An illegally dismissed employee is entitled to both the wages and bonus: Calcutta High Court.

IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE PRESENT: HON’BLE MR. JUSTICE ABHIJIT GANGOPADHYAY WPA 31116 Kanchan Oil Industries Limited Versus Sri Ranganath Sukla & Anr. For the petitioners : Mr. Rabindranath Majumder For the Respondent No. 1 Heard on : 12.01.2021 21.01.2021 12.02.2021 18.02.2021 24.02.2021 12.03.2021 16.03.2021 & 06.04.2021 Mr. Sourav Chakraborty Mr. Supratim Bhattacharjee Mr. S. M. Obaidullah Mr. Suvadip Bhattacharjee Mr. Balaram Patra Judgment on : 06.07.2021 Abhijit Gangopadhyay J .: 1. This writ application by the employer is directed against the order passed by the Second Labour Court in connection with an application under Section 33C(2) of the Industrial Disputes Act 1947 ID Act employee petitioner is that the Labour Court while deciding the said application has acted going beyond the jurisdiction as it has virtually made out a case and consequently have granted some relief which was not granted by the Tribunal while passing the award in respect of reference made to it by the Government of West Bengal. 2. The writ petitioner has submitted that while the award says payment of full back wages etc. the Court under the 33C(2) application has awarded certain amounts in respect of VDA medical allowance and bonus. According to the petitioner the award did not say anything about the VDA medical allowance and bonus but the 2nd Labour Court has granted those benefits to the employee. The 2nd Labour Court has also gone wrong while awarding interest on the amount due to the employee. 3. The employee was a Security person Darwan in the Oil Mill of the petitioner. The employee respondent therein was on unauthorised leave for some time. As it was unauthorised leave disciplinary proceeding was initiated against him wherein he on the first day appeared with an outsider and therefore not allowed to participate and on next dates he remained absent and the proceeding was continued ex parte and ultimately the employee was terminated. 4. This termination was challenged by the employee and thereupon a reference was made by the Government of West Bengal. The matter was heard by the 7th Industrial Tribunal wherein oral 3 exhibited. evidence was adduced by the parties and documents were 5. The writ petitioner submits that as the 2nd Labour Court has gone beyond its jurisdiction and have recalculated the amount to be paid as wages to the employee respondent and has included in the wages the VDA medical allowance and the bonus the order passed by the said court dated 31.07.2015 should be set aside. Placing the definition of wages as given in Section 2(rr) of the ID Act the petitioner has submitted that the wages can never include the VDA the bonus and the medical allowance. It has further been submitted that the wages as is understood from the award has already been paid to the employee and no further amount is required to be paid as he is not entitled to it. 6. The employee respondent has submitted that the definition of wages includes the dearness allowance and medical allowance as these components can be calculated in money value which comes within the meaning of wages as has been defined in Section 2(rr) of the ID Act 1947. And bonus is consequence of wages and he is entitled to it. The employee respondent further submitted showing his affidavit in opposition wherein the evidence adduced by the Company‟switness has been recorded that the companies witness nowhere in their evidence stated that the employee is not entitled to VDA medical allowance and bonus. By referring to the evidence adduced it has also been submitted by the employee respondent that the Company withheld the salary statement etc. to suppress it from the Tribunal that the employee was getting VDA medical allowance and bonus. He was also getting house rent which he could not prove and therefore it has not been included in the order passed by the 2nd Labour Court. In respect of the 2nd Labour Court‟s decision in calculating the amount the employee respondent has stated that the said Court under Section 33C(2) of the ID Act has never exceeded its jurisdiction it only calculated the amount which comes within the definition and meaning of wages. The “consequential benefit” was included in the award and if something is calculated what was given in the award it can never be alleged that by making the calculation the executing court has acted exceeding its jurisdiction. It has been submitted that the calculation was made of some monetary benefits included which comes within the meaning of full back wages as has been given in the award. As the dismissal has been held illegal a legal fiction comes into play which holds that the employee was in service without any break. In view of this he cannot be deprived of Bonus. 7. Affidavits have been exchanged between the parties. They have also filed written notes of argument. 