S.K Jha, J.:— These appeals under S. 82 of the Employees' State Insurance Act, 1948 (hereinafter to be referred to as the Act), have been filed by the Regional Director of the Employees' State Insurance Corporation against Bata Shoe Company (Private), Ltd., Digha Ghat branch factory, in Miscellaneous Appeal No. 92 of 1971, and against Bata Shoe Company (Private), Ltd., Mokamah Ghat branch factory in Miscellaneous Appeal No. 93 of 1971. Identical questions of law are involved in these appeals arising from a consolidated judgment of the Presiding Officer, Employees' State Insurance Court, Patna, on an application filed under S. 75(1)(g) of the Act by the respondents. Therefore, this common judgment will govern both these appeals.
2. There is only a slight difference in so far as the facts relating to the two cases are concerned. Therefore, I shall set out briefly the facts relating to the respective cases and then discuss the common questions of law involved. The respondents having been called upon by the appellant to make their contribution in respect of Employees' State Insurance Fund felt aggrieved and moved the Insurance Court under S. 75(1)(g) of the Act, as stated above. The facts, short as they are, relating to the two appeals are given hereunder.
3. So far as Miscellaneous Appeal No. 92 of 1971 is concerned, in which the Digha Ghat branch of the company was the applicant in the Court below, the facts are these. On 6 May, 1947, a memorandum of agreement was settled between the Digha Ghat branch factory of the company and the Bata Mazdoor Union, Digha, a union of the employees. That document is exhibit 5 on the record. It was provided therein, inter alia, in relation to demands 4 and 5 to be verified by the workmen, that—
“production bonus will remain as at present except that all employees earning less than Rs. 200 will get an extra bonus called ‘attendance bonus’ of 5 per cent of their yearly salary which is equivalent to about two weeks salary provided they do active service for 265 days in a year inclusive of Saturdays. The calculation of the bonus will be in the same way as production bonus. The yearly salary means fixed and further salaries exclusive (sic) dearness allowance, bonus and overtime and (sic) payment or any other emolument.”
On 28 November, 1951, vide exhibit 5/a, notes of discussion were recorded on some other points raised by the secretary of the Bata Mazdoor Union with the directors of Bata Shoe Company, Ltd., Digha. Agreement arrived at in course of the discussion provided, inter alia, in Para. 10 of the document as under:
“10 Bonus.— It is agreed that the system of attendance bonus from the year 1952 will be discontinued and the ex gratia bonus's percentage will be increased by 5 per cent, i.e, instead of 10 per cent it will be 15 per cent to all employees.”
It was also stipulated in Para. 13 of exhibit 5/a that it was agreed that alterations in the standing orders and rules would be made to introduce the charges in place of the existing ones. Then came record of mutual settlement and agreement recorded before the Chairman, Industrial Tribunal, Bihar, in Reference Case No. 12 of 1955, as evidenced by exhibit 5/b, wherein with regard to issues 1 and 2 it was settled, inter alia, that
“the company has also agreed to increase the general bonus effective from first quarter of 1957, on income from 15 per cent to 16 per cent ……”
This was followed by recorded notes of settlements on points of discussion between the management of the Digha factory of the company and the representatives of the union on 27 July, 1961 — vide exhibit 5/c, which provided in its last clause as under:
“General.— In view of the overall satisfactory settlement on all the outstanding points of the union and of those points raised by the management as a gesture of goodwill, the management declared that with effect from third quarter of 1961, the general bonus will be increased from 16½ per cent to 17½ per cent. The workmen's representatives appreciated this gesture of the management and expressed satisfaction on behalf of the workmen on the increase of general bonus.”
This again was followed by a document, dated 9 January, 1963 (exhibit 5/d). It was a memorandum of settlement between the management of Digha factory of the company and their workmen arrived at in course of conciliation proceedings before the Conciliation Officer-cum-Deputy Labour Commissioner, Bihar. Paragraph 2 thereof provided:
“Bonus.— The rate of payment of bonus, effective from fourth quarter of 1962, will stand revised at 19 per cent in place of 17½ per cent as at present. The payment of bonus will be made one month after the end of each quarter at the rate of 19 per cent of the total salary and/or wages paid to each workman and employee during the quarter immediately preceding (such salary or wages are exclusive of any other special allowance or rewards granted to him during such period). Such bonus will be payable only to those who have completed six months' approved service ending on the last day of the quarter and to those who have completed less than six months' approved service on the last day of the quarter the bonus will be payable at the rate of 9½ per cent of their total salary or wages as aforesaid. The bonus will be available only to those who are in the employ of the company on the last day of the quarter and who have given regular and approved service during the quarter to which the payment of bonus is available.
