{"id":133320,"date":"1976-03-10T00:00:00","date_gmt":"1976-03-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mumbai-kamgar-sabha-bombay-vs-ms-abdulbhai-faizullabhai-ors-on-10-march-1976"},"modified":"2017-02-16T18:14:26","modified_gmt":"2017-02-16T12:44:26","slug":"mumbai-kamgar-sabha-bombay-vs-ms-abdulbhai-faizullabhai-ors-on-10-march-1976","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mumbai-kamgar-sabha-bombay-vs-ms-abdulbhai-faizullabhai-ors-on-10-march-1976","title":{"rendered":"Mumbai Kamgar Sabha, Bombay vs M\/S Abdulbhai Faizullabhai & Ors on 10 March, 1976"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mumbai Kamgar Sabha, Bombay vs M\/S Abdulbhai Faizullabhai & Ors on 10 March, 1976<\/div>\n
Equivalent citations: 1976 AIR 1455, \t\t 1976 SCR (3) 591<\/div>\n
Author: V Krishnaiyer<\/div>\n
Bench: Krishnaiyer, V.R.<\/div>\n
           PETITIONER:\nMUMBAI KAMGAR SABHA, BOMBAY\n\n\tVs.\n\nRESPONDENT:\nM\/S ABDULBHAI FAIZULLABHAI & ORS.\n\nDATE OF JUDGMENT10\/03\/1976\n\nBENCH:\nKRISHNAIYER, V.R.\nBENCH:\nKRISHNAIYER, V.R.\nUNTWALIA, N.L.\n\nCITATION:\n 1976 AIR 1455\t\t  1976 SCR  (3) 591\n 1976 SCC  (3) 832\n CITATOR INFO :\n RF\t    1979 SC 876\t (5)\n RF\t    1982 SC 149\t (971)\n R\t    1984 SC 457\t (3)\n R\t    1986 SC1486\t (4)\n\n\nACT:\n     Payment of\t Bonus Act,  1965-Workers' Union-Not being a\nparty to  dispute had  locus standi-Bonus  Act-If a complete\ncode-Bonus based on custom, usage or a condition of service-\nIf excluded by the Act.\n     Res judicata-if applicable to industrial disputes.\n\n\n\nHEADNOTE:\n     A considerable  number of\tworkmen were  employed by  a\nlarge number of small businessmen in a locality in the city.\nPrior to  1965, the  employers made ex-gratia payment to the\nworkers by way of bonus which they stopped from that year. A\nBoard  of   Arbitrators\t appointed   under  s.\t10A  of\t the\nIndustrial Disputes  Act, to  which the\t bonus\tdispute\t was\nreferred, rejected the workers demand for bonus. The dispute\nwas eventually\treferred to  an Industrial Tribunal which in\nlimine dismissed  the workers' demand as being barred by res\njudicata, in  view of the decision of the Arbitration Board.\nThe Tribunal in addition. held that bonus so far paid having\nbeen founded  on tradition  and custom,\t did not fall within\nthe four-corners  of the  Bonus Act which is a complete code\nand came  to  the  conclusion  that  the  workers  were\t not\nentitled bonus.\n     On appeal\tto this\t Court it was contended that (i) the\nappellant-Union not  being a  party to\tthe dispute  had  no\nlocus standi,  (ii) the\t claim\tof  the\t workmen  not  being\nprofit-based bonus,  which is what the Bonus Act deals with,\nthe Act\t has no application to this case; and (iii) since no\ncase of\t customary or  contract bonus  was urged  before the\nArbitration Board  such a  ground was  barred by the general\nprinciples of res judicata.\n     Dismissing the appeal.\n^\n     HELD: 1(a)\t In an\tindustrial dispute  the\t process  of\nconflict resolution is informal, rough and ready and invites\na liberal  approach. Technically  the union  cannot  be\t the\nappellant, the\tworkmen being  the real\t parties. There is a\nterminological lapse  in the  cause title,  but a reading of\nthe petition,  the description\tof the\tparties, the grounds\nurged and grievances aired, show that the battle was between\nthe workers  and the employers and the Union represented the\nworkers. The  substance of  the matter being obvious, formal\ndefects fade away. [596H]\n     (b)  Procedural   prescriptions  are   handmaids,\t not\nmistresses of justice and failure of fair play is the spirit\nin which  Courts  must\tview  processual  deviances.  Public\ninterest is  promoted by  a spacious  construction of  locus\nstandi\tin   our  socio-economic  circumstances,  conceptual\nlatitudinarianism    permits\t taking\t   liberties\twith\nindividualisation of  the right\t to invoke the higher courts\nwhere  the  remedy  is\tshared\tby  a  considerable  number,\nparticularly when they are weaker. [597B; D]\n     Dhabolkar [1976] 1 S.C.R. 306 and Nawabganj Sugar Mills\n[1976] 1 S.C.C. 120 held inapplicable.\n     (e) In  industrial\t law  collective  bargaining,  union\nrepresentation at conciliations, arbitrations, adjudications\nand appellate and other proceedings is a welcome development\nand an enlightened advance in industrial life. [597G]\n     In the  instant case  the union  is an abbreviation for\nthe totality  of workmen involved in the dispute. The appeal\nis,  therefore,\t an  appeal  by\t the  workmen  compendiously\nprojected and impleaded through the union. [598D]\n592\n     2(a) The  demands referred\t by the State Govt. under s.\n10(1) (d) of the Industrial Disputes Act, specifically speak\nof payment of bonus by the employers which had become custom\nor usage  or a\tcondition of  service in the establishments.\nThe subject  matter of\tthe dispute  referred by  the  Govt.\ndealt with  bonus based\t on custom  or condition of service.\nThe Tribunal  was bound\t to investigate\t this question.\t The\nworkers in  their statements  urged that  the demand was not\nbased on  profits or  financial results\t of the employer but\nwas based on custom. [599 D-E]\n     (b) The  pleadings, the  terms  of\t reference  and\t the\nsurrounding circumstances  support the\tonly conclusion that\nthe core  of the  cause of  action is  custom and\/or term of\nservice, not  sounding in  or conditioned  by  profits.\t The\nomission to  mention the  name of  a festival as a matter of\npleading did  not detract from the claim of customary bonus.\nAn examination\tof the\ttotality of  materials leads  to the\ninevitable result  that what had been claimed by the workmen\nwas bonus  based on  custom and\t service condition,  not one\nbased on profit. [600E; 601B]\n     Messrs. Ispahani  Ltd.  v.\t Ispahani  Employees'  Union<\/a>\n[1960] 1  S.C.R. 24, Bombay Co. [1964] 7 S.C.R. 477, Jardine\nHenderson [1962]  Supp.3 S.C.R.382,  Howrah-Amta Light\tRly.\n[1966] II LLJ 294, 302, Tulsidas Khimji [1962] I LLJ 435 and\nTilak Co. A.I.R. 1959 Cal. 797 referred to.\n     (c) When  industrial jurisprudence\t speaks of  bonus it\nenters the  area of  right and\tclaim to  what is due beyond\nstrict wages.  Viewed from this angle prima facie one is led\nto the\tconclusion that\t if the\t Bonus Act  deals wholly and\nsolely with  profit bonus  it cannot  operate as  a bar to a\ndifferent species  of claim  merely because the word 'bonus'\nis common to both. [604G]\n     (d) The  welfare of  the working  classes is not only a\nhuman problem  but a  case where the success of the nation's\neconomic  adventures  depends  on  the\tcooperation  of\t the\nworking classes\t to make  a better  India.  Against  such  a\nperspective of developmental jurisprudence there is not much\ndifficulty in  recognising customary  bonus and\t contractual\nbonus as permissible in industrial law. [605B]\n     Churakulam Tea Estate [1969] 1 SCR 931, Ispahani [1960]\n1 S.C.R.  24,  Bombay  Co.  [1964]  1  S.C.R.  477,  Jardine\nHenderson [1962]  Supp. 3 S.C.R. 382, Howrah-Amta Light Rly.\n[1966] II  LLJ 294, 302 and Tulsidas Khimji [1962] I LLJ 435\nreferred to.\n     3(a) It  is true  that if\tthe Bonus  Act is a complete\ncode and  is exhaustive\t of the subject whatever the species\nof bonus,  there may  be a bar to grant of bonus not covered\nby its\tprovisions. But\t it is\tquite conceivable  that\t the\ncodification may  be of\t everything relating to profit bonus\nin which  case other  types of\tbonus  are  left  untouched.\nMerely calling\ta statute  a code  is  not  to\tsilence\t the\nclaimant for bonus under heads which have nothing to do with\nthe subject matter of the code. [605D]\n     (b) The history of the Act, the Full Bench formula, the\nBonus Commission Report and the statutory milieu as also the\nmajuscule  pattern   of\t bonus\t prevalent  in\t the  Indian\nindustrial world,  converge to\tthe point that the paramount\npurpose of  the Act was to regulate profit bonus. If such be\nthe design of the statute, its scheme cannot be stretched to\nsupersede what it never meant to touch or tackle. [607C-D]\n     (c) The  objects and  reasons of the Bonus Act indicate\nthat the  subject matter  of the statute was the question of\npayment of  bonus based\t on profit  to employees employed in\nestablishments. Schematically  speaking, statutory  bonus is\nprofit\tbonus.\t To  avoid  an\tunduly\theavy  burden  under\ndifferent heads\t of bonus it is provided in s. 17 that where\nan employer  has paid  any puja\t bonus\tor  other  customary\nbonus, he would be entitled to deduct the amount of bonus so\npaid from  the amount of bonus payable by him under the Act.\nIf the\tcustomary bonus\t is thus recognised statutorily and,\nif in  any instance  it happened  to be much higher than the\nbonus payable  under the  Act, there is no provision totally\ncutting off the customary bonus. The provision for deduction\n593\nin s.  17 on  the  other  hand,\t indicates  the\t independent\nexistence of  customary bonus  although, to some extent, its\nquantum is  adjustable towards\tstatutory bonus.  Section 34\ndoes not  mean that  there cannot  be contractual  bonus  or\nother species  of bonus.  This provision only emphasises the\nimportance of the obligation of the employer, in every case,\nto pay\tthe statutory bonus. The other sub-sections of s. 34\nalso do\t not destroy  the survival  of other  types of bonus\nthan provided  by the  Bonus Act.  The heart of the statute,\nplainly read,  from its\t object and provisions, reveals that\nthe Act\t has no\t sweep wider than profit bonus. [607E-G; 608\nB-D]\n     (d) The  fact that\t certain types\tof bonus  which\t are\nattended with  peculiarities deserving all special treatment\nhave been  expressly saved  from the  bonus Act did not mean\nthat whatever  had not been expressly saved was by necessary\nimplication included in the Bonus Act. [608D]\n     (e) The  long title  of the  Bonus Act seeks to provide\nfor bonus  to persons  employed \"in  certain establishments\"\nnot in\tall establishments.  Moreover, customary  bonus does\nnot  require  calculation  of  profits,\t available  surplus,\nbecause it  is a  payment founded  on long usage and the Act\ngives no  guidance to  fix the quantum of festival bonus. It\nis, therefore,\tclear that  the Bonus  Act deals  with\tonly\nprofit bonus  and matters  connected therewith\tand does not\ngovern customary, traditional or contractual bonus. [608G-H]\n     (f) The  Bonus Act speaks and speaks as a whole code on\nthe sole  subject of profit-based bonus but is silent on and\ncannot therefore  annihilate by\t implication, other distinct\nand different  kinds of\t bonus such  as the  one oriented on\ncustom. [609D]\n     Ghewar Chand's  case [1969]  1 S.C.R. 366 distinguished\nand held inapplicable.