SHRI AMBICA MILLS LTD. NO. 1 v. THE TEXTILE LABOUR ASSOCIATION, AHMEDABAD, AND VICE VERSA
Citation: [1973] 3 S.C.R. 123; 1972 INSC 306
Court: Supreme Court of India
Bench: C.A. VAIDYIALINGAM , I.D. DUA, A. ALAGIRISWAMI
Judgment date:
Case summary
1972 INSC 306. Supreme Court of India judgment dated 1972-12-20. SHRI AMBICA MILLS LTD. NO. 1 v. THE TEXTILE LABOUR ASSOCIATION, AHMEDABAD, AND VICE VERSA....
Judgment text
A B c D E F G H SHRI AMBICA MILLS LTD. NO. 1 v. THE TEXTILE LABOUR ASSOCIATION, AHMEDABAD, AND VICE VERSA December 20, 1972 [A. ALAGIRISWAMI, l. D. DUA AND C. A. VAIDIALINGAM, JJ. ] Payment of Bonus Act 1965, Second Schedule Item 6(g)-Al/owable ded11ctions under-'Subsidy' meaning of-Cash payments by way of a. fsistance are subsidy-Indirect assistance like Customs Drawb~k and re/;. te on Railway Freight is not 'Subsidy'-Subsidy to be allowable undtr Item 6(g) must be by Govt. body or Body Corporate established by any la1v for the time being in force-Distinction between Body Corporal~ established 'by' law and 'under' under law-Payment received for earlier· year nutst be deemed to be income of year of receipt especially when accounts n1aintained on cc. sh basis. There was a dispute between the appellant mills and their workme;n- as to the bonus payable for the year 1967. The dispute was referred to the Industrial Court, Gujarat under s. 73-A of the Bombay Industrial Relations Act, 1946.
The workmen claimed inter alia that bonus should be paid at tbe rate of 6. 59% of the annual earnings. The Mills on the other ha;nd contended that bonus was payable only at the minimum rate of 4%. The Mills in calculating the available surplus claimed: deductions of certain items falling under item 6(g) of the_ Second Sche- dule of the Payment of Bonus Act 1965, as subsidies. The dispute centred round the meaning of the word 'subsidy' in item 6(g) of the Second Schedule to the Payment of B®us Act. Another incidental question was whether the Joint Plant Committee or the· Indian Cotton Mills Federation was a 'Body Corporate established by any Jaw for the time being in force'. HELD : (i) The Industrial Court was right in holdi:ng (a) that the· \.
vord 'Subsidy' cannot be confined only to those cases where cash 1 payment is made by Government in order that an industry may survive, {b) that e\'en if assistance is given by wav of an i:ncentive it wou¥ not cease to be a subsidy provided it is a cash payment given by way of assistance and (c) that certain types of assistance particularly those' which are onlv indirect like rebates etc, should be excluded. [1270] Whether the grant is made to a single establishment or it is gramed· on certain terms which make it available to all persons and establish- ments carrying on the same industry does not make any difference in. principle. The subsidv is received bv the concern or establishment. carrying 0'. 1 that industry or activity. [129:&F] ! n view of the clear provision in item 6(g) for subsidy being deduct·· ed 1t v:as not open to the Court to consider whether it was proper to· deduct the sub~id\ 1 from the allocable ~u'rolus.
But the word 'Subsidy' should be restncted to the narrowest possible limits and should take in· only d~rcc. t cash s_ubsidies . as conte~plated under item 6(g). It cannot cover indirect assistance hke Customs Drawback or rebate on railway freights. [l30A-C] The mere fact that the full excise dutv and railway freight is paid: in the first instance and part of it is later refunded shoul. d not make: 123 124 SUPREME COURT REPORTS [1973] 3 S. C. R. . any difference to the ultimate fact that what is paid by 'the management is only concessional excise duty and concessional freight. [I 30F) Sona Valley Portland Cement Co. v. The Workmen, (19721 L. L. J. 642 and Bengal Textiles Association v. I. T. Commr. 1960 A. LR. 1320, :referred to. Accordingly, while item 1 claimed by the appellant Mills I. e. the subsidy paid by the Government should be deemed to b,e a permissible deduction, items 3 & 4 were not permissible deductions.