In that very document in the last paragraph, namely, Para. 3 (f), it was further stipulated that the agreement would remain valid till 31 December, 1966, and would continue thereafter from year to year until a written notice of two months and not earlier of an intention to amend and revise the agreement was given before the date of expiry of the agreement by any of the parties to the other party. The last document recording the discussions and the settlement arrived at between the employers and the employees is the one, dated 17 July, 1963, marked exhibit 5/e. The last part of notes of discussion and settlement mentions that
“the bonus clause will not remain in the standing orders and rules and will have a part of the collective department.”
Admittedly bonus at the rate of 19 per cent had been paid to the employees by the Digha factory of the company ever since the rate was increased from 17½ per cent to 19 per cent, and as stipulated in exhibit 5/e by agreement of the parties the inclusion of the bonus clause in the standing orders and rules was excluded therefrom.
4. Irrespective of the dates of different memoranda of agreements and settlements as between the Mokamah factory of the company and the union of the workers, the broad facts remain the same, namely, by virtue of different agreements rates of either production bonus or attendance bonus which was subsequently termed as ex gratia payments were enhanced from time to time at the same figures and percentages as were done in the case of Digha factory.
5. The only difference is so far as the facts are concerned was that while in the case of Digha factory the bonus scheme was incorporated at one time or the other in the standing orders and rules of the company and was subsequently deleted therefrom in pursuance of the agreement under exhibit 5/e, so far as Mokamah factory is concerned, such bonus scheme was never incorporated in the certified standing orders or rules of that factory. These being the salient facts, the two factories, Digha and Mokamah, of the company were called upon from time to time by the office of the appellant to make the requisite contribution in respect of Employees' State Insurance Fund and at one stage or the other under two documents, to which I shall make a reference at the appropriate place, it was admitted at one time by the labour and welfare officer of the factory at Digha and at another time by the assistant personnel officer of the Digha factory that the amounts would be so deposited as being part of the contract of employment.
6. Later, however, the employers resiled from the position and realizing, as they said, that in law they were not liable to make any such contribution under the Act in respect of the sums of bonus paid or payable to the employees, they repudiated their old stand and denied their liability to make any such payment. Finding themselves at a point where they apprehended coercive methods to be used against them, the managements of the two factories at Digha and Mokamah filed their respective application denying their liability under S. 75(1)(g) of the Act. Necessary parties were noticed and were duly heard. After evidence was gone into, the learned Presiding Officer of the Employees' State Insurance Court by the impugned order held that the employers were not liable to make any contribution as the sum payable or paid by way of bonus to the employees was not covered by the definition of the term “wages” in S. 2(22) of the Act.
7. Learned counsel appearing for the appellant contended that the Court below was in error in holding that the sums paid or payable by way of bonus to the employees were not covered by the term “wages” within the meaning of S. 2(22) of the Act. In order to appreciate the argument, it is worthwhile to quote here the definition of “wages” as given in the Act under S. 2(22) Section 2(22) defines “wages” thus:
“‘Wages’ means all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled and includes any payment to an employee in respect of any period of authorized leave, lockout, strike which is not illegal or lay-off and other additional remuneration, if any, paid at intervals not exceeding two months, but does not include—
(a) any contribution paid by the employer to any pension fund or provident fund, or under this Act;
(b) any travelling allowance or the value of any travelling concession;
(c) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or
(d) any gratuity payable on discharge.”
It will be noticed from the aforesaid definition that this clause consists of four parts. In the first part wages has been defined to mean all remuneration paid or payable in cash if the terms of the contract of employment, express or implied, were fulfilled. The second part covered by way of inclusion payments made to the employees in respect of any period of authorized leave, lockout, strike not illegal or lay-off. The third part embraces within its sphere other additional remuneration, if any, paid at intervals not exceeding two months. These are the three positive parts of the definition, whereas the fourth part is of a negative character which excludes from the definition of wages matters enumerated in Sub-cls. (a), (b), (c) and (d).
