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PETITIONER: STANDARD VACUUM REFINING CO.  OF INDIA

       Vs.

RESPONDENT: ITS WORKMEN AND ANOTHER.

DATE OF JUDGMENT: 20/01/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS

CITATION:  1961 AIR  895            1961 SCR  (3) 536  CITATOR INFO :  F          1961 SC 917  (11)  R          1963 SC1332  (5,6)  E          1966 SC 305  (27)  R          1986 SC 237  (8)  R          1992 SC 504  (22,23,24)

ACT: Industrial dispute-Bonus-Living Wage, determination of.

HEADNOTE: The  workmen claimed bonus for the year 1956  equivalent  to nine months’ total earnings on the ground that the employers had admitted their capacity to pay and that there was a  big gap between the wage actually received and the living  wage. The employers contended that they were paying the workmen  a living  wage and they were not entitled to any  bonus.   The employers relying mainly on the Report of the Textile Labour Committee, 1940, contended that if the living wage in  1940, i.e., Rs. 55/- was multiplied by 35 (due to rise in  prices) it gave Rs. 192.50 as the living wage in 1956 and they  were paying  their workmen at a higher rate.  The workmen  relied on  the  recommendations of the  Indian  Labour  Conference, 1957,  to show that Rs. 209.70 approximated to the  standard of  the  need-based minimum wage and that the  average  wage paid  by  the  employers was nothing more  than  this.   The Tribunal  held that the wages paid were fair but that  there was still a gap between the actual wage and the living  wage and awarded bonus equivalent to five months’ basic wages. Held,  that the employers had failed to establish that  they were  paying  a living wage to the workmen.   In  construing wage  structure  the  considerations  of  right  and  wrong, propriety and impropriety, fairness and unfairness are  also taken into account to some extent.  As the social conscience of  the general community becomes more alive and active,  as the  welfare policy of the State takes a more dynamic  form, as the national economy progresses from stage to stage,  and as  under the. growing strength of the trade union  movement collective  bargaining  enters  the  field,  wage  structure ceases  to  be  a purely arithmetical  problem.   Wages  are usually  divided  into  three broad  categories:  the  basic minimum  wage,  the  fair wage and  the  living  wage.   The

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concept of these three wages cannot be described in definite words  ,is their contents are elastic and vary from time  to time and from place to place.  The concept of a living  wage is  not a static concept; it is expanding and the number  of its constituents and their 537 respective  contents are bound to expand and widen with  the development  and growth of national economy.  In  an  under- developed  country no wage structure could be  described  as reaching the ideal of a living wage.  It is unreasonable and unsafe to treat the Report of the Textile Labour  Committee, 1940, as to the monetary value of the living wage in 1940 as sound.  The figure reached by the committee in 1940 did  not represent anything like a living wage; it really represented the  minimum  need  based  wage.   Besides,  the  method  of multiplying the figure by 35 was materially defective ;  the proper  approach  was to evaluate each  constituent  of  the concept  of the living wage in the light of the present  day prices.  Even the highest average wage paid by the employers was much below the standard of the living wage though it was above the need-based minimum. Express  Newspapers  (P.)  Ltd. v. Union  of  India,  [1959] S.C.R.  12,  Standard Vacuum Oil Company v.  Their  Workmen, [1952]  1 L.L.J. 839, Burmah Shell, etc., Oil  Companies  in Madras  v. Their Employees, [1954]  L.L.J. 782,  Woykers  of S.V.O.C.,   Ltd.  (Standayd  Vacuum  Employees’  Union)   v. Standard  Vacuum  Oil  Co. Ltd., [1957] 1  L.L  J.  165  and Standard  Vacuum  Oil Company v. Their Employees,  [1954]  1 L.L.J. 484, referred to. Burmah-Shell  Oil  Storage and Distributing  Co.  of  India, Ltd.,  Bombay  v.  Their  Workmen,  [1953]  2  L.L.J.   246, approved. Quaeye:-Whether the workmen would be entitled to bonus  even if a living wage is paid to them by the employers. Muir  Mills  Co. Ltd. v. Suti Mills Mazdoor  Union,  Kanpur, [1955]  1 S.C.R. 992 and Syee Meenakshi Mills Ltd. v.  Their Workmen, [1958] S.C.R. 878, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 416 of 1958 and 19 of 1959. Appeals  by special leave from the Award dated  January  13, 1958,  of the Industrial Tribunal, Bombay, in Reference  (I. T.) No. 218 of 1957. M.   C.  Setalvad,  Attorney-General for India, N.  A.  Pal- khivala, G. B. Pai and G. Gopalakrishnan, for the  appellant (In C.A. No. 416 of 58) and respondent No. 1 (In C.A. No. 19 of 1959). H.   R.  Gokhale,  S. B. Naik and K. R. Choudhury,  for  the respondent No. 1 (In C.A. No. 416 of 1958) and appellant (In C.A. No. 19 of 1959). 1961.  January 20.  The Judgment of the Court was  delivered by GAJENDRAGADKAR, J.-These two cross-appeals Go arise from  an industrial dispute between the Standard Vacuum Refining  Co. of India Ltd. (hereafter called 538 the  appellant)  and  its  workmen  (hereafter  called   the respondents).   This  dispute related to a claim  for  bonus made  by the respondents against the appellant for the  year commencing on January 1, 1956, and ending with December  31, 1956.   The respondents claimed that for the  relevant  year they  were  entitled to receive by way of bonus  their  nine