\n     (g) The  principle that a ruling of a superior court is\nbinding law  is not  of scriptural sanctity but is of ratio-\nwise luminosity\t within\t the  edifice  of  facts  where\t the\njudicial  lamp\tplays  the  legal  flame.  So  there  is  no\nimpediment in  reading Ghewar  Chand's case  as confined  to\nprofit-bonus,  leaving\t room  for   non-statutory  play  of\ncustomary bonus. That case relates to profit bonus under the\nIndustrial Disputes  Act. The  major inarticulate premise of\nthe statute is that it deals with-and only with-profit-based\nbonus. There  is no  categorical provision  in the Bonus Act\nnullifying all\tother  kinds  of  bonus,  nor  does  such  a\nconclusion arise by necessary implication. The core question\nabout the policy of the Parliament that was agitated in that\ncase turned  on the  availability of the Industrial Disputes\nAct as\tan independent\tmethod of  claiming profit  bonus de\nhors the Bonus Act and the Court took the view that it would\nbe subversive  of the scheme of the Act to allow an invasion\nfrom the  flank in  that manner.  A discerning\tand concrete\nanalysis of  the scheme\t of the Act and the reasoning of the\nCourt  leaves\tno  doubt  that\t the  Act  leaves  untouched\ncustomary bonus. [609E-H; 611D-E]\n     (4) So  long as  Pandurang stands industrial litigation\nis no  exception to  the general  principle  underlying\t the\ndoctrine of  res judicata.  But the  case  of  Pandurang  is\ndistinguishable. In  that case\tthere was a binding award of\nthe Industrial\tTribunal relating to the claim which had not\nbeen put  an end  to and so this Court took the view that so\nlong as\t that award  stood the\tsame claim under a different\nguise could  be subversive  of the  rule of res judicata. In\nthe present  case  the\tArbitration  Board  dealt  with\t one\ndispute; the  Industrial Tribunal  with a fresh dispute. The\nBoard enquired\tinto one  cause of  action based  on  profit\nbonus; the  Tribunal was  called upon to go into a different\nclaim. [612D-F]\n     [The court expressed a doubt about the extension of the\nsophisticated  doctrine\t of  constructive  res\tjudicata  to\nindustrial law\twhich is  governed by special methodology of\nconciliation, adjudication  and considerations\tof  peaceful\nindustrial  relations\twhere  collective   bargaining\t and\npragmatic justice  claim precedence over formalised rules of\ndecision based\ton individual  contests, specific  causes of\naction and findings on particular issues.]\n594\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil  Appeal No.  61 of
\n1971.\n<\/p>\n
     Appeal by Special Leave from the Award dated 14-7-71 of
\nthe Industrial\tTribunal  Maharashtra  Bombay  in  Reference
\n(I.T.) No. 116 of 1970.\n<\/p>\n
     V. M.  Tarkunde, P.  H. Parekh,  H. K. Sowani and Manju
\nJetley for the Appellant.\n<\/p>\n
     G. B.  Pai,  Shri\tNarain,\t O.  C.\t Mathur\t and  J.  B.\n<\/p>\n
Dandachanji for\t Respondent Nos. 27, 68, 160, 182, 226, 265,
\n312, 403, 522, 722 and 903.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     KRISHNA IYER,  J.-A narration  of the  skeletal  facts,
\nsufficient to get a hang of the four legal issues debated at
\nthe bar\t in this  appeal, by special leave, will help direct
\nthe discussion\talong a\t disciplined  course,  although\t the
\nbroader social\targuments addressed  have spilled  over\t the
\nbanks of the jural stream.\n<\/p>\n
     Nag Devi,\ta locality in the city of Bombay, is studded
\nwith small  hardware businesses\t where pipes  and  fittings,
\nnuts and  bolts, tools\tand other  small products,  are made
\nand\/or sold.  These establishments,  well over\ta  thousand,
\nemploy a considerable number of workmen in the neighbourhood
\nof 5,000,  although each  unit has (barring four), less than
\nthe statutory  minimum of  20 workmen. This heavy density of
\nundertakings and  workers naturally  produced an association
\nof employers  and a  Union of  workmen, each recognising the
\nother,\tfor   the  necessary   convenience   of\t  collective
\nbargaining. Apparently,\t these\thardware  merchants  huddled
\ntogether in  the small\tarea, were  getting on well in their
\nbusiness and in their relations with their workmen, and this
\ngoodwill manifested  itself in ex-gratia payments to them of
\nsmall amounts  for a  number of\t years prior  to 1965,\twhen
\ntrouble began.\n<\/p>\n
     Although rooted  in  goodness  and\t grace,\t the  annual
\nrepetition of  these payments  ripened, in the consciousness
\nof the workers, into a sort of right-nothing surprising when
\nwe see\tin our\ttowns and  temples a trek of charity-seekers
\nclaiming benevolence  as  of  right  from  shop-keepers\t and
\npilgrims, especially  when this\t kindly disposition has been
\nkept  up  over\tlong  years.  The  compassion  of  yesterday
\ncrystallises as\t the claim  of today, and legal right begins
\nas that\t which is humanistically right. Anyway, the hardware
\nmerchants of  Nag Devi,\t made of  sterner stuff, in the year
\n1965, abruptly\tdeclined to  pay the  goodwill sums  of\t the
\nspread-out past\t and the  frustrated workmen frowned on this
\nstoppage  by   setting\tup   a\tright\tto  bonus   averring
\nconsiderable  profits\tfor  the   Industry  (if   one\t may
\nconveniently use  that expression  for a collective coverage
\nof  the\t conglomeration\t of  hardware  establishments).\t The
\ndefiant denial\tand the\t consequent dispute  resulted in the
\nappointment of\ta Board\t of Arbitrators\t under s. 10A of the
\nIndustrial Disputes Act to arbitrate upon twelve demands put
\nforward by  the Mumbai Kamgar Sabha, Bombay (the Union which
\nrepresents the\tbulk of\t workers employed  in the  tiny, but
\nnumerous, establishments).  The charter of demands included,
\ninter alia, claim for 4
\n595<\/span>
\nmonths’ wages  as bonus\t for the  year\t1965.  The  arbitral
\nboard,\thowever,   rejected  the   demand  for\t bonus.\t The
\nrespondents-establishments   discontinued   these   payments
\nthereafter and\tthe  Union’s  insistence  on  bonus  led  to
\nconciliation efforts.  The  Deputy  Commissioner  of  Labour
\nmediated  but  since  his  intervention\t did  not  melt\t the
\nhardened mood  of the employers, formal demands for payments
\nof bonus were made by the Union and government was persuaded
\nto refer  the dispute  for  adjudication  to  an  Industrial
\nTribunal. The Tribunal formulated two issues as arising from
\nthe  statements\t of  the  parties  and\trendered  his  award
\ndismissing the reference.\n<\/p>\n
     At this stage, it may be useful to set out the terms of
\nreference made\tunder s. 10(1)(d) of the Industrial Disputes
\nAct, 1947  (for short,\tthe ID Act), for adjudication by the
\nTribunal:\n<\/p>\n
\t  “1.  Whether the  establishments (mentioned in the
\n\t       annexure) have  been giving  bonus  to  their
\n\t       workers till  1965 ?  If so,  how long before
\n\t       1965 have  the employers been giving bonus to
\n\t       their workmen ? And at what rate ?\n<\/p><\/blockquote>\n
\t  2.   Whether payment\tof bonus by the employers to
\n\t       their workmen  has become  custom or usage or
\n\t       condition of  service in these establishments
\n\t       ? If  so, what  should be  the basis on which
\n\t       employers should\t make payment  of  bonus  to
\n\t       their workmen  for the  years ending  on\t any
\n\t       date in 1966, 1967 1968 and 1969 ?\n<\/p><\/blockquote>\n
Following upon\tthe  statements\t of  parties,  the  Tribunal
\nframed two issues which ran thus:\n<\/p>\n
\t  “1.  Whether Award  of the  Arbitration Board made
\n\t       in Reference (VA) No. 1 of 1967 and published
\n\t       in M.G.G.  Part I-1  dated 31st October 1968,
\n\t       pages 4259-4286,\t operates as res judicata to
\n\t       the demands of the workmen.\n<\/p><\/blockquote>\n
\t  2.   Whether\tthe  reference\tin  respect  of\t the
\n\t       demands is tenable and legal.”\n<\/p><\/blockquote>\n
He answered  the first\tin the affirmative and the second in
\nthe negative.\n<\/p>\n
     The Union,\t representing the  workers in  the mass, has
\nassailed the findings of the Tribunal, the reasonings he has
\nadopted and the misdirection he has allegedly committed. The
\nTribunal did not enter the merits of the claim but dismissed
\nit in  limine on  the score  that the  demand for  bonus was
\nbarred\tby   res  judicata  the\t arbitral  board’s  decision
\nnegativing the\tbonus for  1965\t being\tthe  basis  of\tthis
\nholding. The  second ground for reaching the same conclusion
\nwas that  the Bonus  Act was  a comprehensive and exhaustive
\nlaw dealing  with  the\tentire\tsubject\t of  bonus  and\t its
\nbeneficiaries. In  short, in  his view,\t the Bonus Act was a
\ncomplete Code  and no species of bonus could survive outside
\nthe contours of that statute. Admittedly, here the claim for
\nbonus for  the relevant\t four years was founded on tradition
\nor custom or
\n596<\/span>
\ncondition of  service and  in that  light, the Tribunal made
\nshort shrift of the workmen’s plea in these words:\n<\/p>\n
\t  “In my  opinion,  the\t demand\t pertaining  to\t the
\n     practice or  custom prevailing  in\t the  establishments
\n     before  1965  is  not  such  a  matter  as\t has  to  be
\n     adjudicated  and  it  also\t does  not  fall  under\t the
\n     provisions of  Bonus Act.\tI, therefore,  find that the
\n     reference in  that respect\t also  is  not\ttenable\t and
\n     legal.”<\/p><\/blockquote>\n
     The submissions  of counsel  may be  itemised into four
\ncontentions which may be considered seriatim. They are:\n<\/p>\n
     (a)  Was the Industrial Tribunal competent to entertain
\n\t  the dispute at all ?\n<\/p><\/blockquote>\n
     (b)  Was the  claim for  bonus for\t the  years  1966-69
\n\t  barred by res judicata ?\n<\/p><\/blockquote>\n
     (c)  Was  there,\tapart\tfrom   profit-based   bonus,
\n\t  customary bonus or bonus as a condition of service
\n\t  ?\n<\/p><\/blockquote>\n
     (d)  If answer to (c) is in favour of the workmen, does
\n\t  the Bonus  Act interdict  such a  demand since  it
\n\t  does not provide for those categories of bonus and
\n\t  confines itself to profit-based bonus, or does the
\n\t  Bonus Act  speak on  the topic  of  bonus  of\t all
\n\t  species and, therefore, stands four square between
\n\t  a claim  for bonus  and its grant, unless it finds
\n\t  statutory expression in the provisions of that Act
\n\t  ?\n<\/p><\/blockquote>\n
The first  contention which,  curiously enough, has appealed
\nto the\tIndustrial Tribunal,  need not be investigated as it
\nis devoid  of merit and has rightly been given up by counsel
\nfor the\t respondent. A\tcasual\tperusal\t of  the  provisions
\nbearing on  the jurisdiction  of the  Labour Court  and\t the
\nIndustrial Tribunal  as well  as the relevant schedules will
\nconvince anyone\t that this  industrial dispute\tcomes within
\nthe wider  ambit of  the Industrial Tribunal’s powers. It is
\nunfortunate that  the Tribunal has made this palpable error.
