The main legal point established in the judgment is the determination of allocable surplus under the Payment of Bonus Act, 1965, and the applicability of Section 10(2) and Section 31A in the context of bonus payments to the workmen.

A. Hazarika, J.

1. Indian Oil Corporation Limited (Assam Oil Division), Digboi, Assam, a company registered under the Indian Companies Act, 1956 has brought in challenge the Award dated January 29, 1996 passed in Reference Case No. 59 of 1978 by the Central Government Industrial Tribunal. Calcutta under Article 226 of the Constitution of India seeking a writ in the nature of certiorari for quashing and/or setting aside the Award as aforesaid.

2. A dispute was referred for adjudication under Section 10(2) of the Industrial Disputes Act, 1947 by the Union of India, viz;

Having regard to the past practices and in view of the amended Payment of Bonus Act, 1965, whether or not any bonus for the accounting year 1975 is payable to the workmen of Assam Oil Company Limited? In either case to what relief are these workmen entitled?

3. The adjudication so referred was brought on the file of the learned Central Government Industrial Tribunal, Calcutta, (hereinafter referred to as Tribunal only), being Reference Case No. 59 of 1978. The learned Tribunal issued notices to the parties and on appearance, both the parties adduced evidences and exhibited documents in support of their respective claims.

4. In the written statement filed by the workmen before the learned Tribunal, they claimed that the management was providing bonus beginning from 1947 onwards till 1974 and the bonus thus has assumed the character of "Customary Bonus". Therefore, their entitlement for the same "Customary Bonus" cannot be denied for the year 1975 irrespective of amendment made in the Payment of Bonus Act, 1965.

5. Denying the claim of the workmen, the management in their written statement contended that no bonus is payable to the workmen for the accounting year ending on December 31, 1975, their being no Allocable Surplus within the meaning of Payment of Bonus Act, 1975, for the said accounting year because of Amended Act which came into force with effect from September 25, 1975.

6. The learned Tribunal has dealt with the matter in extenso in regard to Payment of Bonus to the employees right from 1944 to 1974 by the management. The workmen had made a claim for bonus for the years 1944, 1945, 1946 and 1947 which, however, referred for adjudication to the Industrial Tribunal and the Industrial Tribunal by its award published on February 11, 1949 rejected the claim for bonus for the year 1944, 1945 and 1946, while directing the payment of bonus for the year 1947 amounting to one month basic wage as bonus. The claim for bonus for the subsequent years 1948, 1949 and 1950 were also referred for adjudication to the Industrial Tribunal. The learned Tribunal by its Award dated August 7, 1952, directed the payment of three (3) months basic wage as bonus for the year 1949 and allowed only basic wage for two (2) months as bonus for the year 1950, subject to certain conditions, which however, modified by the Labour Appellate Tribunal at Calcutta in Appeal Case No. Cal 250/52 vide judgment dated June 8, 1954 allowing three (3) months basic wages for each of the years 1948, 1949 and 1950. Consequently thereupon the management paid voluntarily for each of the three (3) years bonus at the rate of one month's basic wage for every year and paid additional bonus at the rate of two (2) months basic wage in compliance of the Award as indicated above. The bonus for the years 1951, 1952 and 1953 as claimed by the workmen were referred to the Industrial Tribunal for adjudication. The learned Tribunal by its Award dated May 19, 1956 rejected the claim for bonus for the years 1952 and 1953 but awarded bonus at four (4) months basic wages for the year 1951 which was inclusive of the two (2) months basic wages already paid by the company management voluntarily for the said year.

7. Thereafter there was a long term settlement on the quantum of bonus for the years 1951 to 1958 in which bonus at three (3) months basic wage for each of the years from 1954 to 1958 were agreed to be paid and received.