the Management of Tocklai Experimental Station Represented by the Indian Tea Association v. the Workmen and Another

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 459 and 460 of 1960 Appeals by special leave from the award dated March l 0, 1959, of the Industrial Tribunal, Assam, in Reference No. 16 of 19,58. M. C. Sewfoad, Attorney General for lndi<l, B. Sen, S. N. 1lfukherji and B. N. Ghosh, for the man· agement appellant (in C. A. No. 459 of 60) and the respondent (in L'. A. No. 460 of 1960). S. T. Desai, A. K. Dutt and Janardan Sharma, for the workmen respondents (in C. A. No. 459 of60) and the appellants (in C. A. No. 460 of 1960). 1961. November 24. The Judgment of the Court was delivered by G.AJENDRAG.ADKAR, J.-Civil Appeals Nos. 459 and 460 of 1960 are cross appeals and they arise out of an award pronounced by the Industrial Tribunal, Assam, in an industrial dispute referred by the Assam Government for its adjudication. This indu:it1 ial dispute was raised against the management of the Tocklai Experimental Sbtion (hereafter called the Station) by its workmen.

Six out of the demands made by the workmen formed the subjectmatter of reference. In the present appeals we are concerned with three of them. Demand No. 1 (a} was that the employees' junior staff of the Station should be given pension in lieu of the existing practice of paying gratuity. This demand has been re· jected b. the tribunal. The other demand madtl by the employees was No. 3(b) and it had reference to the claim for free housing accommodation or adequate allowance in lieu thereof. This demand has been partially allowed by the tribunal and it has directed that house allowance in each case shall be raised at the flat rate of Rs. 20/· instead of Rs. 10/-. The decision of the tribunal in respect of these two demands did not satisfy the workmen and so by special leave of this Court they have filed Civil Appeal No. 460 of .1960. The demand of the Tlte management of TockLai Experimtntal Station represenlld hy the Indian T IG Association 'l'he Workmtn Gajentlragadkar J. Tiu manogttnml of TocAla1 Exp,,i:.·1tnf(I/ Sl4ti01t rt/fftstnttd bJ Iii< InJUm Tta Association Tht WDrAmen (/ojtnd1ogaJkar J. 560 8UPRE~IE CULJ!t'l'

REPOHT~ [l~Zj SUPP. junior staff for bonus which was resiRtcd hy the Station has been pa.rtially allowed by the tribunal. rt has ordered that the Station shall give puja bonus at the same rate os the employees working for the Indian Tea Association at Calcutta arc getting. This part of the award is challenged by t.hc Station in its appeal by special leave by Civil Appeal No. 459 of I !J60. That is how the two cross-appeals arise. We will deal first with the Statio11's Appeal in n·spect of bonus. The learned Attorney-General contends that in making the demand for bonus the workmen have entirely misecmceived the true position of the industrial law on the point, and he argues that. the Assam Government was not justified in making the reference in the form it has been made and the tribunal was not justified in making the award in the manner it has done. The workmen made their dema11d for bonus in these words:

"The Union requests the introduction of bonus for the Tocklai Staff on t.he following grounds". Then follow six grounds. It was urged that the Station is an arm of the tea industry and is maintained by the members of the I.T.A. who give bonus to their employees, that the Station exists and works for the advancement of the tea industry and increasing its profits a.nd thus is an industry, that the I.T.A. employees at Calcutt.a office are given bonus, that the Pmployees of the Bengal Chamber of Commerce receive bonus, that the employees of Shamshemagar and Tulsipara branches of this very Station used to be given bonus so long as these branches wero functioning and that the personnel of the scientific research laboratories attached to many industrial 0011cerns receive bonus, and so the workmen in the present caso were entitled to make a claim in that behalf.

In appreciating this claim it is nece88ary to state that the Station is a research institution established by the Indian Tea Association to make research for the purpose of improving the quality of tea and its production and the said Station is mana~e.I by the parent Association and is maintA.ined by means of voluntary s11bscriptiom from members of the said Association. Broadly stated the ground on which the workmen claimed bonus was that the employees of the Association were receiving bonus ancl. that the personnel of scientific reseMch laboratories similarly situated in other industrial concerns were also given bonus. When the Assam Government made the present reference it included within the scope of the reference this claim of bonus along with the other claims made by the workmen. The issue referred for adjudication on this point was thus framed: "2(a). Whether the demand of the employees (Junior Staff) for bonus is justified ? If so, at what rate should the same be paid ?"