\nIt is  right to give plausible reasons for one’s verdict and
\nnot mar it by bad, perfunctory supplementaries.\n<\/p>\n
     Fairness  to  respondent’s\t counsel  constrains  us  to
\nconsider in  limine a  flawsome plea forcibly urged that the
\nUnion figured  as the appellant before us but being no party
\nto the\tdispute (which\twas between  the workers  on the one
\nhand and  the establishments  on the  other)  had  no  locus
\nstandi. No right of the Union qua Union was involved and the
\nreal  disputants   were\t the   workers.\t Surely,   there  is
\nterminological lapse  in the  cause-title because,  in fact,
\nthe aggrieved  appellants are  the workers collectively, not
\nthe  Union.   But  a  bare  reading  of\t the  petition,\t the
\ndescription of\tparties, the  grounds urged  and  grievances
\naired, leave  us in  no doubt that the battle is between the
\nworkers\t and  employers\t and  the  Union  represents,  as  a
\ncollective noun,  as it\t were,\tthe  numerous  humans  whose
\npresence is  indubitable in  the  contest,  though  formally
\ninvisible on the party array. The substance of the
\n597<\/span>
\nmatter is obvious and formal defects, in such circumstances,
\nfade away.  We are  not\t dealing  with\ta  civil  litigation
\ngoverned by  the Civil Procedure Code but with an industrial
\ndispute\t where\t the  process\tof  conflict  resolution  is
\ninformal, rough-and-ready  and invites\ta liberal  approach.
\nProcedural prescriptions  are handmaids,  not mistresses  of
\njustice and  failure of\t fair play  is the  spirit in  which
\nCourts must view processual deviances. Our adjectival branch
\nof jurisprudence, by and large, deals not with sophisticated
\nlitigants but  the rural  poor, the urban lay and the weaker
\nsocietal segments  for whom  law will  be an added terror if
\ntechnical  mis-descriptions  and  deficiencies\tin  drafting
\npleadings and  setting out  the cause-title  create a secret
\nweapon to  non-suit a  party. Where foul play is absent, and
\nfairness is  not faulted,  latitude is a grace of processual
\njustice. Test  litigations, representative actions, pro bono
\npublico and like broadened forms of legal proceedings are in
\nkeeping with the current accent on justice to the common man
\nand a necessary disincentive to those who wish to bypass the
\nreal issues  on the merits by suspect reliance on peripheral
\nprocedural short-comings.  Even Art.  226, viewed  in  wider
\nperspective, may be amenable to ventilation of collective or
\ncommon\tgrievances,   as  distinguished\t from  assertion  of
\nindividual rights,  although the traditional view, backed by
\nprecedents, has\t opted for  the narrower alternative. Public
\ninterest is  promoted by  a spacious  construction of  locus
\nstandi in  our socio  economic circumstances  and conceptual
\nlatitudinarianism    permits\t taking\t   liberties\twith
\nindividualisation of  the right\t to invoke the higher courts
\nwhere  the  remedy  is\tshared\tby  a  considerable  number,
\nparticularly  when   they  are\t weaker.  Less\t litigation,
\nconsistent with\t fair process, is the aim of adjectival law.
\nTherefore, the\tdecisions cited\t before us  founded  on\t the
\njurisdiction  under   Art.  226\t are  inept  and  themselves
\nsomewhat  out  of  tune\t with  the  modern  requirements  of
\njurisprudence  calculated  to  benefit\tthe  community.\t Two
\nrulings of  this Court\tmore or\t less endorse  this  general
\napproach: Dhabolkar and Newabganj Sugar Mills.\n<\/p>\n
     All this  apart, we  are  dealing\twith  an  industrial
\ndispute which,\tin  some  respects,  lends  itself  to\tmore
\ninformality   especially    in\t the\tmatter\t of    Union
\nrepresentation.\t Technically,\tthe  Union   cannot  be\t the
\nappellant, the\tworkmen being  the  real  parties.  But\t the
\ninfelicity of  drafting notwithstanding, the Union’s role as
\nmerely\trepresenting  the  workers  is\tmade  clear  in\t the
\ndescription of\tthe parties. Learned counsel took us through
\ns. 36(1)  and (4)  of the  Act, rr. 29 and 36 of the Central
\nRules under  that Act,\ts. 15(2) of the Payment of Wages Act
\nand some  rulings throwing  dim light  on the rule regarding
\nrepresentation in industrial litigation. We deem it needless
\nto go  deeper into  this question,  for in  industrial\tlaw,
\ncollective    bargaining,     union    representation\t  at
\nconciliations, arbitrations, adjudications and appellate and
\nother  proceedings   is\t a   welcome  development   and\t  an
\nenlightened advance in industrial life.\n<\/p>\n
     Organised\tlabour,\t inevitably  involves  unionisation.
\nWelfare\t of   workers  being   a  primary   concern  of\t our
\nConstitution (Part IV), we
\n598<\/span>
\nhave to\t understand and interpret the new norms of procedure
\nat the\tpre-litigative and  litigative stages,\tconceptually
\nrecognising the representative capacity of labour unions. Of
\ncourse, complications  may arise where inter-union rivalries
\nand  kilkenny\tcat  competitions   impair  the\t  peace\t and
\nsolidarity of  the working  class. It  is admitted,  in this
\ncase, that  there is only one union and so we are not called
\nupon to\t visualize the\tdifficult situations counsel for the
\nrespondents invited  us to  do, where  a plurality of unions
\npollute workers’  unity and  create situations\tcalling\t for
\ninvestigation into  the representative\tcredentials  of\t the
\nparty appearing\t before the Tribunal or court. It is enough,
\non the\tfacts of  this case,  for us to take the Union as an
\nabbreviation for  the totality\tof workmen  involved in\t the
\ndispute,  a   convenient  label\t  which,  for\treasons\t  of
\nexpediency, converts  a lengthy party array into a short and
\nmeaningful one,\t group representation  through unions  being
\nfamiliar in  collective bargaining  and later litigation. We
\ndo not expect the rigid insistence on each workman having to
\nbe a  party eo\tnomine. The  whole body\t of workers, without
\ntheir names  being set\tout, is,  in any  case,\t sufficient,
\naccording to  the  counsel  for\t the  respondents,  although
\nstrictly speaking, even there an amount of vagueness exists.
\nFor these  reasons, we\tdecline to  frustrate this appeal by
\nacceptance of  a subversive  technicality.  We\tregard\tthis
\nappeal as  one by  the workmen\tcompendiously projected\t and
\nimpleaded through the Union.\n<\/p>\n
     Next we  come upon\t the plea  of  res  judicata,  as  a
\nroadblock in the way of the appellant. But we will deal with
\nit last,  as was  done by  counsel, and\t so straight  to the
\npiece de  resistance of this lis. Points (b) and (c) bearing
\non bonus  therefore claim  our first  attention\t and,  in  a
\nsense, are integrated and amenable to common discussion.\n<\/p>\n
     Shri  G.\tB.  Pai,   appearing  for  the\trespondents,
\ncontended that the claim put forward by the appellant before
\nthe Tribunal  was, on  the face\t of it, unsustainable on the
\nshort ground  that what\t was pleaded  was profit-based bonus
\nonly and,  therefore, fell  squarely within  the Bonus\tAct.
\nThat Act  being a complete Code, it expressly excluded by s.
\n1(3) all  establishments employing  less than 20 workmen and
\nall but\t four of  the respondents were admittedly such small
\nundertakings, with  the result\tthat the  death knell to the
\nplea of\t bonus was  tolled by the Act itself. Therefore, the
\nconclusion  was\t  irresistible,\t argued\t  counsel  for\t the
\nrespondents, that  the plea  for a profit-based bonus, being
\nnegatived by the statute, stands self-condemned.\n<\/p>\n
     This argument  drives us  into an enquiry as to whether
\nthe claim  before the  Tribunal was  for profit-based bonus.
\n“Yes”, was  his holding\t and so he said ‘no’ to the workmen.