(ii) (a) The Joint Plant Committee is certainly not a Government Body. It seems to be more or less functioning c;>n '1! I1' informal basis. It does not seem to have any statutory powers. The decision of the Industrial Court that the cash paid by the Body is a deductible item could not be upheld. Item 2 claimed by the appellant Mills was there- fore not a permissible deduction. [133C-D] (b) Item 5 claimed by the Company was also not an allowable deduction because the Lndian Cotton Mills Federation which made the cash payment in this case was not a Body Corporate established by any law for the time being in force. The contention that the words 'body ·corporate established by any law' should be deemed to include even a body corporate established under any law i. e. e¥en a compa:ny, could E. F A B c D E F G H AMBICA MILLS v. TEXTILE ASSOCN. (Alagiriswami, J.
) 129 After the report of the Commission, the legislation regarding bonus took the form of a Bonus Ordinance where for the first time we come across item 6(g) in Schedule 2. The Resolution of the Government of India which considered the recommenda- tions of the Commission's report and accepted it subject to cer- tain modifications, for the first time referred to subsidies. The particular sentence is as follows : "(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . ...... . Further, subsidies paid by Government to certain con- cerns like the Hindustan Shipyard should not be taken into account in working out the gross profits for the purpose of payment of bonus. " The Press Note issued by the Government regarding the Ordi- nance also contained a similar statement. On the basis of the. se two statements and on the basis of an extract from Kothari's ..
Economic Guide and Investors' Handbook of India" where this subsidy to the Hindustan Ship Yard, which was originally called the Scindia Steam Navigation Co. , has been described, it had been argued before the Industrial Court, and the same argument was repeated before this Court, that the subsidy contemplated under item 6 ( g) can only be a subsidy to a particular concern or establishment. We consider this argument as fallacious. The reference to the Hindustan Shipyard is merely illustrative. The argument based on this that only grants to particular e. stablish- ments as such and not grants to any activity which any establish- ment can carry on should be called a subsidy, is a far-fetched one. Whether the grant is made to a single establishment or it is granted on certain terms which make it available to all persons or establishments carrying on the same industry does not make any difference in principle.
The subsidy is received by the con- cern or establishment carrying on that industry or activity. On the other hand we realize the force of the argument advanced on behalf of Labour that a grant, even a cash subsidy, made in respect of the export of some commodity or other, as in the present case, is related to the commodity itself, towards the production of which both labour and capital have contribnted and, therefore, any part of the income received in respect of that activity should not be deducted in calculating the available sur- plus, and that it would be unfair to labour to do so. The force of this argument was appreciated and acceded to even by Shri Gupta appearing on behalf of the Management. His sole point was that but for the introduction of item 6 (g) in the Second Schedule to the Bonus Act it would not be open to him to con- tend that subsidy should be deducted from the allocable surplus for the purpose of payment of bonus.
But he_ contended, the Act itself having made the provision for subsidy being deducted 10--631SupCl/73 130 SUPRBMB COURT RBPORTS (1973] 3 S. C. R. it is not open to this Court to consider whether it was proper to deduct the subsidy from the allocable surplus. He argued that if subsidy should not be so deductible the remedy lay elsewhere and that it was with the Legislature and while it would be per- fectly legitimate for this Court to recommend that the deduction of subsidy should not be permitted, the subsidy must be deducted as long as the statute stands as it is. We appreciate the reason- ableness of the stand. But we consider that the word 'subsidy' should be restricted to the narrowest possible limits and should take in only direct cash subsidies as contemplated under item 6 (g). It cannot cover indirect assistance like Customs Draw- back or rebate on railway freight.
It was contended that an assistance is an assistance whether it is direct or indirect and the drawback of Central Excise and the rebate on railway freight are indirect assistance towards ex- port, and they should also be deemed to be subsidy. As pointed out earlier the overwhelming view of the meaning of the tem1 "subsidy" is direct payment and not indirect assistance. Further- more, if instead of allowing a drawback in Central Excise and a rebate on railway freight the scheme of assistance had been on the basis that goods exported will pay only half the Central Excise Duty and half the usual railway freight, this argument will not be available to the Management. In that case there would have been no repayment to the Management of part of the Cen- tral Excise Duty and part of the railway freight paid by it and it could not have been claimed as a cash receipt.
