Lahiri, J.:— This Rule raises an interesting question as, to the meaning of the word “wages” occurring in section 60(1) proviso (h) of the Code of Civil Procedure which is to the effect that the wages of labourers and domestic servants whether payable in money or in kind shall not be liable to attachment.

2. The facts of the case are these. The petitioner obtained a decree for a sum of Rs. 627/- in the Court of Small Causes at Asansol against the opposite party who is a labourer in the Indian Iron and Steel Co. Ltd. in their works at Kulti and he put that decree into” execution in Small Cause Court Case No. 136 of 1956 and in the course of that execution attached a sum of Rs. 138/12/- which was payable to the opposite party by his employer as profit sharing bonus. The opposite party filed an objection under section 47 of the Code of Civil Procedure claiming that this amount being a part of his wages was immune from attachment under the provisions of section 60(1) proviso (h). The executing court has allowed the objection filed by the opposite party and has withdrawn the attachment and against that order, the decree-holder has obtained this Rule under section 25 of the Provincial Small Cause Courts Act.

3. Mr. Ghose appearing in support of the Rule has argued that the profit sharing bonus payable to a worker by his employer cannot be held to be at part of the worker's wages within the meaning of the Civil Procedure Code. The word “wages” has not been defined by the Code of Civil Procedure though it has been defined in the different labour legislations in different ways. Section 2(1) (m) of the Workmen's Compensation Act defines “wages” as including “any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer to a workman towards any pension or provident fund or a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment”. Section 2(6) of the Payment of Wages Act defines “wages” as meaning “all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable whether conditional upon the regular attendance, good work or conduct or other behaviour of the person employed, or otherwise to a person employed in respect of his employment or of work done in such employment, and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such a person by reason of the termination of his employment.” Section 2, clause (rr) of the Industrial Disputes Act as amended by Act 43 of 1953 defines wages as meaning “all remuneration capable of being expressed in terms of money which would, if the terms of employment, express or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment ………..but it does not include (a) any bonus…….” The definitions given in these special Acts, however, are of no assistance for the present purpose because those definitions are intended to govern the rights of the employer and the worker for the purpose of those Acts and those definitions cannot be accepted for ascertaining the meaning of the word “wages” as used in the Code of Civil Procedure.

4. The learned trial Judge has quoted the definition of the word “wages” as given in Halsbury's Laws of England which is as follows:

“Any money or other things had or contracted to be paid, delivered or given as a recompense, reward or remuneration for any labour done or to be done, whether within a certain time or to a certain amount, or for a time or an amount uncertain.”

5. In Murray's Oxford Dictionary the word “wage” has been defined as “a payment to a person for service rendered …….. the amount paid periodically specially by the day or week or month for the labour or service of a workman or servant.” If I am to go by the general meaning of the word “wages” without the help of any artificial definition given in any special Act, I think the word “wages” means a payment to be made by the employer invariably to the workman for the service rendered by him. The phrase “profit sharing bonus” connotes that it is payable only in the contingency of the employer making a profit and that there is no obligation to pay that bonus in the event of a trading loss. Such a contingent payment cannot in my opinion form part of the “wages” payable by an employer to a workman in the absence of any agreement to the contrary. This conclusion is supported to some extent by the observations made by the Supreme Court in the case of Muir Mills Co. Ltd. v. Suti Mills Mazdoor Union, Kanpur, Kanpur (1) (1955) S.C.A 321. The Supreme Court was deciding this case at a time when the amendment of the Industrial Disputes Act by Act 43 of 1953 had not yet come into operation. The court had therefore to consider the general meaning of the word, bonus. For this purpose their Lordships had to enter into an elaborate discussion as to the nature of the bonus payable to a workman by his employer. Bhagwati, J. who delivered the judgment of the Court after an exhaustive review of English and American authorities and also certain extracts from Corpus Juris Secundum observed as follows at page 328:

“It is therefore clear that the claim for bonus can be made by the employees only if as a result of the joint contribution of capital and labour the industrial concern has earned profits. If in any particular year the working of the industrial concern has resulted in loss there is no basis nor justification for a demand for bonus. Bonus is not a deferred wage.”.

6. This decision was followed by another decision of the Supreme Court in the case of Sree Meenakshi Mills, Ltd. v. Workmen (2) (1958) S.C.A 440. In that case Gajendragadkar, J. made the following observations at page 445:

“The true nature and character of the workmen's claim for bonus against their employers is now well settled. Bonus is not, as its etymological meaning would suggest a mere matter of bounty gratuitously made by the employer to his employees; nor is it a matter of deferred wages.”

