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PETITIONER: WORKMEN

       Vs.

RESPONDENT: MANAGEMENT OF DUNLOP RUBBER COMPANY OF INDIA LIMITED

DATE OF JUDGMENT04/05/1973

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. GROVER, A.N.

CITATION:  1973 AIR 2394            1974 SCR  (1) 228  1973 SCC  (2) 492

ACT: Industrial  dispute-Claim for  additional  bonus-’Extraneous profit’-Return  on share  premium-Rehabilitation  claim-When may  not  be included in profits Reserves  used  as  working capital-Mode of proof of.

HEADNOTE: For the years 1962 and 1963 the appellants-workmen  demanded additional   bonus  of  three  months’  basic  wages.    The tribunal, to which, the industrial dispute was referred on a consideration of the materials placed before it by both  the parties,  accepted  the case of  the  respondent-management, regarding certain deductions made from the profits. and held that  the bonus already paid to the workmen  was  sufficient and that they were not entitled to any additional bonus  for those two years. Dismissing the appeal to this Court. HELD  :  (i)  The commission  and  royalties  received  from Dunlop, U.K., for the two years were rightly not included by the  respondent  in  its  profits,  because,  the   evidence established   that   the  circumstances  under   which   the respondent earned the amounts showed that appellants had not made  any ,contribution of work or labour for earning  those amounts.  It accrued to the respondent as extraneous income. [233D-F] Workmen of M/s Hindustan Motors Ltd. v. M/s Hindustan Motors Ltd. & Anr, [1968] 2 S-.C.R. 311, followed.  Tata Oil Mills Co. Ltd. v. Its Workmen and Others [1960]  1 S.C.R. 1, referred to. (ii) The contention of the appellants that no return  should be  allowed on the share premium of Rs. 70 lacs was  rightly rejected  by the tribunal.  When ,a company makes  a  Rights issue, the Government, while giving consent, fixes a certain amount  of  premium to be charged for those  shares.   Those shares are issued only to the shareholders who ask for  them and  who pay the premium amount in addition to  the  nominal value  of  the  share.  Under the Companies  Act.  1956,  as amended,  a  capital  introduced by the  shareholders  in  a company had to be shown in accordance with schedule VI as  a separate  item.  But the share premium is not  undistributed profit and cannot be distributed as dividend.  It is  really the  share  capital  of the respondent  and  therefore,  the

