- (1.) THIS is an application by the Continental Commercial Co. (Private)Ltd. under Article 226 of the Constitution for a writ of certiorari to quash the award of the Third Industrial Tribunal awarding bonus for the year 1954-1955 and holding that the discharge of the workman Provat Kumar Banerji was without justification and permitting him compensation. The petitioner has challenged the award on both these issues, namely, (1) Bonus and (2) discharge and compensation. On the second issue about the discharge of Banerji and compensation awarded to him, I am of opinion that the question is entirely one of fact and the decision of the Tribunal ought not to be and cannot be interfered with by a constitutional writ in the facts and circumstances of this case. The Tribunal has found as a fact that Sri Banerji was a workman and was not properly and lawfully discharged. Arguments really have been marshaled on the point of bonus. The problem arises in a very acute form on the facts of this case. The issue before the Tribunal was: "bonus for the year 1954-1955 payable in 1956. "
(2.) THE finding of the Tribunal is that there was no available surplus in the year 1954-1955 out of which bonus could be paid. In fact, the Tribunal finds that there was no available surplus but a deficit in that particular year. The allowable charges and deductions were duly made by the Tribunal. The Tribunal also comes to the finding: "if, however, there will be no available surplus profit for the year in question, no bonus can be allowed. " Having come to that conclusion, the Tribunal, however, holds and finds that the workmen are entitled to get bonus of one month's wages in 1956 as a term of employment. On behalf of the petitioner, Mr. Sanyal, contends that this conclusion cannot be sustained in law. It is contended that once it is found that there is no available surplus out of which the bonus can be given, no bonus could thereafter have been allowed. He relies on the decision of the Supreme Court in Muir Mills Ltd. v. Suti Mazdoor Union, (1) (1955) S. C. A. 321 and two other decisions of the Supreme Court on the same point.
(3.) ON behalf of the workers, Mr. Dutt contends and the Tribunal also finds that this conclusion to grant one month's wages as bonus in 1956 as a term of employment is supported by an agreement between the parties dated July 14, 1949, signed by the Company, the workers and the Conciliation Officer. By clause 3 of the terms of settlement, it was provided as follows: "the Company will at the first instance pay an annual bonus equivalent to one month's salary but it will be left to their discretion to pay more if possible. ";