IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 OP.No. 26759 of 2002(I) ----------------------- PETITIONER: ------------ HOTEL YUVARANI, M.G.ROAD ERNAKULAM, REPRESENTED BY ITS MANAGING PARTNER. BY ADV. SRI.P.RAMAKRISHNAN SRI.PAULSON C.VARGHESE RESPONDENTS: ------------- 1. M.V.GOPINATHAN, EWS 716, GANDHI NAGAR, KOCHI - 682 020. 2. THE LABOUR COURT, ERNAKULAM. BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SMT.LAKSHMI B.SHENOY SENIOR GOVERNMENT PLEADER, SRI.T.T.MUHAMOOD THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO.26759/2002 ORDER ON CMP NO.45459/2002 IN OP NO.26759/2002 DISMISSED SD/- 17.1.2008 S.SIRI JAGAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE ORDER DATED 22.1.2002 IN CP 55/93. EXT. P2: COPY OF THE CLAIM PETITION DT. 8/7/93. EXT. P3: COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER DT. 28/7/94. /TRUE COPY/ P.A. TO JUDGE JP S.SIRI JAGAN, J. ======================= O.P. No.26759 of 2002 (I) ======================= 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 jp