\nThe answer is the same, if the claim is founded on a similar
\nbasis.\n<\/p>\n
     Shri  Tarkunde,   for  the\t appellant,  countered\tthis
\nseemingly fatal\t submission by\turging that  whatever  might
\nhave been the species of bonus demanded in 1965, the present
\ndispute referred  by  the  State  Government  related  to  a
\ntotally different  type of bonus, namely, customary bonus or
\none which was a term of the employment itself. Even
\n599<\/span>
\nif this\t be true, Shri G. B. Pai has his case that the Bonus
\nAct is all comprehensive and no kind of bonus can gain legal
\nrecognition if\tit falls  outside the sweep and scope of the
\nBonus Act itself. No brand of bonus has life left if it does
\nnot find  a place  in the  oxygen tent\tof the complete Code
\ncalled the Bonus Act.\n<\/p>\n
     What thus\tfirst  falls  for  our\texamination  is\t the
\nreference by  the State\t Government  to\t the  Tribunal,\t the
\npleading of  the workmen before the Tribunal and the counter
\nstatement by  the employers  before the Tribunal with a view
\nto ascertain  the character  of the  bonus demanded  by\t the
\nworkers and  covered by\t the dispute.  It must be remembered
\nthat the  award has rejected the claim not substantively but
\non the\tground of  two legal bars and care must be taken not
\nto mix\tup maintainability  with merits.  A short  cut is  a
\nwrong cut  often times\tand the\t Tribunal’s easy recourse to
\ndismissal on  preliminary grounds  may well lead-and it has,
\nas will\t be presently  perceived-to a re-opening of the case
\nmany years  later if  the higher  Court reverses  the  legal
\nfindings. Be that as it may, let us test the validity of the
\nplea that  only a profit based bonus has been claimed by the
\nworkers.\n<\/p>\n
     The demands  referred by  the State Government under s.
\n10(1)(d) specifically  speak of\t payment  of  bonus  by\t the
\nemployers which\t ‘has become  custom or usage or a condition
\nof service  in the establishments’. The subsidiary or rather
\nconsequential point covered by the reference is ‘if so, what
\nshould be  the basis  on which employers should make payment
\nof bonus  to their  workmen for the years. . .’. It is plain
\nthat the  subject matter  of the dispute, as referred by the
\nGovernment, deals with bonus based on custom or condition of
\nservice. The Tribunal is therefore bound to investigate this
\nquestion, the terms of reference being the operational basis
\nof its jurisdiction.\n<\/p>\n
     The workmen,  in their  statement, have  asserted\tthat
\nbonus had been paid for several years and what transpired at
\nthe conciliation  stages is  clear from\t the letter  of\t the
\nCommissioner of Labour who adverts to the ‘usual’ custom and
\npractice of  payment of\t bonus’. The  colour of the workers’
\nclaim has  been clarified  further in paragraphs 10 to 12 of
\ntheir statement\t before the  Tribunal. While they do mention
\nthat the  hardware merchants  of Nag  Devi have\t been making
\nlarge profits  during the  years in question and, therefore,
\ncan afford  to pay  bonus according  to\t the  standards\t and
\ncriteria  applicable  to  large\t and  prosperous  industrial
\nestablishments, the  real foundation  of their\tclaim is set
\nout in\tindubitable language  as  attributable\tto  ‘custom,
\nusage and  condition of\t service’. Surely, they have no case
\nof bonus  dependent upon  the  quantum\tof  profits  of\t the
\nestablishments nor  uniformity\tregion-wise.  On  the  other
\nhand, the  amount of  bonus, the time of payment, etc., vary
\nfrom establishment  to establishment.  The constant  factor,
\nhowever,  is   allegedly   that\t  there\t  is   ‘consistency,
\npredictability\tand   uniformity’,  continuity\tand  payment
\n‘without reference  to the  fluctuations  in  the  financial
\nperformance and\t profits of  each firm’.  The Sabha does not
\nmince words  when, in praying for relief, it states that the
\nTribunal ‘be  pleased  to  restore  the\t custom,  usage\t and
\nconditions of service represented by the payment of bonus in
\nthese firms. In short, the bedrock of the bonus claim of the
\nworkers is custom and
\n600<\/span>
\nusage bad\/or  implied condition\t of service.  Nor  have\t the
\nestablishments, who  are the respondents before the Tribunal
\nand before  us, made  any mistake  about the  nature of\t the
\ndemand. In  their statement  before the\t Tribunal they\thave
\nurged that  a scrutiny\tof the\taccounts  of  the  firms  is
\nunnecessary ‘since the demand is not based on the profits or
\nthe financial  results of  the employers  but  is  based  on
\ncustom’:\n<\/p>\n
\t  “The contentions  of the Sabha that the conditions
\n     of service under all these employers should be governed
\n     by one standard and one criteria is, not tenable. Since
\n     all the  shops are\t not owned  by one  person and since
\n     every shop\t is a  different entity there is no question
\n     of uniformity of service conditions. Moreover, there is
\n     no law  which lays\t down that the service conditions of
\n     the employees  under  all\tthese  employers  should  be
\n     uniform. It  is submitted\tthat the  reference  to\t the
\n     capital-turnover ratio in this paragraph is irrelevant.
\n     It is  also submitted  that the  Sabha’s demand  that a
\n     sample scrutiny  of the Accounts of the firms should be
\n     made by  the Tribunal  is irrelevant  in  this  respect
\n     since the\tdemand is  not based  on the  profits or the
\n     financial results\tof the\temployers but  is  based  on
\n     custom.”\n<\/p><\/blockquote>\n
More over  the ex  gratia payments  for\t the  pre-Bonus\t Act
\nperiod are  admitted by the respondents. They seek sanctuary
\non  the\t counterplea  that  free  acts\tof  grace,  even  if
\nrepeated, can neither amount to a custom, usage or condition
\nof service.  In sum,  a study of the pleadings, the terms of
\nreference and  the surrounding\tcircumstances  supports\t the
\nonly conclusion that, peripheral reference to the profits of
\nthe establishments notwithstanding, the core of the cause of
\naction or the kernel of the claim for bonus is custom and\/or
\nterm of service, not sounding in or conditioned by profits.\n<\/p>\n
     Shri G.  B. Pai  did urge\tthat the  precedents of this
\nCourt have  linked custom-based\t bonus with some festival or
\nother and that bonus founded on custom de hors some festival
\nis virtually unknown to case  law on the point. From this he
\nargues\tthat  since  the  bonus\t has  not  been\t related  by
\nreference to  any festival by the workmen in their pleadings
\n(reference  to\tDiwali\tas  the\t relevant  festival  in\t the
\nstatement  of  the  case  in  this  Court  is  an  ingenious
\ninnovation to  fit into the judge-made law according to Shri
\nPai) the  claim must  fail.  Legal  life  is  breathed\tinto
\ncustomary bonus\t only by  nexus with Puja or other festival.
\nWe  are\t unable\t to  agree  with  this\trather\tmeretricious
\nsubmission. Surely,  communal  festivals  are  occasions  of
\nrejoicing and  spending and employers make bonus payments to
\nemployees  to  help  them  meet\t the  extra  expenses  their
\nfamilies have  to incur.  Ours is  a festival-ridden society
\nwith many religions contributing to their plurality. That is
\nwhy our\t primitive practice of linking payment of bonus with
\nsome distinctive  festival has\tsprouted. As  we progress on
\nthe secular road, maybe the Republic Day or the Independence
\nDay or\tthe Founder’s  Day may\twell become the occasion for
\ncustomary bonus.  The crucial  question is not whether there
\nis a  festival which  buckles the bonus and the custom. What
\nis legally telling is whether by an unbroken flow
\n601<\/span>
\nof annual payments a custom or usage has flowered, so that a
\nright to  bonus based  thereon can be predicated. The custom
\nitself precipitates  from and  is  proved  by  the  periodic
\npayments induced  by the sentiment of the pleasing occasion,
\ncreating a mutual consciousness, after a ripening passage of
\ntime, of  an obligation\t to pay and a legitimate expectation
\nto receive.  We are,  therefore, satisfied that the omission
\nto mention  the name of a festival, as a matter of pleading,
\ndoes not  detract from\tthe claim  of customary\t bonus.\t The
\nimpact of  this omission  on  proof  of\t such  custom  is  a
\ndifferent matter  with which  we are  not concerned  at this
\nstage since  the Tribunal  has not  yet\t enquired  into\t the
\nmerits.\n<\/p>\n
     Shri Pai  urged that  the custom,\teven if\t true, stood
\nbroken in  1965 and, therefore, during the post-1965 period,
\ncustomary  bonus  stood\t extinguished.\tThe  effect  of\t the
\narbitral board’s negation of the profit-based bonus claim in
\n1965 on\t custom-based bonus  for the  subsequent  period  is
\nagain relevant,\t if at all, as evidence, which falls outside
\nour consideration  at present.\tIn the event of the Tribunal
\nhaving to  adjudicate upon  the question,  maybe this rather
\nanaemic circumstance  will be  urged  by  the  employer\t and
\nexplained by the employees.\n<\/p>\n
     There  is\t hardly\t any  doubt  that  custom  has\tbeen
\nrecognised in  the past as a source of the right to bonus as
\nthe several  decisions cited before us by Shri Tarkunde make
\nout and s. 17(a) of the Bonus Act, in a way, recognizes such
\na root\tof title.  In Churakulam  Tea Estate(1)\t this  Court
\nsurveyed the  relevant case  law at some length. Ispahani(2)
\nimplied as  a term of the contract the payment of bonus from
\nan unbroken,  long spell.  Vaidialingam J., in Churakulam(1)
\nreferring to some of the precedents, observed:\n<\/p>\n
\t  “In Ispahani’s  case(2) this Court had to consider
\n     a claim  for Puja\tbonus, in  Bengal, and the essential
\n     ingredients, for  sustaining such\ta claim\t when it  is
\n     based on  an implied  agreement. After stating that the
\n     claim, for\t Puja Bonus, can be based either as a matter
\n     of\t implied   agreement  between\tthe  employers\t and
\n     employees, creating a term of employment for payment of
\n     Puja bonus, or that even where no implied agreement can
\n     be inferred,  it may  be payable  as a customary bonus,
\n     this Court,  in the  said decision,  specifically dealt
\n     with a  claim  for\t payment  of  bonus  as\t an  implied
\n     condition of  services. This  Court further accepted as
\n     correct the  tests laid  down by the Appellate Tribunal
\n     in Mahalaxmi  Cotton Mills\t Ltd., Calcutta v. Mahalaxmi
\n     Cotton Mills  Workers’  Union<\/a>  (1952  L.A.C.  370)\t for
\n     inferring that  there is an implied agreement for grant
\n     of such  bonus. The  three circumstances,\tlaid down by
\n     the Appellate Tribunal, were: (1) that the payment must
\n     be unbroken;  (2) that  it must  be for  a sufficiently
\n     long period;  and (3)  that the circumstances, in which
\n     payment was  made should  be such as to exclude that it
\n     was paid out of bounty…….<\/p><\/blockquote>\n
602<\/span><\/p>\n
     This  Court,  again,  had\tto  consider  the  essential
\ningredients to\tbe established\twhen payment  of  bonus,  as
\ncustomary or  traditional, is  claimed-again  related  to  a
\nfestival-in The\t Graham Trading\t Co.  (India)  Ltd.  v.\t Its
\nWorkmen<\/a> (1960 1 SCR 107, 111) and dealt with the question as
\nfollows:\n<\/p>\n
\t  “In dealing  with puja  bonus based  on an implied
\n     term of employment, it was pointed out by us in Messrs.
