, the new A B c D E F G H (I) [1969] I S.C.R. 366. (2) [1976] > S.C.R. 591, 612. I • • HUKAM CHAND JUTE MILLS V. INDUSTRIAL TRIBUNAL (Krishna Iyer, !.) 6 4 9 payment therefrom long title purports to provide for of bonus "on the basis of profits or on the basis of production or productivity and for matters connected inference therewith". The emphatic that customary or contractual bonus goes be yond the pale of the amending Act which modifies the previous one by bringing within its range bonus on the basis of production or productivity also. Nothing more-unless the text expressly states to It Is important to remember that s. 17 of the Bonus the contrary. Act has been left intact. That Section in express terms refers to puja bonus and other customary bonus as available for deduction from the bonus payable under the. Act, thus making a clear distinction between the bonus payable under the Act and "pujd' bonus or other customary bonus. So long as this Section remains without amend ment the inference is clear that the categories covered by the Act, as amended, did not deal with customary bonus A B c Strong reliance was placed by counsel for the appellant on new It is proper to reads. 34 at this s. 31A read with substituted s. 34. stage : D "34. Subject to the provisions of section 31A, the pro visions of this Act shall have effect notwithstanding any thing inconsistent therewith contained in any other law for the time being in force or in the terms of any award, agree ment, settlement or contract of service." The only changes that we notice as between this Section and its pre decessor are (i) that agreements, settlements and contracts of service inconsistent with the provisions of the Act regardless of whether they were made before 29th May, 1965 or after would now stand super seded; and (ii) s. 24 shall be subject to the provisions of s. 3 lA inserted. E F We may straightway dispose of the argument based on s. 3 JA. That relates to bonus linked with production or productivity in lieu of bonus based on profits. We are not concerned with such a situa tion and we agree that in regard to productivity bonus s. 31 A sha1! have operation but it speaks nothing about the other kinds of bonus G and cannot, therefore, be said to h~ve the sp, in-off benefits claimed by the appellant. Similarly, the submission that ·an agreements in consistent with the Bonus Act shall become inoperative also has no substance vis-a-vis customary bonus. The fallacy is simple. Once we agree-and this is incontestible now-that the Bonus Act ( 1965) does not deal with customary bonus and is confined to profit-based H or productivity-based bonus, the provisions of the Act have no say 3-330SCI/79 • ~· . • ' I 650 SUPREME COURT REPORTS [1979] 3 s.c.R. on customary bonns and cannot, therefore, be inconsistent therewith. Conceptually, statutory bonus and customary bonus operate in two fields and do not clash with each other. We have reached the end of journey because the focal point of the debate is as to whether customary bonus, as claimed in this case, is impaired or eliminated by the 1976 amendment Act. Moreover, both parties have agreed that throughout they have been d~aling with customary bonus only and whenever there has been a settlement or agreement it has been not the source of the right but the quantification thereof. The claim was rooted in custom but quantified by contract. It did not originate in any agreerp.ent, but was organised by it. We are, therefore, satisfied that the appeal must fail. We should have unhesitatingly directed costs to be paid by the management-appellant to the respondent-workmen; but during the course of the hearing we were far from impressed with the attitude taken up by the respondent. While the merits df the matter have to be decided indifferent to such factors, costs are discretionary and we are constrained to dismiss the appeal, directing both the parties to bear their respective costs. N.V.K. Appeal dismissed. A B c D I •