IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 26759 of 2002(I)
1. HOTEL YUVARANI, M.G.ROAD ERNAKULAM,
... Petitioner
Vs
1. M.V.GOPINATHAN, EWS 716, GANDHI NAGAR,
... Respondent
2. THE LABOUR COURT, ERNAKULAM.
For Petitioner :SRI.P.RAMAKRISHNAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :17/01/2008
O R D E R
S.SIRI JAGAN, J.
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O.P. No.26759 of 2002 (I)
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Dated this the 17th day of January, 2008
JUDGMENT
The petitioner is the opposite party in CP No.55/1993 before
the Labour Court, Ernakulam, filed by the 1st respondent herein,
claiming wages allegedly due to him for the period from 8.4.1991
to 26.5.1991, food allowance allegedly due to him for the same
period and balance bonus allegedly due to him for a period from
1988-89 and 1989-90 as also bonus for the period 1990-91 and
proportionate bonus for the period from 1991-92. The Labour
Court by Ext.P1 order, accepted the claims of the 1st
respondent herein as raised in the claim petition and directed
payment of an amount of Rs.4588.15/- as amounts computed as
due to the 1st respondent on the above accounts. That order is
O.P. No.26759/2002/I -2-
under challenge before me.
2. The main contention raised by the petitioner is that
the eligibility of the petitioner for wages for the period was not a
claim which could have been validly considered by a Labour
Court in exercise of powers under Section 33 C (2) of the
Industrial Disputes Act. According to the petitioner, the 1st
respondent was caught red handed while committing very serious
misconducts, as a result of which he was taken into police
custody, at which time he was under the influence of alcohol
also. That incident happened on 7.4.1991 and thereafter he did
not attend duty. On 27.5.1991, the 1st respondent was
suspended from service pending disciplinary action. During the
period from 8.4.1991 and 26.5.1991, the petitioner himself
stayed away from work because of guilty conscience and not
because the petitioner refused to allow him to attend to duty.
Therefore, there is no question of payment of wages and food
allowance for the said period is the contention raised. The
further contention is that in any event, the question as to
whether the contention of the management was true or that of
the workman was true, was not a matter which could have been
O.P. No.26759/2002/I -3-
validly agitated in a claim petition under Section 33 C (2) of
Industrial Disputes Act. He also challenges that portion of the
order whereby the Labour Court had directed payment of
balance bonus due to the 1st respondent. According to him,
bonus due to the 1st respondent could have been calculated
only in accordance with his last drawn wages at the time of
suspension and the Labour Court erroneously calculated bonus on
the basis of minimum wages payable to the 1st respondent which
is not permissible under law.
3. The counsel for the 1st respondent would seriously
dispute the contentions raised by the petitioner. According to her,
the 1st respondent was present for duty every day from 8.4.1991
to 26.5.1991 but he was not permitted to perform his duties.
Therefore, according to the 1st respondent, he is entitled to
wages and food allowance for the period. The counsel would
further submit that when minimum wages have been prescribed
for this industry there is nothing wrong in the Labour Court
calculating bonus declared on the basis of the minimum wages
payable and the management which has not paid minimum
wages to the workman cannot be heard to contend that he would
O.P. No.26759/2002/I -4-
pay bonus to the workman only in accordance with the wages he
actually paid to the workers.
4. I have considered rival contentions in detail. As
observed by the Labour Court in Ext.P1, the 1st respondent
himself had admitted that on 7.4.1991 he was taken into custody
by the police. According to the management, he had been taken
to the Government hospital for medical examination as he was
under the influence of alcohol. It is also not disputed by the 1st
respondent that he was placed under suspension with effect from
17.5.1991. (The 1st respondent disputes the averment that he
was taken for medical examination.) It is also admitted before
me now, that the suspension had culminated in imposition of
punishment of dismissal from service after a domestic enquiry in
respect of which there is an industrial dispute pending. As such it
cannot now be disputed that there is a genuine dispute pending
between the parties as to whether during the period from
8.4.1991 to 26.5.1991, the 1st respondent was actually absent
from duty by himself or whether the opposite party refused
permission to him to attend to his duties. It is settled law that
proceedings under Section 33 C (2) of the Industrial Disputes
O.P. No.26759/2002/I -5-
Act is in the nature of execution proceedings and only settled
rights which can be computed in terms of money can be subject
matter of a petition under Section 33 C (2). That being so, when
there is a genuine dispute as to whether the 1st respondent was
actually present for duty for the above period, the Labour Court
could not have in exercise powers under Section 33 C (2) of
Industrial Disputes Act resolved that dispute to find the 1st
respondent eligible for wages and food allowance for the period.
Such a dispute could have been resolved only in an industrial
dispute raised for the purpose. That being so, I am satisfied that
the Labour Court went wrong in exercising powers under Section
33 C (2) in this case in so far as the question of payment of
wages and food allowance are concerned for the said period. To
that extent, the Ext.P1 order is unsustainable.
5. However, the question of bonus is a different thing.
The Labour Court found that the declared bonus was at the rate
of 12.5%. Therefore, the Labour Court is certainly empowerd to
decide whether any arrears of bonus or bonus was due to the
1st respondent at that rate. Although the petitioner would
contend that he is liable to pay bonus only in accordance with the
O.P. No.26759/2002/I -6-
last drawn wages paid by the management, I am not inclined to
entertain such a contention from an employer who had not paid
minimum wages to his worker. Therefore, there is nothing
wrong in the Labour Court computing bonus payable in
accordance with the declared percentage of bonus based on the
minimum wages payable. However, since from 8.4.1991 to
26.5.1991, the 1st respondent had not worked and since
thereafter he was under suspension which ultimately ended in
dismissal, I do not think that the 1st respondent can claim bonus
for 1991-92 and subsequent period unless the dismissal is set
aside by a process known to law. The Labour Court found that
the arrears of bonus of Rs. 290.75 and 318.50 was due to the
1st respondent for the years 1988-89 and 1989-90. However,
there is no separate computation of bonus for the year 1990-91
in Ext.P1 order. But I find that for the earlier years the
management themselves have paid Rs.637.50 and Rs. 700.50 as
bonus to the petitioner. Therefore, taking into account the entire
facts and circumstances of the case, I feel that an amount of
Rs.1000/- can be fixed as bonus payable to the 1st respondent
which shall be paid within two weeks from the date of receipt of a
O.P. No.26759/2002/I -7-
copy of this judgment. Since I have found that the Labour Court
should not have validly adjudicated the eligibility of 1st
respondent for wages and food allowance for the period from
8.4.1991 to 26.5.1991, that part of the Ext.P1 order is quashed.
The original petition is disposed of as above.
S.SIRI JAGAN,
JUDGE
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