\n     Ispahani Ltd.  v. Ispahani Employees’ Union<\/a> that a term
\n     may be  implied, even  though the\tpayment may not have
\n     been at  a uniform\t rate throughout  and the Industrial
\n     Tribunal would  be justified in deciding what should be
\n     the quantum of payment in a particular year taking into
\n     account the  varying payments  made in  previous years.
\n     But when  the question  of\t customary  and\t traditional
\n     bonus arises  for adjudication,  the considerations may
\n     be some  what different.  In such\ta case, the Tribunal
\n     will have to consider: (i) whether the payment has been
\n     over an  unbroken series  of years; (ii) whether it has
\n     been for  a sufficiently  long period though the length
\n     of the period might depend on the circumstances of each
\n     case; even so the period may normally have to be longer
\n     to justify\t an inference  of traditional  and customary
\n     puja bonus\t than may  be the case with puja bonus based
\n     on\t an   implied  term   of   employment;\t (iii)\t the
\n     circumstance that the payment depended upon the earning
\n     of profits\t would have  to be excluded and therefore it
\n     must be  shown that  payment was made in years of loss.
\n     In dealing\t with the  question of custom, the fact that
\n     the payment  was called  ex gratia by the employer when
\n     it was made, would, however, make no difference in this
\n     regard because  the proof\tof custom  depends upon\t the
\n     effect of the relevant factors enumerated by us; and it
\n     would  not\t  be  materially   affected  by\t  unilateral
\n     declarations of  one party\t when the  said declarations
\n     are inconsistent  with the course of conduct adopted by
\n     it; and  (iv) the\tpayment must  have been at a uniform
\n     rate  throughout  to  justify  an\tinference  that\t the
\n     payment at\t such and such rate had become customary and
\n     traditional in  the particular concern. It will be seen
\n     that these\t tests are  in substance more stringent than
\n     the tests applied for proof of puja bonus as an implied
\n     term of employment.\n<\/p><\/blockquote>\n
It will\t be seen  from the  above extract that an additional
\ncircumstance has  also been  insisted upon,  in the  case of
\ncustomary or  traditional bonus,  that the payment must have
\nbeen at\t a uniform  rate throughout  to justify an inference
\nthat the  payment  at  such  and  such\ta  rate\t had  become
\ncustomary and traditional in the particular concern.”\n<\/p>\n
603<\/span><\/p>\n
     In Bombay\tCo.(1) this  Court, after  pointing out\t the
\ndistinction in\tthe ingredients of customary and contractual
\nbonus, affirmed\t the existence\tof categories like customary
\nbonus which  are different from and unconnected with profit-
\nbased bonus.  The learned  Judge discussed Jardine Henderson
\nand other  rulings,  but  the  judicial\t chorus\t of  legally
\nclaimable customary  or contractual  bonus is  not marred by
\nand discordant note.\n<\/p>\n
     It may  be otiose\tto refer  to holdings of High Courts
\nwhen this  Court  has  laid  down  the\tlaw.  Even  so,\t two
\ndecisions, one\tof Patna  and the other of Calcutta, deserve
\nmention. One  of us,  (Untwalia J., as he then was) speaking
\nfor the\t Division Bench,  observed in Howrah-Amta Light Rly.
\nthus:\n<\/p>\n
\t  “Apart from  the profit bonus, the sense of social
\n     justice has  led to the recognition in law of the right
\n     of the workmen to get other kinds of bonus which do not
\n     depend upon  nor are  necessarily\tconnected  with\t the
\n     earnings of profits by the industrial concern. One such
\n     kind of  bonus is that which is paid on the occasion of
\n     special festival well celebrated in particular parts of
\n     India, as\tfor example, puja bonus in Bengal and Diwali
\n     bonus in Western India.”\n<\/p><\/blockquote>\n
The Court,  referring to Tulsidas Khimji, restated the tests
\nfor the claim of customary bonus and rightly held that these
\ntests are  but circumstances  and not  conditions precedent,
\nthat it\t is not\t necessary to  show that such bonus has been
\npaid even  in years  of loss. The grounds to be made out for
\ncustomary, as  distinguished from contractual, bonus overlap
\nin many respects but differ in some aspects.\n<\/p>\n
     P. B.  Mukherji,  J  as  he  then\twas,  in  Tilak\t Co.\n<\/p>\n
observed:\n<\/p>\n
\t  “Akin to this conception of bonus is the case of a
\n     bonus annexed  to the  employment by  custom or  social
\n     practices such as Customary bonus and Puja or Festivity
\n     bonus. In case of such customary and traditional bonus,
\n     the question  of profit may or may not arise at all and
\n     such customary and traditional bonus will depend on the
\n     content and  terms of  that custom\t or the tradition on
\n     which the claim for bonus is made.\n<\/p><\/blockquote>\n
\t  “Each claim  for bonus must depend on the facts of
\n     such claim. No doctrinaire view about bonus is possible
\n     or desirable.  This much  however is judicially settled
\n     that bonus\t is not\t deferred wages.  It is a narrow and
\n     static view that considers bonus as always an ex gratia
\n     payment or a glorified tip or ‘Bakshish’ or a mere cash
\n     patronage payable\tat the\tpleasure of the employer. In
\n     the  industrial  jurisprudence  of\t a  modern  economic
\n     society, it  is a\tlegal claim  and a  legal  category,
\n     whose potentialities  are not  as yet  fully conceived,
\n     but whose types and boundaries the Courts in
\n604<\/span>
\n     India are\tstruggling  to\tformulate.  It\tis  a  vital
\n     instrument of industrial peace and progress, dynamic in
\n     its implication and operation.”\n<\/p><\/blockquote>\n
Since we  are not called upon to investigate the veracity of
\nthe claim we stop with stating that the employers’ awareness
\nof  social  justice,  which  fertilises\t the  right  of\t his
\nemployees for  bonus, blooms  in many ways of which, profit-
\nbased bonus  is but  one-not the  only one.  All this is the
\nindirect bonanza  of  Part  IV\tof  the\t Constitution  which
\nbespeaks  the\tconscience  of\tthe  nation,  including\t the
\ncommunity of  employers. Law  is not  petrified by the past,
\nbut responds  to the  call of the changing times. So too the
\nsocial consciousness of employers. Of course, Labour has its
\nlegal-moral  duty   to\tthe   community\t of   a\t disciplined
\ncontribution to\t the health  and wealth of the Industry. Law
\nis not always an organiser of one-way traffic.\n<\/p>\n
     This general  survey of the case-law conclusively makes
\nout that  Labour’s claim  for bonus  is not  inflexibly\t and
\nsolely pegged  to profit as the one and only right. Bonus is
\na word\tof many\t generous connotations\tand, in\t the  Lord’s
\nmansion there  are many\t houses. There is profit-based bonus
\nwhich is  one specific\tkind of\t claim and  perhaps the most
\ncommon. There  is customary  or traditional  bonus which has
\nits emergence  from long,  continued,  usage  leading  to  a
\npromissory-and-exceptancy  situation   materialising  in   a
\nright. There  is attendance bonus, production bonus and what
\nnot. An\t examination of\t the totality of pertinent materials
\ndrives us  to the  inevitable  result  that  what  has\tbeen
\nclaimed by the workmen in the present case is bonus based on
\ncustom and  service condition-not  one based  on profit. But
\nthe critical  question pops up: Is the Bonus Act a killer of
\nevery other kind of bonus not provided for by it ?\n<\/p>\n
     We have thus to move on to a study of the scheme of the
\nBonus Act  in order  to ascertain  whether  it\textinguishes
\nclaims founded\ton customary  bonus or contractual bonus. In
\none sense,  a bonus  may be  a mere  gift or  gratuity as  a
\ngesture of goodwill or it may be something which an employee
\nis entitled to on the happening of a condition precedent and
\nis enforceable\twhen the  condition is\tfulfilled. Any extra
\nconsideration given for what is received, or something given
\nin addition  to what  is ordinarily received by, or strictly
\ndue to\tthe recipient is a bonus (Black’s Legal Dictionary).