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months’  total  earnings  inclusive of  all  allowances  and overtime  and  extra-time earnings.  After this  demand  was made the conciliation officer attempted conciliation between the  parties but his efforts failed, and so he  submitted  a failure  report  under s. 12(4) of the  Industrial  Disputes Act,  1947  (XIV of 1947).  The Government  of  Bombay  then considered the said report and was satisfied that there  was a  case for reference of the said dispute to  the  Tribunal. That  is how the present reference came to be made under  s. 12(5) of the Act,. The respondents who have made the present claim include  648 employees; amongst them 524 are operatives and 124 belong to the  clerical cadre.  Before the Tribunal  the  respondents’ case  was  that  during  the  conciliation  proceedings  the appellant  had admitted its capacity to pay and to meet  the entire claim of bonus made by them; and so it was urged that it was unnecessary to screen the respondents’ claim  through the  Full  Bench  formula.  They further  alleged  that  the appellant  was not paying a living wage to  the  respondents and  there  still  remained a large  gap  between  the  wage actually received by them and the living wage to which  they would  be ultimately entitled. According to the  respondents their claim for bonus should be examined solely by reference to the gap which had to be filled up between the two  wages; and  in determining the amount of bonus all  the  legitimate requirements   of  the  respondents  should   be   carefully considered. This  claim  was  denied by the appellant.   It  denied  the respondents’ allegation that during conciliation proceedings it  had  admitted its capacity to pay the entire  amount  of bonus  claimed  by the respondents.   It  then  specifically averred that in law the respondents were not entitled to any bonus because the 539 appellant  was paying them a living wage and so one  of  the essential  conditions for the payment of bonus, namely,  the need to fill the gap between the actual wage and the  living wage was absent in the present case.  The appellant then set out its calculations in regard to the average wages paid  to the  different categories of respondents and  supported  its plea  that they were not entitled to any bonus at  all.   It may be added that the appellant had already voluntarily paid three  months’  basic  wages to the respondents  by  way  of bonus,  but since the respondents were making a much  larger claim  the  appellant  thought it necessary  to  raise  this general  issue  of law and to contend that  the  respondents were not entitled to any bonus at all. On  these  pleadings the Tribunal had to consider  the  said question  of law, but it appears that the material  produced before it was so limited and meagre that it thought it would not  be  possible to arrive at any definite opinion  on  the question  of what is the living wage in  Bombay;  apparently the Tribunal also thought that it was unnecessary to do  so, because  it  has observed that the present dispute  did  not relate  to  wage  scales and that the  living  wage  was  an illusive  concept.  Even so, having broadly  considered  the contentions raised by the appellant it held that " the wages are fair but there is still in a large number of cases a gap between  the  actual  wage and the  living  wage."  On  this finding   the  Tribunal  proceeded  to  examine  the   other contentions  raised by the parties in regard to the  quantum of  bonus  which  should  be  awarded  and  it  reached  the conclusion  that  the respondents were entitled  to  receive five  months’ basic earnings " excluding dearness and  other allowances  and overtime " as bonus for the  relevant  year.

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Accordingly  it  has made an award to that  effect  and  has issued appropriate directions in that behalf.  This award is challenged  by the appellant in its Civil Appeal No. 416  of 1958, and it is urged by the learned Attorney-General on its behalf that the tribunal should have held that the appellant was  paying a living wage to the respondents and that  there was no case for 540 awarding  any  bonus to the respondents at  all  during  the relevant year.  On the other hand the respondents  challenge the  award by their Civil Appeal No. 19 of 1959, and  it  is urged  by Mr. Gokhale on their behalf that the tribunal  was in error in not awarding the respondents a higher bonus than five months’ basic wages.  That is how the two cross-appeals arise from the award under appeal. The  learned  Attorney-General has criticised  the  approach adopted  by  the tribunal in dealing with  the  question  of living  wage.   He contends that it was necessary  that  the tribunal   should  have  carefully  examined  the   material produced  before it and should have made a definite  finding one  way  or the other.  He commented on the fact  that  the finding  is vague and indefinite, and he has contended  that the tribunal should have made it clear as to what it exactly meant when it observed that in a large number of cases a gap between the actual wage and the living wage subsisted.  This criticism is partly justified.  We think it would have  been better if the tribunal had addressed itself to the  question raised  before it by the appellant and made a more  definite and precise finding.  In this connection, it must,  however, be added that the oil companies have been raising this  plea for  some  years  past and the plea  has  been  consistently rejected  by tribunals during all these years.  The  present tribunal  itself  has had occasion to deal  with  this  plea raised by the oil distributing companies, and since the plea had  never succeeded in the past and no material change  had been proved in regard to the relevant year the tribunal  was probably  disinclined to treat the plea very  seriously  and that may explain the approach adopted by it in dealing, with the said plea in the present proceedings. Besides,  the tribunal took the view, and we think  rightly, that  the material produced by the appellant in  support  of its  plea  is  wholly insufficient and  meagre.   The  point raised is one of general importance and any positive finding on  the  content  of the concept of a  living  wage  in  the context   of   today  would  naturally   affect   industrial adjudication in regard to claims of 541 bonus in all industries.  That is why, if the appellant  was serious  about its contention that the living wage  standard had  been  reached  in its wage  structure  it  should  have produced more satisfactory evidence which would have enabled the tribunal to attempt the task of concretely defining what the  concept of living wage means in the context  of  today. Absence  of  sufficient and satisfactory material  may  also explain the approach adopted by the tribunal in dealing with this issue. At  the  hearing  before  us  the  learned  Attorney-General suggested  that  we  should remand the case  to  enable  his client  to lead further and more satisfactory evidence.   We have  rejected this request.  The appellant knew fully  well the implications of the plea raised by it and the very large issue  which the tribunal would have to consider in  dealing with  the  merits of the said plea.  If  the  appellant  was content to support its plea on certain material and did  not attempt  to lead more satisfactory evidence it cannot  blame

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the  tribunal  for dealing with the matter on  the  material such  as it was.  In such a case it would be futile for  the appellant to ask for indulgence from this Court at this late stage.   It  is admitted that the appellant has  paid  three months’ basic wages as bonus to the respondents  voluntarily for  the relevant year, and we were told that  an  agreement has been reached between the parties in respect of bonus for subsequent years until 1963.  They have agreed that for  the two  succeeding years the decision of this Court will  apply and for five years thereafter a specific agreement has  been reached for raising the wage-structure and providing for the payment of bonus at the agreed rate.  The learned  Attorney- General  faintly suggested that the appellant has agreed  to pay  bonus  voluntarily in this manner but  the  payment  is gratuitous and should not affect the main plea raised by  it in the present proceedings.  Even so, the question raised by the  appellant sounds academic and unrealistic, and that  is another reason why it is not entitled to the indulgence  for which  the learned Attorney-General has pressed  before  us. We would, therefore, deal with the point 542 seriously urged before us on behalf of the appellant on  the material  produced before the tribunal and  such  additional material as was brought to our notice. At the outset it is necessary to state that the plea  raised by  the  appellant  assumes that as soon as  a  living  wage standard  has  been  reached by any  employor  it  would  be unnecessary for him to pay any bonus to his employees.   The learned   Attorney-General  has  naturally  relied  on   the decisions  of  this  Court  as  well  as  the  decisions  of industrial  tribunals  in support of his argument  that  the Full  Bench  formula  which governs the  decision  of  bonus disputes   postulates  that  a  claim  for  bonus   can   be entertained  if two conditions are satisfied;  the  employer must have made profit in the relevant year, which after  the deduction  of  prior  charges  leaves  sufficient  available surplus; and there must be a gap between the wages  actually paid  to  the employees and the living wage  standard  which they  hope  to reach in due course.  In dealing  with  bonus claims  industrial adjudication has so far proceeded on  the assumption  that in the making of profits labour  makes  its contribution,  and that since it is not receiving  a  living wage it is entitled to claim that the gap between the actual and  the  living wages should be filled by  the  payment  of bonus  for each relevant year; that no doubt appears  to  be the  result  of the relevant decisions on the  point  (Vide: Muir Mills Co. Ltd. v. Suti Mills Mazdoor Union, Kanpur (1); The Sree Meenakshi Mills Ltd. v. Their Workmen (2).  We will revert  to  this point later.  Meanwhile let us  proceed  to examine  the merits of the contention that the appellant  is paying the respondents a living wage. It  is  well known that the problem of wage  structure  with which  industrial  adjudication  is concerned  in  a  modern democratic  State involves on the ultimate analysis to  some extent ethical and social considerations.  The advent of the doctrine  of  a  welfare  State  is  based  on  notions   of progressive  social philosophy which have rendered  the  old doctrine  of  laissez-J faire obsolete.  In  the  nineteenth centurv the relation be.: tween employers and employees were usually governed (1) [1955] 1 S.C.R. 991. (2) [1958] S.C.R. 878, 884. 543 by  the  economic principle of supply and  demand,  and  the employers thought that they were entitled to hire labour  on