8. It may be mentioned straightaway that the stand taken by the appellant both in the Court below as well as before us was that the payment of bonus to the employees was covered by the definition of wages in the first part of S. 2(22) of the Act. In other words, the contention put forward on behalf of the appellant was that the bonus in question paid to the employees of the two factories at Digha and Mokamah of the company was in the nature of remuneration paid in cash to the employees under the express terms of the contract of employment. Learned counsel for the appellant insisted that if the amounts of bonus in question were not covered by the first part of the definition then the appellant's case must fail. We have, therefore, not been called upon to direct our attention to any other part of the definition of the term “wages” in order to find out as to whether the amount of bonus could be said to be covered under any other part of the definition.
9. The crux of the matter, therefore, is as to whether bonus as paid to the employees of the two factories under exhibits 5 series in the case of Digha factory and exhibits 1 series is the case of Mokamah factory could be said to be remuneration paid as a term of the contract of their employment. It is worthwhile to reiterate here that in exhibit 5/a, dated 28 November, 1951, it was agreed between the parties that the bonus paid or payable to the employees could be in the nature of ex gratia payment. Payments were so made by the management and so accepted by the employees. Learned counsel for the parties joined hands in describing the nature of bonus so paid to the employees from time to time as being neither in the nature of production bonus nor incentive bonus nor customary bonus, nor, for that matter, any statutory bonus.
10. It is more or less, therefore, a sort of goodwill bonus as has been described by the Supreme Court in the case of New Maneckchowk Spinning and Weaving Company, Ltd. v. Textile Labour Association [A.I.R 1961 S.C 867], where Wanchoo, J., as he then was, speaking for the Court, stated that as its very name implies, goodwill bonus is a bonus which is given by the employer out of his free consent in order that there may be goodwill between him and his workmen, but there can be no question of imposing a goodwill bonus by Industrial Courts as imposition of such a bonus is a contradiction of its very concept. This being the essential nature Of the payment, I shall discuss the point as to whether by any stretch of imagination the payment of such a bonus can be termed as a remuneration in pursuance of the terms of the contract of employment.
11. Before adverting to the case law on the subject, I may noticed here the definition of the term “bonus,” which is of course not to be found in any of the statutes relating to industrial law, as given by Stroud in his Judicial Dictionary, Vol. I, at pages 318 and 319. Adopting the definition of “bonus” as given in the New English Dictionary, Stroud defines it as
“a boon, or gift, over and above what is nominally due as remuneration to the receiver, and which is, therefore, something wholly to the good … It may be a mere gift or gratuity as a gesture of goodwill, and not enforceable, or it may be something which an employee is entitled to on the happening of a condition present and is enforceable when the condition is fulfilled.”
As a matter of fact, numerous definitions of the terra “bonus” have been noticed by the Supreme Court in the case of Muir Mills Co. Ltd. v. Suti Mills Mazdoor Union, Kanpur [A.I.R 1955 S.C 170], at pages 172 and 173. In Paras. 7 and 8 of the report Bhagwati, J., has observed:
“This imports the conception of a boon, a gift or a gratuity otherwise described as an ‘ex gratia’ payment.
The word ‘bonus’ has, however, acquired a secondary meaning in the sphere of industrial relations. It is classified amongst the methods of wage payment. It has been used especially in the United States of America to designate an award in addition to the contractual wage. It is usually intended as a stimulus to extra effort but sometimes represents the desire of the employer to share with his worker the fruits of their common enterprise ….”
In the case of Sree Meenakshi Mills, Ltd. v. Workmen [A.I.R 1958 S.C 153], Gajendragadkar, J. (as he then was), has described bonus as a cash payment made in addition to wages generally representing the cash incentive given conditionally on certain standards of attendance and efficiency being attained. So also in the case of Mathurdas Kanji v. Labour Appellate Tribunal [A.I.R 1958 S.C 899], it has been held that the accepted definition of the term “bonus” is cash payment made in addition to wages as a stimulus to extra work and efficiency by the labour. In the case of Titaghur Paper Mills Co., Ltd. v. Workmen Etc [A.I.R 1959 S.C 1095], which was a case of production bonus, their Lordships of the Supreme Court described such a bonus as being in addition to wages.
