Industrial Disputes Act, 1947 - Sections 10(2) and 12(5)
1. This is a reference by the Government of Bombay under S. 12(5) of the Industrial Disputes Act, 1947, for adjudication of a dispute between Greaves Cotton & Co., Ltd., Bombay, and its workmen over the following demand :- 'Every employee should be paid bonus for the year 1956-57 equivalent to one-half of his basic earnings (inclusive of overtime earnings and acting and comptist allowances) during the year.'
2. In the statement of claim filed on behalf of the workmen by the Greaves Cotton and Allied Companies Employees' Union, it is stated that the wages and salaries of the workmen are quite inadequate and far below the living wage. An adequate bonus should be given towards filling the gap between the existing wage and the living wage. The company has made a large profit during the year. It is spending large amounts on its covenanted staff and the general policy of the company is to benefit more the highly placed officers; bonus to officers should not be taken into account in making the bonus calculations.
3. The company has in its written statement stated that it has entered into a five-year bonus agreement with all its workmen at Ahmedabad, New Delhi, Kanpur, Calcutta, Madras, Bangalore and Coimbatore and with some of its workmen in Bombay. These terms were offered to the rest of the workmen in Bombay and the company has submitted that the tribunal should commend the terms of the agreement to the Bombay workmen and make an award in terms of the agreement. The company has denied that the wages and salaries are inadequate and far below the living wage. It has stated that it has not made a large profit during the year. It has denied that it is spending large amounts on the covenanted staff or that its general policy is to benefit highly paid officers rather than the workers. The wages and salaries of the workers are according to an award. Finally, the company has submitted that an award should be made on the lines of the agreement referred to above.
4. In the bonus dispute in this company for the year 1955-56, I awarded bonus equal to one-third of the basic earnings (excluding allowances and overtime) [see award published in the Bombay Government Gazette, dated 6 March, 1958, at p. 1181]. Against this decision, a writ petition was made to the High Court. The parties compromised in the High Court. The consent order was as follows :- 'Without prejudice to the rights, contentions and submissions of either party made in the petition and in the affidavits and also without prejudice to the rights and contentions of either party in respect of bonus of any subsequent year or years, it is agreed that the workmen will accept as bonus for the year in question the amount already offered by the company plus 50 per cent of the excess of the bonus awarded by the first respondent over the amount already offered by the company.'
As the order was varied without prejudice to the rights and contentions of both the parties in the writ petition, it has been urged by the company and conceded by Sri Sule on behalf of the union that nothing which has been decided in that bonus case operates as res judicata in the present case.
5. So far as the agreement referred to above is concerned, the company has paid bonus equal to 10.19 per cent of the basic earnings to the workmen who entered into the five-year bonus agreement. The number of workmen in Bombay is 350, out of whom 63 have accepted the bonus. The total number of workmen outside Bombay is 47 in Calcutta, 31 in Madras, 12 in Delhi, 4 in Ahmedabad, 11 in Kanpur, 2 in Coimbatore and 2 in Bangalore. The workmen who have not accepted the agreement constitute the majority of the company's workmen in India. In the bonus case for the preceding year, the company had raised the same point, viz., that the tribunal should commend the agreement to the workmen in Bombay and should make an award along the lines of the agreement. This contention was rejected by me for the reasons given in detail in Para. (4) of the decision in that case (cited above), and I see no ground for altering the view taken in that case. For the reasons given in that case, I cannot accede to the request of the company to commend the agreement to the union or to give an award in terms of the agreement. It might be mentioned that for the preceding year the company, after the consent order in the High Court, voluntarily paid bonus at the enhanced rate agreed to under the consent order to the workmen who had already accepted bonus equal to three months' basic wages under the agreement.
6. Both the parties have filed calculations, the company's calculations showing that there is no scope for bonus, the union's calculations showing that the company can afford to pay bonus equal to six months' basic wages. I shall proceed to deal with the matters and items about which there is dispute.
