C.A. Vaidialingam, J.
1. In this writ petition Mr. G. Vishwanatha Iyer, learned counsel for the petitioner, attacks the Award of the Industrial Tribunal, Trivandrum, in J. P. 39/1959 relating to the question of payment of bonus by the petitioner concern.
2. The main attack that is made by the learned counsel is that the only case or the basis on which bonus was claimed in this case was on the ground that there is a custom in this concern to pay bonus and the Tribunal has ultimately, accepted the case of the Union that there is such a custom to pay bonus representing one month's salary every year irrespective of profit or loss. Mr. G. Vishwanatha Ayyar urges that the various types of bonus have been considered by the Supreme Court and the Supreme Court has held that there cannot be a claim based upon payment of custo-mary bonus unconnected with any pooja or testival. In this case, the learned counsel urges the no such claim was ever advanced, nor the parties were in controversy on such a claim based upon bonus being paid in connection with a pooja or festival. Therefore, in particular, the learned counsel relies very strongly upon the decision ot tha Supreme Court in B. N. Elias and Co., Ltd., Employees' Union v. B. N. Elias and Co., Ltd., AIR 1960 SC 886 to which J will immediately refer to the effect that the principles laid down by the Supreme Court in Grahams Trading Co. v. Their Workmen, AIR 1959 SC 1151 namely, payment based upon a customary bonus, cannot be extended to the payment unconnected with any pooja or testival.
3. The learned counsel also has drawn my attention to a very recent decision of the Sup-reme Court in New Maneck Chowk Spg. and Wvg. Co. v. Textile Labour Association, AIR 1961 SC 867 where their Lordships have definitely set their face against extending the bonns on a goodwill basis. 1 will have also to advert to that decision immediately.
4. The learned Government Pleader appearing for the tribunal and Mr. M. P. Menon, learned counsel for the Union, have urged that in this case, the Union have categorically stated that there was an otter to pay 8 1/3 per cent of the wages as bonus and though even assuming that there is an error committed by the tribunal in the approach made to a question like this, there is absolutely no equity in favour of the petitioner, and therefore, the Award does not require any interference at the hands of this Court. In this connection, the learned Government Pleader in particular, drew my attention to a Division Bench ruling of this Court of my Lord the Chief Justice rendered along with Mr. Justice Raghavan reported in Iyyappan Mills Ltd. v. Iyyappan Mills Workers Union, 1961 Ker LJ 6.13 : (AIR 1962 Kerala 11) The learned Government pleader very srongly urged that in that particular decision, though the learned Judges were satisfied that the tribunal has acted in excess of its jurisdiction, nevertheless, the learned Judges declined to interfere with an order of the tribunal regarding the payment of comper-sation as and for retrenchment which was really based on an offer made by the management itself. Therefore, the learned Government pleader urged that the same is the position before me and therefore, notwithstanding any errors, if any, in the Award itself, this Court should not interfere in Article 226, unless there is manifest injustice and according to the learned Government Pleader, there is no question of any manifest injustice when the management itself has made the offer in question.
5. The learned Government Pleader also urged that there is evidence furnished by. at any rate, two of the witnesses WW. 1 and WW. 4 that the bonus claimed by them, was paid at the time of Onam and representations were made for payment during the festival. Therefore, the learned Government Pleader urged that when there is the evidence to show that the claim by way of customary bonus is closely linked with a National Festival like Onam in Kerala State, it stands to reason that the claim is sustainable on the basis of the decision of the Supreme Court in AIR 1959 SG 1151, and therefore, there is no question of any extension of the claim based upon customary bonus to anything other than a claim related to a pooja or a festival in this case.
