National Engineering Ltd. v. Workmen

NATIONAL ENGINEERING INDUSTRIES LTD. A _v._ ITS WORKMEN _October_ 6, 1967 IJ. M. SHELAT AND V. BHARGAVA, JJ.J B _Industrial Dispute-Bonus-Calculation of rehabilitation cost of_ _machinery-Use of_ multiplier _whether necessary when relevant_ _quotations_ _of_ _price of machinery available-Item-wise_ _and_ _block-wise_ _estimate when desirable-Need of araduated divisor when machinery_ _installed over several years-Interest allowable on_ paid up capital, _rate may_ _be_ _adjusted reasonably-Life of machinery, estimate_ _of-_ _Laches may_ be _taken into account_ _in considering claim_ _for_ _bonus._ _Laches may_ be _taken into account_ _in considering claim_ _for_ _bonus._ c The workmen of the appellant company demanded bonus for the years 1956-57 to 1959-60. The Tribunal disallowed the claim for 195&-57 on the ground that it was belated and allowed the demand for the rest of the years 1957-58 to 1959-60. In working out the available surplus for distribution as bonus the Tribunal in general followed the Full Bench formula evolved by the Labour Appellate Tribunal. Against the Tribunal's award the company as well as the workmen D appealed to the Supreme Court by special leave under Art. 136 of the Constitution. Both sides raised contentions with regard to the rehabilitation allowances in respect of plant and machinery for the three years _in_ question and the method followed by the Tribunal in calculating them. The main question for decision arose out of the company's contention that since it furnished quotations for all machinery including the old machinery, the Tribunal ought to have E **accepted those quotations as equivalent to replacement cost as** **it** did in the case of new machinery instead of adopting the notional method of working out multipliers and then arriving at replacement cost by multiplying that multiplier with the estimated cost to the sellers. HELD: (i) The multiplier is at best an approximation arrived at from the trend of price level during the ascertained intervening period. But when the cost of replacement _is_ ascertained from quota- F tions of prices for the year of replacement,such cost is more accurate than a notional one worked out from the multiplier. It is therefore not always necessary to arrive at a multiplier for estimating the probable cost of replacement. (789 C-D]. In the present case since the Tribunal accepted the quotations and worked out the multiplier in the case of new machinery by dividing the quotations by the original cost _it_ ought to have G followed the same method in the case of old machinery as _it_ had before it the cost of the old machinery as new and the cost of replacement, both unchallenged by the Union. If the rehabilitation cost was calculated _in_ this manner there would be no available surplus with the company and hence no bonus would be payable. (787 H-788A; 787 A-B]. (ii) It is well established that in the case of old machinery the employees cannot insist that such machinery should be replaced by **B** old machinery. For working out the rehabilitation oost of such machinery it is the cost of new machinery that is to replace the old which has to be taken into consideration. (787 F-GJ. (iii\ Whenever it is possible to estimate itemwise the probable cost of machinery in the year of replacement such a method is not only permissible but is more desirable. The blockwise estimate bas **779** 780 SUPBBKil COUBT BllPOBTS [1968] l s.c.B. **A** to be resorted to when itemwise estimate is not possible as when the industry owns several factories and the number of plant and machinery is so large that it becomes difficult to make an estimate of replacement cost itemwise. [789 B-C; 788 G-H]. (iv) The contention on behalf of the workmen that the replacement cost should be worked out on the basis of the price level during the bonus year could not be accepted. The test is the probable **B** cost of replacement when rehabilitation becomes due. If the bonus year and the year of rehabilitation coincide, the price level during the bonus year would nci doubt _pe_ the relevant basis. But when they do not coincide and the due year of rehabilitation is the year beyond the bonus year that which is relevant is the probable cost of replacement during that year. [790 H; 791 A-B]. **0** (v) Ordinarily, the Tribunal has to satisfy itself that no coat of expansion is injected in the rehabilitation cost. In the present case, however, it did not appear from the record that any **questiOll** of expansion arose as the Union accented the quotations as equivalent to the replacement cost. [791 F-G]. (vi) The Tribunal was justified in taking the price rise in respect D of the machinery installed in the bonus years as zero. Though the prices for such machinery in 1963-64 were available, ccinsidering that its life was 15 years, it was too early to find out with any precision the probable trend of prices during the intervening years. [793 EG]. (vii) The Tribunal was wrong in giving a uniform remainder I life of 7 years to old machinery irrespective of the year of its instal lation. Taking the life of old machinery to be 10 years, the old machinery purchased in 1950-5) would require replacement in 1960-61 and so on. In that case the remainder life in the bonus year 1957-68 of old machinery installed in 1900-51 would clearly be 3 years, of old machinery installed in 1955-56 _8_ years, of machinery installed in 1956-57 9 years and that installed in 1957-58 10 years. The divisor **p** therefore could not be the uniform 7 for all the three years but a graduated one on the basis that the estimated life of the old machinery was 10 years. [793 H; 794 B.] (viii) The Tribunal was justified, in view of the decision of this Court in the _South India_ Millowners' _Association'1_ _case,_ in taking the whole cost of the old machinery as depreciation, but it made **a** G mistake in deducting it twice over. [795 B-C]. (ix) The company not being an investment company, its investments in shares of other joint state coll)panles prima _facie_ represent_ed_ extra capit&l not required as workirig capital, for otherwise the company could not have spared this amount for investment in the stocks of other companies. The Tribunal was right in treating_ this investment as a capital asset and in refusing to trest the loss there. **JI** from as trading expenditure. The· Tribunal at the- same time could deduct this amount from the rehabilitation cost because that amount was avaolable to meet the rehabilitation cost. [797 H; 798 A]. (x) Though the Full Bench formula provided for payment of net interest at 6 per cent annum on paid up capital, that rate ls not to be regarded as something inflexible. While awarding Interest if NA1'TONAL ENGINEERING LTT!., _V._ WORKMEN _(Shela!,_ J,) 781 the Tribunal were to find that if it were to grant 6 per cent interest A on paid 1up capital. nothing or no appreciable amount would be left for bonus, it can adjust the rate of interest so as to accommodate reasonably the claim for bonus and thus must meet the demands of both as reasonably as possible. [798 G: 799 B]. (xi• Jn fixing the life of machinery the principle that the Tribunal has to bear in mind is that the life of machinery is the period during which it is estimated to work with reasonable efficiency and B not the period during which it has actually been operated, that is, till it becomes too deteriorated for use. In the present case the Tribunal fixed the ~eriod of 15 years after considering the evidence and the nature of the industry. There was no reason why its determination should be interfered with. [799 G-H]. (xii) The Tribunal was right in not excludin11 the cost of spares from the price of machinery for the purpose of calculating re- C habilitation cost. In the case of imported machinery spares are generally included in the purchase and their cost must be included' in the purchase price, the reason being that in case of breakdown the company would not have to wait for an indefinite period for ordering and obtaining the .