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respondent  was  justified  in claiming 6%  return  on  this amount. [234 A-C] (iii)     Mere  production of a balance-sheet by  a  company cannot  be taken. as proof of a claim as to what portion  of the reserves had been actually used as working capital.  The utilisation  of  any  amount from the  reserves  as  working capital  has to be proved by an employer by adducing  proper evidence  by  way  of affidavit or  otherwise  after  giving opportunity  to  the workmen to contest its  correctness  in cross-examination.  The company will have to  satisfactorily prove  that  the amount on which the return is  claimed  has been  actually used as working capital.  But in the  present case  the  respondent  has  adduced  oral  and   documentary evidence.   It  is not a case where merely profit  and  loss account  alone has been filed without any  further  evidence being  adduced  by’ the respondent.  Therefore there  is  no basis  for  the  contention  of  the  appellants  that   the respondent had not properly established its claim for return on working capital [234G-H, 235 C-D]  2 2 9 The  Oriental Gas Company Ltd. v. Their Workmen,  [1971]  11 L.L.J. 657 and Bareilly, Electricity-Supply Co. Ltd. v.  The Workmen & Ors. [1972] 1 S.C.R. 241 referred to. (iv) (a) Even if the claim of the company for rehabilitation is  rejected completely, on the basis of the findings,  that is, after taking into account the claims of the  respondent, allowed and rejected, and the rebate in income-tax that  may be  received  by the company, the workmen would  still  have been paid bonus at a rate which has been accepted as correct by this Court. [237 C-D] (b)  On  the basis of the education to be made according  to the  appellants  in  respect of  rehabilitation  claim,  the respondent will be entitled to some amount at least in  that regard.   Even if that lesser amount is taken  into  account the  available  surplus will be reduced  further,  and,  the result will be that even the amount paid as bonus already by the  respondent will be more than what the workmen  will  be entitled  to according to the decisions of this Court.  [238 E-H] (c)  The  industrial  Tribunal, Calcutta, in relation  to  a claim for bonus for the year 1957 had elaborately  discussed the  matter  and  allowed a certain  sum  as  rehabilitation charges.   When once the tribunal had considered  a  similar claim and had adopted it on the basis of evidence adduced by the  parties,  normally,  the  amount  so  awarded   towards rehabilitation should be adopted even though it will not  be conclusive  for subsequent years.  In the present case,  the rehabilitation  claim  was worked out only on the  basis  of replacement costs of the year 1958.  If the appellant’s case was  that the tribunal, when working out the claim for  1957 had  not properly appreciated the evidence they should  have elicited  from  the witnesses who deposed on behalf  of  the respondent that the figures furnished by the respondent  are not  correct and could not be accepted.  But the  appellants had  not  objected  to  the data  adduced  as  well  as  the documents  produced  by the company with  reference  to  its rehabilitation  claim.  No suggestions had been made to  the various witnesses examined on behalf of the respondent  that the  figures on the basis of which the rehabilitation  claim was made were in any way erroneous. [237G-238D] Therefore,  considering the matter from any point  of  view, there  is no question of the workmen being entitled  to  any additional bonus over and above what has already been paid M/s  Gannon Dunkerley and Co. Ltd. v. Their Workmen,  A.I.R. 1971 S.C. 2567. followed.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1291 of 1968. Appeal by special leave from the Award dated October 29,1967 of  the Industrial Tribunal, ’Madras in  Industrial  Dispute No.  65  of  1966 published in the  Supplement  to  Part  II Section I of the Fort St. George Gazette dated the 15th  day of November 1967. M.   K. Ramamurthi, R. C. Pathak and J. Ramamurthi, for  the appellants. B. Sen, C. Doraiswami and D. N. Gupta, for the respondent. The Judgment of the Court was delivered by-- VAIDIALINGAM,  J.-This  appeal,  by special  leave,  by  the workmen is against the award dated October 20, 1967, of  the Industrial Tribual, Madras, in I.D. No. 65 of 1966 in so far as it declined to grant additional bonus for the years  1962 and 1963. The  respondent,  Dunlop Rubber Company  of  India  Limited, which  is engaged in the manufacture and sale of  types  and tubes  for  light  and  heavy vehicles,  has  a  factory  in Calcutta  ’besides  one  at Ambattur in  Madras,  which  was started  or  about  1959.  At the time  of  the  award,  the company was employing about 1200 workmen but, 230 during  the years 1962 and 1963, it wag employing about  800 workmen.  The company paid to its workmen for each of  these two  years, 1962 and 1963, 12 weeks’ basic wages  as  annual bonus.  The workmen were not satisfied with the said payment and  demanded additional bonus of three months’ basic  wages for  each  of these years.  According to  the  workmen,  the company  has made a net profit of about 3.30 crones in  each of these years.  The company, however, declined to meet  the demand with the result that the Government of Madras by  its order dated October 15, 1966, referred the dispute regarding the  additional  bonus to the Industrial  Tribunal,  Madras. There  was  also  another  dispute  referred  regarding  the alteration of the gratuity scheme.  But we are not concerned with this dispute. The  case  of  the workmen, as disclosed  by  their  written statement before the Tribunal, was as follows The  company, according to their published profit  and  loss account  has  made a net profit of Rs. 3.30 crores  and  Rs. 3.27  crores for the years 1962 and 1963 respectively.   The management  have  made various deductions from  their  gross profit, which were not justified according to the Full Bench Formula.   The  management in their work sheet  claimed  Rs. 2.49 crores as rehabilitation and this huge amount has  been claimed to purposely defeat the just demands of the workmen. Having due regard to the profits earned by the company,  the demand of three months’ basic wages as additional bonus  was justified- The  company resisted the claim of the union.  The  case  of the company was as follows :- In  each of these two years, 1962 and 1963, it has  paid  to its  workmen  in India bonus equivalent to.  fifteen  weeks’ basic  wages.   All  the  workmen,  except  the  workmen  at Ambattur, who represent only about 12 per cent of. the total number of employees, have accepted the payment and they  are fully  satisfied  with the amount paid  voluntarily  by  the company.   The company made proper deductions and  additions according  to  the  Full Bench Formula and  arrived  at  the available  surplus.  Out of the said available surplus,  the company  has paid nearly 60 or 63 per cent as bonus  to  the

