In order to establish an implied term of contract for payment of ex-gratia in lieu of bonus, there must be uniformity and consistency in the payments made by the employer.

JUDGMENT :

1. By this writ petition under Articles 226 and 227 of the Constitution of India the petitioner impugns an Award dated December 19, 1984, and by the Central Government Industrial Tribunal, Bombay, in Reference No. COTT-14 of 1983 under the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act').

2. The petitioner is a registered trade union which represents, inter alia, the workmen employed in the Bombay Docks including the workmen employed by the individual members of the first Respondent which is an Association of the Stevedores operating in the Bombay Docks. The second Respondent is an Industrial Tribunal constituted under the provisions of the Act.

3. The petitioner, on behalf of the workmen employed by the members of the first Respondent-Association, had raised an industrial dispute for payment of bonus or payment of ex-gratis in lieu of bonus for the accounting year 1982-83. Failing settlement and conciliation, the said demand came to be referred for adjudication of the second Respondent-Tribunal by an order of reference made by the appropriate Government on November 26, 1983. The schedule to the order of referenc specifies the dispute referred for adjudication in the following terms :

"Whether having regard to all the facts and circumstances of the case, including the fact that the constituents of the Bombay Stevedores' Association made payment in the past over and above 8.1/3% on account of ex-gratis in lieu of bonus, the demand of the employees (Whether registered with the Dock Labour Board or otherwise) for 1982-83 for ex-gratis in lieu of bonus at 20% is justified ? If not, whether they are entitled to any payment between 8.1/3% and 20%."

4. Before the Tribunal the petitioner contended that the employers, the members of the first Respondent-Association, were giving ex-gratis payment in lieu of bonus to their workmen since or about the year 1949, that from the year 1949 onwards several settlements had been signed year after year for payment of "ex-gratis payment in lieu of bonus", that this practice had ripened into a right in favour of the workmen to receive payments over and above the bonus payable under the Payment of Bonus Act, 1965 as it had become a condition of service of the workmen. For the year 1981-82, the monthly rated staff employed by the members of the first Respondent-Association became governed by the Bombay Dock Workers (Regulation of Employment) Scheme, 1956, and became Registered Workers thereunder. The first Respondent thereupon took the stand that the workmen registered as workers under the scheme were not entitled to payment of bonus under the Act and refused to pay what the workmen were legitimately entitled to it by way of traditional and customary right for payment of ex-gratis in lieu of bonus. The petitioner demanded that the workmen concerned should be paid 20 per cent of their annual earning during the relevant accounting year as traditional/customary bonus, without any ceiling.

5. The first Respondent opposed the reference and contended that the Tribunal had no jurisdiction to adjudicate the demand as the demand raised was for ex-gratis payment and not for customary or traditional bonus, there could be no industrial dispute for payment of ex-gratis amount which could be validly referred for adjudication as, by definition, 'ex-gratis amount' is something paid gratis and not as of right. The first Respondent further pleaded that the reference had been made under the erroneous assumption that what was paid in the past was ex-gratis in lieu of bonus. The first respondent pointed out that the payments in the earlier years were in the nature of bonus and not in the nature of ex-gratis. They also pointed out that as far as daily rated workmen are concerned, they had already accepted payment of 8.1/3% as ex-gratis, unconditionally, and they could not be deemed to be party to the reference and that the dispute should be confined only to monthly rated supervis