The tribunal considered this demand and partially allowed it by directing that the workmen should be paid puja bonus at the same rate as the employees working, in the I.T.A. at Calcutta are getting. In dealing with this question the tribunal has held that the Station is an industry within the meaning of the Industrial Disputes Act and so it could not resist the demand made by its workmen on the ground that it is 'an academic body devoted to research and as such outside the purview of' the Act. This position is not disputed before us by the Station becau~e it is concluded by a decision of this Court in The Ahmedabad Textile Industry's Research Association v. The State of Bombay. ('). The tribunal has, however, found in favour of the Station that it would be inexpedient, if not impossiblt>, to apply the formula which governs the decision of industrial claim~ for the payment of bonus.

"There are obvious difficulties'', says the tribunal, "in applying the formula laid tlown by their Lords"ips of the Supreme Court to an experimental sta'ion 1un (I) [1961] 2 S. C.R. 480. Tlv mrmaztment of Tocfc/ai Experim1ntf;l S ation rf/Jr,s1ntf.d hy the [,,dian Tea Association Tl.e W orkm1n Gajendragadkar J_ 1~61 1' 4t mdlYJttTJUnt qf Tccl.:lul £x;111"1lflW BttuUm rtffftunktl ;, tit• l11dion T to · Associali1J11 Tlw Workmlll 562 SGPREME OOURT REPORTS (1962) SUPP. by the Association"; but it added that "it could not be overlooked that payment of bonus to members of the experimental staff is being made by some companies". Then the tribunal referred to 8ome instances where bonus is paid to workm<'n who, in the opinion of the tribunal, wern similarly situated, and i~ came to the conclu;.ion that refusing the workmen's claim fur bonll'l against the Station would amount to discrimination.

The tribunal then took into account the fact that what is described as puja bonus is paid to members of the staff of the Bengal Chamber of Commerce because it was admitted before it that the junior staff of the Bengal Chamber of Commerce which presumably was also serving the I.T.A. at Calcutta was receiving a fixed annual gratuity characterised as puja bonus. The tribunal conceded that the claim for this kind of bonus "may not directly satisfy the requirements of law", but it added that "the fact that what was described as puja bonus was given at the sub-stations and is also given to the clerical staff working at the I.T.A. at Calcutta, supports the demand to this extent at least that the same treatment may be meted out to them." It is on this reasoning that the tribunal ultimately made the award in favour of the workmen directing the Station to pay puja bonus to its employees.

It would be noticed that the demand original· ly made by the workmen appears to be in the nature of a demand for bonus which is usually described as industrial profit bonus the payment of which is governed by the application of the well known formula.. Such a. demand is invariably made, and ha.a to be made, by reference to a pa.rti· c:ul~r year because the formula which determines claims for profit bonus postulates the examination of the a. va.ila.ble surplus in tho hands of the employ· er from which bonus may be directed to be pa.id to the employees. A claim for profit bonus cannot r be validly ma-:le unless a specific year for which the claim is madeis indicated and it is alleged that there is available surplus in the hands of the employer during that year. It is unfortunate that this elementary aspect was overlooked by the workmen when they made the claim and has not bern noticed even by the Assam Government when it made the reference in respect of this . claim.

This serious infirmity in the claim is present even in the award made by the tribunal because the award does not say for what year the bonus should be paid, and like the claim maf!e by the workmen in very general terms for the introduction of bonus the award also seems to make a direction in similar terms for the payment of bonus. In our opinion, this is a patent infirmity in the award. Profit bonus, it is hardly necessary to emphasise, can be awarded only by reference to a relevant year and claim for such bonus has, therefore, to be made from year to year and has to be settled either amicably between the parties or, if a reference is made, it has to be determined by industrial adjudication. A general claim for the introduction of profit bonus cannot be made or entertained in the form in which it has been done in the present proceedings.

