Fazl Ali, C J - (1.) The principal point to be decided in these two appeals is whether the expression "wages" as used in the Workmen's Compensation Act includes such profit sharing bonus as is granted by the Tata Iron and Steel Co. Ltd., to their empolyees under a scheme introduced by the Company some time ago. The details of the scheme are set out in two notices which are issued by the Genera Manager of the Company to the employees of the Company on 27 May and 31st May 1937 respectively. The first notice, after stating that the Directors of the Company have decided to introduce a regular profit sharing scheme in the interests of the employees so that in good years the employees will be receiving a share of the profits on a definite scale, proceeds to describe the manner in which the profit sharing bonus is to be computed. The notice of 31 May 1937 states among other things that: those employees will be entitled to the profit sharing bonus who have been in the continuous employment of the Company throughout the company's official year to which it applies and that if the employee's service has terminated between the end of the year and the first payment date, he (or in the ease of a deceased employee, the person or persons entitled to it) may claim payment of the full bonus amount on that date.
(2.) I will now briefly narrate the facts with which we are concerned in the two appeals. Miscellaneous Appeal No. 194 has been preferred by the Company against one Kanhai Zaria Ganera and is directed against the decision of Mr. Barr, a Commissioner under the Workmen's Compensation Act holding that the profit sharing bonus should be included in the assessment as part of the wages for the purpose of determining the compensation payable to the workman concerned. It appears that the respondent while in the employment of the Company injured his right elbow in July 1942. The injury was at first diagnosed as a sprain, but it was subsequently found that the elbow had been slightly fractured and the workman had been permanently disabled below the elbow. The commissioner has assessed the loss of the earning capacity of this workman at ten per cent and this finding having been accepted before us the only question which we have been asked to determine is whether the Commissioner is right in holding that in assessing compensation the profit sharing bonus should be taken into consideration. In Misc. Appeal No. 362 the appellant is the husband of a deceased female workman named Nagi Tanti. This workman received certain injuries in an accident arising out of and in the course of her employment on 20 June 1942 and died as a result of those injuries. She used to receive wages at the rate of seven annas six pies per day together with a dearness allowance of Rs. 4 per month and also an emergency bonus of Rs. 5 per mensem. Under the profits sharing scheme, to which reference has been made, she was entitled to a profit sharing bonus of three months wages per year of service. The appellant claimed compensation as a dependent of Nagi Tanti deceased and prayed that the profit sharing bonus should be included in the assessment of the compensation. This claim was resisted by the Company and the objection of the Company has been upheld by the learned Commissioner. Thus it appears that in one, of the cases the learned commissioner has held that the term "wages" includes profit sharing bonus and in the other case he has held that it does not. The question to be decided is, which of the two views is correct. Section 2, Clause (1), Sub-clause (m), Workmen's Compensation Act, runs as follows: Wages includes any privilege or benefit which is capable of being estimated in money other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer of a workman towards any pension or provident fund or a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment.
(3.) In his order under appeal in Misc. Appeal No. 362 of 1943, the learned Commissioner has referred to the definition of wages in Section 2, Clause (6), Payment of Wages Act, but with this definition we are not concerned in the two appeals before us. The whole question is whether the expression "wages" as used in Section 2, Clause (1), Sub-clause (m) includes profit sharing bonus. This clause mentions certain exceptions which are expressly excluded from the definition of wages. The profit sharing bonus does not come within the exceptions. It is certainly a privilege or benefit capable of being estimated in money and is therefore apparently covered by the definition of wages as given in Sub-clause (m) of Section 2. But it is contended that the basic idea underlying the expression "wages" is that it must be something payable under a contract of service and in lieu of the work done by a particular workman and therefore it cannot include something which is payable at the will and discretion of the employer independently of the contract of service and which is conditional upon the happening of certain events which may or may not happen every year (e.g. the prosperous working of the Company).;