7. The union has disputed an item of Rs. 1,71,687, included in the expenditure side of the account and referred to in the directors' report as, 'Interest due on purchase consideration of shares in an associated company.' In the report, it is stated :-
'Secondly, your associated company, Crompton Parkinson (Works) (Private), Ltd., postponed declaration of the dividend for the year ended 30 June, 1956 in view of the negotiations then pending for an increase in your company's shareholding in that company. This dividend was declared in June 1957, that is, before the close of their next financial year, which resulted in your company not receiving any dividend from this associated company during your financial year ended 31 March, 1957, while in the following year two dividends have been received. Had this dividend been received at the usual time, your company's income from investments would have amounted to Rs. 5,74,351 representing an increase of Rs. 1,05,044 over the previous year's investment income.'
The union has submitted that the interest due on the purchase consideration of shares should be added back to the profits of the year 1956-57 because the dividends earned on the transaction with Crompton Parkinson (Works) (Private), Ltd., were not given credit in the accounts of the year. The company has stated (vide Ex. C. 5), that in 1947, it acquired 26 per cent interest in Crompton Parkinson (Works) (Private), Ltd., which was a subsidiary of Crompton Parkinson, Ltd., London. The shares were purchased from the latter company. The negotiations for the purchase had been started in 1955. Under the arrangement, the participation in the shares in Crompton Parkinson (Works) (Private), Ltd., would come to 50 per cent of the total capital. Greaves Cotton & Co., Ltd., had to find funds for this, and as Government's sanction was required and it involved a time lag, it was agreed that the English company would be paid consideration for the acquisition of the shares after it was possible for Greaves Cotton & Co., Ltd., to raise the necessary finance by issuing fresh capital. Till then, it was agreed that Greaves Cotton & Co., Ltd., would pay the English company, on the amount of consideration, interest at one-half of one per cent over the U.K. Bank rate, which, the company has submitted, is an extremely reasonable rate of interest. As the increased participation in the capital of Crompton Parkinson (Works) (Private), Ltd. was effective from 1 July, 1955, Greaves Cotton & Co., Ltd., were entitled to dividend on the shares from that date, and the rate of dividend earned on this investment was expected to be higher than the interest accruing. The arrangement was considered to be advantageous to Greaves Cotton & Co., Ltd., The actual dividend for the period received in 1957-58 was Rs. 1.95 lakhs. Investment income is included in the profits for bonus purposes. The company has submitted that it would not be reasonable that labour should participate in investment income and at the same time object to the outlay necessary to earn that income.
8. I cannot accept the contention of the union that the item of interest of Rs. 1,71,687 should be disallowed and added back to the profits. It was interest paid in pursuance of a bona fide agreement advantageous to Greaves Cotton & Co., Ltd. It is true that the circumstance that the dividend in respect of the shares in Crompton Parkinson (Works) (Private), Ltd., was declared in June 1957, i.e., after the close of the financial year of Greaves Cotton & Co., Ltd., which ended on 31 March, 1957. This has resulted in the dividend being credited in the succeeding year, viz., 1957-58, and the result is that in the financial year of the company, 1957-58, two dividends have been credited. A dividend does not accrue and is not deemed to be received until it is declared. Therefore, the circumstance that no dividend was received from this company in 1956-57 and two dividends in 1957-58 has operated to reduce the profits of 1956-57 and increase them for the year 1957-58; so the workmen who have worked in 1957-58, will, therefore, stand to benefit. But the circumstance that the transaction has worked out in this manner cannot be a justification for my disallowing the item of Rs. 1,71,687, which was a legitimate business expenditure for 1956-57, and notionally adding it to the profits. It might be mentioned that income from investments of Greaves Cotton & Co., Ltd., forms a substantial part of its total income, and every year the workmen receive the benefit of this being included in the profits, though their contribution to the earning of this income is negligible.
9. The union has in its statement of claim urged that the amount expended by the company on donations should be added to the profits. In the case of the Khandesh Spinning & Weaving Company, Ltd. v. Rashtriya Girni Kamgar Sangh [Bombay Government Gazette, Part I-L, dated 26 September, 1957, at P. 4199], a full bench of the industrial court went into the question at some length and held that moderate donations to charities should not be disallowed as expenditure for the purposes of the bonus formula. Following this decision, the amount of donation to charities was allowed in the bonus case for the preceding year. The amount of donation for the year 1956-57 is moderate, having regard to the resources of the company and the profits earned during the year and cannot be disallowed as business expenditure.
