Judgment :- 1. The petitioners in this case are the workmen of the Tile Factory at Feroke, under the employment of the 2nd respondent and are represented by the Secretary of Tile Workers' Union. On behalf of the workmen, the Union raised an industrial dispute regarding the payment of the bonus for the year 1960 and other matters and the Government of Kerala referred the dispute for adjudication to the 1st respondent. 2. The Union by its written statement claimed that the payment of bonus had ripened into an implied condition of the contract of employment as from the very beginning of the working of the company, the workers were paid bonus regularly at the time of Vishu every year. The 2nd respondent controverted this allegation and contended that bonus was never paid by the Management except out of profit and that it paid bonus in certain years of loss purely as a matter of bounty, to purchase goodwill of the workmen and to maintain industrial peace. 3. The 1st respondent came to the conclusion that the workers were not entitled to bonus as an implied condition of service and dismissed their claim for the same. It is to quash this part of the award that this writ petition has been filed by the workers. 4. The question that arises for consideration is whether award of the Tribunal is vitiated by any error of law apparent on the face of the record. The issue referred for adjudication and with which 1 am concerned in this petition is whether the workers were entitled to bonus for the year 1960 on the basis of an implied condition of service. In the written statement filed by the Union, bonus was claimed as an implied condition of the contract of employment. The contention of the Union was that from the very beginning of the working of the Company the workmen have been paid bonus at the time of Vishu every year till 1959 and that this unbroken payment over the years evidences the existence of an obligation to pay bonus as an implied condition of service. In 1959 the management refused to pay bonus and that was the subject matter of Arbitration Reference 4 of 1960. In the award passed in that reference a copy of which is marked as Ext. In 1959 the management refused to pay bonus and that was the subject matter of Arbitration Reference 4 of 1960. In the award passed in that reference a copy of which is marked as Ext. M. 22 in this case it was found that the rate of payment of bonus to the workers from 1951 to 1958 was not uniform and as the payments were not at a uniform rate in these years no inference could be drawn than the payment of bonus has become customary in the establishment. It may be noted that the claim put forward by the Union at that time was that bonus was payable as a matter of custom. The present claim for 25 per cent of the basic wages as bonus is advanced on the basis that it has become an implied term of the conditions of service. The management denied the allegation of the Union that bonus was payable as an implied condition of the contract of employment. The case of the management is that it paid bonus for 1953 & 1954, which were admittedly years in which the management incurred loss purely out of bounty to purchase the goodwill of the workers and for maintaining industrial peace. The management contended that the period during which bonus was paid was not long enough to warrant an inference as to its obligation to pay the same in connection with Vishu as an implied condition of service. The Tribunal came to the conclusion that there was no implied condition of service for payment of bonus to the workers. In coming to this conclusion the Tribunal analysed the oral and documentary evidence and found that bonuses were paid from 1951 to 1958, out of which 1953, 1954, 1956 & 1958 were years in which the management incurred loss, that the payments in 1953 & 1954 were ex gratia payments, and that therefore the contention of the workers that the claim for payment of bonus had ripened into an implied condition of the contract of employment was not substantiated. It was on the basis of this finding that the Tribunal came to the conclusion that there was no implied term in the contract of service in the matter of payment of bonus. 5. It was on the basis of this finding that the Tribunal came to the conclusion that there was no implied term in the contract of service in the matter of payment of bonus. 5. The conditions under which bonus can be claimed as an implied term of the contract of employment are laid down in the ruling of the Supreme Court reported in Ispahani Ltd. v. Ispahani Employees' Union (1959-2 L.L.J. 4). That was a case which was concerned with the payment of Puja bonus. It was laid down in that case that payment of bonus as an implied term of the condition of service might be inferred if the payments were unbroken for a sufficiently long period, and that the circumstances in which the payments were made were such as to exclude the inference that they were made out of bounty. It is further stated in that ruling that payment of bonus in an year of loss would be an important factor for excluding the hypothesis that the payment was out of bounty and for coming to the conclusion that the payment was a matter