>-pares. [800 B]. (xiii) The statutory depreciation and development rebate allow- D able under the Income-tax Act are not relevant for the purpose of calcula\ing rehabili:tation requirement, Only the notional normal depreciation need be deducted. [801 C-D]. (xiv) The claim for bonus in respect of 1956-57 was made more than 18 months aftl!r the closure of accounts. Industrial adjudication is bound to take in,to consideration delay and !aches before it calls I: upon the other side to reopen its accounts closed long ago, The Tribunal was therHore right in rejecting the claim on the ground of !aches. [801 F-G J. _Millowners' As.sociation,_ Bomba11 v. _Rashtriya_ Mill _Mazd"oor_ _Sangh,_ Bombay (1950] L.L.J. 1247, _Associated Cement_ Co. Ltd. v. Its _Workmen_ [1959] S.C.R. 925, _Management_ _of_ Raiendra Mills Ltd. F v. _Their Workmen_ [1960] I. L.L.J. 53, _The Workmen_ v. _The_ National _Tobacco_ Co. [1966] 2 L.L.J. 200, _South India Millowners'_ Association & _Ors._ v. Coimbatore District _Te.rtile_ Workers' _Union_ and _Others_ (1962] 1 L.L.L. 223, G. _F._ Mills v. Its WoT'kmen, A.I.R. 1958 S.C. 382, _South India Mil!owners' Association_ and _Ors._ v. Coimbatore _Dis-_ trict Textil~ _Workers' Union and_ _Ors.,_ [!1962] Supp, 2 S.C.R. 926, _Pierce_ Leshe & Co. v. _Its Workmen,_ [1960] 3 S.C.R. 194 and _Bengal_ G _Kagazkar_ Mazdoor _Union_ & _Ors._ v. _Titagarh_ Paper Mills Co, and _Ors._ [1963] 2 L.L.J. 358, referred to. C1v1L APPELi.ATE JURISDICTION: Civil Appeals Nos. 356 and 357 of 1966. Appeals by !:pecial leave from the Award of the Industrial H Tribunal. Rajasthan in Case No. 9 of 1961. _Niren_ _De,_ _Addi. Solicitor-General, Sobhag Mal_ _Jain_ and _B._ _P._ _Maheshwari,_ for the appellant (in C. A. No. 356 of 1966) and respondent (in C. A. No. 357 of 1966). 782 llUl'UJl]I COURT REPORTS. (1968) I S.O.R. A _M._ _K._ _Ramamurthi, Shyamala_ _Pappu_ and _Vineet Kumar,_ for the appellants (in C. A. No. 357 of 1966) and respondents (in C.As. No. 356 of 1966). The Judgment of the Court was delivered by B Sllelat, J, These two appeals by special leave, one by the appellant company and the other by its workmen ~ d!rected against the award dated May 4, 1964 of the Industnal Tnbunal, Ra jasthan to which reference was made under section 1 O(J)(d) of the Industrial Disputes Act, 1947. The dispute referred to the Tribunal rela.ted to the workmen's demand for bonus for the years Cl 1956-57 to 1959-60. By the said award the Tribunal disallowed the claim for 1956-57 on the ground that il was belated and allowed the' demand for the rest of the years 1957-58 to 1959-60. In working out the available surplus for distn'bution as bonUI D the Tribunal m general followed the Full Bench formula evolved by the Labour Appellate Tribunal in _Mil/owners' Association,_ _Bombay_ v. _Rashtriya Mill Mazdoor Sangh, Bombay(')_ and approved by this Court in the _Associated Cement_ _Co._ _Ltd._ v. _Its_ _Workmen.(')_ The Tribunal worked out first the gross profits for the said years and the prior charges deductable therefrom and B arrived at the available surplus. For the year 1957-58 gross profits found were Rs. 28.29 lacs, Rs. 25.36 lacs for 1958-59 and Rs. 34.92 lacs for 1959-60. There is no dispute about these figures. The Tribunal then ascertained the prior charges deductible from the gross profits. There is no dispute with regard to the figures for depreciation, income-tax and wealth tax. As regards interest allowF able on paid up capital, the Tribunal allowed 6 % per annum tax free interest for 1957-58 and 1958-59. For 1959-60 the Company demanded interest at the rate of 8.57% by reason of a change in the Income-tax law having been made during the year. The Union, on the other hand, claimed that only 6 % interest should be allowed. The Tribunal allowed a mean between the two, _viz.,_ 7! %. There G was no question of interest on working capital as it was not the Company's case thll't any reserve was utilised as working capital, similarly, there is no dispute with regard to the rehabilitation charge for buildings allowed by the Tribunal. Apart from the question as to interest allowable on paid _up_ capital for the year 1959-60, the main dispute in these appeals is with regard to the H rehabilitation allowances in respect of plant and machinery for the three years in question and the method followed by the Tribunal in calculating them. (') [1950] L.L.J. 1247. (') [1959] S.C.R. 925. i'iATIONAL ENGINEERING LTD. _V._ WORKMEN _(Shelat,_ J,) 783 A ##### • '· -A # ;:,' The Company ever since its commencement has been pur· chasing new and also old reconditioned machinery. As regards new machinery the Company furnished, (a) cost to the Company, (In IOCB) (In l&c1) D Upto 1952·53 13•37 20·QI! 1953-M to 1955-56 3•49 5•23 1968-57 1·40 **2· 10** E 9157°58 **1·77** 2·e5 **Total** 20·03 30•03 F The difference between the cost to the Company and the estimated cost to the sellers thus come to 150 % . No old machinery was purchased during 1958-59 and 1959-60. The Company also produced quotations of prices for equivalent machinery current in year 1963-64. The Union did not dispute (a) the figures of cost to G the Company of the new machinery as given in its statement Ex. M2, (b) the figures of cost of old machinery to the Company and its estimated cost to the sellers as given in Ex. M 3 and (c) the quotations of prices received by the Company in 1963-64 from manu· facturers of these machines, both old and new, "except in the case of machinery installed during the bonus years." H The Tr;bunal worked out the rehabilitation requirements for the years 1957-58 to 1959-60 in a .Chart which is Ann.exure A to the award. Since the controversy m these appeals mamly centres round the figures of rehabilitation requirements allowed by the Tribunal it is expedient to set out that Annexure: (b) the current price during the year 1963-64 and (c) percentage in the rise in prices. The Company also furnished in respect of reconditioned machinery (a) cost to the Company and (b) estimated cost which its vendors would have p:1id if they had purchased it B as new in the years in which the Company installed the old machinery. In respect of the old machinery the cost to **the Com-** pany and the estimated cost to the sellers according to the Company were as follows: Year Coot to the **,Company** Eotlmaied oost to **C** **t.be** **18llem** _Chart_ ANNEXURE A _dated_ 31-3-1964 .... ~ **Period** Coot Cool .. Kulii- Total 1- Bala.nae **Minus depreoia.tio•** **.Bala.nee** **Divisor** Annual **llhown** **by** **plier** brea.1<- **ltequire-** **Co.** **in** clown ment Ex.M- **value5%** I 2 3 5 6 7 8 9 10 11 1950-51 **(Rupees in lakhs)** 7 3·48 ### 8 0·32 I n New 16·30 16•30 3·36 54·77 0-81 63·96 **Total.ooet u** **MW** **&** **old** lllachy30·03 24-36 7 3·48 . "Old 13·37 20·05 67·37 _Nil_ 67•37 **Depre.** **written oJI'** **upto** **31-3-57** 1951-52 New 1•43 1·43 1·87 2·67 0-07 2·60 48·83 2·60 8 0·32 n 1952-63- 0 New 2·18 2·18 1·47 3·21 0·11 3-10 3·10 9 0•34 ~ 1953-54.. **Ne"·** **1·12** 1·12 2•28 2·55 0·06 2·49 **Investment as on 31·3-57** 2·49 10 **0•25** Old 1·24 1·86 2·28 **4·24** 4•24 18·22 4·24 7 0·61 .. .. 1954-55New 3·71 **3·71** 1·86 6·90 0· 19 **6·71** **Total** 96·98 6.-71 11 **0·61** Old 1·95 2·93 1·86 **5·4fi** _Nil_ **5--45** 5·45 7 0·78 i 1955-56 New 6·93 6·93 2·18 15·11 0•35 **14·76** 14•76 12 1·23 Old 0-30 0•45 2·18 0·98 _Nil_ **0·98** 0•98 7 O·H 1956-57 New 13·11 13•11 2·35 30·80 0•66 30·14 30·14 13 ~-3! 1957-58-Old 1·40 2·10 2·35 4•93 _**Nil**_ 4•93 4•93 7 0•70 ~ New 3·39 3·39 I 3·39 **0· 17** 3·22 3·22 14 0·23 ., Old **1·77** 2·65 I 2·65 _**Nil**_ **2·65** 2·65 7 0·38 IJ ·39 ~ 8l 1958-59New 12·95 12·95 **12·95** 0•65 12•30 12,30 14 0•88 12·27 ###### 1959-60- p "' New 30•76 30·76 I 30•76 1•54 29·22 29·22 14 2•08 14·36 l" New 13·11 13•11 2·35 30·80 0•66 30·14 30·14 13 ~-3! Old 1·40 2·10 2·35 4•93 _**Nil**_ 4•93 4•93 7 0•70 NATIONAL ;:NG!li'EERING LTD. _V,_ WORKMEN _(S/1c!at,_ J.) 7R; It will be observed from Annexure A that the Tribunal accept· **A** ed as regards new machinery the Company's figures of cost and quotations as cost of replacement and dividing the cost of replacement by the original cost to the Company worked out multipliers for each year. This dispute, however, is with regard to the multi· pliers arrived at by the Tribunal in respect of old machinery. In Annexure A, the Tribunal adopted 3.36 multiplier in res- B pect of old machinery installed in 1950-51, _i.e .._ the same multiplier which it worked out in resp~ct nf new machinery inslallecl <luring that year. For the years 1953-54 to 1957-58 the Tribunal accepted the Company's figures which were agreed to by the Union, _viz .._ of cost to the Company and the estimated cost to their vendors if. the latter had purchased that machinery as new in the respec· C tive years of installation. The C'ompany also produced quotations from manufacturers of machinery itemwise in its Confi-Annex. 