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TMI Blog1964 (11) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... months wages as profit bonus for both the years and 1 1/2 months wages as Puja bonus payable in 1961. 3. The appellant on the other hand contended that payment of Puja bonus had neither become an implied term of service between the appellant and its workmen nor had the same become customary or traditional at Puja time. As to profit bonus, the appellant's case was that there was no available surplus in either of the two years and, therefore, the workmen were not entitled to any profit bonus. 4. The tribunal took necessary evidence and came to the conclusion that payment of one month's wages at the time of Puja as customary bonus had been established, though it apparently did not accept the claim that payment of Puja bonus as an implied condition of service had been proved. As to profit bonus it came to the conclusion on calculation of available surplus that four months' wages could be paid as profit bonus for the year ending December 1959 and one month's wages for the year ending December 1960, in the result it made its award accordingly. 5. The appellant challenges the finding of the tribunal that Puja bonus at the rate of one month's wages per year had beco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t where there has been no year of loss at all and the concern has been fortunate enough always to earn profit, there can be no customary or traditional bonus connected with a festival like Puja, even though payment at a uniform rate has been made for a large number of years. This circumstance should, therefore, be read only thus: in case there have been years of loss, it must be proved that payment has been made in those years also. The fourth circumstance mentioned above is to the effect that payment should have been made at a uniform rate throughout. That, however, does not mean that uniformity should be established from the beginning to the end. Take a case where for the first few years payment at a certain rate was made. But later on, for a much larger number of years payment at a somewhat different but uniform rate has been made. In those circumstances, the tribunal may well come to the conclusion that the payment was at a uniform rate ignoring the first few years. Where, however, it appears (for example) that payment for a few years was at one rate, say X; for the next few years at the rate of X-Y; for another few years at the rate of X; and for the last few years at the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employer made a unilateral declaration that the payment was ex gratia. This was a case where the appellant said that the payment was ex gratia and the workmen accepted the payment as ex gratia. Besides there was a further condition that the payment would be made to those workmen only who had completed 240 days work by the day of payment. Now in the case of customary or traditional bonus there can be no such condition and a customary or traditional bonus connected with a festival has to be paid to all employees irrespective of the number of days they might have worked before the festival in the year in question. In these circumstances the payment in 1959 cannot be taken into account as it was made and accepted ex gratia and was hedged in by a condition. We may in this connection refer to Tulsidas Khimji v. Their Workmen, where it was held that a claim for customary bonus may be negatived on proof that the payment was made ex gratia and accepted as such, or that it was unconnected with any such occasion as a festival. In the present case the settlement shows that the payment was made ex gratia and was accepted as such. Therefore, so far as this year is concerned, the payment cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , attacks the correctness of the calculation on two grounds. In the first place it is urged that the tribunal was wrong in holding that rehabilitation charges came to ₹ 54,000 only. The tribunal arrived at this figure by deducting ₹ 1,23,000 as depreciation from the amount determined by it as rehabilitation charge for the year. It is, however, pointed out that as the tribunal did not allow rehabilitation on certain items at all, the depreciation with respect to those items could not be deducted and the correct amount to be deducted from the rehabilitation charge was ₹ 1,07,000. This appears to be correct. But this will reduce the available surplus from ₹ 1,04,000 to ₹ 88,000. Even on this available surplus payment of four months' wages as bonus cannot be said to be unreasonable, particularly taking into account the rebate on income-tax which the appellant will get. 13. Secondly it is urged that the tribunal should have allowed a higher multiplier than 1.25 for machinery purchased before 1949. In this connection the appellant relied on a letter of the English company which originally supplied part of the plant giving the price at that time and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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