Transport And Dock Workers Union And Others v. New Dholera Steamships Ltd., Bombay And Others

Hidayatullah, J.— The appellant in this appeal by special leave is the Transport & Dock Workers' Union which is a Trade Union of the employees employed in the Transport, Shipping, Docks and Port Trust Industries and Employments in Greater Bombay. The Union is representing 55 workmen belonging to four companies and the dispute is regarding bonus for the account year ending October 1963. Three of the companies are Shipping Companies carrying on the business of the Transport of goods by steamers and the fourth is a stevedore company. These companies are separately registered and publish separate balance sheets and Profit & Loss accounts but as the workmen are transferable from one company to another and the wages and conditions of service are the same in all the four companies, bonus and other benefits are claimed on a consolidated footing. This was expressly agreed to at the hearing before the Tribunal. The Industrial Tribunal, Maharashtra, Bombay presided over by Mr M.R Meher held that the claim for bonus over and above bonus equal to one month's consolidated wages already paid to the workmen was not justified. The reason given by the Tribunal was that after calculation according to the Bonus Formula was made there was no available surplus but a deficit of Rs 29,15,492. In fact, there is a deficit in all the Shipping Companies, except one, and in the Stevedore Company, there is a small surplus of Rs 12,582.

2. Before the Tribunal it was agreed that return on capital at 8 per cent and on reserves employed as capital at 4 per cent should be deducted from the gross profits. There was also no dispute about the depreciation claimed by the Company. The objections were, therefore, two and they related to rehabilitation charges and certain sums deducted as extraneous income. Real deficit arises because of rehabilitation charges and the learned Solicitor-General, who appeared for the workmen, conceded that unless that charge is eliminated there would still be no available surplus even if the extraneous income is added as claimed by him. We shall, therefore, very briefly, refer to the extraneous income first.

3. The extraneous income deducted by the Tribunal, which is sought to be added back, is the profit on the sale of S.S Janeta belonging to the Malabar Steamship Company Ltd. It was sold at a profit of Rs 9,25,000. The ship was purchased in 1952-53 for Rs 37,02,428. Its written down value in the books of the Company was Re 1. It was sold for Rs 9,25,001 and there was a profit of Rs 9,25,000. It is claimed by the workmen that the whole of this sum ought to be added back as scrap value of the ship. We would have considered this question on which much can be said but it would be a fruitless exercise, because the amount of Rs 9,25,000 even if taken as part of the surplus leaves still a deficit of the order of Rs 20,00,000. It is, therefore, obvious that the only question in this case is whether rehabilitation charges have been rightly calculated.

4. Mr Meher took evidence in the case and came to the conclusion that the normal life of a ship must be taken as 20 years. He calculated replacement cost on the basis of quotations available for ships of the same kind and from the quoted price he deducted the proportionate purchase price for the number of years the ship was used and this made the rehabilitation charges go beyond the money in hand, leaving a deficit of Rs 20,00,000. The learned Solicitor-General argued that the companies have obtained loans at a very low rate of interest to purchase these ships but that in our judgment makes no difference in principle because rehabilitation is claimable so that money may be forthcoming for replacement when the existing ships have to be discarded and new ones have to be bought. The learned Solicitor-General did not advance any other argument except that we should take the life of the ship to be 30 and not 20 years. This is a matter of evidence and there was ample evidence before Mr Meher on which he could reach his conclusion and this Court does not interfere with a finding of fact reached on evidence to be found on the record. This point must also fail.

5. When special leave was granted by this Court on August 3, 1965, the Payment of Bonus Ordinance, 1965 (Ordinance 3 of 1965) been passed and the provisions of the Ordinance might have become applicable in this case because of the operation of Section 33 of the Ordinance. That section read:

“33. Ordinance to apply to certain pending disputes regarding payment of bonus.— Where immediately before the 2nd September, 1964, any industrial dispute regarding payment of bonus relating to any accounting year ending on any day in the year 1962, and any subsequent accounting year was pending before the appropriate Government or before any Tribunal or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or under any corresponding law relating to investigation and settlement of industrial disputes in a State, such dispute shall be decided in accordance with the provisions of this Ordinance.