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workmen which represents fifteen weeks’ basic wages. Before  the  Tribunal, the company as well  as  the  workmen filed charts in respect of their pleas.  The union  objected to  the  deduction  made by the company in  respect  of  the commission  received  out of the sales made  by  the  Dunlop United  Kingdom as well as the royalties receivable  out  of the  sales  made  by  the  London  firm.   There  were  also objections  taken  by  the  union  in  respect  of   certain deductions  and  claims  made  by  the  company.   As  those contentions  have been raised before us also, we will  refer to   those  matters  later.   There  was  also   controversy regarding  the rehabilitation claimed by the  company.   The Tribunal, on a consideration of the materials placed  before it by both the parties, ultimately accepted the case of  the management  and  held  that the bonus already  paid  to  the workmen was sufficient and that they are not entitled to any additional bonus for these two years.  231 Mr.  M.  K. Ramamurthi, learned counsel for  the  appellant- workmen  attacked  the view of the  Tribunal  accepting  the claims made by the company in respect of several items.  The company had filed before the Tribunal a statement, Ext.   M- 3,  extracted below, showing the available surplus  for  the years 1962 and 1963 : "The  Dunlop  Rubber Co. (India) Limited  Available  Surplus Computations for the years 1962 and 1963. --------------------------------------------------------------                 1962                     1963 --------------------------------------------------------------                         Rs.       Rs.           Rs.    Rs. Net Profit per Accounts      95,59,317          1,68,86,953 Add: Bonus     (account charged in accounts)       48,86,449     48,40,912 Provision for Taxation per Accounts               2,34,78,958      1,88,82,441 Depreciation per Accounts     60,79,969          3,41,45,376 59,82,6642,                                      67,06,024                              4,37,04,693     4,35,92,977 Deducts Commission        receivable (Note 1)                      3,94,9643,94,973 Royalties          receivable (Note 2)                      59,19150,580 Profit on sale of Fixed Assets (Note 3)             92,5962,974 Provision for Retirement Gratuities     written back                            5,52,7515,00,0009,42,579 Total Gross Profit              4,31,51,942  4,26,50,398 Less : Notional Normal     Depre- ciation                          72,67,88783,90,107                        3,58,84,0551,76,23,953,3,42,60,291 Less : Notional      Income Tax and Super Tax                     1,84,68,616 Notional     Super Profits Tax/Sur Tax.              49,09,9652,33,78,58125,36,5852,01,60,538                                    1,25,05,4741,40,99,753 Less Return on paid-up Capital Ordinary share Capital (6%).                            27,00,00027,00,000 Share Premium (6% )              4,20,0004,20,000 Preference share Capital

