Ramaswami, J.— This appeal is brought, by special leave, against the award of the First Industrial Tribunal, West Bengal dated July 29, 1963 in Case No. VIII-47/62, published in the Calcutta Gazette dated August 22, 1963.
2. The workmen of M/s National Tobacco's Company of India Ltd. (hereinafter called the “Company”) claimed four months' wages as bonus for the year 1960. The respondent Company refused to pay the bonus claimed and the dispute was thereafter referred by the Government of West Bengal to the Industrial Tribunal for adjudication under Section 10 of the Industrial Disputes Act. The case of the Company was that there was no available surplus on the basis of the Full Bench Formula for payment of any bonus in respect of the year 1960. After hearing both the parties the Industrial Tribunal allowed the following prior charges to be deducted from the gross profit:
Prior charges
Amount
(a)
Notional Normal Depreciation
Rs
5,90,719
(b)
Income tax
Rs
25,38,150
(c)
Return on paid-up capital at the rate of 6%
Rs
7,49,700
(d)
Return on reserve used as working capital at the rate of 4%
Rs
7,63,356
(e)
Rehabilitation charges
Rs
7,30,931
3. In the opinion of the Tribunal there was available surplus of Rs 14,32,460 and therefore it directed the Company to give one month's wages as profit bonus to the workmen.
4. On behalf of the appellants Mr Chari put forward the argument that the Company did not adduce reliable evidence regarding the Rehabilitation Charges and the Tribunal was in error in allowing the claim and deducting the amount from the gross profit. In our opinion, the argument of the appellants is well founded and must be accepted as correct. It is well established that the onus is on an employer to prove the claim to Rehabilitation by leading positive and reliable evidence (See The Associated Cement Companies Ltd., Dwarka Cement Works, Dwarka v. Its Workmen (1959) SCR 925. The employer has to prove the price of the plant and machinery, its age, the period during which it requires replacement, the cost of replacement, the amounts standing in the depreciation and reserve fund, and to what extent the funds at his disposal would meet the cost of replacement. If the employer fails to lead satisfactory evidence on these points the claim for rehabilitation must be rejected. In the present case, the Company has not adduced satisfactory evidence before the Tribunal for determining the multipliers or divisors for calculating rehabilitation charges. Two witnesses were examined on behalf of the Company viz. Sri Ajit Kumar Mitra, Accountant — OPW 1 and Sri A.M Sen, ex. General Factory Manager — OPW 2. Sri Ajit Kumar Mitra admitted that he had no expert knowledge for determining either multipliers or divisors. His evidence was based partly on the recent price list of machineries and partly on the information obtained from Sri A.M Sen, ex. General Factory Manager. Sri A.M Sen, OPW 2 conceded that he was not an Engineer and that he had no particular facts or figures in his possession to show as to how the calculation was made. Sri A.M Sen admitted that he had no diploma or degree in Mechanical Engineering. He had originally worked as a Chemist in the Company. He admitted there were Mechanical, Electrical and Refrigerator Engineers in the Company. No evidence has been adduced on behalf of the Company to explain why a Mechanical Engineer was not examined for determining either multipliers or divisors for calculating the rehabilitation charges. The Tribunal has subjected the evidence of OPW 1 and OPW 2 to much criticism and has, in substance, rejected their evidence on this point. The Tribunal has thereafter determined the multipliers and divisors on its own calculation and by a process of guess work. In our opinion, therefore, the findings of the Tribunal are vitiated because of total lack of evidence to support them. It is manifest that the Company has failed to produce positive and reliable evidence on the question of rehabilitation and the amount of extra Rehabilitation charge viz. Rs 7,30,931 allowed by the Tribunal must be therefore added back to the total available surplus mentioned in the award. We, therefore, determine the amount of available surplus to be Rs 14,32,460 plus Rs 7,30,931 — Rs 21,63,391. The monthly remuneration paid to the employees during the year 1960 was Rs 5,56,456 and taking into account all circumstances of the case we consider that the workmen can legitimately claim two months' wages as bonus. We, therefore, direct that the Company should pay to the workmen for the year 1960, 2/12ths of the annual wages as bonus. There is no evidence adduced before the Tribunal to show as to what is the total amount of basic wages paid to the workmen. The evidence only indicates the payment of consolidated wages. We accordingly direct that bonus be calculated, in the particular circumstances of this case, on the basis of consolidated wages. In making the direction that 2/12ths of the annual wages should be paid as a bonus, We have borne in mind the fact that the respondent will get rebate of income tax on the additional amount of bonus which he has been ordered to pay.
5. We should make it clear that it will be open to the Company to adduce better evidence with regard to its claim for rehabilitation for the year 1961 or any other succeeding year and the quantum of bonus determined in the present case for the year 1960 will not be treated as a binding precedent for succeeding years.
6. Mr Chari, on behalf of the appellants, stressed another point in the course of the argument. It was submitted that in distribution of the available surplus the Tribunal has not granted a fair and equitable share to the workmen. Mr Chari pointed out that the wage structure of the Company has not reached the standard of living wage. It was pointed out by learned Counsel that Company had declared 16% dividend on its ordinary shares. Reference was also made to the circumstance that the Company has built up a substantial reserve to the extent of over a crore of rupees which is composed of General Reserve and Reserve for Capital Expenditure. In our opinion, there is substance in the argument advanced by Mr Chari. It is true that no inflexible rule can be laid down as regards the distribution of the available surplus but taking all the relevant factors into consideration, as pointed out in Associated Cement Companies Ltd., Dwarka Cement Works, Dwarka v. Workmen (1959) SCR 925 we are of opinion that the workmen are entitled to about half the available surplus as calculated above. In the absence of any exceptional circumstance a workable rule is that it would normally not be unreasonable if the distribution of available surplus is made in such a manner as to leave to the employer and industry, on the one hand, and the workmen, on the other hand, approximately equal benefits. We are, therefore, directing in this case that the Company should pay to the workmen for the year 1960 about Rs 11,12,000 and odd equivalent to 2/12ths annual wages calculated on the basis of consolidated wages.
7. For the reasons already given we direct that the award of the Industrial Tribunal should be modified and the workmen should be paid 2/12ths of the annual wages as bonus for the year 1960 and the calculation of bonus should be made on the basis of consolidated wages. We accordingly allow this appeal, but there will be no order as to costs.