10. The union has in its calculations added to the profits an amount of Rs. 4,198. It has urged that for the purposes of the bonus formula this expenditure should be disallowed, as it is the tax paid on secret commission. This point has also been raised in the connected bonus case relating to Greaves Cotton & Crompton Parkinson, Ltd., wherein the amount of tax on secret commission objected to is Rs. 11,123. In the bonus case relating to Greaves Cotton & Crompton Parkinson, Ltd., for the year 1953, the union had objected to inclusion of the tax on secret commission. The Labour Appellate Tribunal, in its decision in Appeal (Bom.) No. 274 of 1956, rejected this contention observing as follows :- 'The concern had shown an item of Rs. 88,128 as commission paid to certain persons who had brought business to the concern. The actual amount paid was Rs. 58,752, but the incometax authorities directed the concern to pay incometax on that amount on the ground that the payments had been made to persons whose names had not been disclosed, and the Incometax department was thus unable to follow up the payments for its own purposes. The amount of such incometax is about Rs. 29,376. Sri Sule claims that this amount of incometax should not be regarded as an item of expenditure; but that is not possible because it is in fact an item of expenditure in the sense that this incometax has to be paid to the Government. While we agree that labour has a grievance on this point, the fault, if any, lies in the fact that the commission is paid to persons whose names are not disclosed, but we cannot say that in the normal course of business this practice was either improper or very unusual. We are, therefore, unable to eliminate this sum of Rs. 29,376 from the expenditure of the year.'
Following that decision with which I respectfully agree. I am unable to accept the contention of the union that this item should be eliminated from the expenditure.
11. The union has in its calculations added a sum of Rs. 41,180 which is shown in the expenditure side of the account under the head, 'loss on property let.' The company has at Ex. C. 10 given details of this expenditure. This expenditure consists of repairs on property let and taxes payable. The rent recovered from the Konyon Greaveo (Private), Ltd., in respect of the property is deducted from the sum of Rs. 44,180 expended on repairs, taxes, etc., and the balance of Rs. 41,180 is shown on the expenditure side as 'loss on property let.' The amount is legitimate business expenditure and is not of the nature of a capital loss and cannot be disallowed.
12. The company has in its calculations included as a prior charge Rs. 25,000 as 'retiring gratuity reserve.' The union has in its calculations allowed only the actual payment during the year on gratuities. It is well settled that a reasonable provision from out of the profits towards the gratuity reserve should be allowed as a prior charge. In the bonus dispute for the previous year, the sum of Rs. 25,000 provided towards the gratuity reserve was allowed. I allow this amount and reject the contention of the union on the point.
13. The union has in its calculations not allowed for wealth tax. The wealth tax, must, however, be allowed. [See the decision in the case of the Bombay Gas Company, Ltd. : Bombay Government Gazette, dated 22 May 1958, at p. 2738, Para. 5.]
