Judgment

WANCHOO, J. :- This is an appeal against the award of the Fourth Industrial Tribunal, West Bengal. There was a dispute between the appellant and, its workmen as regards profit bonus with respect to the years ending December, 1959 and December 1960. Further them was dispute also about Puja bonus payable in 1961. Consequently, a reference was made by the Government of West Bengal on March 13, 1962 to the tribunal with respect to these matters, namely, (i) Puja bonus payable in 1961, and (ii) profit bonus for the years ending December 1959 and December 1960.

2. The case of the workmen was that payment of Puja bonus had become either an implied term of employment between them and their employer or customary. As to profit bonus, the workmen claimed that they were entitled to profit bonus in view of the large profits earned by the appellant in the two years in question. Thus they claimed four months wages as profit bonus for both the years and 1 1/2 months wages as Puja bonus payable in 1961.

3. The appellant on the other hand contended that payment of Puja bonus had neither become an implied term of service between the appellant and its workmen nor had the same become customary or traditional at Puja time. As to profit bonus, the appellant s case was that there was no available surplus in either of the two years and, therefore, the workmen were not entitled to any profit bonus.

4. The tribunal took necessary evidence and came to the conclusion that payment of one month s wages at the time of Puja as customary bonus had been established, though it apparently did not accept the claim that payment of Puja bonus as an implied condition of service had been proved. As to profit bonus it came to the conclusion on calculation of available surplus that four months wages could be paid as profit bonus for the year ending December 1959 and one month s wages for the year ending December 1960. In the result it made its award accordingly.

5. The appellant challenges the finding of the tribunal that Puja bonus at the rate of one month s wages per year had become customary in this concern. The appellant further challenges the calculations of the tribunal with respect to profit bonus for the two years in dispute.

6. We shall first consider whether it has been established that payment of one month s wages as bonus at the time of Puja has become customary in this concern. So far as the contention that such payment had become an implied condition of service is concerned, it does not appear to have been seriously pressed before the tribunal; and in any case it stood negatived by the fact that in 1959 the payment was made and accepted as ex gratia. It is, therefore, necessary only to consider whether the tribunal was right in holding that payment of one month s wages at the time of Puja as customary bonus has beet proved.

7. The circumstances for proving the payment of customary or traditional bonus on the occasion of a festival like Puja were considered by this Court in The Grahans Trading Co. (India) Ltd. v. Its Workmen (1960) 1 SCR 107, and it was laid down that on proof of the following four circumstances payment of customary or traditional bonus on the occasion of a festival like Puja can be said to be established, namely-

"(i) That the payment has been made over an unbroken series of years :

(ii) that it has been for a sufficiently long period, the period has to be longer than in the case of an implied term of employment.

(iii) that it has been paid even in years of loss and did not depend on the earning of profits; and

(iv) that the payment has been made at a uniform rate throughout."

It was also held that

"the fact that the employer made the payment ex gratia made no difference; nor did unilateral declarations of one party inconsistent with the course of conduct adotped by it matter".

8. The tribunal has held that these conditions have been satisfied in the present case and that is how it came to the conclusion that payment of customary or tradition