1 and 2. These quotations were for some machines for 1959-60, **for** some for 1960-61 and the rest for 1961-62. It woald be safe to say that the average cost of these machines was the cost prevalent in 1960-61. Though the average cost of the machinery was thus D available, the Tribunal in the case of old machinery worked **out** multiplier for each of these years and then arrived at the figure of Rs. 85.62 lacs as the total replacement cost of that machinery by multiplying the estimated cost to the seller with the multiplier. The Company's contention was that since the Company had· fur· nished quotations for all machinery including the old mi:chinery, **E** the Tribunal ought to have accepted those quotations as equiva· lent to replacement cost as it did in the case of new machinery instead of adopting the notional method of working out multipliers and then arriving at replacement cost by multiplying that multiplier with the estimated cost to the sellers. A multiplier is the ratio between the original cost and the cost of replacement. It is one of the methods of arriving at the hypothetical cost of replacement at a future date. But where the cost of replacement is available through quotations and these quotations are not disputed by the Union it would not be necessary F to resort to a hypothetical multiplier or if the multiplier must be _G_ ascertained it must be the ratio of the cost to the employer and the estima.ted cost of replacement actually proved' through the quotations. According to the Company in the case of old machinery the multiplier so calculated would be 1950-51 3.98 1953-54 7.83 **B** 1954-55 3.49 1955-56 2.47 1956-57 4.75 1957-58 2.29 S1ll'BSllll COURT l\ltl'()RTS [1968) I s.o.a. **A** The total cost of replacement of old machinery on the basis of **these** **multipliers** **or** **in** **the** **alternative** **on** **the** **basis** **of** the quotations would then come to Rs. 121.70 lacs mstead Rs. 85.62 lacs, the difference being of Rs. 36.08 lacs. Therefore, even if the divisor of 7 uniformly applied by the Tribunal in Annex. **A** **were** **to** **be** accepted as correct, Rs. **[36]** **·** **[08]** **....,Rs.** **S.16** **lacs** **would** 7 B have to be added for rehabilitation requirement for each of the bonus years. If that is done the entire available surplus found by the Tribunal would be wiped out. It will be seen from the Tribunal's Annex. A that so far as new machinery is concerned the Tribunal accepted the figures of **c** original cost and the quotations furnished by the Company and worked. out multipliers for all the years from 1950-51 to 1959-60 by simply dividing the quotations by the original cost. The question is, should not the Tribunal have also followed the same method in the case of old machinel')' when it had before it the estimated cost to the seller, _i.e.,_ the cost of old machinery if pur**D** chased as new in the year of installation and the quota1ions for that machinery. If that were done there would be no necessity of finding out a notional multiplier. In that event as seen above there would be a difference of Rs. 36.08 lacs which would have to be added to the figure of Rs. 85.62 lacs worked out by the Tribunal as total rehabilitation cost in respect of old machinery. II Mr. Ramamurti however argued that though the Union had not disputed the quotations those quotations were for the year 1963-64 when the Tribunal was adjudicating the dispute, that it is always necessary to first find out the multiplier and then work out the rehabilitation cost and that the cost of machinery in the bonus year or years must be reflected while working out the rehaF bilitation cost even if the year of replacement worked out from the average life of machinery is later. It is now well established that in the case of old machinery the employees cannot insist that such machinery should be replaced by old machinery. For working out rehabilitation cost of such machinery it is the cost of new machinery that is to replace the old which has to be taken irito G consideration. The Company as aforesaid produced two kinds of figures both accepted by the Union and the Tribunal: (!) the estimated cost to the seller if he had purchased the old machinery as new in the respective years of its installation and (2) quotations of prices of machinery whic)l would replace it The Tribunal had before it thus the cost of the machinery if it were new in the year of installation and the cost of its replacement _by_ new machinery. **B** There was therefore no particular reason in distmguishing the old from the new machinery for the figures of costs and replacements in both the cases were on the footing that the old machinery was new machinery. Therefore since the Tribunal accepted the quotations and worked out the multiplier in the case of new machinery by dividing the quotations by the original cost it ought to have XATIOXAT ••• ~UINEERING Lm. "· WORKMEN _(She/at,_ J.) 7~7 followed the same method in the case of old machinery as it had A before it the cost of the old machinery as new and the cost or replacement. both unchallenged by the Union. The question still is whether the quotations can be the sole criterion for working out rehabilitation cost. The principle accepted in the Full Bench formula and approved by this Court in the case of _Associated Cement_ _Co._ Ltd.,(') was that payment of bonus B is in recognition of the contribution of labour in the profits earned -by the industry and tt> assist labour to overcome as far as possible the difference between the actual wage and the living wage. The Formula at the same time accepted the point of view of the industry that investment made by it must imply a legitimate expectation of securing recurring returns and that could only be ensured by C machinery being continuously kept in good working order. Such maintenance. would necessarily be to the advantage of the labour. for, the better the machinery the larger the earnings and the brighter the chance of earning bonus. Tt is on this twin consideration that the amount necessary for rehabilitation is recognised as D, - prior charge on the gross profits when surplus profit for distribution as bonus is being worked out. It is true thnt rlqmrfotion is allowed by the tax Jaws but that is only to the extent of a percentage on the written down value. The depreciation fund set apart on that basis would obviously be insufficient for rehabilitation ;•n•J therefore an extra amount would have to be annually s~t ~part E notionally to make up the deficiency. That is the reason fo.- the Full Bench formula having accepted the industry's claim to rehabilitation in addition to the admissible depreciation. While ascer taining the• claim of rehabilitation the Tribunal has first to ascer· ta in the cost of the machinery to the employer and then to e~timate its probable future life. It then becomes possible to anticipate :ipproximately the year when the machinery would need replace- .F me~t ·and it is the probable price of such replacement at such future date that ultimately decides the amount to which the industry is entitled by way of replacement cost. The question is how to estimate the probable price of machinery at such future date? As observed in \he _Asiociated Cement Company's_ _case(')_ such probable price can be considered itemwise where the industry 0 does not own too many factories and an itemwise study of ma.chine· ry is reasonably possible. Tt is when the industry owns several factories and the number of plant and machinery is so large that it becomes difficult to make an estimate of replacement c<>st Itemwise that the estimate has to be block-wise. In either case the Tribunal has to estimate the probable cost of replacement at the !;me when such replacement would become d•1e. Such,~ e<timate H ct.epends obviously on several uncertain factors. The estimate of the probable life of machinery is itaelf a matter of anticipation and (') (1959] S.C.R. 925. J,/P(N)7SCl-ll 788 8UPBJDIB COUllT RBPOBTB [1968) l B O.R. **A** **the** estimate of the probable trend of price **duriq** **the** **In-** tervening period is also tb a degree 81 matter _**ol**_ **cl>D}ec>** ture. However, the entire process of ascertaining replacement cost is hypothetical depending largely on expert evidence. It would appear therefore that whenever it is possible to **estimate** itemwise the probable cost of machinery in the year of replace· ment, such a method is not only permissible but is more desirable. B The block-wise estimate has to be resorted to when item-wise esti· mate is not possible. Where therefore there is clear evidence of the probable price of each piece of machinery itemwise when replacement is to