6. So far as the second aspect is concerned, it can very well be disposed of straightaway. The learned Government pleader no doubt, drew my attention to some stray statement in the evidence of WW. 1 and WW. 4 to the effect that the bonus was paid at the time of Onam. Mr. G. Viswana-tha Ayyar, learned counsel for the petitioner, is well founded in his contention that no such claim for bonus as a customary bonus relating to an Onam festival, however important it may be, has ever been pleaded or set up, by the Union in the statement before the Tribunal; nor has the tribunal adveried to this aspect and according to the learned counsel, when a claim is not made on that basis and especially the management had no opportunity to meet such a case, the reliance placed by the learned Government Pleader on this stray statement in the evidence of WW. 1 and WW. 4 will not confer the claim, which was a very simple one based upon a custom) to one of customary bonus relating to a festival like Onam. I am impressed with this contention of the learned counsel Mr. G. Viswanatha Ayyar, because notwithstanding this stray statement of WW. 1 and WW. 4, that was not the basis on which the Union in this case, claimed bonus being paid to them for the particular year in question. Therefore, I am not inclined to accept this second contention ad-vanced by the learned Government pleader.
7. I can also straightway dispose of the contention of the learned Government Pleader that the principles applied by the learned Judges in the decision in 1961 Ker LJ 613 : (AIR 1962 Kerala 11) apply to the particular circumstances of this case also. I am not inclined to accept that the position in this case is identical or the same as before the learned Judges. In that case, no doubt, it is seen that the management appears to have made an offer to pay retrenchment compensation and though the tribunal came to the conclusion that the closure, was effected by the management for bona fide trade reasons, nevertheless, the tribunal awarded retrenchment compensation exactly on the basis offered by the management in that case. There was also evidence furnished before the learned Judges that part of the workmen had accepted the offer of the management and also withdrew the amount. Having regard to all these circumstances, the learned Judges, if I may say so with respect, took the view that though there may be some error in the exercise of jurisdiction or a portion of the Award of the Tribunal may be beyond its jurisdiction, the learned Judges, in their discretion vested in them, did not think it necessary to interfere with the order of the tribunal, as they were satisfied that substantial Justice has been done to the parties.
8. In this case, I am not satisfied that approach made by the tribunal is in any manner proper. The sole claim made by the Union for payment of the bonus in question was based upon custom.
9. No doubt, incidentally they seem to have mentioned that the management offered to pay bonus at the rate of 8 1/3 percent, and they clearly say that it was not acceptable to the Union. The tribunal also does not pin down the management to an offer stated to have been made by them. If the tribunal has only taken this into account and made an Award on that basis, the position could be entirely different. What the tribunal states is that it does not at all consider any offer made by the management and it says that its decision is really because of its conclusions arrived at earlier that in this case, the Union has satisfied it by letting in evidence that there has been a regular payment of bonus representing one month's salary every year irrespective of profit or loss and it is prepared to com to the conclusion that that claim based upon customary bonus is recognisable in law.
10. The management set up a case, right or wrong it may be, that the offer to pay one month's wages was made during negotiations and as the Union has not accepted it, that offer stands revoked. Therefore, in this case, the question whether there was an offer; whether that offer subsists and whether the Union was prepared to accept that offer and act up to it and whether in law, the offer made by the management, stands revoked, are all matters which have not been investigated and therefore, it is idle to pin down the management to some offer that they may have made, especially when the tribunal itself ignores that offer and proceeds to decide the point on a totally different aspect. Therefore, even the first contention raised by the learned Government Pleader cannot be accepted.
11. Then the question is whether the Award of bonus in this case, suffers from any of the infirmities alleged against by Mr. G. Viswanatha Ayyar, learned counsel for the petitioner.