12. Again in the case of R.P Kapur v. State Of Punjab. [A.I.R 1960 S.C 866], it was held that where payment of bonus was made ex gratia and accepted as such by the employees, it could not be held to be a term of service on the basis of any implied agreement. The last, but not the least, is the case of Braithwaite & Co. (India) Ltd. v. Employees' State Insurance Corporation [A.I.R 1968 S.C 413], where their Lordships of the Supreme Court were dealing with a case of payment termed as inam. It was held that the payment of inam, even if it be covered by the term “remuneration” could not be said to have become a term of the contract of employment within the meaning of “wages” as given in S. 2(22) of the Act.
13. There may be cases where bonus has been paid regularly for a sufficiently long number of years, it may ripen into a condition of service and merely calling it by the name ex gratia will not make any difference. But it has to be emphasized that in order to attract the definition of “wages” as given in the first part of S. 2(22) of the Act, it is not sufficient that bonus be either a remuneration or even a condition of service. I am in respectful agreement with a Bench decision of the Andhra Pradesh High Court in the case of Employees' State Insurance Corporation v. Vazir Sultan Tobacco Company, Ltd. [1972—II L.L.J 602], where it has been held that in order that the first part of the definition may be applied it must be established that the payments in question are remuneration and, secondly, such remuneration is paid or payable in fulfilment of the terms of the contract of employment express or implied. The terms of the contract of employment must provide for the payment of such remuneration in order to make such payments wages otherwise not. Indeed in the case of Vazir Sultan (vide supra), the Andhra Pradesh High Court has gone even to the extent of saying that any ex gratia payment to which the employees are not entitled in law cannot even be termed to be additional remuneration. It is, however, not necessary for us to deal with that aspect of the matter.
14. Suffice it to say that even if it does fall within the term “additional remuneration” in order to be covered by the definition of “wages” in S. 2(22), such additional remuneration must be paid not beyond two months' interval. Admittedly, in the present cases the payment of bonus in question was at the end of each quarter, namely, at an interval of three months. Therefore, even assuming for the sake of argument, if it be termed as additional remuneration the period of payment being in excess of two months such payment would fall beyond the purview of the definition of “wages” in the Act. Be that as it may, we are concerned in the instant cases merely with the first part of the definition, namely, as to whether these payments could be said to be remuneration in terms of the contract of employment. To my mind, therefore, it is clear that the bonus in question in the present cases could not be said to be remuneration as a term of the contract of employment. Indeed, it was admitted at the bar that at the point of time when the employees entered into the contract of employment with the management there was no question of any bonus being paid to them.
15. Learned counsel for the appellant next contended that at least in so far as the Digha factory was concerned, the bonus scheme having been incorporated specifically in the standing orders and rules it should be treated as if it formed a part of the contract of employment by such an incorporation. I do not see any force of logic in this submission. Section 2(g) of the Industrial Employment (Standing Orders) Act, 1946, lays down that “standing orders” mean rules relating to matters set out in the schedule. In the schedule appended to the Act there are eleven matters enumerated, none of which speaks of any bonus or wages. Merely because an item not required to be incorporated in the standing orders of the company is so incorporated will not make it a term of the contract of employment. As a matter of fact, either inclusion or omission from the certified standing orders of any company of any matter, either required to be included therein or not so required, will not form the basis for any inference as to whether any such matter relates to the term of the contract of employment of the employees or not.
16. Evidently the wages payable to the employees or any other payment to be made to them cannot in the very scheme of the Industrial Employment (Standing Orders) Act find place in the standing orders for the standing orders are supposed to incorporate only such matters which with certain amount of certainty make the employees aware of certain code of conduct and discipline which they are required to maintain in the institution or establishment. That has got no bearing upon either the wages payable to them or for that matter to any other term of the contract of employment entitling them to any remuneration. It is futile, therefore, to urge that merely because at one point of time the matter relating to percentage of bonus to be paid to the employees at the Digha factory of the company did find place in the standing orders of the company it would make such a bonus a part of the contract of employment.
17. Apart from this position in law, it is important to bear in mind in this context that by an agreement between the parties as evidenced by exhibit 5/e, to which a reference has already been made earlier the employees themselves had agreed that the bonus clause would not remain in the standing orders and rules of the company and that agreement is not being assailed on behalf of the employees. In any view of the matter, therefore, the inclusion of the rate of bonus in the standing orders has no bearing on the question before us. On the contrary, if the workers themselves agreed under exhibit 5/e to strike out the bonus clause from the standing orders and rules of the company, it may as well be presumed that they were fully conscious of the fact that this was no part of any contract of employment by which the company was at any time bound.
