Bhargava, J. - (1.) This appeal by special leave is directed against an Award of the Industrial Tribunal, Madras, in a dispute relating to payment of bonus under the Payment of Bonus Act, 1965 (No. 21 of 1965) thereinafter referred to as "the Act") . The respondent in the appeal is the employer, William Jacks and Co. Ltd., Madras, while the appellant is the William Jacks and Co. Employees' Union, Madras representing the workmen employed by the respondent. The appellant claimed that for the two calendar years 1964 and 1965, the workmen were entitled to bonus at the maximum rate of 20 per cent of their annual wages while the respondent Co. put forward the case that there was no available surplus and, consequently, the liability to pay bonus for these two years could not exceed the minimum of 4 per cent of the wages. It may be mentioned that the respondent Co. is a Branch of William Jacks and Co. Ltd. registered in England with Head Office in London. It appears that in India this Company has three offices. One is in Calcutta which also functions as the Regional Head Office for all the three Branches in India. The other two Branches are in Bombay and in Madras, the latter being the branch to which the dispute about bonus related. The Company is carrying business as engineers, manufacturers, representatives and general merchants. The business of the Company includes the buying of locally manufactured machinery and other products and selling them to both private and public sector industries. The income of the Company is derived primarily from the sale of imported and indigenous goods at a profit. In addition, the Branch at Madras earns commission credited by London Office on direct shipments from London to customers within the areas served by the Madras Branch as well as commission on sale of indigenous products, repairs and servicing of equipment sold and by local purchase and sale. These features of the business have been enumerated by us as they may have bearing on some of the questions raised in this appeal.
(2.) During the hearing of the reference before the Tribunal, the Company filed its balance-sheets, profit and loss account, and calculations of available surplus in accordance with the provisions of the Act and its schedules showing that there was no available surplus, so that bonus in excessess of 4 per cent was not payable by it. These calculations were challenged on various grounds before the Tribunal, but none of them was accepted and the Award was based on the calculations filed on behalf of the Company. In this appeal before us, learned counsel appearing on behalf of the appellant has challenged the calculations in respect of seven different items, and we proceed to deal with them in the order in which they were argued by him.
(3.) The first claim on behalf of the appellant was that there should be an add back of an estimated sum of Rs. 40,000/-, which was received as direct commission paid by the manufactures to the London Office for the benefit of the Branch at Madras, in calculating the gross profits on the basis of which available surplus is to be worked out. On this point, the Tribunal in its award did not give any specific finding, thorough after mentioning this argument raised before it, the Tribunal still proceeded to accept the Company's witness, M.W. 1, Thiru S.S. Mani who stated that the direct commission received by this Company relating to this Branch is credited in the accounts of this Branch. The amount of commission received by the Company is included under the head "Commission " in the Profit and Loss Account. In 1964 the sum of Rupees 8,80, 504/- and, in 1965 the sum of Rs. 7,46,391/- include the direct commission. According to his evidence, therefore, the direct commission has already been taken into account in calculating the gross profits, and no question can arise of any add back. There is no cross-examination on this point on behalf of the appellant, nor has any evidence been led by the appellant to show that the statement of this witness is incorrect. In the circumstances, this claim has to be rejected.;