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WPC 23589/22
# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`**
```
THURSDAY, THE 2[ND] DAY OF NOVEMBER 2023 / 11TH KARTHIKA, 1945
```
## **`WP(C) NO. 23589 OF 2022`**
## **`PETITIONER/S:`**
```
NISAMUDEEN
AGED 58 YEARS
S/O. ABDUL RASHEED, PROPRIETOR, QUILON CASHEWS,
RESIDING AT ANGAVILA, KILIKOLLOOR PO, KOLLAM-691334.
BY ADVS.
SAJU J PANICKER
KURIAN K JOSE
```
## **`RESPONDENT/S:`**
```
1 VASANTHASENAN
KAKKIDIVILA VEEDU (VIDHYA BHAVAN), NEDUNGOLAM P.O, S.
PARAVOOR, KOLLAM-691334.
2 THE LABOUR COURT,
NEAR CIVIL STATION, REP.BY REGISTRAR KOLLAM-691013.
```
## **`OTHER PRESENT:`**
```
SMT. D.P RENU – R1, SR GP SMT REKHA C. NAIR
```
```
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
```
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## **JUDGMENT**
(Dated this the 2[nd] day of November 2023)
The petitioner/employer has filed this Writ Petition challenging Ext.P4 and P5 orders of the Labour Court, Kollam. Ext.P4 is the order dated 23.5.2018 passed under Section 33C(2) of the Industrial Dispute Act and Ext.P5 is the order passed in I.A. No.147 of 2018 in C.P.No.32 of 2018 for correcting the above order dated 24.4.2019 passed by the Labour court.
2. Petitioner was the proprietor of Quilon cashews factory. The said factory is now closed as bankrupt. The 1st respondent was working in the petitioner’s factory and was dismissed from service on 25.5.1998 pursuant to a domestic enquiry. The 1[st] respondent challenged the dismissal by filing I.D. No.59 of 1999 before the labour court. The labour court on 7.2.2005 passed an order, setting aside the domestic enquiry, and passed the final award on 29.1.2010 in I.D. No.59 of 1999 (Ext.P1), whereby the employee was reinstated into service with 50% backwages. The petitioner
remained ex-parte in the said award. The workman superannuated
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on 31.12.2001. As per Ext.P1 Award, the labour court held that the management failed to prove the charges against the workman on account on which he was dismissed from the service of the Management, and hence, his dismissal was unjustifiable and being so, his dismissal from service is set aside and deemed to have been in service till 31.12.2001, the date of his superannuation and is entitled to get all retirement benefits treating that he was superannuated on 31.12.2001 while continuing in service. The management was directed to pay the benefits with interest at the rate of 9% per annum from the date of pronouncement of the award.
3. Ext.P1 award was challenged by the first respondent by filing W.P.(C) No.11201 of 2010 before this court against the denial of back-wages with 12% interest including all services benefits during the period from 25.5.1998 to 31.12.2001. This court, by judgment 7.11.2012, directed the labour court to reconsider the question as to whether the workman is entitled to get backwages for the period from 25.5.1998 to 31.12.2001. On the basis of the said
direction from this court, the Labour Court again heard the petitioner
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/Management and an award was passed on 27.5.2013 which is produced as Ext.P3, in which it is held that the workman is entitled to get 60% of back-wages for the period from 25.5.1998 to
31.8.2001.
4. On the basis of Ext.P3 award, the proprietor/petitioner filed C.P. No.32 of 2013 for adjudicating the amount awarded under Ext.Nos.P1 and P3 awards. The labour Court disposed of the Claim Petition by order dated 23.5.2018, which is produced as Ext.P4. The workman filed W.P.(C) No.12754 of 2019 before this court challenging Ext.P4. In the meantime, the workman filed I.A. No.147 of 2018 to correct the arithmetical mistakes in Ext.P4 order and it was corrected as per order dated 24.4.2019, which is produced as Ext.P5. Accordingly, the Writ petition was dismissed giving liberty to challenge the modified award along with the previous award. This Writ Petition is filed by the proprietor challenging Ext.P4 and P5 orders.
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5. Heard the learned counsel Shri Saju J. Panicker for the petitioner, Smt. D P Renu for the first respondent, learned Government Pleader.
6. The main challenge relied on by the counsel for the petitioner is that as per Ext.P1 what the Labour Court holds is that the workman is entitled to get all retirement benefits treating that he has superannuated on 31.12.2001 while continuing in service. But the 1[st] respondent/workman filed a claim petition under Section 33 C(2) of the Industrial Disputes Act for bonus and leave with wages. The Labour Court, without understanding the first order of the labour court, awarded bonus and leave with wages as per Ext.P4. Since there were some arithmetical mistakes in the calculation in Ext.P4, I.A. No.147 of 2018 was filed, and by Ext.P5 order, the said clerical/arithmetical mistakes were corrected.