\nBut when  industrial jurisprudence  speaks  of\t‘bonus’,  it
\nenters the  area of  right and\tclaim to  what is due beyond
\nstrict wages. Viewed from this angle, prima facie one is led
\nto the\tconclusion that\t if the\t Bonus Act  deals wholly and
\nsolely with  profit bonus,  it cannot  operate as a bar to a
\ndifferent species  of claim merely because the word bonus is
\ncommon to  both. Of  course, if\t the statute  has spoken  so
\ncomprehensively, as it can, effect must be given to it.\n<\/p>\n
     The cosmos\t of bonus  is  expanding  as  working  class
\ncontentment and\t prosperity become  integral  components  of
\nindustrial  peace  and\tprogress.  The\tbone  of  contention
\nbetween the parties before us is as to whether the Bonus Act
\nis the\talpha and  omega of  all extra claims, outside wages
\nand salaries, labelled bonus with separate adjectives
\n605<\/span>
\ndemarcating the identity of each species. But this issue has
\nto be  sized up not in vacuo but against the backdrop of the
\nprogressive change around us.\n<\/p>\n
     Today it  is  accepted  doctrine  that  Labour  is\t the
\nbackbone of the nation, particularly in the area of economic
\nself-reliance. This means the welfare of the working classes
\nis not\tonly a human problem but a case where the success of
\nthe nation’s  economic adventures depends on the cooperation
\nof the\tworking classes\t to make  a better India. Indeed, on
\nthe national  agenda is the question of Labour participation
\nin Management.\tAgainst such  a perspective of developmental
\njurisprudence there  is not  much difficulty  in recognising
\ncustomary bonus\t and contractual  bonus\t as  permissible  in
\nIndustrial Law, given proper averments and sufficient proof.\n<\/p>\n
     Shri G.  B. Pai  has raised what he regards as a lethal
\ninfirmity in  the claim\t of the Sabha. In his submission the
\nBonus Act  is a complete Code and what is not covered by its
\nprovisions cannot  be awarded  by the  Tribunal. It  is true
\nthat if\t the Bonus  Act is a complete Code and is exhaustive
\nof the\tsubject, whatever the species of bonus, there may be
\na bar, but it is quite conceivable that the codification may
\nbe of  everything relating  to profit  bonus in\t which\tcase
\nother types  of bonus  are left\t untouched. Merely calling a
\nstatute a  Code is  not to  silence the\t claimant for  bonus
\nunder heads which have nothing to do with the subject matter
\nof the\tCode. On  listening to\tthe intricate argument about
\nimplicit codification  of the  law of bonus by this Act, one
\nis reminded  of Professor  Gilmore who\tput the case against
\ncodification thus :\n<\/p>\n
\t  “The law,  codified, has  proved to  be  quite  as
\n     unstable,\t unpredictable,\t  and\tuncertain-quite\t  as
\n     mulishly unruly-as the common law, uncodified, had ever
\n     been. The\trules of  law, purified,  have remained\t the
\n     exclusive preserve of the lawyers; the people are still
\n     very much\tin our toils and clutches as they ever were-
\n     if not more so.”<\/p><\/blockquote>\n
     The argument  of the  Bonus Act  being an all-inclusive
\nCode is\t based on  the anatomy\tof the Act and the ruling in
\nGhewar Chand.  So the  judicial task  is  to  ascertain\t the
\nhistory and  object of\tthe Act,  the  relevant\t surrounding
\ncircumstances  leading\t up  to\t  it,  its  scheme  and\t the
\nprohibitions,  exclusions,   exemptions\t and  savings  which
\nreveal the  intent and\tambit of  the enactment.  Long\tago,
\nPlowden, with  sibylline instinct, pointed out that the best
\nway to\tconstrue the scope of an Act of Parliament is not to
\nstop with  the words of the sections. ‘Every law consists of
\ntwo parts  viz., of  body and soul. The letter of the law is
\nthe body  of the law, and the sense and reason of the law is
\nthe soul  of the  law’. The ‘social conscience’ of the judge
\nhesitates to  deprive the working class, for whom Part IV of
\nthe Constitution  has shown  concern, of such rights as they
\ncurrently enjoy\t by mere  implication from  a statute unless
\nthere are  compulsive provisions  constraining the  court to
\nthe conclusion. From this perspective, let us
\n606<\/span>
\nexamine exclusionary  contention based\ton the body and soul
\nof the\tBonus Act. If the Bonus Act is a complete Code, on a
\ntrue decoding of its scheme and spirit, the industrial Court
\ncannot take  off the  ground with  any other forms of bonus-
\nyes, that is the implication of ‘a complete Code’.\n<\/p>\n
     Bonus has\tvarying\t conceptual  contents  in  different
\nbranches of  law and  life. We\tare here  concerned with its
\nrange of  meanings in  industrial  law\tbut,  as  expatiated
\nearlier, there\tis enough  legal room for plural patterns of
\nbonus, going  by  lexicographic\t or  judicial  learning.  It
\nimplies no  disrespect to  legal dictionaries if we say that
\nprecedents notwithstanding,  the critical word ‘bonus’ is so
\nmultiform that\tthe judges  have further  to refine  it\t and
\ncontextually define  it. Humpty\t Dumpty’s  famous  words  in
\n‘Through the  Looking Glass’-‘When  I use  a  word……  it
\nmeans just  what I  choose it to mean ….. neither more nor
\nless’-is an  exaggerated cynicism.  We have to bring in some
\nlegal  philosophy   into  this\t linguistic  problem  as  it
\nincidentally   involves\t   doctrinal   issues\t where\t the
\nConstitution  is   not\taltogether   non-aligned.  Statutory
\ninterpretation, in the creative Indian context, may look for
\nlight to  the lodestar\tof Part IV of the Constitution e.g.,
\nArts. 39(a)  and (c) and Art. 43. Where two judicial choices
\nare available,\tthe  construction  in  conformity  with\t the
\nsocial philosophy of Part IV has preference.\n<\/p>\n
     In Jalan  Trading Co.  Shah J.  (as he then was) gave a
\nsynopsis of  the development of the branch of industrial law
\nrelating to  bonus from\t the days  of the First World War to
\nthe Report  of the Bonus Commission culminating in the Bonus
\nAct, 1965.  The story of ‘war bonus’, the Full Bench formula
\nand this  Court’s view\tthat  ‘bonus  is  not  a  gratuitous
\npayment made  by the employer to his workmen, nor a deferred
\nwage, and that where wages fall short of the living standard
\nand the\t industry makes\t profit part  of which is due to the
\ncontribution  of   labour,  a\tclaim  for   bonus  may\t  be
\nlegitimately made  by the  workmen’  are  set  out  in\tthat
\ndecision. The  Full Bench  formula was\tbased on profits and
\nthe terms  of reference\t to the Commission put profit in the
\nforefront as  the foundation  of the  Scheme-‘to define\t the
\nconcept of  bonus, to  consider in  relation  to  industrial
\nemployments the\t question  of  payment\tof  bonus  based  on
\nprofits and  to recommend principles for computation of such
\nbonus and  methods of  payment …..’A glance at the various
\nChapters of  the Report\t brings home  the point\t that  bonus
\nbased on  profits is  its central theme. The conclusions and
\nrecommendations revolve\t round the  concept of profit bonus.
\nLittle argument\t is needed  to hold  that the  bonus formula
\nsuggested by  the Commission  was  profit-oriented.  Indeed,
\nthat was  its only  concern. The Act, substantially modelled
\non these  proposals, has  adopted  a  blueprint\t essentially
\nworked out  on profit. The presiding idea being a simplified
\nversion of  bonus linked  to profits over a period, shedding
\nthe complex  calculations in  the Full\tBench  Formula,\t the
\nstatute\t did   not  cover  other  independent  species\tlike
\ncustomary or  contractual bonus which had become an economic
\nreality\t and   received\t judicial  recognition.\t There\twere
\nmarginal references to and accommodation
\n607<\/span>
\nof  other   brands  of\t bonus\tbut  they  were\t for  better
\neffectuating the spirit and substance of profit-based bonus.\n<\/p>\n
     The question  then is: Was the Bonus Act only a simpler
\nreincarnation of  the Full  Bench formula,  as argued by Sri
\nTarkunde, or was it, going by the provisions and precedents,
\na full\tcodification of\t multiform bonuses,  thus  giving  a
\nknock-down blow to any customary but illegitimate demand for
\nbonus falling outside the statute, as contended by Sri Pai ?
\nIndeed, we  were taken\tthrough the well-known categories of
\nbonus vis a vis the statutory provisions with impressive and
\nknowledgeable thoroughness  by\tShri  Pai  with\t a  view  to
\nstrengthen his\tperspective that  the  Act  encompassed\t the
\nwhole law and left nothing outside its scope.\n<\/p>\n
     “To begin\twith, the history of the Act, the Full Bench
\nformula which  was its\tjudicial  ancestor,  the  Commission
\nReport which  was its immediate progenitor and the statutory
\nmilieu as  also the  majuscule pattern of bonus prevalent in
\nthe Indian  industrial world, converge to the point that the
\nparamount purpose  of  the  Payment  of\t Bonus\tAct  was  to
\nregulate profit bonus, with incidental incursions into other
\nallied claims like customary or attendance bonus. If such be
\nthe design of the statute, its scheme cannot be stretched to
\nsupersede what it never meant to touch or tackle.\n<\/p>\n
     The objects  and reasons of the Bonus Act indicate that
\nthe subject  matter of\tthe  statute  is  ‘the\tquestion  of
\npayment of  bonus based\t on profit  to employees employed in
\nestablishments’.  The  Report  of  the\tCommission  is\talso
\nreferred to  in the objects and reasons and the tenor is the
\nsame. The  long title  of the  Act is non-committal, but the
\nconcept of ‘profit’ as the basis for bonus oozes through the
\nvarious provisions.  For instance,  the idea  of  accounting
\nyear,  gross   profit  and   the  computation  thereof,\t the
\nmethodology of\tarriving at  the available  surplus and\t the
\nitems deductible from gross profits, have intimate relevance
\nto profit  bonus-and may  even be irrelevant to customary or
\ntraditional  bonus  or\tcontractual  bonus.  Similarly,\t the
\nprovision for  set on  and set\toff of allocable surplus and
\nthe like  are pertinent to profit-based bonus. Schematically
\nspeaking, statutory  bonus is  profit  bonus.  Nevertheless,
\nthere is  provision for\t avoidance of  unduly  heavy  burden
\nunder different\t heads of  bonus.  For\tthis  reason  it  is
\nprovided in  s. 17  that where an employer has paid any puja
\nbonus or  other customary  bonus, he  will  be\tentitled  to
\ndeduct the  amount of bonus so paid from the amount of bonus
\npayable by  him under  the Act.\t Of course, if the customary
\nbonus is thus recognised statutorily and, if in any instance
\nit happens  to be  much higher\tthan the bonus payable under
\nthe Act,  there is  no provision  totally  cutting  off\t the
\ncustomary bonus.  The provision\t for deduction\tin s. 17, on
\nthe other  hand,  indicates  the  independent  existence  of
\ncustomary bonus\t although, to  some extent,  its quantum  is
\nadjustable towards  statutory bonus.  Again, s.\t 34 provides
\nfor giving affect to the Bonus Act thus:\n<\/p>\n
\t  “Notwithstanding anything  inconsistent  therewith
\n     contained in  any other law …. or in the terms of any
\n     award,
\n608<\/span>
\n     agreement,\t settlement  or\t contract  of  service\tmade
\n     before 29th May, 1965″.\n<\/p><\/blockquote>\n
This does not mean that there cannot be contractual bonus or
\nother species  of bonus.  This provision only emphasises the
\nimportance of the obligation of the employer, in every case,
\nto pay\tthe statutory bonus. The other sub-sections of s. 34
\nalso do\t not destroy  the survival  of other  types of bonus
\nthan provided  by the  Bonus Act.  Shri G.  B. Pai  used the
\nprovisions of the Coal Mines Provident Fund and Bonus Scheme
\nAct, 1948,  referred to\t in s.\t35 of the Bonus Act, for the
\npurpose of  making good\t his thesis  that the  Bonus Act has