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their terms and to dismiss the same at their choice  subject to the specific terms of contract between them, if any.  The theory  of  "  hire and fire " as well as the  theory  of  " supply and demand " which were allowed free scope under  the doctrine  of  laissez-faire no longer hold  the  field.   In constructing  a  wage structure in a given  case  industrial adjudication   does  take  into  account  to   some   extent considerations   of   right   and   wrong,   propriety   and impropriety,   fairness  and  unfairness.   As  the   social conscience  of the general community becomes more alive  and active,  as  the welfare policy of the State  takes  a  more dynamic form, as the national economy progresses from  stage to  stage,  and as under the growing strength of  the  trade union movement collective bargaining enters the field,  wage structure  ceases  to  be  a  purely  arithmetical  problem. Considerations of the financial position of the employer and the  state  of  national economy have  their  say,  and  the requirements  of  a  workman  living  in  a  civilised   and progressive  society also come to be recognised.  It  is  in that  sense,  and  no doubt to a limited  extent,  that  the social philosophy of the age supplies the background for the decision  of industrial disputes as to wage  structure.   As Mrs. Barbara Wootton has pointed out, the social and ethical implications  of the arithmetic and the economics  of  wages cannot be ignored in the present age (1). It  is  because  of this socioeconomic aspect  of  the  wage structure  that industrial adjudication postulates  that  no employer can engage industrial labour unless he pays it what may be regarded as the minimum basic wage.  If he cannot pay such  a  wage  he  has no right to  engage  labour,  and  no justification for carrying on his industry; in other  words, the  employment  of  sweated labour which  would  be  easily available to the employer in all undeveloped and even under- developed  countries  is ruled out on the  ground  that  the principle of supply and demand has lost its validity in the (i)  "  The Social Foundations of Wage Policy "  by  Barbara Wootton-Allen &     Unwin. 1955. 70 544 matter  of  employment of human labour, and that it  is  the duty of the society and the welfare State to assure to every workman engaged in industrial operations the payment of what in the context of the times appears to be the basic  minimum wage.  This position is now universally recognised. In dealing with wage structure it is usual to divide   wages into  three broad categories: the basic minimum wage is  the bare subsistence wage; above it is the fair wage, and beyond the fair wage is the living wage.  It would be obvious  that the  concepts  of these three wages cannot be  described  in definite  words because their contents are elastic and  they are  bound  to vary from time to time and  from  country  to country.   Sometimes the said three categories of wages  are described  as the poverty level, the subsistence  level  and the comfort or the decency level.  It would be difficult and also  inexpedient to attempt the task of giving an  adequate precision to these concepts.  What is a subsistence wage  in one  country  may appear to be much  below  the  subsistence level  in another; the same is true about a fair wage and  a living  wage;  what  is a fair wage in one  country  may  be treated  as  a living wage in another, whereas what  may  be regarded as a living wage in one country may be no more than a fair wage in another.  Several attempts have  nevertheless been  made  to  describe generally  the  contents  of  these respective concepts from time to time.  The most  celebrated of  these  attempts was made by Mr. Justice Higgins  in  his

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judgment in 1907 in a proceeding usually referred to as  the Harvester  Case.  Sitting as President of  the  Commonwealth Court  of  Conciliation and Arbitration, the  learned  Judge posed  the question as to what is the model or criterion  by which fairness or reasonableness is to be determined, and he answered  it by saying that " a fair and reasonable wage  in the  case  of  an  unskilled labourer  must  be  ail  amount adequate  to cover the normal needs of the average  employee regarded as a human being living in a civilised  community." (1) (1) Cited by Foender in "Better Employment Relations", 1994, PP. 177, 178, 545 In  their  work " Industrial Democracy " published  in  1920 Sidney  and Beatrice Webb observed that "there is a  growing feeling  not  confined  to trade  unionists  that  the  best interests   in  the  community  can  only  be  attained   by deliberately  securing to each section of the workers  those conditions  which  are  necessary  for  the  continuous  and efficient  fulfilment  of  its particular  function  in  the social machine " (p. 590). In 1919 the Commissioner of the Bureau of Labour  Statistics conducted a tentative budget enquiry in the United States of America,  and analysed the objects with reference  to  three concepts, namely, the pauper and poverty level, the  minimum of  subsistence level and the minimum of health and  comfort level; the last was taken for determining the standard of  a living wage.  This classification was approved by the  Royal Commission  on  the  Basic  Wage  for  the  Commonwealth  of Australia,  and  it  proceeded  through  norms  and   budget enquiries  to  ascertain what the minimum of  comfort  level should   be.   The  Commission  quoted  with  approval   the description  of  minimum  health and comfort  level  in  the following terms : "  This  represents  a slightly higher level  than  that  of subsistence,  providing not only for the material  needs  of food,  shelter  and  body covering,  but  also  for  certain comforts such as clothing sufficient for bodily comfort, and to  maintain  the  wearer’s  instinct  of  self-respect  and decency,   some   insurance  against  the   more   important misfortunes-death,  disability and fire-good  education  for the children, some amusement, and some expenditure for self- development " (1). According  to the United Provinces Labour Enquiry  Committee wages  were classified into four categories, poverty  level, minimum  subsistence level, the subsistence plus level,  and the comfort level (2).  The third category would approximate to  the  fair  wage,  and the fourth  to  the  living  wage. According  to  the South Australian Act of 1912  the  living wage means " a sum (1)  Cited  in  the Report of the Committee  on  Fair  Wages published by the Government of India, Ministry of Labour-pp. 5 and 6. (2) Ibid. p. 6. 546 sufficient  for  the  normal and  reasonable  needs  of  the average  employee  living  in a locality  where  work  under consideration is done or is to be done ". On the other hand, the  Queensland Industrial Conciliation and Arbitration  Act provides that the basic wage paid to an adult male  employee shall  not be less than is " sufficient to maintain a  well- conducted   employee   of  average  health,   strength   and competence, and his wife and’ a family of three children  in a fair and average standard of comfort, having regard to the conditions  of  living  prevailing among  employees  in  the

