1978 PLP 453 (PLC)

"Standing Order 10-C.-Payment of bonus.-(1) Every employer making profit in any year iha11 pay for that year within three months of the closing of that year to the workmen who have been in his employment in that year for a continuous period of not less than ninety days a bonus in addition to the wages payable to such workmen. (2) The amount of the bonus payable shall-- (a) if the amount of the profit is not leer than the aggregate of one month's wages of the workmen employed be not less than the amount of such aggregate, subject to the maximum of thirty per cent of such profit; (b) if the amount of the profit is less than the aggregate referred to in paragraph (a), be not less than fifteen per cent. of such profit. (3) The bonus payable to a workman entitled thereto under clause (1) shall bear to his monthly wages the same proportion as the total bonus payable by the employer bears to the aggregate of the wages referred to in paragraph (a) of clause (2) and shall be paid either in cash or in N. I. T. Units of equivalent value at the option of such workman. (4) Nothing in this section shall be deemed to affect the right of any workman to receive any boners other than that payable under clause (i) to which he may be entitled in accordance with the terms of his employment or any usage or any settlement or an award of a Labour Court established under the Industrial Relations Ordinance, 1969 (XXIII of t 969)." Clause (1) of Standing Order 10-C speaks of profit bonus, while clause (4) speaks of the right of workmen to receive any bonus other than that payable under clause (1) of Standing Order 10.C. It is an admitted fact that the applicant-Union was paid bonus for the years 1959-70, 1970-71 and 1972-73. Bonus for the year 1971-72 was also paid but in the year 1971-73 However, no bonus was paid for the years 1966-67, 1967-68 and 1968-67. In order to prove that the bonus paid to the workers was customary bonus, it has to be shown that it was paid at a uniform rate; it was paid during years of loss as well and it his been paid for sufficiently long time and for an unbroken series of years. The respondents have produced Annexures A to J to their affidavit. Annexure A is a notice dated 4-2-1971 notifying the workers about the decision of Management for the payment of bonus, while Annexures B to I are the balance-sheets for the years 1967 to 1974, which are duly audited. These documents are not disputed or - " by other side. According to Annexures B, C and D, which ace the balance-sheets fan the years 1966-61,. 1967-68 and 1968-69, which show that in the financial years 1966-67 and 1967-68, the respondents sustained losses and no bonus was paid to the workers. During financial year 1968-69, the profit was adjusted against losses of previous years, Annexure B is the balance-sheet for the year 1969-70 which shows that the company earned profit of Rs. 75,293 and bonus of Re. 14,472 was distributed among the workers vide notice dated 4-2-1971, which is Annexure A to the Affidavit of the respondents. Annexure F is the balance-sheet for the year 1970-71 and during this year profit of Re. 55,856.39 was earned by the company and bonus of Rs. 15,672 was distributed among the workers. Annexure G is the balance-sheet for the year 1971-72 and it shows the profit of Re. 2,087.10 only, hence no bonus was given to the workers. Annexure H is the balance-sheet for the year 1972-73 and during this year profit of Re. 1,85,343 was earned, hence bonus for the years 1972-73 as well as 1971-72 was given to the workers vide Annexure. I, which was Rs. 12,373 and Re. 19,000 respectively. Respondents had also declared bonus vide Annexure J to the respondent's affidavit. From the perusal of above documents, it stands proved Vat the bonus was not given to the workers during the years of losses and the quantum of bonus was not uniform. Similarly, it is also proved that it has not been paid for sufficiently long time and for unbroken series of the years. In view of the above reasons, I am of the view that the applicant-Union, has miserably failed to establish that bonus paid to the workers during the above-mentioned years was a customary bonus. In order to prove custom, it was incumbent upon the applicant-Union to have proved that payment of bonus was long standing spread over considerable length of time an it was constantly followed in the same manner. Under the circumstances, I am of the opinion, that the applicant Union, has failed to prove that the bonus paid to the workers was customary bonus as distinguished from the profit bonus payable under Standing Order 10-C. It would also not be out of place to mention here that the applicant Union has stated in par'. 2 of their main application that the respondents are paying bonus in terms of custom and usage equivalent to one month's salary and for the year 1972 and onwards, the respondents have not fulfilled their statutory obligation with regard to the payment of profit bonus and that this application is made for determination of pre-existing statutory right as guaranteed under Standing Order 10-C. In his affidavit dated 24-5-1974, the applicant's witness Syed Abid Abbas, the General Secretary of the Union, has stated that the respondents have been paying to its workers customary bonus every year and that statutory bonus in the terms of Standing Order 10-C has ' been refused by the respondents and for the year 1972 and onwards, the respondents have not fulfilled their statutory obligation with regard to the payment of profit bonus. From the above, it becomes clear that the respondents have paid the customary bonus and applicant-Union has made this application for the profit bonus as per Standing Order 10-C. But in the affidavit of applicant's witness Mahmood Ahmad, General Secretary of the Union, filed on 25-5-76, it has been stated at paras. (4) & (5) that since 1970, the respondents have been paying the bonus equivalent to one month's salary continuously every year as a matter of practice, usage and custom and the payment of bonus was not at all subject to profit and that the respondents have paid the profit bonus to the workers within the provisions of Standing Order 10-C of Standing Orders Ordinance, 1968, and have failed to pay customary bonus for the financial year 1971-73. This affidavit shows that profit bonus has already been paid to the workers and the applicant-Union has claimed the customary bonus as per Standing Order 10-C (4). These two different affidavits filed by applicant's witnesses Syed Abbas and Mahmood Ahmad, are quite contradictory to each other and it appears that the applicant-Union itself is not clear in its mind whether it claims the customary or profit bonus in the instant application. Since the applicant witness Mahmood Ahmad has admitted in his affidavit that profit bonus for the year 1972-73 has already been paid by the respondents to the workers, the present application deserves to be dismissed on this count alone. In the result, I find no merits in the application, which is hereby dismissed. Application dismissed.