1984 PLP 969 (PLC(CS))

(c) Industrial dispute‑ ‑‑ Bonus‑Customary bonus‑Ingredients : (1) Based upon old custom ; (2) continuous and (3) unconditional‑ Homogeniety of rate of bonus contains element of acquiescence‑Element of acquisence to be present in case of customary bonus and in absence thereof bonus is ordinary and not customary and thus not contractual‑Bonus not paid during three years due to loss‑Bonus, in circumstances, held, did not attain character of customary bonus. Mian Nisar Saleem for Appellant. Respondent in person. Date of hearing : 3rd November, 1982. This appeal is directed against the decision, dated 30th March, 1981 recorded by the learned Presiding Officer, Labour Court No. 1, Lahore, whereby the grievance petition of the respondent along with the grievance petition of the other workers was accepted and the appellant was directed to pay one month's basic pay as customary bonus in addition to statutory bonus already paid to the workers. The respondent and many other workers brought separate grievance petitions claiming the customary bonus. The learned lower Court consolidated all of them recorded proceedings in the petition of Abdul Razaq, respondent and disposed them of through the single impugned order. The appellant has challenged the order of the learned lower Court only against Abdul Razaq, respondent but has not brought any appeal against the remaining workers. It appears that the Qrder has been challenged in this appeal with regard to other workers also by using the words `respondents" in plural number. The title of the appeal The Punjab Provincial Co‑operative Bank Ltd., Shahra‑i‑Quaid‑i‑Azam, Lahore v. Abdul Rnzzaq, Supervisor through Mr. Abdur Razzaq, Punjab Provincial Co‑operative Bank Ltd., Shahrah‑i‑Quaid‑i‑Azam, Lahore, "After the words supervisor the words "and others" were typed but there after these words were scored off with ink. It cannot be said whether the appellant or its counsel or some other person scored off the said words, Whatever the case may be separate appeals could be brought against every worker since all of them has brought separate grievance petitions. The mere fact that the learned lower Court consolidated all the petitions did not convert all those applications into one, terminating their individual entity. It cannot be said that this appeal is against all those workers whose petitions were accepted by the learned lower Court because they are not mentioned as respondents nor any separate list of respondents contain ing their names is with the appeal. This judgment will, therefore, dispose of only this single appeal brought against Abdul Razzaq only. The facts are that the appellant had been paying bonus to the workers for 15 years sometimes at the rate of two months' pay and sometimes at the rate of 3 months' pay. In the occasion of losses no bonus was paid. The present appeal deals with the claims to the bonus for the year 1978‑79 which was refused by the appellant on the ground that the appel lant had suffered losses. The application of the respondent was contested by the appellant raising objection that it was time‑barred and that on account of losses bonus could not be claimed. The learned trial Judge has held that contractual bonus can be claimed irrespective of losses. He has treated the application of the respondent within time for the reason that the grievance arose on the date on which the bonus was refused to the respondent and was allowed to the others and that from the said date, the grievance notice and grievance petition was within time. Statutory bonus is allowed by Standing Order 10‑C of the Standing Orders Ordi nance, 1968 which provides that bonus should be paid within 3 months of the closing year. Since customary bonus has been claimed and not statu tory bonus no period of limitation is prescribed for it. The result is t ha when the bonus becomes due on the close of the year and it is not paid, grievance notice is to be served within 3 months from that time. In the present case the customary bonus was refused on 22nd December, 1979 and this was the starting time of limitation. The petition, therefore, was within time.

3. A customary right or in other words a right based upon custom must be old, continuous and unconditional. If a break comes in or it is subject to certain conditions it cannot be recognised as customary. All the C three ingredients are necessary and if one is missing no custom can be said to have existed. It is not old and continuous as break came. It is no unconditional and it was allowed on the condition of profits only. The breaks came in on account of losses. It was paid not as uniform rate but according to the profits. It contains the elements of acquiescence on the part of both the parties and gets the force of a contract and thus becomes enforceable at laws. Homogeneity of rate manifests the element of acquies cence. Acquiescence means not objecting to a thing which is unfavourable or less favourable. Usually bonus is paid on account of profits and according to profits. 1f the employer pays bonus even in case of loss he acquiesces in it. Likewise if bonus is paid at a uniform rate even though profits are high the employees acquiesce by not claiming at a high rate according to the profits. So element of acquiescence on behalf of both the parties is present in the case of customary bonus. If this element is absent then bonus is ordinary and not customary and thus not contractual. If not being contractual is not enforceable at law and thus cannot be said to be a right guaranteed by any law. The learned lower Court has cited ruling of Supreme Court of India in which ingredients of customary bonus are given but in spite of admitting that two ingredients were not present in this case, allowed bonus to the respondents. He says that in 1975 the custo mary bonus had become old and became a right guaranteed and the mere fact that in 1976‑77 and 1978 this kind of bonus was not claimed on account of losses was not sufficient to deprive the workers of this right guaranteed by law. He has ignored one thing which is the custom must he continuous to the present case this kind of bonus was not allowed for three successive year yet the respondent did not bring any action. Now even if it be said that the learned lower Court is correct in holding, that the two ingredients exist, still as the remaining two ingredients do not exist this kind of bonus did not successfully attained the character of customary bonus. A bonus becomes customary if all the four conditions given in the authority exist continuously for many years. The condition of homogeneity of rate was absent from the very inceptions. Likewise the condition that bonus should have been received even in years of losses is also missing meaning that it was not paid continuously. The bonus, there fore, did never attain the character of customary bonus. As a result of the discussion made above I accept the appeal and setting aside the decision of the learned lower Court so far as its relates to the case of Abdul Razzaq, respondent only and dismiss his grievance petition. As the other workers who too had brought separate petitions were not impleaded as party to this appeal, this judgment shall not effect the decision of the learned lower Court so far it relates to their cases, A. E Appeal accepted.