of obligation based on implied agreement. Reference may also be made in this connection to the decision of the Supreme Court in Grahams Trading Co. v. Their Workmen (1959-2 L.L.J. 393). That also was a case where the claim was for Pooja bonus. There, after referring to the decision in 1959-2 L.L.J. 4, the Supreme Court said: "An implied term of employment cannot be inferred in this case, for right from 1948 to 1952, the company, whenever it paid this bonus, made it clear that it was an ex gratia payment and would not constitute any precedent for future years. In the face of such notice year by year it would not be possible to imply a term of employment on the basis of an implied agreement for agreement postulates a meeting of minds regarding the subject-matter of an agreement; and here one party was always making it clear that the payment was ex gratia and that it would not form a precedent for future years. In dealing with the question of an implied term of the condition of service, it would be difficult to ignore the statement expressly made by the employer while making the payment from year to year." If bonus is claimed on the basis of custom, it is necessary to prove that the payments have been made for an unbroken series of years in connection with some festival: the period of payment must normally be longer to justify an inference of traditional customary bonus than in the case of bonus based on an implied term of employment. It is also necessary to prove that the payments were not dependent upon the earning of profits by the management. The fact that payments were made in the years of loss is an important consideration for coming to the conclusion that payments were not made out of bounty. In dealing with the question of custom, the fact that payments were called ex gratia when they were made would make no difference in this regard because the proof of custom depends upon other relevant factors and that it would not be materially affected by the unilateral declarations of one party when the said declarations are inconsistent with the course of conduct adopted by it. And lastly it is necessary to prove that the payments have been at a uniform rate throughout to justify the inference that payment at such and such rate has become customary and traditional in the particular concern. That no bonus can be claimed on the basis of an implied term in the contract of service where the payment has not been uniform in the past except in connection with some festival has been decided by the Supreme Court in Civil Appeal No. 583 of 1963 (The Management of the Bombay Co. Ltd. v. Its workmen). In the judgment it is said: "we are of opinion that the tribunal was not right in holding that therecould be an implied condition of service as to payment of bonus unconnected with any festival. In Ispahani's case the question raised was whether there was an implied condition of service for payment of some bonus at the time of puja festival in Bengal. In that connection this Court laid down the tests for holding when it could be said that there was an implied condition of service for payment of some bonus in connection with some festival. In that connection this Court laid down the tests for holding when it could be said that there was an implied condition of service for payment of some bonus in connection with some festival. This Court also pointed out that it was not necessary in order to establish an implied condition of service as to payment of some bonus at the time of a festival like puja in Bengal that the amount paid in connection with the festival should be uniform, and that in the absence of uniform rate an implied agreement to pay something could be inferred. Now where the payment is connected with a festival it is possible to infer that there is an implied condition to pay something at the time of the festival, even though the evidence discloses that in previous years payment has not been made at a uniform rate. But it is difficult to see how the principle which applies to a case of payment at the time of payment where the payment has been made entirely unconnected with any festival and at rates which have varied from year to year. We are therefore of opinion that when this Court laid down that there was an implied condition of service to pay something about the time of pooja festival in Ispahani's case, it was clear that such implied condition of service could be inferred where the rate of payment was not uniform only when such payment was obviously connected with some festival. In the present case also, the payment has not been uniform over the years and therefore before an implied term of service to pay bonus can be inferred it must be shown that the payment was connected with some festival. It would in our opinion be impossible to infer an implied condition of service where payment has not been uniform in the past, unless such payment can be connected with some festival." 