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(Actual).                      4,60,0004,60,000 4% Return on Reserves employed as working capital Schedule A.             23,35,00959,15,O0,924,90,56360,70, 563 Available surplus subject to rehabilitation claim    65,90,465          80,29,190 ------------------------------------------------------------- Note  1. Commission receivable arises out of sales  made  by Dunlop  U. K. of their products to India either through  the Indian High Commissioners purchasing Commission in London or to direct importers. 2 32 Note  2.  Royalties receivable arise out of sales  made  by Dunlop  U.K.,  of their products to Afghanistan,  Burma  and Pakistan. According to the company, it has paid more than 60 per  cent of  the available surplus as bonus to the workmen  and  that they  are not entitled to any additional bonus.   The  first item that was challenged by Mr. Ramamurthi was regarding the deduction made by the company in the sum of Rs. 3,94,964 and Rs.  3,94,973  for the years 1962 and 1963  respectively  as commission  as well as the sums of Rs. 59,191 and 50,582  as royalties for the years 1962 and 1963 respectively  received from Dunlop, United Kingdom.  According to the counsel,  the workmen have also contributed to enable the company to  earn these  amounts  and, therefore, they will be entitled  to  a share  in  the  said  profits.   In  this  connection,   Mr. Rammurthi  referred us to the decision of this Court in  The Tata  Oil Mills Co. Ltd. v. Its Workmen and  mothers.(1)  In that  decision certain items were claimed by the company  as extraneous income obtained by them without any  contribution by  labour.   While  allowing the claim of  the  company  in respect of two items regarding the rest it was held by  this Court that they had been earned by the company in the normal course of its business and that there was no reason why  the labour should be’ excluded from its share in the profit.  It was no doubt observed by this Court that normally there must be  contribution  of the workmen in earning  profits  before they  are entitled to profit bonus, but it is not  necessary that a direct connection between the efforts of the  workmen and a particular item of profit earned has to be established before the profit can be taken into account for the  purpose of arriving at the available surplus. Mr.  B. Sen, learned counsel for the company, on  the  other hand,  referred us to Notes 1 and 2 in Ext.  M-3, which  has been extracted by us earlier.  Notes 1 and 2 clearly explain the circumstances under which the said amounts are earned by the  company  and  they show that the  labour  has  made  no contribution whatsoever in the company’s earning either  the commission  or  the  royalties.   Mr.  Sen  also  drew   Our attention  to  the  evidence  of  MW-1,  the  Deputy   Chief Accountant   of   the  company,  who   has   explained   the circumstances under which the said amounts were received. We  are  of the opinion that the Tribunal was  justified  in accepting  the  contention of the company that  the  amounts received as commission and royalties need not be added back. MB-1,  the  Deputy  Chief Accountant of  the,  company,  has deposed  to  the  nature of these amounts  received  by  the company.  According to him, the commission is received  from the parent company in United Kingdom for sales made by  them through the High- Commission in London or sales effected  as against  orders  received directly by the company  from  the Indian  customers.   The  amounts due to  the  company  were credited  by the London office.  Similarly,  royalties  were