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calling  in respect of which such basic wage is  fixed.  and provided that in fixing such basic wage the earnings of  the children  or wife of such employee shall not be  taken  into account " (1). The  Fair  Wages  Committee which made its  Report  in  1949 broadly accepted the view expressed by the Royal  Commission on the basic wage for the Commonwealth of Australia which we have  already  cited.   According to the  Committee,  "  the living  wage  should enable the male earner to  provide  for himself  and  his family not merely the bare  essentials  of food,  clothing and shelter but a measure of frugal  comfort including  education  for the children,  protection  against ill  health, requirements of essential social needs,  and  a measure of insurance against the more important  misfortunes including old age (2)." The Committee emphasised that "  the minimum wage must provide not merely for the bare sustenance of  life but for the preservation of the efficiency  of  the worker.  For this purpose the minimum wage must also provide for  some  measure of education,  medical  requirements  and amenities " (3). In  this  connection  it would be useful  to  refer  to  the observations made by Philip Snowden in regard to the concept of living wage.  These observations are generally cited with approval by industrial tribunals.  Said Snowden, " it may be possible to give (1)  Cited  in  the Report of the Committee  on  Fair  Wages published by the Government of India, Ministry of  Labour-p. 5. (2)  Ibid.  P. 7. (3)  Cited  in  the Report of the Committee  on  Fair  Wages published by the Government of India, Ministry of Labour-p. 8. 547 a  precise or satisfactory definition of a living wage,  but it expresses an idea, a belief, a conviction, a demand.  The idea  of  a living wage seems to come from the  fountain  of justice  which no man has ever seen, which no man  has  ever explained,  but  which we all know is an  instinct  divinely implanted  in the human heart.  A living wage  is  something far  greater than the figures of a wage schedule.  It is  at the’  same time a condemnation of unmerited and  unnecessary poverty  and a demand for some measure of justice  (1)."  On the  problem of converting the concept of living  wage  into monetary  terms this is what Snowden had said: " The  amount of the living wage in money terms will vary as between trade and  trade, between locality and locality.  But the idea  is that every workman shall have a wage which will maintain him in  the highest state of industrial efficiency,  which  will enable  him  to  provide his family with  all  the  material things which are needed for their health and physical  well- being,  enough  to enable him to qualify  to  discharge  his duties as a citizen"(2).  It is in this broad and idealistic sense  that Art. 43 of the Constitution has referred to  the living wage when it enunciates the Directive Principle  that the State shall endeavour, inter alia, to secure by suitable legislation, or economic organisation, or in any other  way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of  life  and  full  enjoyment of  leisure  and  social  and cultural  opportunities.   This Court  has  recognised  this idealistic  position  of the concept of living wage  in  the case  of Express Newspapers (Private) Ltd. v. The  Union  of India (3). It  would thus be obvious that the concept of a living  wage is  not a static concept; it is expanding and the number  of

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its constituents and their respective contents are bound  to expand and widen with the development and growth of national economy.  That is why it would be impossible to attempt the (1)  Philip Snowden " The Living Wage ", p. 1. (2)  Ibid. p. 6. (3)  [1959] S.C.R. 12, 79-82. 548 task  of  determining the extent of the requirement  of  the said  concept  in the context of today in terms  of  rupees, annas  and pies on the scanty material placed before  us  in the  present  proceedings.  We apprehend that  it  would  be inexpedient and unwise, to make an effort to concretise  the said   concept  in  monetary  terms  with  any   degree   of definiteness or precision even if a ’fuller enquiry is held. Indeed,  it  may be true to say that in  an  under-developed country  it would be idle to describe any wage structure  as containing  the  ideal of the living wage,  though  in  some cases  wages  paid  by certain employers may  appear  to  be higher than those paid by others.  As observed in its Report by the Commission of Enquiry on " Emoluments and  Conditions of  Service  of Central Government Employees, 1957-59  ",  " taking  a standard family as consisting of four  members  of whom  only one is an earner, the average income of a  family at the highest figure during the nine years ending in  1957- 58 would work out at Rs. 1,166/- per annum or about Rs. 97/- per mensem.  The minimum wage cannot be of the order of  Rs. 125/when on the basis of the national income the average for a  family  works  out  only  to  Rs.  97/-  per  mensem.   " Therefore,  looking at the problem of industrial wages as  a whole  it would-not be possible to predicate that  our  wage structure has reached even the level of a fair wage.  It  is possible  that even so some employers may be paying  a  very high wage to their’ workmen, and in such a case it would  be necessary  to examine whether the wages paid approximate  to the  standard  of  the living wage;  but  in  deciding  this question  the proper approach to adopt would be to  consider whether  the wage structure in question  even  approximately meets the legitimate requirements of the components  consti- tuting  the concept of a living wage.  For that  purpose  it may not be essential, and on the material produced before us it is not even possible, first to determine what in terms of money  those  constituents would denote in  the  context  of today.   The  learned Attorney-General’s  argument  that  we should first determine independently what amount in terms of rupees,  annas  and pies would be treated as a  living  wage today 549 obviously  ignores  the complexity of the  problem  and  the poverty  of  the material adduced by the  appellant  in  the present proceedings. There  is another aspect of this question to which  we  must incidentally refer.  We are dealing with the contents of the living  wage  in the present appeal not for the  purpose  of fixing  a  wage  structure; the  contention  raised  by  the appellant  is that since the wages paid to  the  respondents have  reached  the stage of a living wage there  is  no  gap between the actual wage and the living wage, and so there is no  occasion to make a claim for bonus.  While dealing  with this contention there would be no justification for ignoring the idealistic character of the living wage is specified  in Art. 43 of the Constitution ; and so, it would be  necessary to enquire whether the wage in question satisfies the  tests laid down by the Royal Commission on the basic wage for  the Commonwealth  of  Australia which has been endorsed  by  the Fair  Wages Committee’s Report and broadly approved by  this