14. The next point to be considered is the contention of the company that the actual estimated liability for incometax for the year as estimated by the company's auditors should be deducted. In the certificate (Ex. C. 2), it is stated that the taxable income is Rs. 23,55,085 and the tax payable thereon is Rs. 12,13,074. This includes the tax deducted at source on the investment income. The union has in its calculations deducted tax at 51.5 per cent on the profits of the year after deducting from the profits bonus which is allowed by the incometax authorities as business expenditure. In the case of the Britannia Biscuit Company, Ltd., and its workmen , I have given detailed reasons for taking the view that incometax should be calculated after deducting bonus from the profits as was done in the Full Bench case of the Labour Appellate Tribunal 1950 L.L.J. 1247. An application to the Supreme Court for special leave to appeal against the decision in the Britannia Biscuits case was dismissed. Sri Setlur has advanced an argument which was not raised in the Britannia Biscuits case, viz., that as the incometax rebate on bonus is obtained in the following year in which bonus is actually paid, the tax rebate should not be taken into consideration in making calculations for the year in respect of which bonus is awarded. In the Full Bench decision of the Labour Appellate Tribunal and in hundreds of cases decided both by the Labour Appellate Tribunal and industrial tribunals, the rebate on tax on bonus has been taken into consideration. As bonus is allowed as expenditure in computing the profits, there can be no question that the tax rebate obtained on bonus must be taken into consideration, and the point for consideration is whether the circumstance that bonus is actually paid in the following year or years should be a reason for not taking the rebate in incometax on bonus paid into consideration. Now, it has to be borne in mind that bonus cannot be paid during the year in respect of which it is earned. The profit position cannot be ascertained till some months after the close of the financial year, but a company could claim it as a deduction from the profits of the year in respect of which bonus is paid. In the case of the Commissioner of Incometax v. Nagri Mills, Ltd. 33 I.T.R. 689, the facts were that the company which maintained its accounts on the mercantile basis did not make an entry towards bonus for the calendar year 1951, but on a dispute regarding bonus payable to the workers for that year being referred to the conciliation board, the board by its award in June, 1952, directed the company to pay bonus out of the profits for that year, and the company in making the return claimed to deduct for the year 1951 the bonus which was distributed in December 1952 against the last item of part IV of the incometax return. It was held by the Bombay High Court that as under S. 10(5) of the Incometax Act, actual payment was not necessary for the purpose of deduction and it was sufficient if the liability to bonus was incurred according to the method of accounting upon the basis of which the profits or gains were computed, the company was entitled to the deduction, under S. 10(2) of the bonus paid from the profits for the year 1951, even though the amount had not been entered in its accounts for that year. Now what is urged by Sri Setlur for the company is that this decision is not applicable because the practice adopted by the Incometax department in respect of this company would have to be borne in mind. The practice is to include in the accounts the bonus paid or provided for in accordance with any award made during the year of accounts or thereafter, but known before closing of the accounts. But the Incometax Officer assessing a company carrying on business in the State of Bombay would have to follow the law as laid down by the Bombay High Court. Sri Setlur has, however, urged that in this case the company would not get tax refund for 1956-57 since the assessment is already over. But if that is so, the company will be able to deduct as business expenditure for 1957-58 the bonus awarded for 1956-57. If a company does not pay an adequate bonus, the workmen cannot be penalized by making calculations of incometax on the basis that there will be no relief in respect of incometax on the bonus awarded. Now, in this case, in view of the pending bonus dispute, the company could have requested the Incometax Officer to make a provisional assessment. It could even now make an application to the Commissioner of Incometax under S. 33A(2) of the Incometax Act to revise the tax by allowing for the rebate on the bonus awarded for the year. And in any case the tax rebate would be admissible in respect of the assessment for the next year. So under any view, the company is not put to any disadvantage by taking into consideration the rebate in incometax on account of bonus.
15. Sri Setlur has relied on an observation in the judgment of the Supreme Court in the case of Meenakshi Mills Ltd. v. Their Workmen . The observation made is as under :
'The adequacy or otherwise of the provision for incometax must necessarily be judged in the light of the Incometax Act since it is under the said Act that the liability to pay tax would ultimately be determined.'
16. But this observation was made in relation in the facts of that case and the context in which their lordships made this observation is seen from the preceding and subsequent sentences which are as follows :- 'We have already observed that in determining the trading profits of the employer, in such disputes, the method adopted by the industrial tribunals does not conform to all the requirements and provisions of the Incometax Act, and so it would be fallacious to assume that the gross profits determined by the industrial tribunal should be taken to be gross profits that would be necessarily taxable under the incometax Act . . . We think it is not open to the appellants to contend that though for the amounts covered by the normal and additional depreciations they would not be required to pay incometax, nevertheless they should be allowed to provide for the payment of incometax in respect of these two items merely on the ground that they are disallowed by the industrial tribunal and have thus added to the total or gross profits as determined by the tribunal. The adequacy or otherwise of the provisions for incometax must necessarily be judged in the light of the Incometax Act since it is under the said Act, that the liability to pay tax would ultimately be determined. Besides, if the appellants' argument is accepted and an amount notionally payable by way of incometax in respect of disallowed items of depreciation is added to the estimated amount of incometax provided by the appellants, the very object of disallowing the two items of depreciation would be substantially defeated.'