7. Then after referring to the Muir Mills' case (1) (supra) his Lordship adds:

“The term ‘bonus’ is applied to a cash payment made in addition to wages. It generally represents the cash incentive given conditionally on certain standards of attendance and efficiency being attained,”

8. If profit sharing bonus had been a part of wages it could only have been deferred wages but the Supreme Court has held that bonus is not a deferred wage and if it is not a deferred wage, it is not a part of the wage at all. In my opinion, that is the conclusion which follows from the passages in the judgment of the Supreme Court which I have quoted above. The fact that bonus has been held to be cash payment made in addition to wages also leads to the conclusion that bonus is something which is not included in wages.

9. The learned trial Judge has relied upon a decision of a single Judge of the Bombay High Court in the case of Vyas Jivanlal Kandas v. Thakarda Ramtuji Bhaiji (3) I.L.R 1945 Bom. 46 in support of the view that bonus is to be treated as a part of the wages payable by an employer to the workman. In that case, however the learned Judge held that upon an agreement executed between the Textile Labour Association of Ahmedabad and the Ahmedabad Mill Owners' Association the bonus paid by the latter to a worker would be treated as part of his wages. Bonus may no doubt be treated as a part of the wages of a worker under the terms of an express or implied agreement between the employer and the worker; but in the absence of any such agreement as is the case here, I cannot hold that the general connotation of the word “wages” includes a bonus. On the other hand, the very nature of the payment indicates that it falls outside the concept of wages.

10. Mr. Bhattacharjee appearing for the opposite party relied upon a decision of the English Court of Appeal in the case of Picken v. Lord Balfour (4) L.R (1945) 1 Ch. D. 90 in which Lord Greene, M.R was considering the question whether under the definition given in Rule 1, Clause (e) of the Rules and Regulations of 1914 of the Great Northern Railway Company war bonus payable to an employee was a part of his wages. That Rule as quoted in the judgment runs thus:

“Salary includes wages, and any bonus, house, or house allowance.”

11. In construing that rule his Lord-ship held that “war bonus” though not mentioned in the rule as part of wages was really a part thereof. At page 96 his Lordship makes the following observation:

“This war bonus appears to me to be in every true sense a wage. It was a flat rate and applicable to all grades for the simple reason that the rise in the cost of living affected all grades. It was put into a separate category of nomenclature because it was regarded as “something which was not necessarily permanent, but something which, if the war came to an end within a reasonable time, might be expected to disappear.”

12. This decision in my opinion is of no help to the opposite party because war bonus is not a contingent payment like a profit sharing bonus but has to be paid invariably by the employer though for a temporary period. In the words of Bhagwati, J. in the Supreme Court judgment in Muir Mills' case(1) (supra) this bonus is paid when “wages fall short of the living standard”. Such a bonus is paid to fill up the gap between the actual wages paid to workers and the higher cost of living. This kind of war bonus has a striking resemblance to dearness allowances which are paid by employers in our country but it has no resemblance with a profit sharing bonus which is payable by the employer only in the event of the employer earning profits.

13. I considered the question whether I should send the case back to the trial court to enable the opposite party to produce the agreement, if any, or the award of an Industrial Tribunal if any, under which the opposite, party was claiming the profit sharing bonus from his employer. Any such agreement or award of an Industrial Tribunal would show that the bonus which the opposite party was claiming was not given to him as a matter of grace but that he could claim it as a matter of right. But I think no useful purpose will be served by allowing the opposite party an opportunity to produce any fresh evidence.

14. Mr. Ghose argued the case on the assumption that the payment of profit sharing bonus claimed by the opposite party could be claimed by him not as a matter of grace but as a matter of right. His argument is that assuming that the opposite party could claim it as a matter of right, the profit sharing bonus cannot form part of the wages of the opposite party having regard to the nature of the payment. In my opinion, a contingent payment like a profit sharing bonus cannot be held to be a part of the wages of a workman within the meaning of section 60(1) (h) of the Code of Civil Procedure.

15. For the reasons given above, I would make this Rule absolute and set aside the order passed by the learned Small Cause Court Judge.

16. In the circumstances of the case, I would make no order as to costs.

S.K.B