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Court  in  the Express Newspapers’ case (1).   The  question which  we  must now consider is whether  the  appellant  has succeeded in showing that its wage structure has reached the standard of the living wage which has been specified as  one of the ultimate objectives by Art. 43 and which is the ideal that  the working population of the country hopefully  looks forward  to achieve.  It is no doubt a bold and  tall  claim but the learned Attorney-General contends that the appellant has succeeded in substantiating the said claim. Before the tribunal the Union filed statements to show  that the wage structure prevailing amongst the respondents is  no more  than the need-based minimum wage.  In support of  this plea  they  referred  to  the  resolution  which  has   been unanimously passed at the 15th Session of the Indian  Labour Conference held in New Delhi on July 11 and 12, 1957.   This resolution  makes a declaration about the wage policy  which should  be followed during the Second Five Year  Plan.   The Tripartite Committee which passed the resolution  considered the  relevant  notes placed before it, and  held  that  they would be useful as background material for (1)  [1959] S.C.R. 12. 550 wage  fixation.   It then took note of the  difficulties  in assessing   quantitatively  the  individual  importance   of various  factors  affecting wage fixation such  as  product- ivity,  cost  of living, the relation of wages  to  national income  and so on, and proceeded to discuss the wage  policy with  specific  reference to minimum wages and  fair  wages. With regard to the minimum wage fixation it was agreed  that the minimum wage was need based to ensure the minimum  human needs  of  the industrial worker irrespective of  any  other considerations.  To calculate the minimum wage the Committee accepted  the  following  norms and  recommended  that  they should  guide all wage fixing authorities including  Minimum Wage  Committees, Wage Boards, adjudicators, etc.  The  five norms  accepted by the Committee were stated by it in  these terms:                "  (i) In calculating the minimum  wage,  the               standard working class family should be  taken               to  consist  of 3 consumption  units  for  one               earner;  the earnings of women,  children  and               adolescents should be  disregarded.               (ii)  Minimum   food  requirement  should   be               calculated  on  the basis of a net  intake  of               calories, as recommended by Dr. Aykroyd for an               average Indian adult of moderate activity.               (iii) Clothing    requirements    should    be               estimated  at a per capita consumption  of  18               yards  per  annum  which would  give  for  the               average workers family of four, a total of  72               yards.               (iv)   In  respect  of  housing,    the   rent               corresponding to the minimum area provided for               under  Government’s Industrial Housing  Scheme               should  be taken into consideration in  fixing               the minimum wage.                (v)  Fuel,     lighting    and    other     I               miscellaneous’  items of   expenditure  should               constitute 20% of the total minimum wage." Having  set forth these norms the Committee  recognised  the existence of instances where difficulties may be experienced in  implementing its recommendations, and so it  added  that wherever   the   minimum   wage   fixed   went   below   its recommendations  it  would be incumbent on  the  authorities concerned to justify the

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551 circumstances  which  prevented them from adherence  to  the norms prescribed by the Committee.  Having thus  unanimously agreed  on  the content of the need-based minimum  wage  the Committee proceeded to observe that as regards fair wages it was agreed that the Wage Board should go into the details in respect of each industry on the basis of the recommendations contained in the Report of the Committee on Fair Wages.   It also   placed   on  record  its  opinion   that   the   said recommendations  should be made applicable to  employees  in the public sector (Ex.  U-3). The  respondents  treated this unanimous resolution  as  the basis  for  their claim that the wages paid to them  by  the appellant  were  no  better  than  the  need-based   minimum contemplated  by the said resolution.  Accordingly they  set out the diet requirements extracted from Health Bulletin No. 23, and converted the said requirements into monetary  terms at Rs. 123-75 nP.  Having thus arrived at the calculation of the value of the diet requirements of workmen (Exs.  U-4 and U-5)  they  proceeded to make calculations about  the  money content  of the need-based minimum wage at Rs.  209-70  (Ex. U-6).   This conclusion has been reached on the  basis  that the  minimum  diet  requirements would be  Rs.  123-75  nP., clothing  requirements would be Rs. 9/-, rent would  be  Rs. 42/-  and miscellaneous expenditure at 20% of the  total  of the three preceding items would be Rs. 34-95 nP.  Their case was   that  in  view  of  the  fact  that  Rs.  209-70   nP. approximates to the standard of the need-based minimum  wage the  claim  that  the wage structure of  the  appellant  has reached the living wage standard cannot be sustained. On the other hand the appellant sought to justify its  claim principally  on the calculations made by the Textile  Labour Committee  which  had made its report in 1940.   It  may  be pointed  out that in its statement (Ex.  C-6) the  appellant has  used the expressions " fair wage " and " living wage  " somewhat  indiscriminately, and seems to have  assumed  that the  norms  prescribed  by  the  Tripartite  resolution  had relation to a fair wage and not the need-based minimum wage. That, however, does not appear to be accurate, According to 71 552 the  Textile  Committee’s report the  money-content  of  the living  wage  in 1940 was Rs. 50/- to Rs.  55/-  per  month. This   total  was  reached  on  treating  Rs.   23/as   food requirements,  Rs. 12/- as house-rent requirements  and  Rs. 20/- as miscellaneous requirements.  This total is taken  as the   basis  by  the  appellant  in  making   its   relevant calculations.  The appellant has then referred to the  norms prescribed by the Tripartite resolution and has assumed that the total of the need-based minimum wage would be Rs. 40-14- 0,  and  since there had been a rise in the cost  of  living after  1940  the appellant has multiplied Rs.  41/-  by  3.5 which gave the amount of Rs. 143.50 nP.  Thus, according  to the  appellant the need-based minimum would not be the  said amount of Rs. 209/- as calculated by the respondents.   Then the  appellant  added that even if Rs. 55/was taken  as  the equivalent  of  the  living wage in 1940  and  the  same  is multiplied  by 3-5 one gets Rs. 192.50 nP. and  that  should represent the living wage in the relevant year. Having  thus  reached the figure of Rs. 192.50  nP.  as  the monetary value of the living wage in the relevant year,  the appellant purported  to support its plea  that  its  wage- structure had reached the status of a living wage by relying on the average wages paid by it to the respective categories of  its  employees.  Taking the class  of  operatives  which