Besides, the other serious infirmity in the award is that when a claim for profit bonus was made the tribunal has proceeded to grant puja bonus and that too solely on the ground that the refusal to grant the said claim would amount to discrimination. In our opinion, the approach adopted by the tribun11.l in dealing with this alternative claim for puja bonus which was not made in the demand and which had not been expressly referred to the tribunal is entirely erroneous. The claim for puja bonus proceeds on entirely different considerations. Customary puja bonus undoubtedly prevails in many indmtrics in Bengal but there are certain tests which have to be applied in T ht lllanqement vf Tocklai Experimental Station repres1nted by tire J,,dian Tea Association The Workmen Gajtndragat/kar J. IIMl TJ,, manatt111t11t of T ""~l"i fupnUzvns"~ Stalion rlf#tstnld by tltt Indian Tta AssoriatWti ·r111 ~r'orkm~n determining the validity of the claim, The amount by way of puja bonus, it must be shown, has been consistently paid by the employer to hie employees from year to year at the same rate, that it has been paid even in yearB of loss and that it has no relation to the profit made by the employer during the relevant ~·ear.

The course of conduct spreading over a reasor•ably long period between the employer and the employees in the matter of payment of puja bonus is of considerable importance in dealing with the claim of customary puja bonus [Vide : The Graham Trading Co. (India) Ltd. v. Its Workmen (1)]. A claim for puja bonus can also be ma.de in a proper case of the ground that the payment of such bonus is an implied term in the contract of employment [Vide: Mes<rs. lspahani Ltd., Calcutta v. lspahani Employees' Union(')]. Such a claim again would necessarily involl·e the consideration of several relevant facts none of which has been alleged or proved in the present proceedings. Therefore, the decision of the tribunal awarding puja bonus to the workm6n cannot be sustained.

Indeed. in awarding puja. bonus to the workmen the tribunal has failed to consider that it was making out an entirely new and inconsistent ease for the workmen and granting tho s:i.id daim without any proof of the relevant facts which would support such a. claim. It is rather surprising that even when the tribunal by its a.ward wanted to grant the demand for puja bonus it did not think it necessary to r.larify a.t what rate the said bonus was to be paid. The award is absolutely vagne in that behalf and that is another infirmity in the award. Sinco that is the only point in Civil Appeal No. 459 of 1960 preferred by the Station we must hold that the appeal succeeds and must set aside the award ma.de by the tribunal under issue No. I (a). Before we pa.rt with this appeal, however, wo ought to add that after special leave was granted (I) [196?] l S. C.R. 107. (2) [1960} l S. C.R. 24.

1 to the Station to prefer its appeal it applied for 1eu stay of the award directing the payment of puja The m:.;;;;;,en• of bonus and stay was granted by this Court on condi· Tocklai Experimental Station rtP"esented t10n that the amount of puJa bonus should be paid 1,, the Indian Tea by the Station to its employees on their furnishing Association security to the sat.isfaotion of the management. The i:;.,kmm Accordingly the Station has paid to its workmen W Gajendragadkar J. puja bonus 1or three years. e suggested to the learned Attorney- General that in case his appeal wer" to succeed the Station may consider whether it would partially forego its claim to recover the amount already paid by it to its workmen, and the learned Attorney-General, after consulting his client, has stated before us that the Station would forego one-third of the total amount paid by it to its employees under the orders of this Court.

This one-third amount, we were told, is in the neighbourhood of Rs.65,000/- The learned Attorney-General also stated that the balance of two-third amount which it would recover from its employees can be paid by each one of them either by easy instalments or at the time when he would receive his gratuity or provident fund ; the employee may exercise his option in that behalf. It appears that some of the employees who received the said amount have left the service of the Station and at that time have refunded the amount received by them. The Station would be prepared to give back to such employees one-third of the said amount. In our opinion, the attitude adopted by the Station in this matter is very fair and it would relieve the workmen from their liability to return . one-third of the total amout received by them in pursuance of tho orders of this Court. That takes us to Civil Appeal No. 460 of 1960 preferred by the workmen. Mr. S. T. Desai, who argued this appeal, could not seriously press the workmen's case against the refusal of the tribunal to ·allow their demand for pension in lieu of the existing practice of paying gratuity.

