Vaidialingam, J. - (1.) In this appeal, by special leave, the short question that arises for consideration is whether the appellants are precluded by S. 32 (vii) (a) of the Payment of Bonus Act, 1965 (hereinafter to be referred as the Act) from claiming bonus under the Act in view of the agreement Ex. A5 dated August 30, 1962.
(2.) The respondent Company is a fairly prosperous concern and one of the biggest of its kind in Asia. It has factories at Batanagar in West Bengal, Faridabad the present Haryana State, Digha and Mokamehghat in Bihar and Administrative Offices in Calcutta. It has Central Repair Shops in Calcutta and other places and a Purchasing Depot in Kerala. It has about 900 shops for retail sale scattered throughout the Country besides the wholesale agents. Its branches have a wide market both in this Country as well as abroad. It employs a very large number of workmen in its factory, Administrative Office and Central Repair Shops. The Company and the appellants, represented by its Unions have been entering into various agreements from time to time, the last of which was on August 30, 1962, Ex. A. 5. As per Ex. A 5 the respondent paid bonus for the year 1964 at the rates mentioned therein. The appellants demanded that they should be paid the profit bonus as per the Act in addition to what has been paid as per Ex. A. 5, The Company declined to accede to the demand of the workmen on the ground that the general bonus paid under Ex. A. 5 was an amount paid as production bonus or incentive wages. The Company also pleaded S. 32 (vii) (a) as a bar to the workmen making a claim for payment of bonus under the Act. During the conciliation proceedings the Union and the Company agreed to have the dispute referred for adjudication to the Industrial Tribunal. Accordingly, the State Government on June 25, 1966, referred to the Third Industrial Tribunal, West Bengal for adjudication of the following dispute: "Whether the employees of the Company represented by Bata Mazdoor Union are entitled to Bonus for the year, 1964 under the Payment of Bonus Act, 1965 in addition to the Bonus paid to them and whether in view of the Agreement dated the 30th August,1962, between the Union and the Company for payment of Bonus, the Payment of Bonus Act, 1965 is applicable to such employees."
(3.) Before the Tribunal the appellants' plea was that the amount paid under the agreement Ex. A 5 is an ad hoc or an ex gratia payment made out of charity and as a supplement to the wages and that it was not a bonus linked with production or productivity. It was not an annual payment, nor was it paid in lieu of bonus based on profits. The workmen accepted the position that the general bonus paid under the agreement was neither customary nor a profit bonus nor a bonus as an implied term of contract. On all these grounds the workmen pleaded that S. 32 (vii) (a) is no bar to their claim for bonus under the Act.;