Explanation.— A dispute shall be deemed to be pending before the appropriate Government where no decision of that Government on any application made to it under the said Act or such corresponding law for reference of that dispute to adjudication has been made or where having received the report of the Conciliation Officer (by whatever designation known) under the said Act or law, the appropriate Government has not passed any border refusing to make such reference.”

The Ordinance came into force on January 6, 1965 and the present award was made on January 30, 1965. The Ordinance was prima facie applicable under Section 33 because immediately before the 2nd September, 1964 this dispute regarding payment of bonus was pending before a tribunal constituted under the Industrial Disputes Act and it related to payment of bonus for an accounting year subsequent to an accounting year ending on any day in the year 1962. At an earlier hearing the workmen intended invoking in their favour Section 10 of the Ordinance which read:

“10. Payment of minimum bonus.— Every employer shall be bound to pay to every employee who has worked in the establishment for all the working days in accounting year a minimum bonus which shall be four per cent, of the salary or wage of the employee for the accounting year or forty rupees, whichever is higher, whether there are profits in the accounting year or not:

Provided that where such employee has not completed fifteen years of age at the beginning of the accounting year, the provisions of this section shall have effect in relation to such employee as if for the words ‘forty rupees', the words ‘twenty five rupees' were substituted.”

However, as it was stated on behalf of the Companies that the provisions of the Ordinance were going to be challenged as ultra vires the Constitution we ordered that notice be issued to the Attorney-General. Before the appeal came up for hearing the Payment of Bonus Act, 1965 (Act 21 of 1965) was enacted which came into force on September 25, 1965. The Act re-enacted Section 33 of the Ordinance but with some significant changes. The section now reads:

“33. Act to apply to certain pending disputes regarding payment of bonus.— Where, immediately before 29th May, 1965, any industrial dispute regarding payment of bonus relating to any accounting year, not being an accounting year earlier than the accounting year ending on any day in the year 1962, was pending before the appropriate Government or before any Tribunal or other authority under the Industrial Disputes Act, 1947, or under any corresponding law relating to investigation and settlement of industrial disputes in a State, then, the bonus shall be payable in accordance with the provisions of this Act in relation to the accounting year to which the dispute relates and any subsequent accounting year, notwithstanding that in respect of that subsequent accounting year no such dispute was pending.

Explanation.—A dispute shall be deemed to be pending before the appropriate Government where no decision of that Government on any application made to it under the said Act or such corresponding law for reference of that dispute to adjudication has been made or where having received the report of the Conciliation Officer (by whatever designation known) under the said Act or law, the appropriate Government has not passed any order refusing to make such reference.”

The change of date in the section from September 2, 1964 to May 29, 1965 takes this case out of the application of the new section because immediately before May 29, 1965 there was no dispute regarding payment of bonus pending before the Tribunal. The dispute had already been disposed of on January 30, 1965.

6. It was contended before us that as an appeal is a continuation of the original proceeding the repeal should not affect the enforcement of the provisions of the Ordinance in this case. Reliance is placed upon Section 6 of the General Clauses Act, 1897 wherein is indicated the effect of repeal of an enactment by another. It is contended that as the Payment of Bonus Ordinance has been repealed by Section 40(1), the consequences envisaged in Section 6 of the General Clauses Act must follow and the present matter must be disposed of in accordance with the Ordinance as if the Act had not been passed. It is submitted that there was a right and a corresponding obligation to pay bonus under Section 10 of the Ordinance and that right and obligation cannot be obliterated because of the repeal of the Ordinance. This argument is not acceptable because of the provisions of the second sub-section of Section 40. That sub-section reads as follows:

“40. Repeal and saving. (1) * * *

(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under this Act as if this Act had commenced on the 29th May, 1965.”

Section 6 of the General Clauses Act applies ordinarily but it does not apply if a different intention appears in the repealing Act. Here a different intention is made to appear expressly and the special saving incorporated in the repealing Act protects only anything done or any action taken under the Ordinance which is deemed to have been done or taken under this Act as if the Act had commenced on 29th May, 1965. Nothing had been done under the Ordinance and no action was taken which needs protection; nor was anything pending under the Ordinance which could be continued as if the Act had not been passed. There was thus nothing which was to be saved after the repeal of the Ordinance and this question which might have arisen under the Ordinance now ceases to exist.

7. The appeal, therefore, must fail. It will be dismissed but we will make no order about costs.