7. The main contention raised by the counsel for the petitioner is with respect to the bonus part directed to be paid by the petitioner. It is submitted that under section 10 of the Payment of Bonus Act, every employer is bound to pay every employee, in
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respect of the accounting year, a minimum bonus. According to the counsel for the petitioner, since the 1[st] respondent was not in service for the period from 25.5.1998 to 31.8.2001 he is not entitled to bonus as he was not an employee. The same also applies to the leave wages also. The employee is only eligible to get back wages. Therefore, he contends that Ext.Nos.P4 and P5 orders passed by the Labour Court are illegal and are to be interfered with.
8. Counsel for the first respondent argues that as per Ext.P1 award, the labour court has held that dismissal from service is bad and, therefore, was set aside. The workman is deemed to have been in service till 31.12.2001, i.e, the actual date of his superannuation. Therefore, he is entitled to get all his retiral benefits, as his date of superannuation was on 31.12.2001, while continuing in service. The learned counsel relying, on the judgment in **Vittal Venkatesh v. Patheja Forging and Auto Parts Manufactures (1992 SCC Online Bom. 464)** and contends that a similar situation arose before the Bombay High Court, and the learned Single Judge held that when the dismissal is set aside, the workman is
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deemed to have been in service till superannuation and therefore is entitled to all the claims including bonus and leave wages also. The counsel also relied on a judgment reported in **Khas Joyrampur**
**Colliery Co. (Pvt.) Ltd. v. Kailash Nath Shrivastava (1968 SCC Online Pat. 142),** wherein it was held in a similar situation that when the dismissal of the workman is not justified, he is entitled to all the benefits. Therefore, he is deemed to have been in service till he is superannuated normally and consequently he is entitled to bonus and leave. She also relied on the judgment in **Superintending Engineer, Vellore Electricity System v. K. Palani (1970 SCC Online Mad. 238).** Therefore, she argues that the contention raised by the counsel for the petitioner that the employee is not entitled to bonus and leave wages is not correct.
9. When the Labour court has passed an award setting aside the dismissal of service of an employee and holding that he is deemed to have been in service till 31.12.2001, necessarily it can be
treated that he has been in service till 31.12.2001. Therefore, the
claim of the workman for bonus and leave wages cannot be
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excluded. When a workman is terminated unlawfully and allowed him to suffer for years, the employer cannot take advantage of his own wrong and cannot allow to deny any of the benefits arising out the workman’s employment including the bonus. So, it can only be held that the 1[st] respondent was in service till 31.12.2001, and therefore, he is entitled to all retiral benefits, including bonus and backwages. Therefore, taking into consideration the dictums laid down in the judgments of various High Courts as above as well as the order of the Labour court, he is deemed to be in service, Therefore I have no hesitation to hold 1[st] respondent is eligible for payment of bonus under Bonus Act, 1965 as well as the claim of leave with wages. Ext.P4 is legal and Ext.P5 is a consequent order to correct the arithmetical mistakes in Ext.P4. So Ext.P5 is also legal order. Hence, I find no error in Ext.P4 and P5 orders and they are legal and valid. Accordingly, the Writ petition is dismissed.
## Sd/. **BASANT BALAJI, JUDGE**
dl/
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## **`APPENDIX OF WP(C) 23589/2022`**
|`PETITIONER EXHIBITS`||
|---|---|
|`Exhibit P1`|`TRUE COPY OF THE AWARD DATED 29/01/2010 OF`|
||`THE 2ND RESPONDENT LABOUR COURT IN ID 59/99.`|
|`Exhibit P2`|`TRUE COPY OF THE JUDGMENT DATED 07/11/2012 OF`|
||`THIS HON'BLE COURT IN WP C NO. 11201/2010.`|
|`Exhibit P3`|`TRUE COPY OF THE AWARD DATED 27/05/2013 OF`|
||`THE 2ND RESPONDENT LABOUR COURT IN ID 59/99.`|
|`Exhibit P4`|`TRUE COPY OF THE ORDER DATED 23/05/2018 OF`|
||`THE 2ND RESPONDENT LABOUR COURT IN CLAIM`|
||`PETITION NO 32/2013.`|
|`Exhibit P5`|`TRUE COPY OF THE ORDER DATED 24/04/2019 OF`|
||`THE 2ND RESPONDENT LABOUR COURT IN 1A`|
||`147/2018 IN CP NO. 32/2013.`|
|`Exhibit P6`|`TRUE COPY OF THE JUDGMENT DATED 08/11/2021 OF`|
||`THIS HON' BLE COURT IN WP C NO. 12754/2019.`|
|`Exhibit P7`|`TRUE COPY OF THE SHOW CAUSE NICE. IR N`|
||`1074/2022 OF THE RESPONDENT LABOUR COURT TO`|
||`THE PETITIONER DATED 29/04/2022.`|
|`Exhibit P8`|`TRUE COPY OF THE REPLY DATED 23/05/2022 GIVEN`|
||`BY THE PETITIONER TO EXT P7 SHOW CAUSE`|
||`NOTICE.`|