6. Mr. T.C.N. Menon, counsel appearing for the workers, contended that the Tribunal was not justified in drawing the inference that the payments of bonus in the years 1953 and 1954 were out of bounty from the evidence in the case. Mr. T.C.N. Menon, counsel appearing for the workers, contended that the Tribunal was not justified in drawing the inference that the payments of bonus in the years 1953 and 1954 were out of bounty from the evidence in the case. He submitted that there was no evidence to show that it was made known to the workers that the payments for these years were being made out of bounty, that they were accepted on that basis by the workers and that in the absence of declaration by the management that the payments were being made ex gratia at the time of the payment and an acceptance of the same by the workers on the basis of the declaration so made, it must be assumed that the payments were made on account of the implied term of the employment, and as a matter of obligation. He further submitted that the Tribunal in relying on Exts. M 18, M 19 and M 20 for its conclusion that the payments made in 1953 and 1954 were ex gratia, committed an error of law in that those documents would not throw any light as to the nature and character of the payments made in 1953 and 1954. The Tribunal came to the conclusion that the payments for these two years were ex gratia payment on the basis of Exts. M 18 and M 19. This is what the Tribunal says: "In Ext. M18 they say that in 1955 they have regular work and the management has not made any profit and therefore they do not intend to give any bonus. Ext. M19 is dated 10-4-1956. This is also in answer to the demand of the union for payment of 1955 bonus. In Ext. M19 also it is stated that for the years 1953 and 1954 bonus was paid to workers as they had no work for all the days of the year. It is in consideration of this that this ex gratia bonus payments were paid in 1953 and in 1954. It is also asserted in Ext. M19 that the Company pays bonus only when there is profit. The Secretary admits that in 1953 bonus was paid as a result of strike. What is paid in 1953 was 1952 bonus. M. W. 1 states that in 1953-54 the workers were paid ex gratia bonus. It is also asserted in Ext. M19 that the Company pays bonus only when there is profit. The Secretary admits that in 1953 bonus was paid as a result of strike. What is paid in 1953 was 1952 bonus. M. W. 1 states that in 1953-54 the workers were paid ex gratia bonus. These payments were made in consideration of their want of work in the factory. 1953 bonus was paid to end strike and 1954 bonus was paid to help the workers 10 get over their temporary difficulty. So it is established by evidence that 1953 and 1954 bonuses were paid not on the basis of any service conditions of the workers." Counsel for the petitioner submitted that the statements in these documents should not have been relied on by the Tribunal as these documents came into existence long after the years in question. His argument was that unless there is evidence that at the time of payments for these years it was made clear by the management that the payments were ex gratia, the Tribunal was not justified in coming to the conclusion that the payments in question were ex gratia; and that it went wrong in looking into the evidence afforded by Exts. M 18 and M 19 which came into existence after the payments in question. I find it difficult to accept the argument. It is no doubt true that one circumstance to show that the payments were ex gratia would be to prove that when the payments were made it was made known to the workers that the payments were ex gratia, but that is not the sole circumstance from which a conclusion as to the nature of the payments can be made. If on an entire review of the evidence it is possible to come to the conclusion that the payments were not made as a matter of obligation but to purchase peace or to avert a threatened strike on unjustifiable grounds or for any other like reason, then the Tribunal would be justified in coming to that conclusion. The finding on this question is really a finding on a mixed question of law and fact. (See 1959-2 L.L.J. 4). The finding on this question is really a finding on a mixed question of law and fact. (See 1959-2 L.L.J. 4). But I cannot find any error of law in the finding of the Tribunal that there has been no unbroken payment of bonus for a sufficiently long period as a matter of obligation in order to infer an implied term in the contract of employment. The workers have not succeeded in making out that there was an implied term in the contract of service that bonus would be paid in connection with Vishu festival. It may be mentioned that the Tribunal has not entered any finding whether the payments from 1951 to 1958 were made in connection with the Vishu festival. In the written statement of the Union, as I have said, the claim was that bonus was payable as an implied term of the condition of service in connection with Vishu festival. But nothing turns upon that question in view of the finding of the Tribunal, that the payments for 1953 and 1954 ware ex gratia payments, and that the workmen have not therefore made out an unbroken payment for a series of years and as a matter of obligation for making an inference that the payment of bonus was an implied term of employment. 7. I dismiss the writ petition, but in the circumstances without any order as to costs. Dismissed.