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also  received  out  of sales of  Dunlop  products  made  to Afghanistan,  Burma and Pakistan.  No canvassing for  orders in  those countries is done by the company- Apart from  the, fact that Notes 1 and 2 in Ext.  M-3, (1)  [1960] 1 S. C. R. 1,  233 have  not  been challenged, we also find that  there  is  no cross-examination by the union of MB-1 when he has  referred to  the nature of these receipts, which go to show that  the workmen  in  India  have  not at  all  contributed,  in  any measure,  in  earning those amounts.  In  our  opinion,  the amounts  received by the company, by way of  commission  and royalties,  are analogous to the home  delivery  commission, which  was  held by this Court in Workmen of  M/S  Hindustan Motors  Ltd.  v. MIS Hindustan Motors Ltd. & Anr.(1)  to  be extraneous income.  The Hindustan Motors Limited, which  was manufacturing cars in collaboration with a foreign  concern, was entitled to commission on the sales made in India by the foreign concern, even though the company was not a party  to those  transactions.  This amount was called  home  delivery commission.   The company claimed that the  said  commission should be deducted while calculating the surplus out of  the profits  available for distribution of bonus.   The  workmen challenged   the  said  deduction.   This  Court,   however, rejected  the  contention of the workmen and held  that  the amount  received  as  home delivery  commission  has  to  be treated  as  extraneous  income, which  was  earned  by  the company   without  any  activities  in  which  the   workmen participated  or  contributed their  labour.   The  decision relied  on  by  Mr. Rammurthi in the  Tata  Oil  Mills  Co.. Ltd.(2)  was  referred and it was held  that  the  situation therein  was entirely different.  But the principle laid  in the Tata Oil Mills Co. Ltd.(2) that if any income was earned in  the course of the normal business of a company in  which the workmen were- also engaged, that income must be included in  the  profits for calculation of  surplus  available  for distribution  of  bonus,  was  approved  in  the   Hindustan Motors(1) case.  Applying the said principle to the case  on hand,  we  are  of  the  opinion  that  the  commission  and royalties  received  by  the company  did  not  require  any contribution  or work or labour on the part of  the  workmen and  it accrued to the company in view of  the  arrangements spoken  to by MW-1.  In the circumstances, the deduction  of these  amounts  from the profits by the  company  was  fully justified. It  may be mentioned that the company had deducted from  the profits the provision made for retirement gratuities written back.  Mr. Sen has quite fairly accepted that the  deduction is  not  justified.   Therefore,  this  item  need  not   be discussed further. The company had claimed Rs. 4,20,000 for each of these years being  return of 6% on the share premium of 70  lakhs.   The company  had also claimed a sum of Rs. 27 lakhs for each  of these years being 6% return on ordinary share capital.   The claim  for return made in respect of ordinary share  capital is  not  challenged.  But the claim made for return  on  the share  premium of 70 lakhs is attacked by Mr. Ramamurthi  on the ground that the share premium does not represent paid-up capital.   The  Tribunal  did  not  accept  this  contention advanced on behalf of the workmen. MW-1  has again spoken regarding the share  premium  amount. From  his evidence it is clear that when a company  makes  a Rights (1) [1968] 2 S. C. R. 311. (2) [1960] 1 S. C, R. 1.

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234 issue, the Government, while giving consent, fixes a certain amount  of  premium to be charged for those  shares.   Those shares  are issued only to the shareholders who ask  for  it and  who pay the premium amount in addition to  the  nominal value   of   the  share.   A  capital  introduced   by   the shareholders  in  the  company is shown  as  part  of  share capital according to the Companies Act upto 1956.  When  the said Act was amended, it had to be shown in accordance  with Schedule VI as a separate item, as it was only available for issue  to  shareholders  and could  not  be  distributed  as dividend.   The said share premium amount had no bearing  as general  reserves and they were really the share capital  of the  company  and, therefore, the company was  justified  in claiming 6% return on this amount.  The share premium is not undistributed profit and cannot be distributed as  dividend. We are satisfied, in the circumstances, that the  contention of  the union that no return should be allowed on the  share premium amount, has been rightly rejected by the Tribunal. The  third  item  relates to the  deductions  made,  by  the respondent out of the profits of two items of donations made in  1962.  No donations were claimed as deduction  in  1963. As- a substantial part of the donations was for the National Defence  Fund,  the Tribunal held that the  expenditure  was properly incurred and the company was justified in deducting the  donations from the profits.  Mr. Sen accepted that  the deduction  made  by the management under this  head  is  not justified.   Even otherwise, the company is not entitled  to deduct those amounts,- as is clear from the decision of this Court in Voltas Ltd. v. Its Workmen(1). The fourth item, which is contested by the appellant, is the return  of 4% on reserves employed as working capital.   The company claimed Rs. 23,35,009 and Rs. 24,90,563 as 4% return on  reserves  employed as working capital in 1962  and  1963 respectively.   According to Mr. Ramamurthi, this claim  has not  been  established in accordance with the  decisions  of this Court.  He referred us to the decision in The  Oriental Gas Company Ltd. v. The Workmen(-’) and Bareilly Electricity Supply  Col.  Ltd. v. The Workmen & Ors.(3). In  both  these decisions, the nature of the evidence to sustain a claim for return on working capital has been discussed and laid  down. In  particular,  in  the second decision  cited  above,  the various   decisions   bearing  on  the   point   have   been exhaustively  reviewed.   The  position  emerging  from  the decisions  of  this  Court  is that  mere  production  of  a balance-sheet  by  a company cannot be taken as proof  of  a claim, as to what portion of the reserves has been  actually used as working capital.  The utilisation of any amount from the  reserves  as  working capital has to be  proved  by  an employer by adducing proper evidence by way of affidavit or- otherwise,  after  giving an opportunity to the  workmen  to contest  the correctness of the same  in  cross-examination. The  company  will  have to satisfactorily  prove  that  the amount on which return is claimed, has been actually used as working capital. (1) [1961] 3 S.C. R. 167. (2) [1971] (11) LLJ 657.  (3)[1972]1 S. C. R. 241.  235 The question is whether the criticism of Mr. Ramamurthi that the  company  has  not properly established  its  claim  for return  on working capital in accordance with the  decisions of this Court, is justified?  The company has filed Ext.  M- 8  containing  particulars  regarding  the  amount  used  as working  capital for the years 1962 and 1963.  It  has  also