12. On this point there cannot be any controversy that the claim related to payment of bonus for the year 1958-59 and the specifiic claim, was also based on the. custom in this concern to pay bonus of one month's wages every year irrespective of profit or loss. No doubt, the tribunal is prepared to accept the evidence adduced by the Union in this respect and come to the conclusion based upon payment on a customary basis. If such a claim for customary bonus unrelated to any Pooja or festival is recognised in law, there is be scope at all for interference with the Award passed by the tribunal. But the question is whether such a claim has been recognised in law,
13. In this connection, the decision of the Supreme Court in AIR 1960 SG 886 requires to be noticed. Mr. Justice Wanchoo delivering judgment of the Court, rejected a claim made by the appellant-union in that case for payment of bonus on the ground that it is a customary bonus and the decision of the Supreme Court in AIR 1959 S.C 1151 was invoked by the learned counsel for the appellant in support of the claim made by the Union. But this contention was rejected by the Supreme Court on the ground that the customary or (traditional bonus in AIR 1959 SC 1151, was payable at Puja which was a special festival of particular importance in Bengal and was no doubt, recognised. Then Mr. Justice Wanchoo observes at page 888:-
'That case cannot be held to have laid down that there can be, customary bonus as such unconnected with some festival. It is difficult to introduce a customary payment of bonus between employer and employee where terms of service are governed by contract, express or implied, except where the bonus may be connected with a festival whether Puja in Bengal or some other equally important festival in any other part of the country. The principles laid down in that case for governing customary and traditional bonus connected with a festival cannot, in our opinion, be extended to what may be called a customary bonus unconnected with any festival.'
After observing as above, the learned Judges ultimately reject the contention advanced on behalf of the appellant that the claim for bonus is payable as a bonus as per the decision of the Supreme Court in AIR 1959 SC 1161. In my view, these observations of His Lordship Mr. Justice Wanchoo which have been extracted, completely conclude the position in this case in favour of the petitioner-management. Those observations clearly show that a customary or traditional bonus unconnected with the festival, cannot certainly be made and cannot certainly be awarded by an industrial tribunal.
14. Therefore, in this case, as I mentioned earlier, the claim based upon a customary bonus was not connected with any Puja of National festival in this State. Therefore, the claim being only on a custom unconnected with any Puja or festival, clearly comes within the observations of the learned Judges extracted Above and such a claim has not been recognised in law. In consequence, the Award of the Tribunal giving bonus based on custom, cannot certainly be sustained and the Award to that extent will have to be quashed. I may also advert to the more recent decision of the Supreme Court reported in AIR 1961 SC 867 only to show that the Supreme Court was not inclined to enlarge the types of bonus that are permissible. Here again Mr. Justice Wanchoo delivering the majority judgment of the Court, observes that there are four types of bonus which have been evolved under the industrial law namely,
(1) Production bonus;
(2) Bonus as an implied term of contract between the parties;
(3) Customary bonus in connection with some festival; and
(4) Profit bonus evolved by the Labour Appellate Tribunal.
15. It will be seen in that case that before the learned Judges a 5th type of bonus was sought to be evolved namely, goodwill bonus. But the learned Judges .were not prepared to recognise a goodwill bonus as placed before them. The learned Judges observed at p- 874:-
'As its very name implies it is a bonus which is given by the employer out of bis free consent in order that there may be goodwill between him. and his workmen; but there can be no question of imposing a goodwill bonus by industrial courts as imposition of such a bonus is a contradiction of its very concept.'
The learned Judges further say that the Court has already referred to four kinds of bonus which prevail in the industrial law in India and which can In certain circumstances be imposed by industrial tribunals. The Courtis very emphatic when it says that there can be no question of the imposition of the so-called goodwill bonus, because that bonus depends upon the goodwill of the parties and on their free consent. I am only adverting to this passage in the recent Judgment of the Supreme Court to show that the Supreme Court was not prepared to recognise a fifth type of bonus over and above the four types of bonus already advered to by the Court in the earlier part of the judgment.
16. Therefore, it follows that the Award in this case of the Industrial Tribunal to the extent |to which it has recognised the right of the workers to get one month's wages or 8 1/3 per cent of their earnings for the year 1958-59 as bonus will have to be set aside and quashed. Parties will bear their own costs.