\ncomprehensive coverage\texcept where  it expressly saves any
\nother scheme  of  bonus.  Our  understanding  of  s.  35  is
\ndifferent. Coal\t mines are  extremely hazardous undertakings
\nand they  are largely  located in  agrarian areas  where the
\nagricultural workers  absent themselves\t for long periods to
\nattend to agricultural work and do not report themselves for
\nmining work.  Coal mines  have many  peculiarities  and\t the
\nworkmen employed  there have  to be  treated separately from
\nthe point  of view  of incentive  for attendance. Therefore,
\nattendance bonus  for a miner is a separate subject attended
\nwith peculiarities  deserving of  special treatment  and has
\nbeen expressly\tsaved from the Bonus Act. This does not mean
\nthat whatever  has not been expressly saved is, by necessary
\nimplication, included in the Bonus Act. Of course, there are
\nprovisions for\texemptions and\texclusions in  the Bonus Act
\nitself, particularly,  vis-a-vis  small\t establishments\t and
\npublic sector undertakings. There is also marginal reference
\nin s.  2(21) to\t s. 2(21)  (iv) to  other  kinds  of  bonus,
\nincluding incentive,  production and  attendance bonus.\t The
\nheart of  the statute,\tpainly\tread  from  its\t object\t and
\nprovisions, reveals  that Act has no sweep wider than profit
\nbonus.\n<\/p>\n
     There was reference to the payment of Bonus (Amendment)
\nOrdinance, 1975\t by counsel  on both sides. We find that the
\nlong title has been expanded and now covers bonus.\n<\/p>\n
\t  “on the  basis  of  profit  or  on  the  basis  of
\n     production or productivity”.\n<\/p>\n
This amendment\titself\timplies\t that  formerly\t a  narrower
\nspecies of  bonus, namely,  that based\ton profit  had alone
\nbeen dealt  with. The limits on contractual bonus also tends
\nto feed our conclusions. The implications of the ceiling set
\nby the\trecent amendment  to the law falls outside our scope
\nand we\tkeep away  from determining  it. Sufficient unto the
\nday is the evil thereof.\n<\/p>\n
     It is  clear further  from the  long title of the Bonus
\nAct of\t1965 that  it seeks  to provide for bonus to persons
\nemployed   ‘in\t  certain   establishments’-not\t   in\t all
\nestablishments. Moreover,  customary bonus  does not require
\ncalculation of\tprofits, available  surplus, because it is a
\npayment\t founded  on  long  usage  and\tjustified  often  by
\nspending on  festivals and  the Act gives no guidance to fix
\nthe quantum  of festival  bonus; nor  does it expressly wish
\nsuch a\tusage. The  conclusion seems  to  be  fairly  clear,
\nunless we  strain judicial  sympathy contrarywise,  that the
\nBonus Act dealt with only profit bonus and matters connected
\ntherewith and  did  not\t govern\t customary,  traditional  or
\ncontractual bonus.\n<\/p>\n
609<\/span><\/p>\n
     The end  product of  our study of the anatomy and other
\nrelated factors\t is that  the Bonus  Act spreads  the canvas
\nwide to\t exhaust profit-based bonus but beyond its frontiers
\nis not\tvoid but  other cousin claims bearing the caste name
\n‘bonus’ flourish-miniatures  of other  colours! The  Act  is
\nneither proscriptive nor predicative of other existences.\n<\/p>\n
     The trump card of Sri G. B. Pai is the ruling in Ghewar
\nChand. If  the ratio  there is\tunderstood the\tway Shri Pai
\nwould have  it the  workmen have  no case  to present.\tFor,
\nestablishments employing  less than  20 workers are excluded
\nfrom the benignant campus of the Act and the appellants fall
\noutside the grace of the statute for that reason alone. Does
\nthe decision  exhaust the  branch of  jurisprudence on every
\nkind of\t bonus or  merely lays down that profit-based bonus-
\nthe most  common one  and complicated  in working out on the
\nmathematics of\tthe full  Bench Formula-has  been picked out
\nfor total  statutory treatment and for that pattern of bonus
\nthe Act operates as a complete Code? The Tribunal understood
\nthe former  way and  followed it up with a rejection, on the
\nground of  a legal  bar, of  the admittedly non-profit-based
\nclaim for  bonus. Shri Tarkunde argues the reasoning to be a
\nmisunderstanding of  the meaning of the ruling. We hold that
\nthe Bonus  Act speaks,\tand speaks  as a  whole Code, on the
\nsole subject  of profit-based  bonus but  is silent  on, and
\ncannot therefore  annihilate by\t implication, other distinct
\nand different  kinds of\t bonus such  as the  one oriented on
\ncustom. We  confess that  the gravitational pull on judicial
\nconstruction of\t Part IV  of the  Constitution has,  to some
\nextent influenced our choice.\n<\/p>\n
     It is  trite, going  by Anglophonic  principles, that a
\nruling of  a superior  court is\t binding law.  It is  not of
\nscriptural sanctity  but  is  an  of  ratio-wise  luminosity
\nwithin the  edifice of\tfacts where  the judicial lamp plays
\nthe legal  flame. Beyond  those walls and de hors the milieu
\nwe cannot  impart eternal  vernal  value  to  the  decision,
\nexalting the  doctrine of  precedents into a prison-house of
\nbigotry; regardless  of\t varying  circumstances\t and  myriad
\ndevelopments. Realism  dictates that  a judgment  has to  be
\nread,  subject\t to  the   facts  directly   presented\t for
\nconsideration and not affecting those matters which may lurk
\nin the\trecord. Whatever  be  the  position  of\t subordinate
\ncourts’\t casual\t  observations,\t generalisations   and\t sub
\nsilentio determinations\t must be  judiciously read by courts
\nof coordinate  jurisdiction and,  so viewed,  we are able to
\ndiscern no impediment in reading Ghewar Chand as confined to
\nprofit-bonus,  leaving\t room  for   non-statutory  play  of
\ncustomary bonus.  The case  dealt with\ta bonus claim by two
\nsets of\t workmen, based\t on profit  of the  business but the
\nworkmen fell outside the ambit of the legislation by express
\nexclusion or  exemption. Nothing  relating to any other type
\nof bonus  arose and  cannot be\timpliedly held\tto have been
\ndecided. The  governing principle we have to appreciate as a
\nkey to\tthe understanding of Ghewar Chand is that it relates
\nto a  case  of\tprofit\tbonus  urged  under  the  Industrial
\nDisputes  Act\tby  two\t  sets\tof   workmen,  employed\t  by
\nestablishments which  are either  excluded or  exempted from
\nthe Bonus Act. The major inarticulate premise of the statute
\nis that it deals with-and only
\n610<\/span>
\nwith-profit-based bonus as has been explained at some length
\nearlier. There\tis no categorical provision in the Bonus Act
\nnullifying all\tother  kinds  of  bonus,  nor  does  such  a
\nconclusion  arise   by\tnecessary  implication.\t The  ruling
\nundoubtedly lays down the law thus:\n<\/p>\n
\t  “Considering the  history of\tthe legislation, the
\n     back ground  and the circumstances in which the Act was
\n     enacted, the  object of  the Act  and its scheme, it is
\n     not possible  to accept  the construction\tsuggested on
\n     behalf of\tthe respondents\t that  the  Act\t is  not  an
\n     exhaustive\t Act   dealing\tcomprehensively\t  with\t the
\n     subject-matter of\tbonus in  all its  aspects  or\tthat
\n     Parliament still  left it open to those to whom the Act
\n     does not apply by reason of its provisions either as to
\n     exclusion or  exemption to\t raise a dispute with regard
\n     to bonus  through\tindustrial  adjudication  under\t the
\n     Industrial Disputes Act or other corresponding law.”\n<\/p><\/blockquote>\n
But  this  statement,  contextually  construed,\t means\tthat
\nprofit-bonus not  founded on the provisions of the Bonus Act
\nand by\tresort to  an adventure\t in industrial dispute under
\nthe Industrial\tDisputes Act  is no longer permissible. When
\nParliament  has\t  expressly  excluded  or  exempted  certain
\ncategories from the Bonus Act, they are bowled out so far as
\nprofit-based  bonus   is  concerned.  You  cannot  resurrect
\nprofit-bonus by\t a back-door  method,  viz.  resort  to\t the
\nmachinery of  the industrial Disputes Act. The pertinence of
\nthe following  observations  of\t Shelat\t J.,  becomes  self-
\nevident, understood in this setting:\n<\/p>\n
\t  “We  are   not  impressed  by\t the  argument\tthat
\n     Parliament in excluding such petty establishments could
\n     not have  intended\t that  employees  therein  who\twere
\n     getting bonus  under the full Bench formula should lose
\n     that benefit. As aforesaid, Parliament was evolving for
\n     the first\ttime a\tstatutory formula in regard to bonus
\n     and laying\t down a legislative policy in regard thereto
\n     as to  the classes\t of persons who would be entitled to
\n     bonus thereunder.\tIt laid\t down the  definition of  an
\n     ’employee’ far  more wider\t than the  definition of  an
\n     ‘workman’ in  the Industrial Disputes Act and the other
\n     corresponding Acts.  If, while  doing so,\tit expressly
\n     excluded  as   a  matter\tof  policy   certain   petty
\n     establishments in\tview of\t the recommendation  of\t the
\n     Commission in  that regard,  viz., that the application
\n     of\t the   Act  would   lead  to   harassment  of  petty
\n     proprietors  and  disharmony  between  them  and  their
\n     employees, it  cannot be  said that  Parliament did not
\n     intend or\twas not\t aware of the result of exclusion of
\n     employees of such petty establishments.”\n<\/p><\/blockquote>\n
Likewise, reference  to agreements and settlements providing
\nfor bonus  being exempted  from the applicability of the Act
\ndoes not  militate against the survival of contractual bonus
\n(we are\t not referring to the impact of the latest amendment
\nby Ordinance  of 1975).\t Viewed thus and in the light of the
\nobservations earlier  extracted, the  following passage fits
\ninto the perspective we have outlined:\n<\/p>\n
\t  “Section 32(vii) exempts from the applicability of
\n     the Act  (the  Bonus  Act)\t those\temployees  who\thave
\n     entered
\n611<\/span>
\n     before May\t 29, 1965  into an  agreement or  settlement
\n     with their\t employers for\tpayment of bonus linked with
\n     production or  productivity in  lieu of  bonus based on
\n     profits and  who may  enter after\tthat date  into such
\n     agreement or  settlement for  the period for which such
\n     agreement or settlement is in operation. Can it be said
\n     that in  cases where  there is  such  an  agreement  or
\n     settlement in  operation, though  this clause expressly
\n     excludes such  employees from  claiming bonus under the
\n     Act during such period, the employees in such cases can
\n     still resort  to the Industrial Disputes Act, and claim
\n     bonus on  the basis  of the  Full\tBench  Formula?\t The
\n     answer is\tobviously in  the negative for the object in
\n     enacting cl.  (vii) is to let the parties work out such
\n     an agreement  or settlement.  It cannot be that despite
\n     this position, Parliament intended that those employees
\n     had  still\t  the  option  of  throwing  aside  such  an
\n     agreement or  settlement, raise  a\t dispute  under\t the
\n     Industrial Disputes  Act and claim bonus under the Full
\n     Bench Formula.  The  contention,  therefore,  that\t the
\n     exemption under  s. 32  excludes those  employees\tfrom
\n     claiming bonus under the Act only and not from claiming
\n     bonus under  the Industrial  Disputes Act or such other
\n     Act is not correct.”<\/p><\/blockquote>\n
     The core  question about  the policy  of the Parliament
\nthat was agitated in that case turned on the availability of
\nthe Industrial\tDisputes Act  as an  independent  method  of
\nclaiming profit\t bonus de  hors the  Bonus Act and the Court
\ntook the  view that  it would be subversive of the scheme of
\nthe Act\t to allow an invasion from the flank in that manner.
