Stone, C.J:—

This is an appeal from the judgment of Mr. Justice Bhagwati dated September 20, 1945, and raises the short point whether what has occurred between the appellant company and its employees amounts to a trade dispute within the meaning of the Trade Disputes Act, 1929, and as such, a matter which can be referred to an adjudicator, viz. respondent No. 1, who has been appointed by the Government of Bombay for that purpose under r. 81A(c) of the Defence of India Rules, 1939. Section 3 of the Trade Disputes Act provides the machinery for referring trade disputes to Courts or boards and by sub-s. 2(j) “trade dispute” is defined to mean any dispute or difference between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of the employment, or with, the conditions of labour, of any person. By sub-s. 2(k) “workman” means any person employed in any trade or industry to do any skilled or unskilled, manual or clerical work for hire or reward, but does not include any person employed in the naval, military or air service of the Crown. Rule 81A(c) of the Defence of India Rules makes provision for referring any trade dispute for conciliation or adjudication in the manner therein provided. In this case the Government having appointed the first respondent such adjudicator, the appellant company seeks by its petition either to obtain a writ of certiorari, or a writ of prohibition, or an injunction under s. 45 of the Specific Relief Act, so as to prevent the adjudicator from entering upon the reference.

The appellant company employs some 1,200 workmen 700 of whom are members of respondent No. 2 Union which is a trade union registered under the Trade Unions Act.

In the years 1941, 1942 and 1943 the workmen, apparently through their Union, demanded, and after conciliation proceedings, successfully obtained, what is described as a bonus. The rateable distribution of this bonus appears to have been fixed by reference to the quantum of wages of the individual worker. The demand notices in respect of the years 1941 and 1943 are not before this Court; but that in respect of 1942, which is dated December 13, 1942, and is addressed to the manager of the appellant company, is as follows:

On behalf of and as directed by the General Body of the Union in its resolution of December 12, 1942, I beg to give you notice that if within 14 (fourteen) days of the receipt of this letter, the demands of the workers of the Indian Hume Pipe Co. Ltd.'s workshop at Antop Hill, Vadala, are not dealt with to the satisfaction of the workers and the Hume Pipe Workers Union, the Union will have to resort, with regret, to direct action for getting those demands.”

Under the heading of “Demands of the Workers,” there are a number of paragraphs, paragraphs 1 and 2 being as follow:

1. Special War Bonus equal to one-sixth of the total earnings during the year 1942 of each worker to each worker, irrespective of the period of service.

2. Annual bonus to each worker equal to 112th (one-twelfth) of his earnings during the year inespective of the period of the service.

There are eleven other demands ranging from a demand of fifteen days leave with pay to the demand that the members of the staff should stop abusing the workers, as well as beating them during the course of their work, and in working hours. Whether there is or is not any justification for these demands is immaterial; but it cannot in my opinion be said that they are not connected with the workers' terms of employment. In respect of the year 1944 the nature of the demand took the following form:

“Re Bonus demand.

We the undersigned workers of your factory beg humbly to inform you by this notice, that if within fourteen days of the receipt of the notice, the demand re: bonus we have made below, is not considered and the decision for paying us the bonus is not taken, we will be free to take further proper steps (including strike). We are giving you this notice under r. 81 of the Defence of India Rules. A copy of the notice is being sent to the Commissioner of Labour and Commissioner of Police, Bombay.”

The demand: Every worker in the factory should be paid bonus equal to 1/6th of his earnings from January 1 to December 31, 1944, excluding dearness allowance; the bonus should be paid in one instalment before April 15, 1945.”

This is signed by more than 700 workers, “from amongst about 1,200 workers”. With that demand the appellants were unwilling to comply and in order to prevent strike action, Government in the exercise of its powers under r. 81A(c) of the Defence of India Rules appointed respondent No. 1 as adjudicator.

In my judgment as soon as the appellant company refused to comply with this demand which it was in its unfettered discretion to grant, it is quite impossible to say that there was no dispute or difference between the employers and their workmen which was connected with the terms of employment. In the Court below there appears to have been much debate with regard to the meaning of the word “bonus” and the argument has, been repeated to us by Mr. Jhaveri in this Court. In the Court below the learned Judge in an elaborate judgment has considered the meaning of that word and also a number of English cases with reference to it. But even accepting that the primary meaning or the word “bonus” is “gift” or “gratuity”, it is not asked in this case as a matter of patronage or bounty. It is demanded, and strike action is threatened if such demand is not complied with. So that as soon as the demand is declined, all the elements of a trade dispute arise. I respectfully agree with the conclusion-arrived at by the learned Judge in the Court below that the dispute between the appellant company and their workmen relating to their demand for payment of bonus for the year 1944 is a trade dispute within the meaning of the Trade Disputes Act, and can, by virtue of the operation of r. 81A, sub-r. (c), of the Defence of India Rules, be the subject-matter of a reference to the adjudicator, respondent No. 1 in this appeal. This view finds support from the English case of National Association of Local Government Officers v. Bolton Corporation, though the main question in that case was whether the corporation were free agents to grant the demand or were under a statutory duty to give it or withold it.

In the case before us, there is no such complication the question in my opinion is too plain to need any authority, the answer is that there is a trade dispute within the meaning of the Act. This appeal must be dismissed with costs separate sets of costs to be allowed to both the respondents.