The whole of the Excise Duty and the railway freight originally paid has been included as an item of expense, thus reducing the surplus and when part of it is received back it does not stand to reason that it should not go towards reduction of the expenses and conse- quently increasing the surplus. The mere faot that the full excise duty and railway freight is paid in the first instance and part of it is later refunded should not make any difierence to the ultimate fact iliat what is paid by the management is only concessional . excise duty and concessional railway freight and but for the mode adopted of collecting the full excise duty and fall railway freight in the first instance and refunding part of it later, neither the sums nor the argument would be available to the manage- ment. We are, therefore, quite clear in our mind that the draw- back of Central Excise and rebate on Railway freight should not be deemed to be a subsidy for the purposes of this Act.
The term subsidy cannot cover concessional rates of excise duty and freight but only cash payments. We may, perhaps, refer in this connection to certain decisions relied on by the both sides. In Sone Valley Portland Cement Co. A B c D E F G H A B c D E F G H AMBICA MILLS V. TEXTILE ASSOCN. (Alagiriswami, /. ) 131 v The Workmen(') this Court held that apart from legislation an incentive bonus for increase of production, irrespective of the question as to . whether the industty was making profit or not is one that must be introduced by the particular unit of industry, and it would be for the management to fix what ince. ntives should be given to different departments to step up production. It was further held that an Industrial Tribunal would not be justified in holding that merely because there has been augmentation in the production la.
hour would be entitled to make a claim to bonus because of such 'increase, and that labour would undoubtedly be entitled to revision of wage scales, dearness allowance and other terms and conditions of service as also profit bonus. This deci- sion is not, therefore, an authority for the proposition that a sub- sidy intemled to encourage export could not be taken into account for the purpose of calculating the allocable surplus. This deci- sion itself proceeds on the basis that in calculating the profit bonus such amounts would have to be taken into account. All that was held was that the ·amount paid as subsidy by itself could not·be considered to be one in which labour would be entitled to share. The decision of this Court in Bengal Textiles Association v. I. T. Commr. (2) though it had to consider the meaning of the word 'subsidy' occurring in the Business Profits Tax Act 194 7, would not be relevant for deciding the question at issue.
In that case it was held that the use of the word 'bonus' or 'subsidy' connotes that the payment is in the nature of a gift, and as the payments in that case were made by the Government to an asso- . ciation to assist it in carrying on its business and for the services it was rendering to Government, the payments were not in the nature of a gift. This decision was relied on by Mr. Tarkunde as supporting his argument that a payment made for a service ren- dered cannot be deemed to be a subsidy. That is no doubt so, but in the present case there is no question of any service ren- dered by the management to the Government. The mere fact that the Government is interested in encouraging exports and, therefore. offers many incentives for export, of which any manu- facturer could take advantage, does not mean that any such manufacturer is rendering any service to Government. These are schemes intended by the Government for the benefit of the coun- try and.
therefore, any person would be entitled to take advantage of that scheme and be entitled to subsidy or assistance promised by the Government. Such payments do not become either pay- ments for service rendered or cease to be subsidy merely on the ground that any number of persons coming under that category would be entitled to that benefit or payment. (I) [1972] L. LJ. 642. (2) A. J. R. 1960 s. c. mo. 132 SUPREME COURT REPORTS [1973] 3 s. c. R. It was argued by Mr. Tarkunde that if a manufacturer takes it into his head to export all the products that he had manufac- tured it would mean tnat all his receipts would be in the form of subsidy, drawback on Central Excise and rebate on railway freight. and if all these items are to be deducted from the profits there will be nothing a¥ailable for distribution as bonus and that A it will be unfair to labour to deprive it of its share of the income B from products towards the production of which it has made its own contribution.