On a consideration lHl Tiit mon•ttmtnt of T .dU.i Ex1trinuntal Statiein rtf111Jintet/ ~J tlw Indian Tta Associati011 TM W01.1mtn Gaj1t1JragU/u1 J, of the relevant facts the tribunal came to the conclusion that this demand was not justified, and, in our opinion the concluRion of the tribunal is well· founded. Then, as regards tho other demand which is the subjeci-ma.ttcr of the appeal tho t1,:ibunal has increased the house allowance at a flat rate of Rs.20/· instead of Rs.10/· and this incrPased rate has been pa.id by the Station as from the date when the a.wa1d became enforceable. Mr. Desai contends that the tribunal should have ma.de an a.ward granting the demand for accommodation or in the alternative should have a.warded larger a.mount by way of house allowa.nco. We are not impressed by this argument.

A demand for the provision of housing accommodation can be reasonably cntertained where it appears that the financial position of the cmploye r can bear the burden involved in the said dcma.n d. Under the present oconomic conditions prevailing in tho in1lustry the n·sponsibility for providing housing accommodation cannot reasonably b0 placed solely on the shoulders of the cm ployer. In due course the problem may have to be tacklP1l by the industry in co·operation with the Stat('. The ::itat{' will h11.vB to b<'ar a part of that rcsponHibility [Vide: The Pat1w Electric Supply Co. Ltd., l'atna v. 'l'lte Patna EIP-c~ric Supply Worl:ers' Union('))]. The tribunal has considered tho linanci11.l poRition of the Station, tlw urgency of tho dama.nd ma.de by the workmen, and Jrn.s come to the conclusion that the 1lcmand for housing accommodation was n1>t justified and that n.o ends of social justices would be met in the pr~sent case if a flat rate of enhancement of Rs. 20/- is awarded.

It is true that the Station gives housing accom- _ modation for members of tho senior staff but as the tribunal has pointed out there arc special reasons how more favourable terms have to be offered to senior research staff in order to get tho services of properly trained and properly equipped personnel. In our opinion, the tribunal was right in refusing (ll [1959] Supp. 2 S. C.R. 761, (I) S.C.R. SUPREME COURT RF.PORTS to draw an analogy between the requirements or the senior research staff and the junior staff with wl:wse chims the tribunal was dealing. TherPfore, we are not satisfied that there is any substance in the grievance made by the workmen against the a.ward passed by the tribunal in respect of house allowance. The result is Civil Appeal No. 460 of 1960 fails and is dismissed. There would be no order as to costs in both the appeals. Appeal No. 459 allowed. Appeal No. 460 dismissed. K. M. NANAVATI STATE OF MAHARASHTRA (S. K. DAS, K. SmrnA RAO and RAGHUBAR DAYAL, JJ.) .

Jury 'l'rial-Oharge-Misdirection-Reference by Judge, if and when competent-Plea of General Exception-Burden of proof-"Grave anrl sudden provocation"-Test-Power of High Oonrt in reference-Gode of Criminal Procednre(Act, 5 of 1898), ss. 307, 410, 417, 418(1), 423(2), 297, 155 (1), 162- Imlian Penal Gode, 18n0 (Act 45 of 1860), ss. 302, 300, Exception 1·-lndian Evidence Act, 1872 (l•o/ 1872), s. 105. Appellant Nanavati, a Naval Officer, was put up on trial under ss. 302 and 304 Part I of the Indian Penal Code for the alleged murder of his wife's paramour. The prosecution case in substance was that on the day of occurrence his wife Sylvia confrssed to him of her illicit intimacy with Ahuja and the accused went to his ship, took from its stores a revolver and cartridges on a false pretext, loaded the same, went to Abuja's flat, entered his bed room and shot him dead.

The defence, inter alia, was that as hi• wife did not tell .him if Ahuja would marry her and take charge of their children, he decided to go and settle the matter with him. He drove his wife and children to a cinema where he dropped thrm promising to pick them up when the show ended at 6 P. M., drove to the ship and took the revolver and the cartridges on 11 fat.e pretext intending to shoot himself. Thc;n he drove 1~61 Thi man•z1rn1111 •f Tockl•i ExJletirnenJai Station rtf111sent1d b.J the Indian Tea Assoeitition The Workmen 6aj1ntragadkor J. November 24.