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comprises 524 workmen the average wage packet consisting  of the  basic salary, the dearness allowance and the  value  of the  amenities supplied by the appellant to them equals  Rs. 273.65  nP.  The average wages in regard to the  124  clerks reach  the figure of Rs. 370.11 nP., and the  average  wages for  the total employees taken together reach the figure  of Rs. 301.16 nP.  According to the appellant whichever  figure is taken it is much above Rs. 192.50 nP., and that must lead to  the  inference that the living wage  standard  has  been reached  by  the appellant.  That is how  both  the  parties presented  their respective contentions before the  tribunal and before us. We have already indicated that the appellant’s  calculations are  made on the assumption that the figure of Rs.  50/-  to Rs. 55/- per month can be taken 553 to  be the monetary content of the living wage in 1940.   In support of this assumption the appellant strongly relies  on the   Textile  Committee’s  report.   This   Committee   was appointed  in  1940  and  was  charged  with  the  duty   of conducting an investigation into the question of adequacy of wages  in cotton textile industry of the Province of  Bombay and  to  kindred matters relating to the industry.   It  was asked   to  enquire,  inter  alia,  into  the  adequacy   or inadequacy  of  wages earned in relation to  a  living  wage standard, and if it found that in any occupation, centre  or unit  of the industry wages were inadequate it was asked  to enquire  into  and report upon the  reasons  therefor.   The Committee  realised  that the data supplied  before  it  was insufficient  but nevertheless it thought that it  would  be possible  to consider the broad constituents of the  concept of  the living wage and use the said measure " not  for  the determination of a dispute or the grant of an award but only for  ascertaining  in a general manner whether  the  present level of earnings is or is not adequate in relation to  it." The Committee then examined the material which was available to it; it took the view that the living wage standard should be  determined  in respect of the family unit, and  for  its calculation it converted the total number of members in  the family  into  standard consumption units  according  to  the formula  evolved by Dr. Aykroyd in his Health  Bulletin  No. 23.   According to this formula each family was  assumed  to consist  of  a  workman,  his wife  and  two  dependents  or children   and   their  consumption   units   were   treated respectively  as  1.8 and 0.6 each respectively,  the  total consumption units thus being 3.0. Working on this basis  the Committee  came to the conclusion that Rs. 22/8/- per  month would meet the dietary requirements of the workman’s family. Then the Committee considered the problem of housing and the expenditure  on rent and other items of expenditure such  as clothing, fuel and lighting and miscellaneous.  In regard to the housing the Committee thought that for a family of  four 180  sq.  ft. may be held as the minimum  in  Bombay  though according to it the floor area may be put a 554 little higher in less overcrowded places.  For this area the Committee thought Rs. 12 would be adequate rent, and for the miscellaneous  items  of expenditure Rs. 20 was  treated  as adequate.   It is on these calculations that the  amount  of Rs. 55 was held by the Committee to be the monetary value of the  living wage standard.  Naturally enough  the  appellant treats this conclusion as the foundation for its claim  that it is paying a living wage to the respondents. In our opinion it would be unreasonable and unsafe to  treat the  conclusions of this Committee as to the monetary  value

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of the living wage in 1940 as sound and to make it the basis of  our  calculations  today.  Incidentally  the  method  of multiplying  the figure deduced by the Committee by  3.5  is materially defective.  The proper approach to adopt would be to  evaluate each constituent of the concept of  the  living wage  in the light of the prices prevailing today  and  thus reach  a  proper conclusion ; but apart from  it,  the  main objection  against  adopting  the  figure  reached  by   the Committee is that even in 1940 the said figure could not  be properly  regarded  as representing anything like  a  living wage   standard.   The  object  with  which  the   Committee proceeded  to hold its enquiry was in a sense  negative;  it was  to determine the question as to how far the  prevailing wages  were  deficient  having  regard  to  some  reasonable concept  of a living wage standard.  The material before  it was  insufficient  to determine  satisfactorily  the  money- content  of  the said concept and the Committee  itself  was conscious  that its calculations were bound to be broad  and general  and  conditioned by the data available to  it,  and what is more important conditioned by the notions of  social justice  then prevailing.  Since 1940 the concept of  social justice has made very great progress and the Constitution of the country has now put a seal of approval on the ideal of a welfare State.  Besides, it may seem entirely unrealistic to talk  of a living wage in the light of our national  economy in 1940 and to evaluate its content at Rs. 50 to Rs. 55  per month.  It is obvious that the Committee was really thinking of what is today described 555 as the minimum need-based wage, and it found that judged  by the said standard the current wages were deficient.  In  its report the Committee has used the word " minimum " in regard to  some of the constituents of the concept of living  wage, and its calculations show that it did not proceed beyond the minimum  level in respect of any of the  said  constituents. Therefore, though the expression ’,living wage standard" has been  used by the Committee in its report we  are  satisfied that Rs. 50 to Rs. 55 cannot be regarded as anything  higher than  the need-based minimum wage at that time.  If that  be the  true position the whole basis adopted by the  appellant in  making its calculations turns out to be  illusory.   All that  the calculations made by the appellant would  show  is that  the wages paid to the respondents are somewhat  higher than what would be required by the concept of the need-based wage.   It is obvious that between the need based  wage  and the living wage there is a very long distance. This conclusion is strengthened by some of the  observations made  by the Commission of Enquiry on " the  Emoluments  and Conditions of Service of Central Government Employees ".  In its  report  the Commission has referred to  the  Tripartite resolution on the need-based minimum wage, and in the  light of  the  exhaustive material produced before it,  and  after consulting   experts  and  specialists  whose   advice   was available to it, it has reached the conclusion that (a)  the minimum remuneration worked out according to the recommended formula may be of the order of Rs. 125-/ as compared to  Rs. 52.50  which  with  some exceptions is the  upper  limit  of minimum  wages  fixed under the law, (b) that  it  would  be about  70 to 80% higher than the rates generally  prevailing in  the organised sectors of industry where wages are  fixed either by collective bargaining or through conciliation  and adjudication  proceedings,  and (c) that it  would  be  well above the highest wages, i.e., Rs. 112/- (in cotton textiles industry in Bombay-average for 1958) which any  considerable number  of unskilled workers are at present getting  in  the