\nThe following observations strengthen this approach:\n<\/p>\n
\t  “Surely, Parliament  could not  have\tintended  to
\n     exempt these  establishments from\tthe burden  of bonus
\n     payable under  the Act  and yet have left the door open
\n     for their\temployees to  raise industrial\tdisputes and
\n     get bonus\tunder the  Full Bench  formula which  it has
\n     rejected by  laying down  a different statutory formula
\n     in the Act. For instance, is it to be contemplated that
\n     though the\t Act by\t s. 32\texempts institutions such as
\n     the Universities  or the  Indian Red  Cross Society  or
\n     hospitals, or  any of the establishments set out in cl.\n<\/p><\/blockquote>\n
     (ix) of that section, they would still be liable to pay
\n     bonus if  the employees  of those\tinstitutions were to
\n     raise a  dispute under  the Industrial Disputes Act and
\n     claim bonus  in accordance with the Full Bench Formula.
\n     The legislature  would in that case be giving exemption
\n     by one  hand and  taking it  away by  the\tother,\tthus
\n     frustrating the  very object  of s.  32. Where,  on the
\n     other hand,,  Parliament intended\tto retain a previous
\n     provision of  law under which bonus was payable, or was
\n     being paid it has expressly saved such provision. Thus,
\n     under s.  35 the  Coal Mines  Provident Fund  and Bonus
\n     Schemes Act,  1946 and  any scheme\t made thereunder are
\n     saved. If,\t therefore, Parliament\twanted to retain the
\n     right to  claim bonus by way of industrial adjudication
\n     for those\twho are either excluded or exempted from the
\n     Act, it would have made an express
\n612<\/span>
\n     saving provision  to that\teffect as  it has  done\t for
\n     employees in Coal Mines.”\n<\/p><\/blockquote>\n
A discerning  and concrete analysis of the scheme of the Act
\nand the reasoning of the Court leaves us in no doubt that it
\nleaves untouched customary bonus.\n<\/p>\n
     The plea  of constructive\tres judicata is based on the
\n‘might and  ought’ doctrine.  Shri Pai’s  argument  is\tthat
\nbefore\tthe  Arbitration  Board\t no  case  of  customary  or
\ncontract bonus\twas urged for the year 1965 and so, in later
\nyears, such  a ground is barred by the general principles of
\nres judicata.  Sections 10A,  18 and 19(3) of the Industrial
\nDisputes Act were pressed before us to demonstrate the prior
\naward was binding on the workers and reading it in the light
\nof Pandurang the bar was spelt out. It is clear law, so long
\nas the above ruling stands, that industrial litigation is no
\nexception to  the general  principle underlying the doctrine
\nof res\tjudicata. We  do entertain doubt about the extension
\nof the\tsophisticated doctrine\tof constructive res judicata
\nto industrial  law which  is governed by special methodology
\nof conciliation, adjudication and considerations of peaceful
\nindustrial  relations,\t where\tcollective   bargaining\t and
\npragmatic justice  claim precedence over formalised rules of
\ndecision based\ton individual  contests, specific  causes of
\naction\tand  findings  on  particular  issues,\tbut  we\t are
\nconvinced that\tPandurang(1) does  not apply  at all  to our
\ncase. There  overtime wages  were claimed  earlier under the
\nFactories Act  and the\tcase was  rejected by  the Tribunal.
\nAfter this  rebuff, a like claim was repeated but sustaining
\nit on  the Bombay  Shops and  Establishments Act.  This\t new
\nground to  support the\tsame claim  was held  to  be  barred
\nbecause the workmen could and ought to have raised the issue
\nthat the  Factories Act failing, the Shops Act was available
\nto them\t to back  up their  demand. The\t fallacy in invoking
\nthis decision  lies in\tthe fact that as early as 1950 there
\nwas a\tbinding award of the Industrial Tribunal relating to
\nthe claim,  which had  not been\t put an\t end to, and so this
\nCourt took  the view  that so  long as that award stood, the
\nsame claim  under a different guise (the Shops Act) could be
\nsubversive  of\tthe  rule  of  res  judicata.  The  decisive
\ncircumstance which  distinguishes that\tcase is contained in
\nthe observation:\n<\/p>\n
\t  “If the  workers are\tdissatisfied with any of the
\n     items in respect of which their claim has been rejected
\n     it\t is  open  to  them  to\t raise\ta  fresh  industrial
\n     dispute.”\n<\/p><\/blockquote>\n
That is\t to say,  if a\tfresh dispute had been raised, after
\nterminating the\t prior award,  no bar  of res judicata could
\nhave been  urged. Here, the Arbitration Board dealt with one
\ndispute; the  Industrial Tribunal, with a fresh dispute. The
\nBoard enquired\tinto one  cause of  action based  on  profit
\nbonus;\tthe  Tribunal  was  called  upon  by  the  terms  of
\nreference,  to\t go  into  a  different\t claim.\t This  basic
\ndifference was\tlost sight  of by  the Tribunal\t and  so  he
\nslipped into  an error.\t The  dangers  of  constructive\t res
\njudicata in the area of suits vis a vis writ petitions under
\nArt. 226  and as between proceedings under Art. 226 and Art.
\n32 are such as to warrant a closer study. To an extent the
\n613<\/span>
\nLaw Commission of India in its Report(1) has touched on this
\ntopic. Industrial disputes are an a fortiori case.\n<\/p>\n
     Dispute-processing is  not by  Court litigation  alone.
\nIndustrial  peace   best  flourishes   where  non-litigative
\nmechanisms come\t into cheerful\tplay before tensions develop
\nor disputes  brew. Speaking  generally, alternatives  to the
\nlongish litigative  process is\ta joyous  challenge  to\t the
\nIndian activist\t jurist and  no field is in need of the role
\nof avoidance as a means of ending or pre-empting disputes as
\nindustrial life. Litigation, whoever wins or loses, is often
\nthe funeral  of both.  We are  a developing country and need
\ntechniques of  maximising mediatory  methodology  as  potent
\nprocesses even\twhere litigation  has erupted. This socially
\ncompulsive impulse  prompted the  setting  in  motion  of  a
\nstatesman-like effort  by the  senior counsel on both sides,
\nwith helpful  promptings from  the Bench,  to  advise  their
\nclients into  a conciliatory  mood. Should  we have  at\t all
\nhinted to  the advocates  to resolve by negotiation or stick
\nto our\ttraditional function  of litigative adjudication? In
\ncertain spheres,  ‘judicious  irreverence’  to\tjudicialised
\nargumentation is  a better  homage to justice ! Regrettably,
\nthe exercise  proved futile  and we  have to  follow up\t our
\nconclusions with necessary directions.\n<\/p>\n
     The findings  we have  reached may\t now be formally set
\ndown. We  hold that the Bonus Act (as it stood in 1965) does
\nnot  bar  claims  to  customary\t bonus\tor  those  based  on
\nconditions of  service. Secondly  we repel  the plea  of res
\njudicata. There\t is no merit in the view that the Industrial
\nTribunal has  no jurisdiction to try the dispute referred to
\nit. We set aside the award and direct the Tribunal to decide
\non the\tmerits the subject-matter of the dispute referred to
\nit by  the State  Government. The  appeal is  hereby allowed
\nbut,  having  regard  to  the  over-all\t circumstances,\t the
\nparties will bear their costs.\n<\/p>\n
P.B.R.\t\t\t\t\t     Appeal allowed.\n614<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mumbai Kamgar Sabha, Bombay vs M\/S Abdulbhai Faizullabhai & Ors on 10 March, 1976 Equivalent citations: 1976 AIR 1455, 1976 SCR (3) 591 Author: V Krishnaiyer Bench: Krishnaiyer, V.R. PETITIONER: MUMBAI KAMGAR SABHA, BOMBAY Vs. RESPONDENT: M\/S ABDULBHAI FAIZULLABHAI & ORS. DATE OF JUDGMENT10\/03\/1976 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. UNTWALIA, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-133320","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMumbai Kamgar Sabha, Bombay vs M\/S Abdulbhai Faizullabhai & Ors on 10 March, 1976 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mumbai-kamgar-sabha-bombay-vs-ms-abdulbhai-faizullabhai-ors-on-10-march-1976\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mumbai Kamgar Sabha, Bombay vs M\/S Abdulbhai Faizullabhai & Ors on 10 March, 1976 - 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