Notionally that is possible but in actual prac- tice that is hardly likely. But it does not, however, take away the force of the argument that the deduction of subsidies from the total income would be unfair to labour in the matter of pay- men( of bonus. As we have already pointed out the remedy lies c with the Legislature. What prompted the Government to include item 6(g) in the Second Schedule to the Bonus Act we have no way of knowing. We thus come to the conclusion that only direct cash pay- ments should be deemed to be subsidies and not indirect receipts in the form of drawn up of paf'l of the Excise Duty and rebate D on railway freight, which are in reality not subsidies but conces- sional rate of Excise Duty and railway freight. This means that item 1, i. e. , the subsidy paid decree by the Government should be deemed to be a permissible deduction but not items 3 and 4. This leaves the question regarding items 2 and 5 for conside- E ra~ion.
Both these items are, of course, cases of cash payment, but only if they ~re payments by the Government or a Body Corporate established by any law for the time being in force they would be permissible deductions. As regards the Joint Plant Committee the Industrial Court merely said that it appears to be a Government Body, and at an- F other place that it appears to be a Body constituted by the Government. A body constituted by the Government is not necessarily a Government body. We find from the brochure issued by the Joint Plant Committee regarding Indenting Proce- dure and General Conditions of Sale for Iron and Steel, that it was constituted bv the Central Government in exercise of the G powers conferred by Clause 17 of the Iron and Steel '(Control) Order 1956 to take over the functions previously performed by the Iron and Steel Controller in regard to planning and distribu- tion of indents and rolling programmes. It.
consisted of Iron and Steel Controller as Cbainnan and one representative of each of the main steel plants, the Tata Iron & Steel Co. Ltd. , the Indian H Iron & Steel Co. Ltd. , Hindustan Steel Ltd. , Rourkela, Hindustan Steel Limited. Bhilai. Hindustan Steel Ltd. , Durgapur, and a representative of the Rru. 1way Ministry. This was the result of the B c AMBICA MILLS v. TEXTILE ASSOCN. (Alagiriswami, !. ) 133 decision to abolish over-all statutory control over the prices of the bulk of steel production and the decision to entrust freight equalisation to the Joint Plant Committee. Clause 17 of the Iron and Steel (Control) Order 1956 is as follows : "17. Power of Central Government to give direc- tions.
-The Central Government may give directions as to the procedure to be followed by the authorities issuing quota certificates, permiis or written orders, referred to in Clause 4 and 5, as to the maintenance by the Controller of records in connection with the distribution of iron or steel and generally for the purpose of giving effect to the provisions of this part. " From these provisions it does not appear how exactly the funds of the Joint Plant Committee are obtained and why or how the Joint Plant Committee makes the payments of the kind in ques- tion. This is certainly not a Government Body. It seems to be more or less functioning on an informal basis. It does not seem to have any statutory powers. The decision of the Industrial D Court that the cash paid by this Body is a deductible items can- not, therefore, be upheld. As regards the payment made by the Indian Cotton Mills Federation, it appears that the payment is made out of a fund collected by it at the rate of Rs.
200/- per bale of imported cotton. It means, therefore, that when payments are ma4e out E of this fund the mill receiving that payment is in fact getting back either the whole or a substantial part of what it has already paid, when it purchased imported cotton. That apart, this Federation cannot be said to be a Body Corporate established by any law for the time being in force. It may be a Body Corporate established under the Companies Act because it is reg~stered under the Com- F panics Act. The Payment of Bonus Act, Section 2(9) defines a company as follows : ·G H "(9) 'company' means any company as defined in section 3 of the Companies Act. 1956, and includes a foreign company within the meaning of sec. 591 of that Act;"' A corporation is defined in section 2 ( 11) as "any body corporate established by or under any Central, Provisional or State Act but does not include a company or a co-operative society".
Now it will be noticed that the definition of the term 'corporation' takes in bodies corporate established by law as well as bodies corporate established under any law. It cannot, therefore, be said that when item 6(g) in the Second Schedule uses the words 'body corporate established by any law' it was not conscious of the distinction between a body corporate established by law and a body corpo- rate established under any law. This distinction has also been 134 SUPREME COURT REPORTS (1973] 3. S. C. R. noticed in the decision of the High Court of Bombay in Majoor Sahkari Bank Ltd. v. M. N. Maj11rndar & Anr. (') In discussina this question the learned Judges said : c "But what, in our opinion, the notification contem- plates is not incorporation under any law but by an Indian law, which means that a special law should in- corporate the particular company or association. For instance we have a Reserve Bank of India; we had an Imperial Bank of India; we have now State Banks.