18. In this context reference may also be made to a decision of the Calcutta High Court in the case of Indian Standard Wagon Company, Ltd. v. First Industrial Tribunal, West Bengal [1962—I L.L.J 726], wherein it has been laid down that the schedule to the Industrial Employment (Standing Orders) Act, 1946, dealing with matters to be provided in the standing orders does not include a matter relating to provisions for profit-sharing bonus or any bonus and, therefore, the physical incorporation of bonus in the standing orders would have no more effect than that of a contractual agreement; and as I have already held above, it being a contractual agreement or a condition of service will not necessarily make such a condition a term of the contract of employment. Reference may also be made in this connexion to the cases of Rohtak and Hissar District Electric Supply Company, Ltd. v. State of Uttar Pradesh [(1965) 29 F.J.R 76], and Uttar Pradesh Electric Supply Company, Ltd. v. T.N Chatterjee [1972 — L.L.N 131], in support of the respondents' claim that mere physical incorporation in the standing orders will be of no consequence in the matter.
19. Learned counsel for the appellant then raised the only other point in support of the appeals, namely, that the respondents were estopped by admission made by them in two documents (exhibits A/1 and A/3). Exhibit A/1 is a letter, dated 4 July, 1961, from the welfare officer of the Digha factory of the company to the Regional Director, Employees' State Insurance Corporation, in response to a letter from the latter. The last sentence of that document (exhibit A/1) reads thus:
“Bonus to our employees is paid quarterly at 16½ per cent on income in terms of the contract of employment.”
Exhibit A/3 is a letter, dated 2 November, 1961, from the assistant personnel officer of the Digha factory to the Regional Director, Employees' State Insurance Corporation, wherein it has been stated:
“In the Standing Orders and rules of our factory which govern the terms of contract of service of our workmen as well as supervisory and clerical staff, there is a specific provision with regard to the payment of bonus to such employees. The relevant extract is given below:
‘Bonus’: The general bonus will be paid at 17½ per cent on income.”
On the basis of these two documents it was vehemently argued that these being representations made by responsible officers of the Digha factory to the department regarding the nature of payment of bonus made to the employees, the respondents must be held to be estopped from changing their position. It was urged that they cannot be allowed to approbate and reprobate. Once having given out that the payment of bonus was in terms of the contract of employment of the employees, they cannot now be permitted to turn round and resile from that position and say that in law these payments did not amount to any contract of employment and that, therefore, they fall beyond the definition of the term “wages” in S. 2(22) of the Act. There are two reasons why this argument cannot be accepted. Firstly, whether from the documents on record the nature of the payment of bonus was such as to attract the definition of the term “wages” in S. 2(22) of the Act is not a question of fact. The effect of the contents of the documents, the nature of the payments made under the various documents, the effect of such payments in law — all these are questions and inferences of law.
20. It is well-established that there cannot be any estoppel on a question of law or against a statute. As to whether a particular payment is embraced within the term “wages” as defined by S. 2(22) of the Act or not is a matter of statutory interpretation. There may be cases where it is not free from ambiguity to infer the exact nature of the payment. In such cases the principle of contemporanea expositio est optima et fortissima in lege may be attracted. There the admissions and conduct of the parties will be relevant for determining such ambiguous matters. But where the matters are clear from the record and the question is as to whether or not a particular statutory provision is applicable to them, no amount of admission of any party can act as an estoppel so as to preclude him from asking that in law he cannot be fastened with a liability unwarranted by law.
21. The second answer to this contention is simpler still. As has been repeatedly held Nagubai Ammal & Others v. B. Shama Rao & Others [A.I.R 1956 S.C 593], admission is a piece of evidence as any other piece of evidence on record. If such admission can be explained away or outweighed by other materials on record then it will be futile to urge that the mass of other evidence tending to outweigh the stray admission should be rejected merely because of ignorance of law of a person who has made the so-called admission. In either view of the matter, therefore, neither the principle of estoppel nor that of admission will be of any avail to the appellant in these two cases.
22. No other point was raised in support of these two appeals.
23. For the reason stated above, I do not find any merit in these appeals. They are accordingly dismissed with costs.
24. S.N.P Singh, C.J:— I agree.