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If not, to what other relief or reliefs are the workmen entitled ?"

This Reference was numbered as A.I.D. 8 of 1966. Civil Appeal No. 1292 of 1967 is directed against that part of the order of the Tribunal regarding this Reference. Both the appeals are by the Company.

We will first take up Civil Appeal No. 1291 of 1967. appellant was making two payments of bonus every year, one for the half-year ending 30th June and half-year ending 30th December. The accounting year is the Calendar year. The half yearly payments were unilaterally declared by the appellant and not on the basis of any agreement between the parties. The quantum of bonus that was paid for each half- year was also not constant. Half-yearly payments were made at the end of the half-year when the working result of the said year was known and if there was sufficient profit to pay bonus. The payment of bonus for the half years also depended upon the approximate estimate that the Directors used to make about their prospective future earnings for next half-year. According to the appellant the bonus amounts were paid out of profits. As the Payment of Bonus Act, 1965 (hereinafter to be referred as the Act) had come into force on August 28, 1965, the appellant issued a circular to the effect that for the half-year ending June 30, 1965, payments will be made as advance of wages equivalent to 1/6th of the basic earnings of the employees. In this circular there is a reference to the Payment of Bonus Ordinance 1965, promulgated on May 29, 1965 and that under the terms of the Ordinance, bonus is payable only within a period of 8 months from the end of the-accounting year. The circular further states that no bonus is payable for the accounting year 1965 until the accounts for the year are closed. It was further mentioned that the amounts are paid as advance wages in view of the representations made by the employees. The circular further mentioned that the amounts paid as advance wages will be set off against the bonus that may be found payable for the ac- counting year 1965 and that if no bonus is payable, the amount paid will be adjusted against the wages due for any month after March, 1966.

The Unions pleaded that the payment of bonus at the end of each half-year, which was being done for a long number of years, has become a condition of service and the amounts paid were not related to the profits earned by the Company. The Unions further contended that the Act has not in any manner affected the right of the employees getting bonus in the manner paid by the appellant namely , at the end of every half-year.

The Tribunal has recorded the following findings : The pay- ment of bonus was not a settled condition of service, but is dependent upon the profits earned during the half-year. Payments made by the appellant at the close of the half-year cannot be considered as customary or festival bonus and that the appellant has made no change in the conditions of service of the workmen by altering the quantum of bonus. Though bonus was paid at the close, of each half-year, the quantum of such bonus varied depending upon the profits earned by the Company. The Company has no doubt been paying for a long time profit bonus in two instalments, namely, in the month of August for the half year ending 30th June and in the month of March or April of the succeeding year for the half-year ending 31st December. The coming into force of the Act has, not created any right in the appellant to withhold the payment for each half-year as it used to do. The appellant will be entitled to deduct the amount of bonus paid for the first half year from the amount of bonus payable to its, employees under the Act in respect of the accounting year and the employees will be entitled to receive only the balance for the second half-year. On these findings the Tribunal held that the appellant was not justified in announcing the payment of the amount towards advance wages under the circular dated August 28, 1965. In the end the Tribunal gave a direction to the effect that the appellant is liable to pay profit bonus in two instalment as advance against the final declaration of bonus to be paid during the last week of August or first week of September and the balance, if any, was to be paid in the month of March or first week of April of the succeeding year. It further gave a direction that the first payment that is to be paid is to be as advance against payment of bonus and not as against wages.

and "gross profits" Section 4 deals with the computation of gross-profits. So far as the appellant is concerned; under s. 4, cl. (b) the gross-profits are to be calculated in the manner specified in the Second Schedule. Section 5 provides for computation of available surplus. It is to be ascertained after deducting from the gross-profits the various items, referred to in S. 6. Section 6 deals with the items to be deducted as prior charges from the gross- profits. Section 10 makes it obligatory on an employer to pay minimum bonus to the employees in an accounting year of 4% of his salary or wages or Rs. 40/- whichever is higher. This payment is irrespective of the fact whether a Company has or has not earned profits in an accounting year. But this provision is subject to the provisions of ss. 8 and 13. Section 11 provides for payment of bonus subject to a maximum of 20% of the salary or wages, if the conditions mentioned therein are satisfied. Section 17 enables an employer, who has paid during any accounting year Puja Bonus, or other customary bonus or a part of the bonus payable under the Act before the due date, to deduct the amount so paid from the amount of bonus payable by him to an employee under the Act in respect of that accounting year. It further provides that under such circumstances the employee will be entitled to receive only the balance. Section 19 fixed the time limit for payment of bonus. If there is a dispute regarding payment of bonus pending before any authority, the bonus will have to be paid within a month from the date, on which the Award becomes enforceable or the settlement comes into operation. In any other case the bonus will have to be paid within a period of eight months from the close of the accounting year. Under the proviso to s. 19, power is given to the appropriate Government to extend the period of eight months in accordance with the provisions contained therein. Section 34 provides that the Act except as otherwise provided in the section, shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the terms of any Award, agreement, settlement or contract of service made before May 29, 1965.

Mr. Puri referred us particularly to the provisions contained in s. 17 of the Act. He pointed out that though a time limit is fixed by s. 19, the Act itself as is evident from s. 17, clearly envisages payment of bonus at the end-of each half year. We are not inclined to accept this contention of Mr. Puri. The direction given by the Tribunal making it obligatory on the Management to make half yearly payment of bonus apart from being opposed to the scheme- of the Act, also runs counter to the provisions of s. 19. Whether it is the minimum bonus of, 4% under s. 10 or' the maximum bonus of 20 % under s. 11, they have to be paid, as, is made clear by s' 19, only within the period mentioned therein.' It may be that an employer voluntarily pays amount during the accounting year by way of part bonus which he is entitled to take into account and adjust when making final payment at the close of the accounting year. It is one, thing to say that an employer can make voluntary payment, but it is- a different thing for the Tribunal to give a direction to that effect.