become due, it would be more accurate to proceed on the basis of such price and it would not be necessary to find out multipliers, such multipliers being after all the ratio between c the cost and the probable cost of replacement ascertained from the trend of prices during the intervening years. The multiplier thus is at best an approximation arrived at from the trend of price level during the intervening period. But where the cost of replacement is ascertained from quotations of prices for the year of replacement such cost is more a.ccurate than a notional one worked n out from the multiplier. It is therefore not always necessary to arrive at a multiplier for estimating the probable cost of replacement. In the instant case the Tribunal estimated the life for old machinery at 10 years and that for new machinery at 15 years **E** after taking into consideration the fact that the machinery was worked at least since 1955-56 on three shifts a da.y and the fact that it is being used for manufacturing precision macilines. On this basis the old machinery installed in 1950-51 became aue for replacement in 1960-61 and the rest of it installed in succeeding years would become due after 10 years from the respective years F of its installation. It is in evidence that though the average life of the old machinery was exhausted it was still being worked though uneconomically. It was agreed that the entire machinery needed immediate replacement and this fact was accepted by the Tribu· nal. It is well estabished that an employer cannot be allowed to postpone the date of replacement on the footing that he has opeG rated the machinery in fact beyond its average life and thus boost the cost of replacement taking advantage of the rise in price every year. In the instant case however that cannot be said to be the position. As stated earlier, the quotations produced by the Company represented an average price as near as possible prevailing during the period for replacement. Since they were not disputed by the Union they were the best available data. There was **B** therefore all the more reason for the Tribunal to have worked out the cost of replacement from these undisputed quotations instead of working out the multipliers and then arriving at the total replacement cost. On the basis of these quotations even if the multipliers were to be worked out the multipliers and the cost of replacement of old ma.chinery would be as follows:---· NATIONAL ENGINEERING LTD. _V._ WORKMEN _(8helat 0_ J.) 789 A ~~Old~~ ~~machinery eati·~~ ~~Repl&oement co1t~~ ~~Multiplier~~ Year mated ooat to the proved by quot&seller if he had pur· tiona disputed by chased as new in the the Union year of itl inataJ.la· tion not di!puted by ...... TTnirm B (R;i, ~~in~~ la.mi.) (R,.;. in li,r.i-;.) """" 1950.51 20·00 79·72 3•9R 1963.114 1•86 14·5? 7·83 19114-55 2•93 10·2i; 3•49 1956-56 0·45 I· II 2·47 1956-57 2·10 9•07 4.·7!) c 1957-~8 2·85 6·08 2·29 30·04 121•70 The replacement cost thus arrived at would .be Rs. 121.70 lacs as against Rs. 85.62 lacs as worked by the Tribunal. Indeed. where D the cost of replacement is proved itemwise from price quotations and they are undisputed it becomes difficult to appreciate how the total cost of replacement can be Jess than the cost proved through quotations. Counsel for the Union, however, urged that while working E out the replacement cost it is the cost during the bonus year which is relevant and therefore though the Union had accepted the quotations they would not be the proper criterion and the price pre· valent during each of the bonus years would be the relevant price. He also argued that even if the quotations were to be accepted as cost of replacement the prices of only those machines which are F required for replacement and not for expansion which can be the basis of estimation. As regards the first argument. a similar contention was raised in _Associated Cement Co.'s case(')_ and was rejected. At p. 967 of the report the Court said : "What the Tribunal has to do in determining such cost (i.e .. probable cost of replacement) is to project the price G level into the future and this can be more satisfactorily done if the price level which has to be projected in future is determined not only in the light of the prices prevalent d~ring the bonus year but also in the light of subsequent prtce levels." The submission that it is the price level during the bonus year which is the criterion therefore is not correct. The test is the pro- H bable cost of replacement when rehabilitation becomes due, lf the bonus year and the year of rehabilitation coincide the price (') [i959] S.C.R. 925. I,1P(N)7RCl-1l(•) 790 llUPllllJOi COUBT ll:IPOB'l'S [1968] I a.o.a. A level dur;ng the bonus year would no doubt b~ the rdevnnt basis. But where they do not coincide and the due year of rehabilitation is the year beyond the bonus year that which is relevant is the probable cost of replacement during that year and the Tribunal therefore would ha.ve to consider all relevant evidence necessary to estimate the cost during that future year. Where there is tangible evidence through quotations of prices for that year and llUCh B quotations are not in dispute the -Tribunal does not have to con jecture what the trend of price level would be by taking into consideration the price level during the intervening period which would include the bonus year. However this does not mean that the Tribunal must mechanically accept the quotations. The rehabilitation cost allowed under C the Full Bench formula is the probable cost of rehabilitation which ..yhile including modernisation does not include expansion. But the distinction between modernisation and expansion may in some cases be subtle and not capable of clear distinction. The question therefore would always be whether replacement of one machine by a new one is the introduction of modern machinery or one D which is an item of expansion. If it is an item of expansion its cost naturally has to be excluded. The test is whether by the introduction of the new machinery the production capacity is likely to be significantly augmented. If that is found the Tribunal would have to apportion the cost on the basis that replacement is partly modernisation and partly expansion. On the other hand, B if the increased production is not significantly on the higher side it would be a case of modernisation incidental to replacement. The question is on whom is the burden of proving whether a given replacement amounts to expansion or modernisation. It seems to us that since it is the employer who seeks replacement cost. it is for him to satisfy the Tribunal as to what will be the overall cost F of replacement and in doing so it is he who must satisfy that the cost is of replacement only and does not include any expansion of machinery. Counsel for the Union was therefore right in saying that the Tribunal has to satisfy itself that no cost of expansion is injected in the rehabilitation cost. In the present case, however, it does not a.ppear from the record that any question of expansion G arose as the Union accepted the quotation as equivalent to the replacement cost. Consequently, the Tribunal proceeded on the footing that the entire machinery had become due for replacement and the prices proved by quotations were of machines to be _co._ placed in the process of replacement and modernisation and not expansion. According to _Rajendra Mills_ Ud(') the employer has · to discharge this burden by adducing proper evidence and giving B the other party an opportunity to test the correctness of that evidence by cross-examination ;md merely bringing on record balance-sheets, for instance, woukl not be enough. (see also _the_ _Workmen_ v. _The Nationnl Tohacco_ Co.