Judgment

SINHA, C.J.I. : This appeal, by special leave, is directed against the award dated May 10, 1961, made by the Central Government s Additional Industrial Tribunal (Shri Salim M. Merchant) Bombay, in Reference No. 4 of 1960, on a reference made by the Central Government under cl. (d) of sub-s. (1) of S. 10 the Industrial Disputes Act (XIV of 1947). The main point in controversy between the parties relates to the question of bonus, both traditional or customary bonus and profit-sharing bonus.

2. The appellants are a partnership ; firm, registered under the Indian Partnership Act, 1932, and have their office at 46, Veer Nariman Road, Fort, Bombay 1. The firm carries on business in the name of Messrs. Tulsidas Khimji, and for the relevant year ended October 31, 1958, the partners were (1) Shri Karsondas Tulsidas (2) Shri Ranchoddas Gokuldas (3) Shri Narandas Tulsidas (4) Shri Moolsingh Karsondas (5) Shri Shantu Karsondas and (6) Shri Narendra Ranchhodas. They are closely related to one another. The first two partners aforesaid have been associated with the firm for about 40 years, the third for about 35 years, the fourth for about 15 years, the fifth for about 8 years and the 6th for about 5-6 years. At all material times, the six partners had been working for and in the interest of the firm, which carried on different kinds of business, namely, (1) Clearing and forwarding agents, (2) Godown Keepers, (3) Insurance Agents and (4) Cotton Supervisors and Controllers. For carrying on these different kinds of business, they maintained four different and distinct departments. The respondents are workmen employed under the firm. The question referred to the Tribunal was "quantum of bonus payable to workmen for the year ended October 31, 1958". A number of issues were raised before the Tribunal, of which it is only necessary to notice the 4th and the 5th issues, which are as under :

4. Whether the claim under reference should be restricted to a claim for profit-sharing bonus or customary bonus or on basis of implied terms of contract?

5. Whether it is open to the workmen to claim bonus on the basis of surplus profits, and at the same time claim bonus on the ground of custom and practice or implied terms and conditions of service ?, or whether the workmen should elect the basis on which they claim bonus? ,

3. The union of the workmen had claimed profit-sharing bonus at the rate of 6 months wages (inclusive of Dearness Allowance) and traditional or customary bonus at a rate, which is not clear but which may be said to be either three months or one month s wages, plus dearness allowance, on the occasion of the Dewali festival. The difficulty in clearly stating the case for the workmen is that they were not clear in their own minds as to whether they were claiming the customary or traditional bonus as one of the implied terms of their employment or for the special festival occasion of Dewali. It was not even clear whether the claim for 6 months wages, inclusive of dearness allowance, was the total claim for bonus or was in addition to the traditional or customary bonus, either implied or as festival bonus on the occasion of Dewali. That accounts for the form of the issues set forth above. The appellants conceded only one month s basic wages as bonus which had already been paid, and contested the claim for traditional or customary bonus either as an implied term of contract of service or as a festival bonus. As there was some confusion about the claim of the respondents, the Tribunal after referring to a number of documents and oral statements, came to the conclusion that the respondents had claimed by way of maximum bonus, 6 months wages on a profit-sharing basis, and that the minimum was the claim for customary or traditional bonus of three months basic wages and one month s dearness allowance on Issue No. 4 the Tribunal decided that those were alternative claims, and that it was not necessary for the workmen to elect any one of the