LexB. N. ELIAS AND CO., LTD., EMPLOYEES' UNION AND OTHERS versus B. N. ELIAS & CO., LTD., AND OTHERS.
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Bharat Barrel & Drum Mfg. Co. (P) Ltd. .. Govind Gopal Waghmare Wanchoo ]. r960 382 SUPREME COURT REPORTS [1960] tax authorities assess as actual income-tax in a parti- cular year; it is concerned with working out the Full Bench formula in accordance with its notional calcula- tions and this is what has been done in this case. There is no ground therefore for interference with the award of bonus for this reason either. We therefore dismiss the appeal, but in the circum- stances pass no order as to costs. Appeal dismissed. B. N. ELIAS AND CO., LTD., EMPLOYEES' UNION AND OTHERS v. B. N. ELIAS & CO., LTD., AND OTHERS. (P. B. GAJENDRAGADKAR, K. N. w ANOHOO and K. C. DAS GUPTA, JJ.) Industrial Dispute-Bonus-Implied term of agreement or condition of service-Ex gratia payments-Cttstomary bonus- -Pnja bonus. Since 1942 the respondents had been making ex gratia pay- ments to their employees (appellants) in addition to wages and salaries, bnt these were not regular and in 1956, no ex gratia payments were made at all. The appellants claimed that their right to be paid bonus had become an implied term of agreement or a condition of service and, at any rate, it should be paid as customary bonus, and relied on the case of The Graham Trading Co. (India) Ltd. v. Its Workmen, [1960] l S.C.R. 107. The evid- ence showed that though the payments were made from 1942 to 1952 it was made clear every time that the payments were made as ex gratia: Held, (1) Where payments are made to workers ex gratia and are accepted as such, it is not possible to imply a term of service on the basis of an implied agreement to pay bonus. (2) that there cannot be a customary payment of bonus between employer and employee where terms of service are governed by contract, express or implied, except where the bonus may be connected with a festival, whether Puja in Bengal or some other equally important festival in any other part of the country. The Graham Trading Co. (India) Ltd. v. Its Workmen, [1960] l S.C.R. 107, explained. (3) that for the year 1956 one month's basic wage should be paid as Puja bonus to the subordinate staff as it has become customary and traditional in the respondents' concerns. • - .• y • • 3 S.C.R. SUPREME COURT REPORTS 383 CIVIL APPELLATE JURISDICTION: Civil Appeal z96o No. 121 of 1959. . B. N. Elias & Co. Appeal by spemal leave from the A ward dated Ltd. Employees' June 3, 1957, of the Second Iudustrial Tribunal, West Union. Bengal. v. N. C. Chatterjee, D. L. Sen Gupta and Dipak Datta B. N. Elias & Co. Choudhri, for the appellants. l.td. C. K. Daphtary, Solicitor-General of India, H. N. Sanyal, Additional SoUcitor-General of India and S. N. Mukherjee, for the respondents. 1960. March 24. The Judgment of the Court was delivered by "VANCHOO, J.-This appeal by special leave raises Wanclwo J. the question of bonus. There was a dispute between the workmen of B. N. Elias & Co. Ltd. (hereinafter called the appellants) and their employers, B. N. Elias . and Co. Ltd. and others (hereinafter called the res- pondents) with respect to bonus for the years 1954, 1955 and 1956. The case of the appellants was that they were entitled to bonus as a condition of service irrespective of profit or loss on the following scale :- I-Clerical staff. 1 month's basic pay as bonus in April, 1 month's basic pay as bonus in August, 1 month's basic pay as bonus in December. II-Subordinate staff. 1 month's basic wages as bonus in April, 1 month's basic wages as bonus in August, 1 month's basic wages as bonus at Puja time, 1 month's basic wages as bonus in December. According to the appellants this bonus was always paid from 1942 to 1952. Later as there were some disputes between the appellants and the respondents, the respondents wanted to stop the payment of bonus from 1953, though something less was paid that year. In 1954 the amount of bonus was further reduced. Consequently, a dispute was raised which was referred by the Government of West Bengal in May 1956. Subsequently another dispute was raised with respect to the bonus for the years 1955 and 1956 and this time it was claimed as a customary bonus or as· a con- dition of service payable at regular intervals of four • 384 SUPREME COURT REPORTS [1960] months and at a uniform rate. Thereupon a consoli- dated reference was made by the Government of West Bi.~: i~;;0~~~· Bengal in September 1956 with respect to
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