('). (') (1960] I LL.J. 53. (') [1966] II L L.J. 200. NATIONAL ENGINEERING l/l'D, _V._ WORKMEN _(She/at.,_ _J,)_ 791 But in the present case there is no question of the Company A not having properly discharged the burden, for, it not only produced balance-sheets but also produced statements, quotations and examined two expert witnesses, Jones and Desai. Theoe witnesses were cross-examined on the statements relieo on by the Comp<lny in regard to the cost to the Company, the estimated cost of replacement, the average life of machinery etc. The Union also inspected the Confidential Annexs. I and 2 which showed itemwise the cost B of replacement as proposed by the Company and 4uotation:; of prices therefor. These Annexs. aiso indicated that where a machin~ was to be replaced not by the same kind but by a modern one it was to be substituted for two _oi:_ more of the old machines. This was presumably done to avoid expansion. It is true that in respect of the old ma.chinery installed in 1953-54 and 1956-57 the multi- C plier calculated on the basis of the quotations comes to 7.83 and 4.75 respectively while it ranges from 2.29 to 3.98 for tho rest cf the years. At first sight the multiplier might suggest that there might be an element of expansion in the case of those machines. But it was pointed out that the prices of those particular machines had gone unusually high and furthermore that in the process of replace- D meat the modern machines which were to replace the old ones were in the approximate proportion of one for two. It cannot therefore be validly said that the Company had not placed sufficient materials to enable the Union to check up by cross-examination whether this was a, case of expansion or not. Mr. Ramamurti's contention next was that even though the E quotations were not disputed by the Union, taking them as the sole basis for estimating the replacement cost was not satisfactory as the Union had qualified its acceptance by a reservation that it did so except for machinery installed in the bonus . years. This argument does not appear to be tenable. Exhibit M2 shows that so far as the bonus years are concerned old machinery was instal- F led in 1956-57 and 1957-58 only. The cost of such machinery for 1956-57 was Rs. 1,39,871 and that for 1957-58 was Rs. J.76,730. On the basis of the Union's reservation the Tribunal did not accept the quotations for machinery installed in those years and fixed the replacemeut cost on the basis of multipliers calculated by it _de_ _hors_ the quotations. It is difficult to comprehend such an ap- G proach by the Tribunal. The Tribunal accepted the quotations in regard to the rest of the machinery and worked out the multiplier on the basis of those quotations. The Union did not challenge those quotations and the multiplier calculated therefrom. If the quotations for the new machinery for all the years and for old machinery for the years, except the bonus years, were accepted by the Union and the Tribunal also. there is no reason why the H quotati.ons. for the bonus years could be said to be unacceptable. No ob1echon to the replacement cost of the new machinery was taken even in regard to the bonus years. As regards the old machinery the Union accepted the Company's figures both as to cost to the Company and the estimated cost to the seller if he had 7!)2 SUPREME COURT REPORTS [1968] 1 s.c.B. A purchased it as new. Even if a multiplier has to be calculated it would be the ratio between the estimated seJJers cost and the probable cost of repla.cement. So calculated both the old and new machinery stand on,the same footing because it is the seller's estimated price if he had purchased it new in the year of its installation that was taken by the Tribunal for arriving at the multiplier. That being so, the multiplier in both the cases would B be the ratio between the cost in the case of new machinery and the estimated cost to the seller in the. case of old machillery and the cost of replacement proved by the Company through quotations. If the quotations were acceptable to the Union in regard to new machinery and the old machmery installed in the years except the bonus years it is difficult to understand how. quotations for C the old machinery installed in bonus years could be questioned especially as the Union did not produce any data to prove them incorrect. In these circumstances, we are of the view that the multipliers arrived at by the Tribunal in the case of old machinery were not correct. The Tribunal should have either calculated the replacement cost from the quotations proved by the Company D item.wise or if it had to work out the multiplier it should h&ve dooe so by finding out the ratio between the estimated cost to the seller accepted by the Union and the quotations proved by the Company. The deficiency in following this method comes to Rs. 36 lacs and odd .as stated earlier. Regarding the new machinery purchased during the bonus E years the Tribunal held that the price rise for such machinery cannot be taken to be more than zero. In Ex. M2 the Company has ~iven the quotations for this machinery and has worked out therefrom the multiplier for each of the bonus years, _viz.,_ 2.35 for. 1956-57, 3.37 for 1957-58, 1.48 for 1958-59 and 1.66 for 1959-60. Presumably the Tribunal thought that though the prices for this F machinery in 1963-64 were availa.ble, considering that its life was 15 years it was too early to find out with any precision the trend of prices during the intervening years. With the gradual growth of indigenous production and corresponding availability of these machines it would be difficult to say whether the same trend would continue or not by the time the year for its repla.cement was G reached. It is not possible to say therefore that the Tribunal's view that the price rise of such machinery should be taken as zero was unreasonable. In the case of machinery purchased in 1950.51 and onward its period of replacement would commence from 1965 and onwards. It was possible from the quotations produced by the Company to predicate for such machinery the trend of price but not so in the case of machinery purchased in very recent years. H In their case the quotations may not be taken for granted as show ing any definite trend in price level. As stated earlier, the Tribunal has given in Annex. A a uniform remainde:.,ft!d of 7 years to old machinery irrespective Of the year of its ins on. Thls, in our view, ii not correct. Tatlnf NA'rlONAL ENGINEERING LTD. _v._ WORKMEN _(Shelat,_ _J_ .) o\I:'. the life ~old machinery to be 10 years, the old machinery pur- A chased in 1950-51 would require replacement in 1960-61 and so on. In that case the remainder life in the bonus year 11957-58 of bid machinery installed in 1950-51 would dearly be 3 ycan, ol old machinery installed in 1953-54, 6 years, of old machinery installed in 1955-56 8 years, of machinery installed in 1956-57 9 yeam and that installed in 1957-58 10 years. The divisor Jhcrefme could not be the uniform 7 for all these years but a grad1latcd one B on the basis that the estimated life of old maclrlneJY. was JO yean. In estimating the rehabilitation requirement of each year the graduated di visor should have been used. The question which raises a serious comroversy is with regard to the figure of Rs. 24.35 lacs found by the Tribunal as the total C cost of rehabilitation in respect of machinery both old and new installed in 1950-51. Dividing, this figure by 7 as the remainder life for both the types of machinery the Tribunal allowed Rs. 3.48 lacs as the rehabilitation requirement for that year. Counsel for the Company objected to the Tribunal's calculations on various grounds. It,will be seen from column 7 of Annex. A that whereas D the Tribunal accepted the Company's quotations for new machinery it did not do so in the case of old machinery and calculated instead the replacement cost by means of a multiplier. It is difficult to say on what principle the multiplier 3.3'6 for old machinery was adopted except that the Tribunal adopted the same multiplier which it calculated in the case of new machinery by working out E the ratio between the cost to the Company and the price of replacement as appearing from the quotations. Since the Tribunal adopted that .principle for new machinery it would be logical that it should similarly do so in the case of old machinery also as the basic cost adopted was the cost price to the seller if he had bought that machinery as new in 1950-51. The total cost of machinery old "F and new would in that case be Rs. 54.77 lacs _plus_ Rs. 75 lacs, _i.e._ Rs. 133.77 lacs instead of Rs. 54.77 lacs less _5%_ break down _i.e.,_ Rs. 53.96 lacs for new and Rs. 67.37 lacs for old machinery as calculated by the Tribunal. The figure of Rs. 67.37 lacs was arrived at by multiplying Rs. 20.05, the estimated cost to the seller by the multiplier 3.36. According to the Tribunal the gross replacement G cost would be Rs. 121.33 lacs instead of Rs. 133.77 lacs. The figure of Rs. 121.33 lacs arrived at by the Tribunal cannot be sustained as it was not justified in calculating replacement cost for the new machinery in one way and that for the old machinery in another Wily. The next miscalculation said tb have been committed by tbo Jl Tribunal was in deducting the depreciation for the entire old machinery installed during 1950-51 to 1957-58, _i.e.,_ Rs. 30 lacs from the total replacement cost for 1950-51. The Tribunal took the whole of the cost of old machinery to the seller, _i.e.,_ Rs. 30 lacs, as depreciation. For that the Tribunal derived support from the 794 SUPREME UOUR'l' .J<EPORTS (196~] I H.t',tt, A decision in _South India Mil/owners' Association and Ors._ v. _Coit11-_ _batore District Textile Workers' Union and Ors.