Balakrishna Eradi, J. - (1.) This appeal by Special Leave has been preferred against the Award dated May 8, 1974 made by the Ninth Industrial Tribunal of West Bengal, Durgapur in Case No. X-4 of 1973 on its file. The appellants are two companies incorporated under the Indian Companies Act, 1913 having their registered office in Calcutta. Both the appellants are engaged in the business of generation, transmission, distribution and sale of electricity in certain areas of Bengal and Bihar under licences granted by the concerned Governments. Appellant No. 1 has a power station at Dishergarh and Appellant No. 2 has its power station at Sibpore. In connection with their aforesaid business the two appellants were having at the relevant time 400 and 250 workmen respectively employed under them.
(2.) For the years 1965-66 to 1970-71 (inclusive) bonus was paid to the workmen on the basis of agreements entered into each year under S. 34(3) of the Payment of Bonus Act, 1965 (hereinafter referred to as the 'Act'). Concerning the bonus payable for the year 1971-72, a dispute was raised by the workmen of the two companies and it was referred to conciliation under S. 12(1) of the Industrial Disputes Act, 1947. The contention of the workmen before the Conciliation Officer was that they were entitled to bonus equivalent to three months' basic wages as on March 31, 1972 as customary bonus or in any event as bonus payable under the provisions of the Act. The appellant-companies, on the other hand, contended that the workmen were entitled to only minimum bonus as provided under the Act on a computation being made in the manner laid in the said Act. The said dispute, was ultimately settled before the Conciliation Officer inter alia on the following terms:- "(1) Subject to usual adjustments made in 1969-70 and 1970-71, each eligible workman will be paid an amount equal to three months' basic wages as on 31-3-1970. (2) A sum of Rs. 20,000/- will be distributed equally among all workmen who were on the rolls on 15-8-1972 and have worked for at least 30 days. This will be 'Silver Jubilee Year' payment. (3) The demand of the Union for bonus this year will be referred to a Tribunal for adjudication. (4) The payment should be made by 12-10-1971. Eligible workmen under terms (1) of this settlement (a) Permanent and probationers. Rest of workmen will be paid bonus under the Payment of Bonus Act." Although the said settlement was an agreement under S. 34(3) of the Act since under its very terms as incorporated in Cl. (3), the parties had stipulated for a reference of the question for adjudication by a Tribunal. The issue was accordingly referred by the Government of West Bengal for adjudication to the Ninth Industrial Tribunal of West Bengal by an order of reference dated January 15, 1973.
(3.) In the written statement filed by the workmen before the Ninth Industrial Tribunal they claimed three months' basic wages as on March 31. 1972 as customary bonus or in the alternative 20 per cent of the salary or wages as bonus payable under the Act. The appellants reiterated before the Tribunal the same contentions which they had put forward before the Conciliation Officer. The Tribunal allowed the parties to adduce evidence. After a detailed discussion of the evidence produced before it, the Tribunal recorded a clear finding that the workmen had failed to make out the claim of customary bonus put forward by them and that the said plea had therefore to fail. It was further found by the Tribunal that the plea put forward by the appellant companies that there was no available surplus during the year in question and that only the minimum bonus was payable under the provisions of the Act had to be upheld. The Tribunal, therefore, held that the unions representing the workmen had failed to make out the case put forward by the workmen that the workmen were entitled to maximum bonus of 20 per cent as provided under the Act. After having recorded the aforesaid findings, the Tribunal however proceeded to accept the contention advanced before it by the Council appearing for the workmen that it was legally open to it to substitute for the agreement entered into between the parties before the Conciliation Officer a new contract and pass an award on that basis, if such a step would be conducive to industrial peace. On this reasoning the Tribunal proceeded to observe: "In my opinion, there would not be material alteration in the financial liability of the companies in case the agreement was modified by substituting for the words that the workmen will be paid the amount equal to three months' basic wages as on 31-3-1970 by the words an amount equal to basic wages as on 31-3-1972............I am, therefore, in agreement with this contention of the learned lawyer for the unions that the Tribunal should create a new contract and that is to pass an award of three months' basic wages as on 31-3-1972. This, in my opinion. would be conducive to industrial peace and it would not violate any existing industrial law." Accordingly, the Tribunal passed an award directing the appellant companies to pay to the workmen the balance amount by way of bonus as per the rates calculated by the Tribunal within a month from the date of publication of the award in the Calcutta Gazette. It is the legality of this award that is under challenge in the appeal.;