Kania, J.:—This appeal arises out of a petition filed by the appellants to obtain from the Court a writ of certiorari, or a writ of prohibition, or an order under s. 45 of the Specific Relief Act, preventing the first respondent from proceeding with the adjudication of the matter stated in the order dated April 4, 1945, of the Government of Bombay. By that order the first respondent was asked to adjudicate upon the following matter: “What Bonus, if any, should be granted on the earnings of the employees for the year 1944 and on what terms and conditions?” In para 2 of the petition it is stated that during the years 1942 and 1943 the petitioners as a matter of grace paid a bonus to their workmen employed in their several factories including the said factory at Antop Hill. The workmen of the appellant company in the present case have put forward the claim to receive one-sixth of the earnings of 1944. In para 6 of the petition it is stated as follows:

“The petitioners say that payment of bonus is a voluntary payment ex gratia and by way of concession which the petitioners are not bound to pay to the workmen under the terms of their employment as part of the wages payable to them or otherwise.”

Against this an affidavit on behalf of the workmen's union is filed. That adopts the affidavit of Mr. Iyengar, the Assistant Commissioner of Labour for the Province of Bombay. In para 6 of his affidavit Mr. Iyengaf denied that the payments made during 1942 and 1943 were made as a matter of grace. In reply to para 6 of the petition he stated as follows:

“……I deny that payment of bonus is a voluntary or ex gratia payment as alleged. I also deny that such a payment is a payment by way of concession which the petitioners are not bound to pay to the workmen under the terms of their employment as part of wages payable to them or otherwise, as alleged.”

In order to obtain from the Court a writ or order as prayed, it is necessary for the petitioners to satisfy the Court that the first respondent was acting without any jurisdiction whatsoever, or in the language of s. 45 of the Specific Relief Act “he was doing or forebearing from doing an act under any law for the time being in force clearly incumbent on such person to do or forebear.” The argument of the Appellants is this: The payment of bonus is a gratuity or gift to which the recipient has no right. Such a gift is not a term of employment and therefore there can be no trade dispute within the meaning of the Trade Disputes. Act, in respect of the payment of bonus. Under the circumstances the order of the Government asking the first respondent to adjudicate upon the amount to be paid to the employees, is an order directing the first respondent to exercise a jurisdiction which does not exist. The foundation of this argument is that a bonus is a gratuity or a gift. As I have pointed out, in para 6 of the petition the appellant had stated that a bonus is a voluntary payment ex gratia and by way of concession. They further alleged that the appellants were not bound to pay the workmen bonus under the terms of their employment as part of their wages payable to them or otherwise. The statement of facts is therefore twofold: (1) that a bonus is a voluntary payment made ex gratia, and (2) the negative statement that the workmen are not entitled to be paid a bonus under the terms of their employment. As I have also pointed out, in the affidavit in reply, both these positions are expressly denied. The question therefore on the petition and affidavit is whether a claim made by the workmen, which is described as a bonus, is a claim for voluntary payment, or is a claim to be paid under the terms of their employment. If that was the position there could be no doubt that the dispute was clearly one in respect of the terms of employment, as defined in the Trade Disputes Act, and within the jurisdiction of the adjudicator to decide. It is however contended by the appellants that they had stated that a bonus was a voluntary payment, made ex gratia, and that position should be accepted unless the contrary was established. In my opinion this is a wrong contention in law altogether. In support of their contention the appellant company relied on Sutton v. Attorney-General At p. 297 Lord Birkenhead L.C in delivering judgment observed as follows:

“The term ‘bonus’ may, of course, be properly used to describe payments made of grace and not as of right. But it nevertheless may also include, as here, payments, made because legally due, but which the parties contemplate will not contiuus indefinitely.”

This passage is contended to give the word “bonus” primary meaning, that it is a payment ex gratia. It is argued that unless the respondent displaces this presumption it must prevail. In my opinion this is not a correct reading of the passage at all. The learned Lord Chancellor has deliberately used the word “may” in both parts of observations and his statement about the meaning of the word “bonus”, reading the two sentences in their natural meaning, seems clear. He expressed the opinion that bonus may mean an ex gratia payment, but may also include a payment which could be legally enforced. Apart from that, in the present case, there is no doubt about the matter. While the appellants contend that it is an ex gratia payment and for the present discussion it does not matter whether it is described as a bonus or otherwise, the respondents contend that it is not so. The appellants contend that the workmen are not entitled under the terms of their employment to the same while the respondents contend that it is not so. If so, in my opinion, it is clearly a dispute between the parties as regards the terms of employment and is covered by s. 3 of the Trade Disputes Act and r. 81A(1)(c) of the Defence of India Rules.

It will of course be a matter for the decison of the adjudicator as to whether the claim is in respect of an ex gratia payment or is a term of employment of the workmen. This Court is not called upon to enter into that discussion at this stage. If it is a dispute in respect of the terms of employment, the adjudicator has jurisdiction to decide it and no order as asked by the petitioners can be made. In my opinion, on that short point this appeal fails. I agree that it should be dismissed with costs, as stated by the learned Chief Justice.

Attorneys for appellants: Messrs Wadia, Ghandhi & Co.

Attorneys for respondents: Messrs Little & Co.; K.J Kale & Co.

A.J.P