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country (p. 65).  It would thus 556 be  seen that the figures thus worked out by the  Commission in  the  light  of the  Tripartite  resolution  support  the inference  that  the corresponding figure specified  by  the Textile  Report in 1940 approximates to the concept  of  the need-based  minimum wage and no more.  We  may  incidentally add  that  having  regard  to its  terms  of  reference  the Commission  did  not  feel it  advisable  to  recommend  the increase of the Central employees’ wages to the level of the need-based minimum for reasons set out by it in its  report. That is why it thought it reasonable to recommend that " the minimum remuneration payable to a Central employee which  at present  is Rs. 75 per mensem should be increased to Rs.  80 per mensem (p. 74). Reverting  to  the components of the concept of  the  living wage  once  again  it may be relevant to  observe  that  the principal  component  of  the  dietary  requirements  of   a workmarn’s family is generally examined in the light of  Dr. Aykroyd’s formula According to Dr.  Aykroyd "in dealing with diet  it  is  well to remember the  distinction  between  an optimum and an adequate diet.  An optimum diet is one  which ensures for the functioning of the various life processes at their  very best, whereas an adequate diet  maintains  these processes  but  not  at  their peak  levels.   While  it  is desirable  to work up to standards laid down for an  optimum diet,  it is essential to know whether enough food is  being provided; every effort should be made to ensure at least the standards fixed for an adequate diet." Then the requirements of  an  adequate diet are examined.  Dr.  Aykroyd,  however, took  the  view that having regard to our  national  economy even  an  adequate or balanced diet may not  be  within  the reach  of every one, and so he observed that " it  would  be wise to effect a compro. mise by temporarily sacrificing the ideal   to   the  necessity  of   making   the   improvement economically  possible." With this object he  has  tabulated the requirements of the improved diet which contains the (1)  Health  Bulletin No.23 The Nutritive Value  of  Indian Foods and the Planning of satisfactory Diets-By Dr.  Aykroyd and  revised  by  Dr.  V.  N.  Patwardhan-Published  by  the Nutrition  Research Laboratories, Indian Council of  Medical Research, Coonoor. 557 essential nutrients but which would not be as costly as  the balanced  diet.  Now there can be no doubt that  in  dealing with the monetary value of the content of the concept of the living  wage  it would not be enough to  evaluate  the  diet requirement  with  reference  to the improved  or  even  the balanced  diet.   The  improved vegetarian  diet  which  has generally  been  taken into account in making  the  relevant calculations   would  be  wholly  inappropriate  in   making calculations with regard to a living wage.  Under the living wage a workman would be entitled to claim an optimum diet as prescribed  by Dr. Aykroyd.  Similarly, the requirements  as to clothing and residence which have been recognised in  the Tripartite resolution, though appropriate in reference to  a need-based  minimum  wage,  would  have  to  be  widened  in relation  to  a living wage.  Besides,  in  determining  the money value of the living wage it would be necessary to take into  account  the  requirements  of  "good  education   for children,  some  amusement, and some expenditure  for  self- development ", and it is hardly necessary to emphasise  that the content of these requirements cannot be easily converted into terms of money and they would obviously vary from  time to time and would show an expansive tendency with the growth

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of  national  economy  and with  the  advent  of  increasing prosperity  for  the  nation as a whole and  for  any  given industry  in particular.  Therefore, in our opinion, on  the material   available  in  the  present  proceedings  it   is impossible  to resist the conclusion that even  the  highest average  of  Rs.  370-11  nP.  shown  by  the  appellant  by calculating  wages paid to the clerical staff is much  below the standard of the living wage.  In this connection it  may be pertinent to observe that in deciding the question as  to whether the living wage has been introduced by any  employer normally it would be necessary to examine the wage structure paid to the relevant working class as a whole.  It is  well- established  that the claim for bonus is recognised  on  the basis  of  the contribution made by the working class  as  a whole to the profits of the employer, and we think it  would be invidious, and on principle unreasonable, to isolate 558 a  few  cases where higher wages may be paid  and  to  claim immunity from the payment of bonus in respect of such cases. In the absence of special circumstances prima facie the most expedient  method to adopt would be to take the  average  of the wages paid to the relevant working class as a whole.  It is,  however, unnecessary to pursue this matter further  and to  pronounce a definite decision on it because, as we  have just indicated, even taking the clerical category where  the average  works  highest  at  Rs.  370.11  nP.  we  feel   no hesitation  in holding that the said average is  much  below the  standard living wage.  The said average is  much  above the need-based minimum and may fall in the medium level of a fair wage; but that itself would show that it is much  below the standard of the living wage.  Similarly, Rs. 273.65  nP. which is the average of the operatives as well as Rs. 301.16 nP. which is the average of the operatives and the  clerical staff  taken together may be regarded as constituting  wage- structure  which is above the need-based  minimum  structure and  may be treated as approximating to the lower  level  of the  fair  wage.  One has merely to take  into  account  the various  constituent elements of the living wage to  realise that  these averages fall far short of the standard  of  the living  wage.   In reaching such a conclusion it  is  hardly necessary first to arrive at a concrete determination as  to the money value of the living wage.  In our opinion,  taking the  broad  aspect of the concept of the  living  wage  into consideration,  and  bearing  in  mind  its  idealistic  and expanding  character,  it would be possible,  and  not  very difficult either, to say about a given wage such as the  one with  which we are concerned in the present appeal  that  it does  not  reach  the standard of a living  wage.   We  must accordingly  hold that the claim made by the appellant  that it  is  paying  a living wage to  its  employees  cannot  be sustained. It still remains to consider some of the decisions to  which our attention was invited.  In Standard Vacuum Oil  Company. Their Workmen(1) the tribunal had to consider the claim  for bonus  made by the employees, and in determining the  quantm of bonus it addressed (1)  [1952] 1 L.L.J. 839. 559 itself  to the question as to the extent of the gap  between the  actual wage and the living wage which should be  filled by  the  award of bonus.  In that  connection  the  tribunal referred to the Textile Committee’s report and assumed  that Rs.  50/-  to Rs. 55/-, that is to say, on  an  average  Rs. 52-8-0 represented the money value of a living wage in 1940. On  that assumption the tribunal made  certain  calculations