17. Their lordships made it clear that the saving in incometax on statutory depreciation must be taken into consideration and that if an amount notionally payable in respect of items of depreciation disallowed by the tribunal were added to the estimated tax liability, the object of disallowing the two items of depreciation would be defeated. It is true that in computing the incometax liability, the rate of tax prescribed for the year and the provisions of the Incometax Act with regard to tax liability would have to be borne in mind, but the observation in the judgment of the Supreme Court decision regarding the adequacy of the provision for incometax, separated from the context, cannot literally apply to a completely different set of facts. In the Supreme Court decision, it has been recognized that in determining the trading profits the method adopted by industrial tribunal does not conform to all the requirements and provisions of the Incometax Act. If the argument founded by Sri Setlur were accepted, it would lead to anomalies which could not have been contemplated by their lordships of the Supreme Court. I may give two or three instances. Let us suppose a company has made a profit of Rs. 7 lakhs. Out of this, Rs. 5 lakhs is profit on sale of assets. This is an item unrelated to the efforts of the workmen and would not be included in the profits by the tribunal, and only Rs. 2 lakhs calculated. Is then the actual tax liability on Rs. 7 lakhs to be allowed If so, all the surplus would be wiped out and there would be a big deficit. Take another case. Tribunals allow a return of 6 per cent on paid-up capital, which is considered adequate to induce investment in industry. Let us suppose the company pays 50 per cent dividend. The tax liability would be higher, but the tribunal would only compute the tax liability at 51.5 per cent of that profit and not allow the tax on account of higher dividends. The company may in fact pay the extra tax out of the return on working capital or the residuary surplus, for the entire surplus after deduction of prior charges is not to be given to the workmen. But it would not be correct to allow a return of 6 per cent on the paid-up capital in the bonus formula and at the same time to calculate tax on the basis of 50 per cent dividend. There would also be cases where the contention advanced by Sri Setlur would work to the disadvantage of the company. A company makes a profit of Rs. 7 lakhs. A sum of Rs. 2 lakhs on the expenditure side of the account is on account of bonus for the preceding year. The tribunals would add this sum to Rs. 2 lakhs, and calculate the tax on Rs. 9 lakhs at 51.5 per cent and not the actual tax on Rs. 7 lakhs only. The reason for adding the amount to the profits is given in the case of the Millowners' Association v. Rashtriya Mill Mazdoor Sangh 1955 I L.L.J. 430 , wherein the Labour Appellate Tribunal observed that bonus is payable on the trading results of the year, that it is something which was payable in the year in which it fell due and although from the point of proper accounting it may be a legitimate item in the expenses of the succeeding year, it is not an item which can be included in the expenses of the succeeding year, for the purposes of the formula. Accordingly, the Appellate Tribunal added the amount to the gross profits of the following year. Since that decision, tribunals have uniformly added such amount notionally to the profits of the following year, but calculated tax on the total profits including this amount. The reason is that if an amount is notionally added to the profits for the purposes of the bonus formula, the tax on that amount must also be taken into consideration, for all profits are subject to incometax. If calculation is made otherwise, it would not be fair to the company and the workmen would have an advantage which they would not have if provision for bonus had in fact been made in the account of the year in respect of which bonus was paid. 16. There is also another aspect of the matter that has to be taken into consideration. The tribunal can allow or disallow items of expenditure, or add items not included in the profits, on the basis of evidence before it, as Incometax Officers also do in calculating liability to incometax. But an auditor would not be able to do this. In advising the company about making provision for incometax, he would normally be expected to act on the safe side, lest the provision be found inadequate when the assessment is made. 17. For the reasons given in the two foregoing paragraphs, I am unable to accept the contention urged on behalf of the company that the tax as estimated for the year 1956-57 by the auditors should be deducted in making calculations for the purposes of the bonus formula and I have deducted tax at 51.5 per cent on the total profits as shown below in the calculations. In calculating incometax, the saving on account of statutory depreciation has been taken into consideration according to the decision of the Supreme Court in the Meenakshi Mills case cited above.