(')_ where while dealing with old machinery this Court has said that where **purclwe** price is determined but it is difficult to ascertain the depreciation amount thereafter then at the highest the whole of the purchase monev would be taken as depreciation amount. B Assuming that the Tribunal was entitled to treat the price of the old machinery, _viz.,_ Rs. 30 lacs as depreciation it was not correct on its part to deduct it from the replacement cost. The reason is that it also deducted Rs. 48.83 lacs Uo which we shall presently refer to) which amount includes depreciation of Rs. 30 lacs. The Tribunal thus deducted Rs. 30 lacs as depreciation twice over. The deduction of Rs. 30 lacs was thus clearly an error. Counsel for the Company next objected to the sum of Rs. 48.83 lacs having been deducted from rehabilitation cost in respect of machinery, old and new, installed in 1950.51. The objection was two-fold: (I) that the Tribunal erred in deducting the whole of this amount from the rehabilitation cost in respect of 195().51 machineD ry, and (2) th~t lhe" said amount represents total deprec.ation, i.t., the notional written down value of all ma.chinery up to the year 1956·57 and is shown as such in tile balance-sheet for 1956-57. It was urged that, since this amount represents depreciation on various kinds of assets, _viz .._ bungalows. plants and machinery, cars and trucks, furniture and tools and implements, the whole of this amount E should not be deducted when calculating rehabilitation provision for the machinery of 1950.51 and should be deducted only when calculating rehab'litation provision for each item in respect of which this depreciation has been included in the accounts. We do not think that this submission can be <.ccepted. No doubt. th'e sum of Rs. 48.83 lacs represents depreciation up to 31-3-1957 in respect r of plant. machinery, buildings. as well as other items of property, but there is no principle which requires that depreciation fund in respect of a particular item must only be utilised in rehabilitating the same item. The Tribunal held that the entire depreciation fund must be utilised for rehabilitation of those items of property which require rehabilitation at the earliest point of time. that is the G machinery of 195().51 which needed replacement earlier than the other items of property. We do not think that this decision of the Tribunal was in any way unreasonable as would justify interference. As regards the second objection the principle is that while arriving at the rehabilitation cost deduction should be made of all H available funds. It was argued that an amount which is a notional the notional written down value of all ma.chinery up to the year depreciation mentioned in the accounts for the purpose only of showing the true va:lue of fixed assets would not **be** a reserve **which** in point of fact can be said to be available for replacement, and that it is on account of this that the decisions mention reserves including (') [1962] I L.L.J. 223. NA'l'IONAL }ONGINE}OR!NH !.'I'll. 't'. WORKMEN (8/,efol, J.) 7\15 depreciation reserve which, if available, are liable to be deducted A from rehabilitation cost. The contention is that this amount being merely a notional depreciation is a mere paper entry and does not represent any available reserve. Reliance was placed on _G._ _F._ _Mills_ v. _Its Workmen(')_ where the Court set aside deduction of Rs. 30 lacs; the Compl;lny had raised a debenture loan of Rs. 50 lacs on credits on the ground that that amount was locked up in Pakistan and could not be brought to India for the Company's use. It was B argued that the principle thus is that the amount to be deducted must in reality be available to the employer for replacement. As found by the Tribunal the Company's fixed assets were of the value of about Rs. 110 lacs. The Union's contention was that as against this amount the Company's subscribed capital was Rs. 60 C lacs; the Company had raised a debenture loan of Rs. 50 lacs on the security of its fixed assets and thus the subsctibed capital and the debenture Joan were sufficient to meet the whole cost of the fixed asset~. On this basis the Tribunal upheld the Union's contention that Rs. 48.83 lacs shown as depreciation were available towards replacement cost as no part of it could ha.ve gone in the investment D of fixed assets. Counsel for the Company, however, pointed out that the debenture loan was raised in _19S8-S9_ and therefore that amount cannot be said to be available at any rate durlnt the year 1956-57. aut this fact taken in isolation does not furnish a correct picture of the fund available to the Company during the bonus years. The balance-sheets show that besides the said loan of. E Rs. 50 lacs the Company had obtained a. secured Joan of Rs. 6.50 lacs in 1956-57 and another loan of Rs. 24.68 lacs in 1957-58. Except producing the balance-sheets the Company led no evidence to sho~ as to how these loans had been utilised, whether as working capital. or in acquiring fixed assets. Apart from this fact, we do not see how the fact that the debenture Joan was raised in 1958-59 f makes any difference. Though the life of a large part of the machinery had run out the Company had not replaced any of it and was carrying on its work with the worn out machinery even though its working was uneconomical. The Tribunal has found and the parties also were agreed that the entire machinery required immediate re· placement. Therefore, the question was how much rehabilitation G cost the Company would require. In calculating such cost the Tribunal was entitled to take note of the fact of Rs. 50 lacs having been raised as debenture Joan on the security of its fixed assets presumably because that Joan was required for rehabilitating the fixed assets. Even so, Counsel argued, the question would still be whether Rs. 48.83 lacs represented an available fund for rehabilitation or whether they represented a mere paper ~ntry fur showing B the true vnlue of machinery in 1956-57. In our view, it is not nece'lsary for us to go into the question whether a sum shown as notional depreciation without its being shown as reserve can be treated or (') A.I.R 1958 S.C. 382. 7~6 SUP!Ull\IE <'Ulll\'r RE1'0R1'8 [ 1008] l s.c.n. A not as a fund available for rehabilitation nor whether such depre ciation is or is not deductible even if it is not available as a fund: The Company produced Ex. M-4 showing the amount **whlcla** according to 1t was required for rehabilitation for the bonus years. According to that statement the Company would require Rs. 110.20 lacs, Rs. 127.06 lacs, Rs. 149.87 lacs and Rs . .lSS.9.1 **laca** **for** **tho** four bonus years respectively. In working out these amounts the B Company itself deducted· Rs. 48.25 lacs from the rehabilitation requirement for the year 1956-57 and pointed out in a footnote that that amount was comprised of an investment of Rs. 18.22 lacs in stocks and shares and Rs. 30.03 lacs as depreciation, taking the entire estimated cost to the seller of old machinery if such seller had purchased it as new. In face of this admission it is difficult to c appreciate how the Tribunal can be said to have erred in treating Rs. 48.83 lacs as available fund. We may also mention that before the Tribunal the argument was not that the amount of Rs. 3'0.03 lacs was merely a notional depreciation and not a fund actually available to the Company. The Company's contention on the contrary was that the whole of Rs. 48.83 lacs was utilised in fixed D assets and therefore was not available for replacement. The Tribu nal rejected that contention on the ground that except for the balance-sheet which did not give precise information as to how that amount "".as deployed by it the Company had not produced its accounts ·to show that that amount was utilised towards acquiring fixed assets. Counsel argued that if that was the view of the E Tribunal the Company ought to have been given an opportunity of showing its sources of fixed assets. There is no merit in this contention. It was the Company who had the necessary information. The onus was on the Company to explain from its accounts and other