Chinnappa Reddy, J. - (1.) The All India Voltas and Volkart Employees Federation are the appellants before us. The very limited question with which we are concerned is whether the amount paid by the company during years 1964-65 and 1965-66 under a scheme styled as, 'Superannuation Scheme Special Retiring Gratuity Scheme' is to be added back as "bonus to employees" as mentioned in Item 2(a) or "bonus paid to employees in respect of previous accounting years" as mentioned in Item 3(a) of the Second Schedule to the Payment of Bonus Act, 1965 for the purpose of computing the gross profits under See. 4(b) of the Act. The question has been answered in the negative by the National Industrial Tribunal on a reference under Sec. 10(2) of the Industrial Disputes Act and by the High Court of Bombay in an application under Arts. 226 and 227 of the Constitution. The workmen have preferred this appeal on a certificate by the High Court of Bombay under Art. 133 of the Constitution.
(2.) The relevant paragraphs of the 'Superannuation Scheme-Special Retiring Gratuity Scheme' are paragraphs 4, 5 and 6 which are as follows: "4. Subject to such exemptions as may be granted by General Management, membership of the Superannuation Scheme will be compulsory for all employees drawing a basic salary of Rs. 500/- per mensem and above and optional for all other categories of staff. Once the option is exercised to join the scheme, the concerned employee cannot opt out of it. 5. It will be appreciated that as the company agreed to contribute under normal trading conditions up to two months' basic salary of each member of the Superannuation Scheme, this by itself affords substantial security to those who become members of the scheme, since it means that such members are guaranteed for so long as the Superannuation Scheme continues, the equivalent pension benefits. It must be made clear that a condition precedent to joining the Superannuation Scheme is that each member of the Scheme will be called upon to agree in writing not to participate in the annual bonus distributed by the Company and be bound by this for the remainder of his service with the Company. The form of letter to be taken from the concerned employee is referred to in paragraph 6 below. 6. In consideration of members of the Superannuation Scheme agreeing in writing not to participate in the annual bonus distributed by the Company, a Special Retiring Gratuity Scheme will be started for the benefit of such employees and they will, thereafter, be eligible upon retirement, death or termination of service for any reason whatever, to a special Retiring Gratuity of such amount and payable in such instalments as the Directors may at their discretion fix, having regard to the amount of bonus the employee would have received in the course of his service, if they had continued to participate in the distribution of bonus out of annual profits. A form of letter to be taken from the concerned employees who agree not to participate in the annual distribution of bonus is attached herewith and is marked Annexure 'A'."
(3.) While employees drawing a basic salary of Rs. SW/- or more were obliged to participate in the Scheme, employees drawing a basic salary of less than Rs. 500/- had an option to join or not to join the Scheme. Those employees who did not desire to join the Scheme but preferred to receive an annual bonus were required to execute a letter in a. form which was prescribed:The form was as follows: "The Managing Director and General Manager, Voltas Limited, Ballard Estate, Bombay 1. Dear Sir, Special Retiring Gratuity Bonus As I do not desire to participate in the benefits the Special Retiring Gratuity Scheme effective from Ist September, 1960 I request that I may be permitted to receive in lieu thereof, an annual bonus as may be sanctioned, by the Directors at their sole discretion., 2. The above request, if granted by the Company, will be irrevocable as far as I am concerned. Yours faithfully";