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and  held  that  its" award may be  regarded  as  the  first approximation  towards attaining the living  wage  standard. The learned Attorney-General has relied on this decision  in support  of  his  argument that the basis  supplied  by  the Textile Committee’s report was treated as valid for the pur- pose of determining the money value of the living wage.  For the  reasons  which we have already indicated we  must  hold that the tribunal was in error in treating Rs. 52-8-0 as the money  value  of  the living wage even in  1940.   The  same comment falls to be made about the calculations made by  the Labour   Appellate  Tribunal  in  Burmah-Shell,  etc.,   Oil Companies  in Madras v. Their Employees (1).  In  that  case the  Appellate Tribunal thought that if 50% be added to  the minimum wage of the employees that may assist them to attain the  goal of the living wage, and this conclusion was  based on   the   Textile  Committee’s  report.    Similarly,   the calculations  made  by the Industrial Tribunal,  Madras,  in Workers  of  S. V. O. C. Ltd.  (Standard  Vacuum  Employees’ Union) v. Standard Vacuum Oil Co. Ltd. (2), suffers from the same  infirmity.  Therefore, the three industrial  decisions on   which  the  appellant  relied  cannot  assist   it   in establishing  its contention that a living wage is  paid  to the respondents. In  Burmah-Shell Oil Storage and Distributing Co. of  India, Ltd.,  Bombay  v.  Their Workmen (3)  the  Labour  Appellate Tribunal had occasion to consider the content of the  living wage.   In that connection it referred to the Report of  the Fair  Wages  Committee,  and  observed  that  the  level  of national  income  in  India is so low that  the  country  is unable  to afford to prescribe by law a minimum  wage  which would  correspond  to the concept of a living wage.   "  The rudder is set in (1) [1954] 1 L.L.J. 782.        (2) [1957] 1 L.L.J. 165. (3)  [1953] 2 L.L.J. 246, 72 560 the  direction  of a living wage",  observed  the  Appellate Tribunal, " but the destination is not yet within sight; the gradual emergence of a welfare State will naturally help but even  here progress is necessarily slow ". In  our  opinion, this statement shows the correct approach to the problem of determining the content of the concept of the living wage. In  Standard Vacuum Oil Company v. Their Employees  (1)  the Labour  Appellate Tribunal was called upon to  consider  the plea  that the companies were paying a living wage to  their employees.    In  dealing  with  the  said  contention   the Appellate  Tribunal  observed that "the measurement  of  the living  wage  standard  in  terms  of  money  has  not  been prescribed  by  law of the country, nor, as far  as  we  are aware, has been determined anywhere in any scientific  basis ". In its opinion, it was not possible nor necessary to  fix the  amount  with exactitude which should form  the  minimum living wage after an exhaustive enquiry for considering  the question of bonus, because, according to the principle  laid down the whole gap between the existing wages and the living wage  need not be filled up. That is why it thought that  it would  be sufficient for the purpose if an approximate  idea can  be  formed  by  taking  into  account  the  approximate expenditure  on the necessary items of requirements  of  the living  wage  standard.  On these  considerations  the  plea raised by the companies was rejected.  It would thus be seen that  the  oil companies have been persistently  making  the claim before the industrial tribunals that they need not  be called  upon to pay bonus to their employees on  the  ground that  they are paying them a living wage, and this plea  has

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so  far  been  consistently rejected.  As  we  have  already pointed  out  it  may partly be because  of  this  trend  of industrial  decisions  that in the present  proceedings  the tribunal  did not think it necessary to deal with the  point elaborately or to make a definite finding. Before  we part with this appeal we ought to add that if  we had  upheld  the  appellant’s  claim  it  would  have   been necessary for us to consider the relevance (1)  [1954] 1 L.L.J. 484. 561 and  validity of the respondents’ alternative claim that  in case  living  wage  is paid by the appellant  to  them  they should  be  allowed  a  share in the  profits  made  by  the appellant  during the relevant year on the basis of  profit- sharing.  It is true that industrial adjudication so far has consistently  emphasised the fact that the payment of  bonus is  intended  to fill the gap between actual wages  and  the living  wage.   Obviously no occasion has so far  arisen  to consider  whether a claim for bonus can be made  even  after the  standard  of living wage has been attained  because  no employer has so far succeeded in showing that a living  wage standard has been reached.  We are making these observations because  we wish to make it clear that our decision  in  the present appeal should not be taken to mean that as soon as a living  wage standard is reached no claim for bonus  can  be made by the workmen; that is a question which may have to be considered  on its merits if and when it arises.  Until  the stage  is reached where a plea that living wage is paid  can be   reasonably  made  and  proved  it  is  desirable   that industrial  adjudication in regard to the payment  of  bonus should  not be unnecessarily complicated by raising  such  a plea from year to year. That  takes us to the appeal preferred by  the  respondents. The  tribunal  did  not  think  it  necessary  to  work  out calculations because, according to the bonus formula, it was conceded  that  the available surplus in the  hands  of  the appellant  was very large.  It, however, took  into  account the wage scales and salaries in the appellant’s concerns and other  relevant  factors and concluded  that  awarding  five months’   bonus  "  strikes  a  fair  balance  between   the conflicting standards of the workmen and the company ".  Mr. Gokhale  contends that five months’ bonus is too meagre  and that the respondents were entitled to a much higher rate  of bonus.   On  the  other hand  the  learned  Attorney-General contends  that  we  should put a ceiling in  the  matter  of awarding  bonus so that excessive claims for bonus would  be discouraged.   In  our opinion it would be  inadvisable  and inexpedient to put such a ceiling in the matter of  awarding bonus. 562 It is now well established that in awarding bonus industrial adjudication has to take into account the legitimate  claims of the industry, its shareholders who are entitled to  claim a  return  on the investment made by them and  the  workmen. This  Court has consistently refused to lay down  any  rigid rule  or formula which would govern the distribution of  the available surplus between the three claimants.  The decision of  this  question  must  inevitably  depend  on  a   proper assessment  of all the relevant facts.  If wages  are  small and the profits are high then the workmen would be  entitled to have a high rate of bonus.  Indeed, if an employer  makes consistently  high profits and the wages continue to be  low it  may justify the increase in the wage structure itself  ; in other words, the award of bonus would have some  relation to  the wages paid to the employees.  It is also  true  that

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unreasonably high or extravagant claims for bonus cannot  be entertained just because the available surplus would justify such a claim.  As has been observed by the Labour  Appellate Tribunal in Burmah-Shell Oil Storage and Distributing Co. of India  Ltd., Bombay v. Their Workmen (1) care must be  taken to see that the bonus which is given is not so excessive  as to  create  fresh  problems  in  the  vicinity  that   upset emoluments   all-round   or  that  it   creates   industrial discontent or the possible emergence of a privileged  class. The impact of the award of bonus in an industrial dispute on comparable employments or on other employments in the region cannot  be altogether ignored, though its effect should  not be  over-estimated either.  Having regard to the  fact  that the distribution of available surplus must inevitably depend in  each  case  on its own facts this  Court  has  generally refused  to interfere with the decision of the  tribunal  on the ground that any decision on the question of distribution should  be  left to its discretion.  It is  only  where  the award  passed  by the tribunal appears to this Court  to  be wholly  unreasonable and to be the result of the failure  of the  tribunal  to take into account the  necessary  relevant facts that the jurisdiction of this Court under Art. 136 can be successfully invoked.  In the present case the (1)  [1953] 2 L.L.J. 246. 563 tribunal  has  considered all the relevant factors  and  has come  to the conclusion that five months’ bonus  would  meet the ends of justice.  We do not see any reason to  interfere with this award. In  the  result  both the appeals fail  and  are  dismissed. There will be no order as to costs in both the appeals.                     Appeals dismissed.