Kambli 1 wp2379.98 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2379 OF 1998 ... Mohmed Kassim Khalilullah ...Petitioner v/s. Hindustan Lever Ltd. and ors. ...Respondents ... Mr.P.M.Patel for the Petitioner. Mr.P.K.Rele, Sr.Advocate i/b Piyush Shah for the Respondents. ... CORAM: D.K.Deshmukh & K.K.TATED, JJ DATED: 1st March, 2011 P.C.: 1. By this petition the Petitioner makes a grievance that his employer has not paid him employer’s contribution of Provident Fund from the date of his appointment till the date of his dismissal on 20th May, 1980, as also for the further period. 2. The relevant facts are that after holding the Petitioner guilty of misconduct, the Petitioner was dismissed Kambli 2 wp2379.98 from service on 20th May, 1980. The order imposing punishment was challenged before the Labour Court. The Labour Court made the award on 29-6-1984 granting reinstatement in service without backwages. The award was challenged by the employer in this court. The final order has been made by the Supreme Court in Civil Appeal No.3410 of 1987 dated 17th July, 1996. The Supreme Court held that the Labour Court should not have interfered with the order of dismissal and there was no room to reinstate the Petitioner in service. The Supreme Court directed that only compensation should have been paid to the Petitioner in lieu of reinstatement. During the pendency of this petition, it appears that the Petitioner had been paid by the employer without requiring him to work. The Supreme Court said that the payment made by the employer to the Petitioner during the aforesaid period + the amount of Rs.1,00,000/- shall be treated as compensation payable by the employer to the Petitioner in lieu of reinstatement. There is no dispute before us that this amount has been paid. Kambli 3 wp2379.98 3. The grievance of the Petitioner is that the employer has not paid to the Petitioner the employer’s contribution towards Provident Fund right from the date of appointment of the Petitioner till the Supreme Court made the order. 4. This position is disputed by the Respondents. According to the Respondents, the employer’s contribution towards Provident Fund from the date of appointment of the Petitioner till the date of his termination has been paid. So far as the period subsequent thereto is concerned, according to the Respondents, the Petitioner is not entitled to it in view of the order of the Supreme Court. 5. We have heard the learned Counsel fror both sides. We have perused the record. In our opinion, in view of the order of the Supreme Court the Petitioner is not entitled to employer’s contribution towards provident fund, because provident fund becomes payable if the wages are being paid to the employer. For being entitled to payment of wages, Kambli 4 wp2379.98 employee should be in service. The Petitioner cannot be an employee in service for the period subsequent to his dismissal in view of the order of the Supreme Court, because the Supreme Court has set aside the order of reinstatement in service. If the Petitioner was not reinstated in service, he cannot be held to be in service with the Respondents. If he was not in service of the Respondents, he would not be entitled to wages and as he was not entitled to wages, he would not be entitled to any provident fund. However, the Petitioner would be entitled to provident fund including employer’s contribution towards provident fund till the order of dismissal was passed. The learned Counsel appearing for the Respondent has stated before us that that contribution of the employer towards provident fund, for that period, has been paid to the Petitioner. Petition, thus, is dismissed. Rule discharged. No order as to costs. (D.K.DESHMUKH, J.) (K.K.TATED, J.)