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filed   Ext.    M-9,  the  certificate  of   the   Chartered Accountant,  that  reserves  of  Rs.  5,83,75,236  and   Rs. 6,22,54,083  have been used as working capital in the  years 1962  and  1963 respectively.  MW-1 has spoken to  the  con- tents  of Exts.  M-8 and M-9.  The Chartered  Accountant  of the  auditors,  who issued the certificate, Ext.   M-9,  has also  given evidence as MW-2.  When they have  spoken  about the amounts used as working capital, there is absolutely  no cross-examination  by  the union regarding  these  matters.’ This is not a case where, merely the profit and loss account alone has been filed without any further evidence adduced by the  management.   Mr.  Ramamurthi  no  doubt  attempted  to satisfy us by a reference to the profit and loss account for the two years that the entire amount claimed by the  company could  not have been used as working capital.  We have  gone through  the balance-sheet and profit and loss account.   We are  satisfied  that the Tribunal has rightly  accepted  the claim  of  the  management  for 4%  return  on  the  working capital. The  fifth and the last item that is in controversy  between the  parties  is the claim for rehabilitation  made  by  the company.  Before we consider that question, we must refer to a  contention raised by Mr. Ramamurthi that  the  management had no claim for rehabilitation and, therefore, no claim for rehabilitation  should  be  allowed.   In  particular,   Mr. Ramamurthi referred us to the statement in Ext.  M-3,  which we  have  adverted  to earlier,  to  the  effect  "available surplus  subject to rehabilitation claim" and stressed  that the  company itself has made a calculation without  claiming any rehabilitation.  We are not inclined to accept this plea of Mr. Ramamurthi.  On the other hand, Ext.  M-3 shows  that the  company was prepared to take a stand that even  without any  claim for rehabilitation being allowed in  its  favour, the  available  surplus, shown in Ext.  M-3  will  establish that  the workmen have been paid more than 60 to 62% of  the available surplus as bonus for each of the two years.   Ext. M-3 does not and cannot be put against the company if it can properly  establish a claim for rehabilitation.   Before  we discuss  further  the claim for rehabilitation,  it  is  now necessary  to  work  out the figures on  the  basis  of  the findings recorded by us earlier.  We have accepted the claim for  deduction of commission and royalties in favour of  the company.  We have also accepted its claim for return on  the share premium amount 2 36 of  Rs.  70  lakhs.  We have disallowed  the  claim  of  the company  regarding  the amount paid by them as  donation  in 1962.  We have allowed the company’s claim for return on the working  capital.  On the above basis, two charts have  been prepared  of  the available surplus for the years  1962  and 1963. They areas follows Available Surplus Computations for the year 1962.                                          Rs.         Rs. Net Profit per Accounts                         95,59,317      Add: Bonus (amount charged in Accounts)     45,86,449      Provision for taxation per Accounts.    2,34,73,958      Donation to N. D. F.                    5,25,000      Depreciation per Accounts. 60,79,9693,46,70,376                                              4,42,29,693      Deduct:Commission receivable (Note 1) 3,94,964           Royalties receivable (Note 2).59,191           Profit on sale of fixed Assets (Note 3).98,5965,52,51 Total Gross Profits :         4 ,93942      Less :Notional Normal Depreciation 72,67,887                                        3,64,09,065