The Act itself incorporates the bank, association or society. And the language used is clear. It is not "incorporated under an Indian law"; it is "incorporated by an Indian law". But what appears to us to be fairly clear in the first part of the notification and when we look at that it applies to the business of banking companies registered under any of the enactments relating to companies for the time being in force. Now the object obviously was to apply this notification not to associations of less than 10 persons who were doing business of banking and who could not be incorporated but to cmlfine the operation of this notification to ten persons or more who could be, and would have to be registered, either under the Indian Companies Act or some other Act relating to companies. " It was argued by Mr.
Gupte that under the Act bonus is payable by a "corporation" as well as a "company" and, there- fore, the words 'body corporate established by any law' should be deemed to include even a body corporate established under any law i. e. , even a company. But it appears to us that the words 'body corporate established by any law' have been deliberately used. While all companies and corporations, as defined in the Act are liable to pay bonus. the intention seems to be that only subsidies paid by body corporate established by any law, should be deductible items and not subsidies paid by bodies corporate established under anv law. The above decision of the Bombay High Court referred io the Reserve Bank of India, Imperial Bank of India and State Banks. There are bodies corporate established bv law like the Rubber Board. Coffee Board etc. , which grant subsidies for replantation. rehabilitation etc.
The idea appa- rently in referring to a body corporate established by any law was that when bodies corporate are established by any law for the specific purpose of encouraging any industry and they grant sub- sidies such subsidies alone should be taken into account. We are of the opinion. therefore. that item 5 also is not a deductible item. (I) [1955] 2 L. L. J. 755. A. B c D E F G H A B c D E F G AMBICA MILLS v. TEXTILE ASSOCN. (Alagiriswami, J. ) 135 This leaves for decision the question whether the sum ot Rs. 9,72,986 which relates to amounts received in the year 1967 but relate to earlier years, can also be deducted or not. In the view that we have taken that only item 1 is a deductible item, the amount involved is a small one of Rs. 6,873 due for the year 1966 but received in the year 1967. We are not able to agree with the contention on behalf of labour that as the whole of the sum of Rs. 32.
43 lacs has been shown as item of income in the prefit and loss account of the mills the management cannot now contend that any part of it cannot be deducted and that the whole of the amount should be held to be profit available for calculating the bonus. All that section 23 of the Act provides is for pre- sumption of the accuracies of the balance sheet and profits and loss account of corporations and companies. The correctness has been accepted by both the parties. But whether any part of that amount should be held to fall under item 6 ( g) of . the Second Schedule to the Act cannot be decided on the basis that it is shown as an income in the profit and loss account or the balance sheet. There is no question of estoppel here. All the same we have no doubt that amounts due for earlier vears received in 1967 should also be deemed to be income for tlie year 1967.
Other- wise it means that such sums would not have been taken into account in the years for which they were due as also in the. years when they were received. Moreover. the accounts in this case have been maintained on a cash basis and, therefore, the amounts received in the year 1967 should be deemed to be the income of that year though due in respect of an earlier year. We may also refer to the decision in Consolidated Coffee Estate Ltd. v. Work- men(') where it was held that even though the company had been paying bonus in the past by negotiating with its employees, if it insisted that for the year in question it would pay in accord- ance with the relevant law it could not be prevented from having its liability for bonus determined accordingly. In the result the appeals of the Mills Company are dismissed. The appeals of the Association are allowed in part holding that item 2, i. e.
, the sums received from the Joint Plant Committee is not a deductible item and item 1 alone will be a deductible item under item 6(g) of the Second Schedule. As the Association has succeeded in five out of six questions that had to be decided they will get their costs from the management. The Industrial Court will have to re-calculate the bonus· on this basis. One hearing fee. G. C. (I) [1970] 2 L. L. J. 576.
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