18. The last point to be considered is whether in making the calculations bonus should be deducted at the uniform rate for all workmen, supervisory staff and officers or whether bonus to the workmen and others who have accepted 10.19 per cent of the basic wages/salaries under agreement should be calculated at that rate. In the bonus dispute for the preceding year, I had observed :
'Sri Sule argued that in making calculations bonus to workmen who had already accepted three months' basic wages as bonus should be included at the rate of three months only. That would not make a material difference in the calculations and in the bonus to be awarded, but in my opinion, the correct thing would be to make calculations on a uniform basis for all workmen. It may well be that after this award the company may find it necessary or expedient to pay bonus equivalent to four months' wages to those workmen also. So far as officers are concerned, bonus equal to three months' salary already paid is more than adequate and no further allowance for additional bonus need be made in the calculations. For the supervisory staff also, who are better paid than the workmen, the bonus already paid is adequate and no further provision need be made in the calculations.'
As stated above, the company actually paid bonus to all the staff (including workmen and officers who had accepted a lower bonus under agreement) at the enhanced rate as awarded by this tribunal with the modification agreed to by the parties in the consent order in the High Court. In my opinion, the bonus should be calculated at a uniform rate in respect of all workmen, but bonus at the same rate need not be calculated in the case of officers and supervisory staff [see Para. 8 of the decision in the case of the Forbes Forbes Campbell & Co. (Private), Ltd., Bombay [Bombay Government Gazette, Part I-L, dated 22 May, 1958, at p. 2621]. I have made the calculations accordingly. The calculations show that the company can afford bonus equal to one-fifth of the basic wages/salaries to the workmen and this, having regard to the profit made, the wages in the concern and other relevant factors, would be reasonable.
Rupees (in lakhs)
Net profit ... 22.05
Add : Bonus paid in respect of previous year ... .06
Add : Depreciation provided ... .56 ----- 22.67
Deduct : Profit on sale of fixed assets ... .17 Normal depreciation ... .56 ... .73 ----- 21.94 Deduct : Bonus to officers; and super- visory staff at the rate actually paid ... .46 ----- 21.48
Deduct : Bonus at one-fifth of the annual basic wages/sala- ries to workmen ... 1.18 ----- 20.30 Deduct : Tax at 51.5 per cent on Rs. 15.75 lakhs (20.30 lakhs minus investment income Re. 3.79 lakhs on which income tax is deducted at source minus difference between statutory and normal depreciation, viz., Rs. .76) ... 8.11 ----- 12.19
Less : Corporation tax on investment income ... 1.31 ----- 10.88
Less : Wealth tax ... .21 ----- 10.67 Less : 6 per cent return on ordinary shares ... 5.30 ----- 5.37
Less : 5 per cent on preference shares. ... 1.25 ----- 4.12 Less : 6 per cent on second preference shares ... 1.50 ----- 2.62
Less : 4 per cent on capital reserves. ... .53 ----- 2.09
Less : 4 per cent on other reserves ... .84 ----- 1.25 Less : 4 per cent on diminishing tax reserves ... .29 ----- .96 Less : Gratuity reserves ... .25 ----- Surplus ... .71
19. I direct the company to pay the workmen concerned in this reference bonus equivalent to one-fifth of the basic earnings for 1956-57 (excluding allowances and overtime) within a period of six weeks from the date this award becomes enforceable subject to the following conditions. - (a) Any employee who has been dismissed for misconduct resulting in financial loss to the company shall not be entitled to bonus to the extent of the loss caused. (b) Persons who are eligible for bonus but who are no longer in the service of the company on the date of payment shall be paid the same provided that they make a written application for the same within three months of publication of this award. Such bonus shall be paid within one month of receipt of application provided that no claim can be enforced before six weeks from the date this award becomes enforceable.