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    Less :Notional     Income-tax     and      Supertax 1,87,31,118      Notional Super Profits-Tax/Surtax   50,53,4342,37,34,542                                       1,25,24,513      Less :Return on paid-up capital           Ordinary Share Capital (6 %)     27,00,000           Share Premium (6 %)                 4,20,000           Preference Share Capital (Actual)4,60,000           4 % Return on Reserves employed as working           capital (Schedule A).23,35,009 59,15,006      Available Surplus                        67,09,504      Available Surplus Computations for the year 1963                                 Rs.              Rs.      Net Profit per Accounts1,68,86,952      Add:      Bonus (amount charged in Accounts.)48,40,912      Prevision for Taxation per Accounts.1,58,82,448      Depreciation per Accounts.           59,82,6642,67,06,024                                       4,35,92,977      Deduct    Commission receivable (Note 1).3,94,973      Royalties receivable (Note 2)                 50,580      Profit on Sales of Fixed Assets (Note 3).(2,974)4,42,579      Total Gross Profit4,                        31,50,298      Less :    Notional Normal Depreciation    83,90,197                                              2,47,60,291      Less :    Notional Income-tax and Supertax.1,78,73,953      Notional Super Profits-Tax/Sur Tax.21,90,5282,00,64,481                                                 1,46,95,810  2 3 7 Less:Return on paid-up capital      Ordinary Share Capital (6%)          27,00,000      Share Premium (6 %)                  4,20,000      Preference Share Capital (Actual).  4,60,000      4% Return on Reserves employed as working      capital (Schedule A).           24,90,56360,70,563      Available Surplus                   26,25,247" In  both  the charts no claim for  rehabilitation  has  been taken  into account.  Out of the available surplus in  1962, the  company  paid  nearly  66%  as  bonus  for  that  year. Similarly out of the available surplus in 1963, the  company has  paid nearly 60 to 62% as bonus. Prima-facie, we are  of the  view  that  even  if  the  claim  of  the  company  for rehabilitation is rejected completely, still on the basis of the  figures  worked out in the above charts,  after  taking into account the rebate in Income-tax that will be, received by  the company, the workmen have been paid bonus at a  rate which has been accepted as correct by this Court and as such they cannot have any grievance. Regarding  the  claim for’ rehabilitation, the  company  had filed  three  statements.  Exts.  M-15, M-16  and  M-17  are charts  relating to the buildings, plant and  machinery  and moulds.  The company has also adduced evidence in respect of the  claims made in these statements.  Mr.  Ramamurthi  has attacked  the claim for rehabilitation made by the  company. When  the  charts  prepared  by  the  management   regarding rehabilitation  were  before  the  Tribunal,  we  find  that several  matters  spoken to by the witnesses  regarding  the charts  do not appear to have been seriously  challenged  by the  workmen.   Regarding the multipliers  and  divisor  for plant  and  machinery,  including moulds,  these  have  been spoken  to  by the factory Engineer,  MW-3.   Regarding  the buildings,  the  Architect, MW-4, has also  given  evidence. Regarding  all  these  matters,  the  Chartered   Accountant attached  to  the auditors of the  respondent  company,  has given  evidence as MW-2.  The appellant has not objected  to the  data adduced as well as the documents produced  by  the

