A.P. Sen, J.
1. By this application under Articles 226 and 227 of the Constitution, the petitioner, the Hindusthan Steel, Ltd., representing the Bhillai Steel Project (hereinafter referred to as the management), applies for a writ of certiorari to quash an award of the industrial tribunal-cum-labour court (Central), Jabalpar, dated 30 January 1967, directing payment of 10 percent bonus to the workers of its Nandini Mechanized Mines for the month of August 1964, and for an appropriate direction declaring that they were not so entitled to such bonus.
2. The material facts are these. With a view to encourage production in its Nandini Mechanized Mines, the Bhilai Steel Project introduced a scheme for payment of an incentive bonus, known as the Hindusthan Steel, Ltd. Mines Bonus Scheme, providing for payment of bonus in certain rising grades or slabs of progressive rated, depending upon the total output of limestone the month. Under the scheme, the workers are entitled to 10 per cent of their total 'basic pay earned during the month as bonus when the total approved production exceeds 27,600 tons of limestone per month. This is the minimum target provided in the scheme for earning bonus at the lowest Blab, i.e.. 10 per cent. We are not concerned with the higher slabs of bonus in this case. For the purpose of calculation of monthly production, the method laid down in Para. 6 of the scheme is that, for the first 25 days of the calender month, the actual production of the period would be taken into account, and for the remaining period of the month, the basis is an estimate on pro rata basis of the actual pro-duction for the first, 25 days. If the production in the previous month was in deficit of the minimum target of 27,600 toss, that had to be deducted from the production figures of the current month, i.e., the management was entitled to an adjustment of any shortfall in production of the previous month.
3. In the month of August 1964, the position, as per calculations provided for is the scheme, was as under:
Actual production up to 25 August. 22,724.70
Estimated production on pro rata
basis from 26 to 31 August ... 5,453 94
Total ... 28,178.64
Shortfall of production of July
1961 .... ... ... ... 683.56
Balance ... 27,495.08
As the balance figure of 27,495.08 tons in August 1964 did not reach the minimum target of 27,600 tone per month, the management accordingly gave no bonus to the workers for that month. A dispute having arisen between the management and its workers regarding the payment of 10 per cent bonus of their total basic pay earned during the month of August 1964, the Central Government made a reference of the following questions to the industrial court, under Section 10 of the industrial Disputes Act, 1947, for its adjudication:
(1) Weather the workers of the Nandini Mechanized Mines of Bhilai Steel Project, post office Nandini Mines, Durg district, had achieved the target of production to entitle themselves for the payment of 10 per cent production bonus in the month of August 1964 ?
(2) If so, whether the management was justified in denying the payment thereof to the workers If not, to what relief are they entitled ?
4. Before the industrial court, the grievance of the workers was that-
(i) on the crucial date, i.e.,on 25 August 1964, there was a jamming in the bunker as a result of which the operation of the crushing plant was stopped and three damp car-loads of the material were left in the banker, weighing approximately 180 tons of limestone;
(ii) but for this jamming, the 180 tone already loaded into the cars in the banker world have definitely been crushed, conveyed and screened, making them eligible for the production bonus of 10 per cent even according to the management, as the figures of approved production would then have exceeded the minimum target of 27,600 tons is that month;
(iii) this jamming had admittedly been removed at 9-30 p m. and the shift in question on that day was to last up to 10 p.m. ;
(iv) the management, however, improperly directed stoppage of working of that shift at 9-30 p m., i.e., half an hour before the closing time.
It was, therefore, urged by the workers that the quantity of the material already left in the backer should have been taken into account as the production for the last shift on that crucial date.
5. Although the parties led no evidence, the industrial tribunal apparently rested its decision on personal observation of the working of the crushing plant on a spot inspection carried oat for a batter understanding of the actual working of the mines. Its adjudication proceeds on these lines:
(1) The Hindusthan Steel, Ltd., Mines Bonus Scheme providing for payment of bonus not on the actual production in any particular month, but on the actual promotion up to the twenty-fifth day, and for the remaining period on a pro rata basis with a provision for adjustment of the shortfall during the previous month was unassailable by the workers as unfair or unjust.