data that the amount of Rs. 30 lacs and odd was not available. As regards Rs. 18.22 lacs the amount being an investment F in liquid assets it is difficult to say why the Tribunal .was not justified in treating it as available for rehabilitation. But the Company's contention was that the investment of Rs. 18.22 lacs in shares can either be treated as a. trading transaction carried out in the ordinary course of business or as a capita•! asset. If it was treated as a trading~' ansaction the Tribunal ought to ·have G allowed Rs. 1.72 lacs which as the loss in 1957-58 in these **shares** as trading expenditure, and Tribunal ought not have added that amount to the gross profits fo that year. In doing so, the Tribunal treated the investment as caMta.1 asset and it could not **therefore** I **i** ## ' deduct Rs. 18.22 lacs as afund available for rehabilitation cost. We fail to see any contradiction on the part of the Tribunal. The balance-sheet for the year 1956-57 contains two Schedules; Sche**H** dule A shows fixed assets and Schedule B shows trade investments of the value of Rs. 18,21,571 /-. The Company not being an investment Company the investment of Rs. 18.22 lacs in shares of other joint stock Companies _prima facie_ represents extra capital not required as working capital for otherwise the Company could not have spared this amount for investment in the stocks of other "4.TLONAL F.NOINEEl<ING LTD. _v._ WOKKMF.N _(S!tr·lar,_ J.) 797 companies. The Tribunal was right in treating this investment as A a cap'tal asset and in refusing to treat the loss therefrom as trading expenditure. The Tribunal at the same time could deduct this amount from the rehabilitation cost beca111se that amount was available to meet the rehabilitation cost. The investment in shares could easily, if the Company was so minded, be converted into cash and utilised for replecement of its worn out machinery. But it was said that even if the amount of Rs. 18.22 lacs could be held deductible B that figure was not correct, for the value of investment was Rs. 11.23 lacs at the close of the year 1957-58 as shown in the balance-sheef for that year. This contention is not correct. What appears to have been done in 1957-58 was that instead of shbwing the entire investment of Rs. 18.22 lacs as trade investments as in the previous year, the investments, were classified into C investments and current assets. The value of investments at the beginning of the year is shown at Rs. 18.22 lacs but at the close of the year the shares of companies other than the National Bearing Company (Jaipur) Ltd., a subsidiary of the appellant company, were regrouped and shown as current assets and their cost was shown at Rs. 6.57 lacs instead of Rs. 13. 71 lacs as shown at the D close of the preceding year. Except producing the balance-sheet for 1957-58 the Company gave no explanation before the Tribunal as to why these investments were re-grouped' and on what footing they were revalued. Besides, the figure of Rs. 18.22 lacs does not appear to have been disputed before the Tribunal and the Tribunal was never told that the investments during that year were reduced to E Rs. 11.23 lacs. It would not therefore be· right to say that the Tribunal erred in taking Rs. 18.22 lacs as a• fund available for rehabilitatibn. The next contention was as to 7t% interest allowed by the Tribunal on paid up capital instead of 8.57% claimed by the com- F pany. By the Finance Act of 1959 the provision in the Income-tax Act that the Income-tax paid on dividend distributed to the shareholders was deemed to have been paid on behalf of the shareholders was abrogated. The contention was that though the corporation tax was reduced in that year from 51.5% to 45% the Company since I 959 had on the whole to bear aJ larger burden of tax and therefore the Company would not get a net tax free 6 % interest G unless interest at 8.75% was granted. It is true that the Full Bench formula. provided for payment of net interest at 6 % per annum on paid up capital, but as pointed out in the _Associated Cement_ _Co.'s case(')_ and subsequent decisions of the Tribunals the rate of 6 % interest is not to be regarded as something inflexible. In awarding interest on paid up capital and a.lso on working capital the proper approach is that the industry is entitled to a reasonable H re~ . on investments 11;1ade in es~blishing and running concerns :•tits nsk. At the same ttme the claim for bonus is no longer treated as an _ex-gratia_ payment. It is recognised on the consideratibn that ( ') [1959] S.C.R. 925. 798 RUPREME COUR1' HEPORTS [1968] l s.c.•. A labour is entitled to claim a share in the trading profits of the industry as it partially contributes to the same. Since the industry and labour bath contribcte to the ultimate trading profits both ar~ entitled to a reasonable share. While awarding interest if the Tri**bunal** were to find that if it were to grant **6 % interelt Oii** **plld ap** capital, nothing or no appreciable amount would be left for bonus, it can adjust the rate of interest so as to accommodate reason**B** ably the claim for bonus and thus meet the demands of both as reasonably as possible. If the Tribunal were to award interest at a ra.te lower than 6 % after considering all the relevant facts we do not think that the employer can legitimately claim that it has erred in doing so. If the Tribunal has exercised its discretion after consideration of all the relevant facts this Court would not ordinarily c interfere with such exercise of its discretion. These were all the contentions raised by Counsel for the Company in the Company's appeal. To the extent that we accept as hereinabove the Company's contentions, Annexure A to the award will have to be modified. These modifications are shown in the **D** charts thereto ann~xed and collectively "A". We now proceed to consider the Workmen's appeal. Counsel for the Union argued that the Tribunal ought to have fixed the life of the new machinery at 25 years as is usually done **JI:** and not at _15_ years. In some cases, it is true that Tribunals have fixed 25 years as the machinery's average life. There can however no rigidity in fixing the life of machinery, since it differs from industry to industry. Consequently, there can be no hard and fast rule applicable to ull sorts of mach;nery. (cf. _The· Millowners'_ _Association, Bombay(')_ and _South India Mil/owners' Association,)(')_ F In the present case the Tribunal had before it evidence showing that the industry required machinery of special precision and was therefore not comparable with machinery such as that in textile mills for which 25 years' life was fixed. In suggesting the life of 2S years for this machinery Counsel for the Union did nt>t give any specific reason except that 25 years 0f life has been fixed in some G cases. He could not also show any instance where in a similar industry life of machinery was fixed for more than 15 years. The principle that the Tribunal has to bear in mind is that the life of machinery is the period during which it is estimated to worlc with reasonable efficiency and not the period during which it has actually been operated, that is, till it becomes too deteriorated for use. _(}'ierce Leslie_ _&_ _Co._ v. _Its Workmen.)(')_ Since the Tribunal fixed **B** the period of 15 years after considering the evidence and the nature of industry there is no reason why its determination need be interfered with. (') [1950] L.L.J. 1247. (') (1962] Suppl. 2 S.C.R 926. (") [1960] 3 S.C.R. 194 at 200. ··.i ~-·1 ' #### • NATIONAL ENGINEERING LTD. _V,_ WORKMEN _{S/uJlat,_ _J.)_ 799 Counsel's next contention wi•s that the Tribunal ought not to A have accepted the quotations which were for 1963-64 as the basis for calculating the total rehabilitation cost. But the quotations were never disputed by the Union. Even so. argued Mr. Rama murti. they contained the cost of spares which at any rate ought to have been excluded. We confess it is difficult to appreciate this part of the a1-gument. The machinery in question is in a large way imported machinery. It is common knowledge that when such B machinery is purchased spares are generally included in such purchase and their cost must be included in the purchase price. the reason being that in case of breakdown the Company would not have to wait for an indefinite period for ordering and obtaining, the spares. It was then said that the new machinery which would replace the old might well contain items of expansion which the C Tribunal ought to have reckoned and excluded. While dealing with the Company's appeal we have already dealt with this aspect and for the reasons stated there this argument must be rejected. We must also reject the argument that the Tribunal had disregarded the increasing trend of indigenous manufacture of machinery. In fact D Confidential Annexs. 