Sabyasachi Mukharji, J. - (1.) The subject matter of challenge in this application is an order dated the 24th June, 1977, passed by the Third Industrial Tribunal. It appears that there was a petition dated the 13th May, 1977 for directing the company to produce certain documents specified in paragraph 5 of the said petition. The dispute before the Tribunal was with regard to bonus for two accounting years, namely, 1972-73 and 1973-74. The Company had declared bonus at certain percentage of its annual earnings for those two years, which did not satisfy the union of workmen. The question of bonus was referred to the Tribunal. The company had submitted its profit and loss account to prove that its offer was justified. The union wanted inspection and production of some other documents lying in the custody of the company to show that the company's profit and loss accounts were really not accurate. The company resisted the prayer on the ground that such accounts were presumed to be accurate under Section 23 of the Payment of Bonus Act, 1965. The Tribunal by the impugned order has directed inspection of the documents mentioned in paragraphs 5 and 6 of the petition of the union dated the 13th May, 1977 and has reserved the right of the union to renew its prayer for production of such other documents as might be required or deemed necessary after such inspection. This order is under challenge in this application under Article 226 of the Constitution.
(2.) It would be appropriate to refer to the documents asked for by the workmen and the reasons for their production. The same have been set out in the petition. I need not in detail set out all the items but some of these may be referred to and these are as follows: "1972 - 1973 1. Provision for Bonus in respect of persons drawing gross salary more than Rs. 1,600/- p. a. As the amount of Rs. 2,70,000/- (figure supplied by the company) is payable after determination of profit, or at any event not a legal expense. This amount is an appropriation of profit and should be added to the net profit as per Profit & Loss A/c., which appears to have been not done. This amount needs be verified from the 'Confidential Ledger' maintained by the Company for 1972-73. ii. Depreciation on investments-Rs. 4,32,212/-. The Bonus Act provides depreciation as per section 32 (1) of the Income Tax Act. This section 32 (1) however does not provided for deprecation on the investments. But it has been charged. The circumstances under which the depreciation has been provided needs be verified from the Investment Ledger for 1972-73. iii. Sales Tax written off-Rs. 1.55,022/-. The circumstances under which this amount has been written off should be veried, at it is unusual, from Sales Tax Register for 1972-73. iv. Advances written off-Rs. 17,43,669/-. The circumstances under which this amount has been written off should be verified, as it is unusual from 'Private Ledger No. 1' for 1972-73, Imprest Cash Book with payment vouchers for advance made to the parties concerned. v. Adjustments Accounts Previous year. (a) Purchase (Raw Materials) Rs. 15,40,127/- in 1972-73, the corresponding figure for 1971-72 was Rs. 50,852/- (Printed Accounts Page 17). This huge difference requires scrutiny in full from "Factory Purchase Ledger" for 1972-73 and 1971-72 and respective bills or Journals. (b) Salaries wages & Bonus Rs. 5,11,324/- for 1972-73. The corresponding figure for 1971-72 was nil (Printed Accounts Page 17). This huge difference needs be scrutinised in detail from "Head Office Ex-pense Ledger" for 1972-73 and 1971-72 and salary payment Register for all staff working in GEC of India Ltd." "viii. Deduction regarding depreciation of Rs. 19,68,525/- and development rebate of Rs. 86.181/-. Copy of the Income Tax Return submitted by the Company and copy of the Income Tax Assessment Order thereon for the Assessment year 1973-74 and Asset Register or Inventory Ledger for 1972-73 needs be scrutinised in detail, as according to the decision of the Supreme Court in National & Grindlays Bank Case, the Tribunal has got to be satisfied on proper evidence before him. ix. Sur tax. Income Tax and surcharge of Income Tax should be calculated in relation to gross profits after deduction of depreciation and development rebate arrived at as per Item 8. But surtax should be calculated thereafter allowing certain deduction to be computed in relation to Capital base in accordance with the Second Schedule of the Companies (Profits) Surtax Act, 1964. This calculation" should be made by the Hon'ble Tribunal as per Supreme Court decision in National & Grincllavs Bank Case. "Confidential Ledger" for 1972-73 and necessary Journals for 1972-73 maintained by the Company needs be scrutinised for verification of capital and Reserves." * * * * * * "xii. Capital Expenditure in progress at cost Rs. 3,27,482/- (printed accounts page-3). The details of this expenditure requires scrutiny in respect of (a) materials consumed (b) interest paid regarding financing cost and (c) rent paid for god own used for storing the materials "Confidential Ledger" for 1972-73 maintained by the Company needs be scrutinised in detail. xiii. Cash subsidy for exports Rs. 3,23,614/- (Printed Accounts page-15). "Private Ledger No. 1" for 1972-73 and Export General Ledger for 1972-73 maintained by the Company needs be scrutinised along with relevant Rules, Regulations and Notifications issued by the Government from time to time."