(2) Such stoppage of working by jamming in the bunker was usual in the working of the mines and of frequent occurrence and, therefore, the workers would not be entitled to their 10 per cent bonus merely because the approved output in production would have crossed the target if there was no jamming.
6. Nevertheless, the tribunal held that the workers were entitled to a bonus at the rata of 10 per cent of their total basic pay during the month of August 1984. In that connexion, the tribunal observed:
If this quantity of the material in the bunker is taken into account and, deducting therefrom the screened chips below 25 mm, it would be found that the workers still become entitled to bonus in accordance with the scheme formulated by the General Manager by his order dated 28 December 1961, and the method for calculation, of monthly production as pre-scribed in the scheme.
In other words, the view of the tribunal was that, if the management had not stopped the working of the shift; after the clearance of the jamming at 9 30 p.m. on 25 August 1964, the target would have been easily crossed and, therefore, the quantity of material left in the three car-loads in the bunker should be taken into account as the production for the last shift on that fateful day. On that view, the tribunal held that the workers of the Nandini Mechanized Mines were entitled to a bonus at the rate of 10 par cent of their total basic pay for the month of August 1964.
7. We are clearly of the view that the industrial tribunal was entirely wrong in its adjudication, awarding to the workers 10 per cent bonus of their total basic pay earned during the month of August 1964, despite the fact that the approved production of lime-stone in that month was 27,495.08 tons which is leseer than the minimum target as per the formula set out in the scheme, which alone makes them eligible for such bonus. When there was a mechanical failure resulting in a shortfall in production due to jamming in the bunker, the mere circumstances three car-loads of the material weighing 180 tons were left in the bunker would not necessarily entitle the workers to such bonus, unless they were farther able to establish any mala fides on the part of the management or some overt act by them which prevented that material from being carried through its final stages. The burden of proving this undoubtedly lay on the workers which they have failed to discharge by declining to adduce any evidence. Thus, the workers are not ordinarily entitled to any bonus under the scheme unless they cross the minimum target of 27,600 tons of ' approved production,' i.e., material which has passed through all the stages, of drilling and blasting, of excavation and transport, and of crushing and screening. Admittedly, the material left in the bunker at 9-30 p.m. on 25 August 1964 still remained to be crushed, conveyed and screened and, therefore, could not be taken into account as part of the production for the last shift of that night.
8. The workers had definitely alleged that
(i) the management had deprived them of the bonus by making a false and mala fide announcement at 9 p.m. on 25 August 1964 before the closure of the shift, i.e., half an hour earlier than the closing time, that like every other month, the approved production had already crossed the target and would entitle the workers to earn their 10 par cent production bonus for that month also; and
(ii) after the said announcement, the working of the shift was closed earlier than the usual time with an ulterior view to prevent the carriage of the three car-loads of the material left in the bunker through its filial stages.
Now, these allegations were specifically denied by the management in their rejoinder which asserted that the shift on that day had worked upto the scheduled time, i.e., till 10 p.m., and that there was no announcement on that nigh of the kind alleged by the workers stating that they had become entitled to production bonus for the month of August 1964. The management having denied that no such declaration was ever made on 25 August 1964 at 9-30 p.m., the burden of establishing title was on the workers. These undoubtedly were disputed questions of fact, involving the taking of evidence. Without such evidence, the tribunal could not have attributed any ulterior motive to the management for having closed the shift at 9-30 p.m. unless it was shown that the closure was with a view to depriving the workers of their legitimate dues. Nor is there any evidence adduced by them to substantiate any mala fides on the part of the management. On the contrary, the circumstances appearing on record suggest that the actual production as on 25 August 1964 could never be known on that day itself that is because production figures of any particular month are only knowa after there is accounting at the end of that month. No one could, therefore, have imagined that there would be shortfall of 104 9 tons of the 'approved production ' during the month of August 1964 at the time when the shift in question was closed at 9-30 p.m. on 25 August 1964. It appears that, after there was jamming in the banker, the shift was, in effect, closed because the workers had already left the mine thinking that the material left in the three dump car loads would be conveyed to the crusher in the next shift on 26 August 1934 when the machine would be restarted. At any rate, there was nothing on record to show that, within the time that was left, the machine could be restarted and the material duly crushed, conveyed, and screened before the closure of the shift.