1 and 2 produced by the Company contain quotations wherever possible of a number of machines of indigenous manufacture. The next contention related to old machinery and the argument was that the Company had discarded machinery worth about Rs. 18 lacs in respect of which the Company ought not to get any E rehabilitation cost. The argument appears at first sight attractive but loses its force when the actual position is ascertained. The balance-sheet for the year 1959-60 shows that machinery worth Rs. 17.62 lacs was discarded during that year. Similarly tools and implements of the value of Rs. 8.57 lacs were also discarded. To that extent deductions were made in the total value of fixed assets. F Io showing depreciation of plant and machinery Rs. 10.91 lacs. being the depreciation of these machines were also deducted from the total depreciation so far shown in the previous balance-sheets. The result was that the total depreci~tion including depreciation for machinery added during the year was brought down from Rs. 48.37 lacs to Rs. 44.20 lacs. The evidence of Desai shows that G the machines' Ledger maintained by the Company shows only the list of machines in actual operation, which means that the discarded ones are not shown in that list. The machinery discarded d~ring this year was thus taken out from the fixed assets as if it did not exist. The depreciation in respect of it was also deducted from the total depreciation and therefore no rehabilitation was in fact claimed for such machinery. H Mr. Rama"!~rti next ~~g~ that the Tribunal ought to have allow~d only 30 _1,,_ of rehab1htat10n cost for old machinery as was done m _South India Mil/owners' Asvociatimrs's_ _Case{')._ That case (') [1962] Spp. 2 S C.R. 926. ) j I ii 800 SUPREME OOURT REPORTS [1968] I s.c.R. . & does not la.y down any such rule. 30 % only was allowed in that case as an _ad-hoc·_ figure because the Association there had failed 'to produce materials showing the original price and subsequent depreciation and this Court refused to interfere with that figure as the Tribunal had no other alternative except to adopt an _ad-hoc_ basis. The Court however made it clear that in the case of old machinery the cost price of such machinery must be ascertained B and this can be done by enquiring for how much the machinery could be originally purchased when new. There is therefore no warrant for saying that only 30% of the rehabilitation cost can be allowed in the case of old machinery. c We cannot also agree with Mr. Ramamurti's contention that the Tribunal in calculating the rehabiliation. requirement for the bonus years was wrong in taking only the notional normal depre· ciatioil and not the statutory depreciation including development rebate permissible under the Income-tax Act. Tn _Associated Cement_ _Co.'s_ Case(') at p, 994, in the Chart prepared by this Court only .. D the notional normal depreciation was deducted while asccrtalning the rehabilitation requirement. It was when the Court calculated the Income-tax payable by the Company that it deducted the statu· tory depreciation from the gross profits (see also _Bengal Kagazkal_ _Mazdoor Union_ & _Ors._ v. _Titagarh Paper Mills Co. Ltd._ & Ors.(') B The last contention was that the Tribunal should not have rejected the bonus claim for 1956-57. The balance-sheet for the year 1956-57 was published in December 1957, the Company's accounts were closed and appropriations of profits for that year were made latest by the end of 1957. The claim for bonus was raised for the first time by the Union's resolution of July 24, 1959, that F is, more than 18 months after the closure of accounts. The claim for 1956-57 was thus clearly belated and the Tribunal was right in refusing to compel the Company to reopen its accounts and to readjust appropriations made long before the demand was raised. It has to be remembered that a claim for bonus is not one for G deferred wages. Its recognition in industrial adjudication is b,ased tm the desirability of a balance of adjustments of the different interests concerned in the industrial structure of a country in orde to promote harmony amongst them on an ethical and economi1 foundation. Industrial adjudication therefore is bound to take into consideration delay and )aches before it calls upon the other side to reopen its accounts closed long ago. We do not think that the Tribunal was in any error in rejecting the claim on the ground of B !aches. The principle that !aches are fatal to such a claim has long been accepted in a series of decisions both by the Tribunals and by this Court. . ··(') [1959] S.C.R 925. (') [1963] II L.L.J. 35R _Calculation_ _of_ _annual_ _requirement for_ _rehabilitation_ _of_ _old_ _machinery_ Period Cost Cost U.R Multi- Total Lesfi Balance Deductions Btt1auoe Divisor ~4-unual shown by plier Break- llequireCo. in <lo1vn ment Ex. }I. Va.Jue 2 :l 4 " 5~,~ 2 :l 4 11 8 9 IO J l ----- ------- ----- " ' 19-10-.31 13·37 20·0.• 3·97 79·72 I·OO 78· 12 (i) 48·S3 Dep1·eciation Jl·G7 :J :1· ~9 (i°I) 18· ;!:? Ava.ihible .R.esource.s 67·05 19f>3-54 l · 2-1 1·86 7·8;) 1-J. 57 0·09 14 48 14·48 u :?·41 19;)4-5.J 1·9.3 2·03 3·50 10·2.3 O· lJ JO· IO 10· 10 7 1·44 935-56 0·3u ·45 2·47 I· 11 0·02 l ·on 1·09 8 O· 14 19i56-J7 l ·40 2· 10 4·7.J 9-117 - 11 9·86 9·86 9 1·10 1937-58 1·77 _2·6.>_ 2·29 U·OS - 13 .) . 9.) 5·95 10 0·59 Total 9·57 -------- -- ---- ---·--- _Calculation_ _of annual requirement for_ _rehabilitation_ _of new_ _machin'er)I_ .,,,, ~ **l"'eriod** Coo• Coo• .. **Multi-** **Total** **1-** **Balance** **Deductions** ll&lan .. **lHviMr** Annal **shown** **by** **plier** B-i.- Reqvitt**Oo.** **in** down **ment** **Ex.** M. **value** s~:, l 2 3 4 5 6 7 8 IJ 10 11 ~ **1950-51** 16·30 16·30 3·36 **54·77** 0·81 **53-96** 53·96 8 6·75 I 1951-52 1·43 l ·<ll **1·87** 2·67 0·07 2·60 2·60 9 0·29 1951-52 lg52_53· 1953-M 1·43 2·18 **1·12** l 2·18 l · 12 ·<ll **1·87** 2·28 **l·,7** 2·67 3·21 2•55 0·07 O·ll 0·06 2·60 3·10 2·49 3·10 2·49 2·60 10 11 9 0·29 0·31 0·23 8 d .., .. lg52_53· 1953-M 2·18 **1·12** 2·18 l · 12 2·28 **l·,7** 3·21 2•55 O·ll 0·06 3·10 2·49 3·10 2·49 10 11 0·31 0·23 d .., 19M-56 **3·71** 3·71 1'116 6•90 0·19 **6·71** 6·71 12 **O·fl6** .. 1955-56 **6·93** 6·93 2·18 15·11 0·36 14·76 14·76 13 1·14 "' ~ ~ 1956-07 ·13·ll 13·ll **2·35** 30·80 0·66 30·1• 30•14 14 **2·1G** "' **1957-58** 3·39 3·39 l 3·39 0·17 **3·22** **3•22** 15 **0·21** 1959.59 **12·95** 12·95 l **12·95** 0·66 12·30 12·30 **15** 0·82 1959-60 30·76 30·76 l **30· 76** **l·M** 29·22 29•22 15 **1·90** ------ ··--- ---·-- --------- ~ TOTAL ANNUAL REQUIREMENT FOR OJ,0 AND NEW MACHINERY ~ ###### Old Xt>W Total,.'?J **19f.i7-5!J** 9·57 **ll·6i** **21 ·21** Q **1958-59** (addition&!) **O·::i2** **2:!•03** "' ~ 19511-l!O (add;t;onal) **1·95** 23·98 _Total_ _yearly requirements of rehabilitation during the_ _bonus_ _years_ (Figures in lacst Years l\Iachinery Building Total 1957-58 21·2! O· 7:? 21·93 1958-59 22·03 0·77 _22._ so U:l5~)-60 2:~·98 0·82 24-·80 _Detailed_ _dalculations_ _of available surplus for_ _the_ _three bonus years_ Gross Profits _Less_ Xotional ~ormal lJepreciat.iun Xotiona] Normal De pre- Balance to be provided ciation allowetl during out of profits the yea.r to be deducted 9· 10 12·83 9·00 13·80 10·83 13·97 (Figures in lacs) 19•37-58 1958-59 1959-60 28·34 25·36 34·92 9·10 9·00 !0·83 19'·24 16·36 24·09 8· 18 7·48 7·31 ll·06 8·88 16·78 0·28 0·29 10-78 8·59 16·78 3·60 3·60 4·35 7·18 4·90 12·43 12·83 13·80 13·97 _Nil_ _Jrlil_ _h'"il_ _Less_ Income- tax _Less_ \Vealth '1-'ax _Less_ return on paid up capital _**L'as**_ ariditionnl p1•ovIBion for tchalJiliLation for plant, machinery and buildings vai]able i';:J.JrJ.'~l.ls L/l'(X)7SU C-12 - 804 StJPREllE COURT Rl!:l'OR'l'S (1968) J I.S.0.11 The Chartst showing oalculations of available surplus for the A three bonus years show that in all these years no surplus remains available for distribution of bonus after making provisicn for rehabilitation. As a result, the appeal by the Company must be allow~d and the direction made by the Tribunal for payment of bonus for these three years has to be set aside. In the circumstances of this case, the parties will bear their own costs. The appeal by the Union is dismissed. There will be no order as to costs. G.C _Appeal dismissed._ B