(3.) The first point that was urged in support of this application was that the Tribunal had no power to direct inspection in this case inasmuch as affidavit of documents had not been filed. It was contained that the Tribunal had power only that Civil Courts had and therefore, until affidavit of documents had been filed, the Tribunal did not possess any power to direct inspection. In aid of this submission reliance was placed on the observation in the case of Burn & Co. v. Jitendra Nath Maitra, AIR 1956 Cal. 592 . There Mr. Justice Sinha held in the facts of that case that until affidavit of documents had been filed the Tribunal would not have power to direct inspection. But in that case the documents of which inspection had been directed were neither admitted to be in possession nor were admitted to be relevant. In the instant case neither the possession nor the relevancy of the documents of which inspection has been directed has been disputed by the applicant. Furthermore in this case the inspection has been directed in respect of the dispute arising under the Payment of Bonus Act, 1965. The decision of Mr. Justice Sinha, referred to hereinbefore, was prior to the said Act coming into force. In the background of Payment of Bonus Act, Section 22 of which attracts the provisions of the Industrial Disputes Act, in my opinion, in the light of sub-section (1) of Section 11 of the Industrial Disputes Act where neither possession nor relevancy of the documents, of which inspection is asked for, has be denied or disputed, the Tribunal has the power to direct inspection even prior to the filing of affidavit of documents. I am, therefore, unable to accept this contention urged on behalf of tire petitioner. It was urged on behalf of the respondent that the point had not been taken before the Tribunal and as such the petitioner should be deemed to have submitted to the jurisdiction of the Tribunal and invited a decision of the Tribunal. Therefore, the petitioner was not entitled to agitate that question. However as the contention goes to the root of the jurisdiction, this objection is not open to the respondent. Section 23 of the Payment of Bonus Act is to the following effect:- "23. (1) Where, during the course of proceedings before any arbitrator or Tribunal under the Industrial Disputes Act, 1947, or under any corresponding law relating to investigation and settlement of industrial disputes in force in a State (hereinafter in this section and in Sections 24 and 25 referred to as the 'said authority') to which any dispute of the nature specified in Section 22 has been referred, the balance-sheet and the profit and loss account of employer, being a corporation or company (other than a banking company), duly audited by the Comptroller and Auditor-General of India or by auditors duly qualified to act as auditors of companies under sub-section (1) of Section 226 of the Companies Act, 1956, are produced before it, then, the said authority may presume the statements and particulars contained in such balance-sheet and profit and loss account to be accurate and it shall not be necessary for the corporation or the company to prove the accuracy of such statements and particulars by the filing of an affidavit or by any other mode : Provided that where the said authority is satisfied that the statements and particulars contained in the balance-sheet or the profit and loss account of the corporation or the company are not accurate, it may take such steps as it thinks necessary to find out the accuracy of such statements and particulars. (2) When an application is made to the said authority by any trade union being a party to dispute or where there is no trade union, by the employees being a party to the dispute, requiring any clarification relating to any item in the balance-sheet or the profit and loss account, it may, after satisfying itself that such clarification is necessary, by order, direct the corporation or, as the case may be, the company, to furnish to the trade union or the employees such clarification within such time as may be specified in the direction and the corporation or, as the case may be, the company, shall comply, with such direction.";