The existence of an available surplus is necessary for a claim for profit bonus to be available to the workman for any year.

JUDGMENT :

V. Balakrishna Eradi, J.- This writ petition has been preferred by the management of the Malabar Tile Works, Feroke, seeking to quash the award of the industrial tribunal, Calicut, dated 28 December 1955, evidenced by Ex. P. 7 whereby the tribunal has directed the management to pay bonus to the workers concerned in the reference at the rate of 25 per cent of the total earnings on the ground that they are entitled to payment of bonus at the same rate as had been allowed by the management to the members of their clerical staff.

2. The claim put forward by the petitioners before the tribunal who are daily-rated workers of the concern was that the bonus already paid to them by the management at 26 per cent of their basic wages for the year 1958 was inadequate, inasmuch as the 'profits of the company for that year Justified payment of bonus at 37 1/2 per cent and that, in any event, they had been discriminated against inasmuch as the company had paid for the identical period bonus to the clerloal staff at the rate of 25 per cent of their total emoluments. The contention advanced by the management was that for the year in question there was no available Burplus after making provision for the prior charges mentioned in the Full Bench formula and that what had been paid by them to the workmen was really in the nature of a mere bounty. It was, therefore, urged that in the absence of a legal liability to pay any sum as bonus the claim put forward by the workmen to compel the management to disburse bonus at any particular rate for the year 1958 was manifestly untenable and should be rejected. Alternatively the management also sought to Justify the differential rates adopted at between the clerical staff and the daily-rated workers on the ground that the conditions of service of the two categories were substantially different and that therefore the adoption of different rates in respect of the two classes of employees was fully justified.

3. The tribunal, after noticing the contentions put forward by the management, took the view that it was unnecessary for it to go into the question as to the existence of available surplus because, according to it, even if no surplus was available, it was not open to the management to make any payment of bonus to the two classes of employees at different rates and that on such discriminatory treatment being made out there was jurisdiction for the tribunal to direct the management to do away with such discrimination by compelling them to pay to the daily-rated workmen bonus at the same rates as had been paid to the clerical staff. On the question as to whether the discrimination was justified on the ground that the conditions of service of the clerical staff were less favourable than those applicable to the daily-rated workers, the tribunal held that the management had not substantiated the case put forward by them. After discussing the evidence adduced by the management on this point, the tribunal has recorded the conclusion that there were no Justifying circumstances warranting differential rates of bonus being adopted as between the two classes of employees. In the result, the tribunal passed the impugned award directing the management to pay bonus to the petitioning workers at the rate of 25 per cent of their total earnings for the year in question.

4. The main contention urged before me by the learned Counsel for the petitioner is that the tribunal has committed a manifest error of law in thinking that it was open to it to pass an award compelling the payment of bonus by the management without investigating into and recording any finding on the vital question as to the existence of available surplus in the year in respect of which the claim for bonus was made. The petitioner's counsel contends that in the absence of any allegation, much less proof, of any unfair labour practice or of victimization, there is nothing preventing an employer from choosing according to his own discretion the manner