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company.   No suggestions have been made to these  witnesses that  the figures on the basis of which  the  rehabilitation claim was made, were in any way erroneous.  It is before  us for  the first time that Mr. Ramamurthi has  urged  that-the evidence of these witnesses is not sufficient to justify the claim   for  rehabilitation  made  by  the   company.    Mr. Ramamurthi has referred us    to the variousdecision regarding the nature of the  evidence that is     required to be produced by a company when  it  makes  a  claim   for rehabilitation. Mr. B. Sen invited our attention  to   the award dated    February 5, 1960of     the     Industrial Tribunal, Calcutta, Ext. M-26,     which related tothe claim  of the workmen of the respondent company in  Calcutta for  bonus for the year 1957.  In that  award,  the-Tribunal has  very elaborately gone into the evidence adduced-by  the company  and  has  allowed  a sum  of  Rs.  2,18,36,983,  as calculated by the company, as,rehabilitation charges.   When once  a  Tribunal  has considered a similar  claim  and  has adopted on the basis of the evidence adduced by the parties, normally  the  amount awarded towards  rehabilitation  claim should  be  adopted.  We do not say that it  is  conclusive. But that award is certainly entitled to due consideration at our hands.  In 238 that  award the Tribunal had worked out  the  rehabilitation claim  for the year 1957.  The charts filed by  the  company regarding  rehabilitation,  though for the  years  1962  and 1963,  were worked out only on the basis of the  replacement cost  of  the  year 1958., We  are  mentioning  this  aspect because if the appellant’s case was that the Tribunal,  when working  out  the  claim  for 1957 in  Ext.   M-26  has  not properly appreciated evidence, it should have elicited  from the  witnesses, who deposed on behalf of the  company,  that the figures furnished by them are not correct and cannot  be accepted.   No such attempt has been made by the  appellant. Mr.  Sen,  learned counsel, relied on the decision  of  this Court  in M/s Hindustan Motors Ltd.(1) case and pointed  out that  according  to  that  decision,  the  only  permissible deduction  from  the total amount claimed  as  required  for rehabilitation  by  the appellant can  be  the  depreciation amounting to Rs. 5.17 crores and Rs. 5.75 crores in 1962 and 1963  respectively.   He  further pointed out  that  if  the amount representing depreciation reserve is taken out of the total  reserves, which is established by the evidence,  then the  balance  amount has been utilised in raw  material  and hence   there  were  no  available  liquid  assets   towards rehabilitation. We  do not propose to go into the details of the  claim  for rehabilitation  made by the respondent-company, as well  ’as the objections now made on behalf of the workmen to the said claim.    The  reason  is  that  when  evidence,  oral   and documentary, was adduced by the company before the Tribunal, the  appellant has not objected to the data adduced and  the documents  produced by the management and they have not  put any  questions  to  the  witnesses  to  establish  that  the calculation made by the company is erroneous.  There is also the  additional fact that from the two charts  of  available surplus  for  the years 1962 and 1963,  reproduced  earlier, even  without  allowing any claim  for  rehabilitation,  the workmen  have been paid bonus for the two years in  question at rates higher than 60%.  Allowing for the benefit that the management  will get by way of tax rebate on the  amount  of bonus  paid,  the  payment  of  bonus  already  made  is  in accordance  with the Proportion accepted by this Court  vide M/s  Gannon  Dunkerley and Co.  Ltd.  v.  Their  WorkMen(2).

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Even  on the basis of the calculation to be made,  according to  the appellant, in respect of the  rehabilitation  claim, the  company  will be entitled to. some amount at  least  in that  regard.   Even  if the amount,  as  contended  by  Mr. Ramamurthi, is taken into account, the available surplus, as shown  in the charts, will be reduced further.   The  result will  be that even the amount paid as bonus already  by  the company, will be more than what the work- (1) [1968] 2 S.C R. 311. (2) AIR 1971 S. C. 2567.  239 men  will be entitled to according to the decisions of  this Court.   As  pointed out earlier, even  without  making  any provision  for rehabilitation, the percentage of bonus  paid is amply sufficient.  Considering the matter from any  point of view, there is no question of the workmen being  entitled to any additional bonus over and above what has already been paid. To conclude, we are satisfied that the award of the Tribunal holding that the workmen are not entitled to any  additional bonus  for  the years in question, is correct.   The  appeal fails and is dismissed.  There will be no order as to costs. V. P. S.         Appeal dismissed. 240