9. The award of the industrial tribunal is further vitiated because it wrongly assumed that there was omission of the part of the management to restart the engine which could have shifted the material, that was allowed to remain in the banker, along the conveyer belt to the crusher, before the closing time. It observes:
No reasonable explanation has been offered on behalf of the management why throe dump car-loads of material was allowed to remain in the banker before closing the shift all together and which was the last shift for the day. There are instances when the shift had been worked upto 9-55 p.m.
Apart from thin, the tribunal farther states:
The day (25 August 1964) was a crucial one for the workers and the management should have seen that the three dump car loads of material which had already gone to the bunker should have been cleared for final crushing before closing the shift, if this quantity of the material is taken into account which should be in a case like this where workers are being deprived of eligible bonus under a scheme framed by the management itself, It is obvious that the target of 27.600 tons is easily crossed.
These observations proceed on mere surmises. Now, suspicion or conjecture cannot take the place of proof. These are matters which should have been proved like any other fact in issue. The Jamming was no doubt removed at 9-30 p.m. but there is not an iota of evidence to substantiate that the machine could be restarted within thirty minutes left for the closure of the shift or that there was time sufficient for the production of 104.9 tons of ' approved specification ' to enable the workers to reach the minimum target.
10. Before closing this discussion we would like to affirm that a writ of certiorari can issue against an arbitrator functioning under Section 10 of the industrial Disputes Act. In Rex v. Disputes Committee of National Joint Council for the Draft of Dental Technicians [(1953) 1 All E.R. 327], Lord Goddard, C.J. had stated:
There is no instance of which I know in the books, where certiorari or prohibition has gone to any arbitrator, except a statutory arbitrator, and a statutory arbitrator is a parson to whom by statute, the parties must resort.
Following this dictum, there was a conflict of opinion whether an arbitrator functioning under Section 10A of the Industrial Disputes Act, 1947, was a statutory arbitrator against which a writ of certiorari can issue under Article 226 That conflict has now been settled by their lordships of the Supreme Court in Engineering Mazdoor Sabha and Ors. v. Hind Cycles, Ltd., and Ors. 1962-II L.L J. 760. Having regard to the different provisions of the Industrial Disputes Act and the rules framed thereunder, their lordships have stated that, although an arbitrator appointed under Section 10A cannot be treated to be exactly similar to a private arbitrator to whom a dispute has been referred by an arbitration agreement under the Arbitration Act, nevertheless, he is clothed with certain powers, his procedure is regulated by a set of rules and the award pronounced by him is given by statutory provisions a certain validity and a binding character for a specified period ; therefore, such an arbitrator must be regarded as a statutory arbitrator. Their lordships accordingly held that a writ may issue for quashing his award under Article 226 of the Constitution. These principles equally apply to this case. Even otherwise, the present reference of an industrial dispute for its adjudication is to the industrial court, which undoubtedly is a tribunal amenable to this Court's directions under Article 227 of the Constitution.
11. We would, accordingly, allow this petition and issue a writ of certiorari for quashing the award dated 30 January 1967 of the industrial tribunal-cum-labour court (Central), Jabalpur, with a further direction that it shall proceed to draw up an award afresh, with advertence to the observations made by us. The outstanding security amount, if any, shall be refunded to the petitioner, which shall also be entitled to its costs. Hearing fee Rs. 100, if certified.