8. The definition of wages as given in the ID Act 1947 : rr) "wages" means all capable of being expressed in terms of money which would if the terms of employment expressed or implied were fulfilled be payable to a workman in respect of his employment or of work done in such employment and includes such allowances as the workman is for the time being entitled to the accommodation or of supply of light water medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles any travelling concession iv) any commission payable on promotion of sales or business or both but does not include any bonus any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in any termination of his service force 9. After the award was passed the employee filed application under Section 33C(2). Section 33C(2) of the ID Act 1947 is as follows: 2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed then the question may subject to any rules that may be made under this Act be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months. 10. From the reading of definition of wages and from the reading of power of the Court under Section 33C(2) I find that there is neither any perversity nor any act beyond jurisdiction by the 2nd Labour Court while deciding the application under Section 33(C)2 of the ID Act filed by the employee. In the award it has been stated that the employee has to be given full back wages as its dismissal from service was illegal and the back wages is to be paid together with all consequential benefits. Within the meaning of the wages as defined in the said Act of 1947 it is clear that dearness allowance and medical allowance and other remuneration capable of being expressed in terms of money are covered as those are capable of being calculated in money value. Bonus of an employee is also capable of being expressed in terms of money value and it is consequence of wages. It is to be kept in mind that “bonus” not included within the meaning of “wages” and “bonus” of an illegally dismissed employee are different things. They mean while calculating „wages‟ bonus would not be included but while paying wages to an illegally dismissed employee “bonus” is to be added to the “wages” due to the legal fiction that the illegally dismissed employer was in continuous service therefore there is no reason as to why bonus in such cases would not be added to the wages to be paid. A person who is not entitled to get wages cannot get bonus. Bonus is something paid in excess to the wages. Therefore direction by the 2nd Labour Court for payment of bonus cannot be said as a direction beyond the jurisdiction. The 2nd Labour Court has only calculated the benefits to be given to the employee in accordance with the award. As the salary register etc. was not produced by the employee respondent despite giving them opportunity to produce the same presumption has been drawn by the executing court while giving effect to the already granted benefit in the award. Making calculation of the awarded amount is not an Act without jurisdiction. 11. The petitioner‟s submission that the benefit which was not adjudicated by the tribunal was outside the scope of the proceeding under Section 33C(2) of the ID Act is of no basis as the tribunal when awarded full back wages after setting aside the charge sheet as a whole shows that all claims of a illegally dismissed employee the respondent herein has been decided and there is no such issue which was not adjudicated. Therefore in the proceeding under Section 33C(2) all claims capable of being computed in terms of money has been adjudicated and decided without any illegality. In the facts and circumstances of this case the judgment cited by the petitioner in 1995 SCC 296 is not 12. In respect of interest I hold that the employee respondent was deprived of the amount of money which he is entitled to and therefore he is also entitled to interest as consequential benefit. Calculating the interest part as 10% per annum is not an exorbitant rate at all and the same need not be interfered with. As the petitioner company has approached this Court instead of paying the amount as decided in Section 33C(2) of the ID Act I do not hold that it has made default in payment of money to the 13. It has been submitted at the time of hearing that an amount of Rs 2 Lakh has already been deposited with the Registrar General of this Court by the Companybut the said amount does not cover the whole amount as has been calculated by the executing court. 14. Therefore I direct the Registrar to pay within a period of one month from date the said amount to the respondent No.1 with accrued interest thereon till the date of withdrawal of the amount from the bank and I direct the writ petitioner to pay the rest of the amountas has been directed in the application under Section 33C(2) with interest @ 10% per annum from the date of dismissal of the employee till the date immediately before the date of payment. 15. The writ application is dismissed with a cost of Rs. 25 000 to be paid by the petitioner to respondent employee as I have found that for no reason at all the writ application has been filed with 9 the sole intention to deprive the employee from getting the dues as directed by the 2nd Labour Court. Abhijit Gangopadhyay J) Later: After passing of this judgment and order prayer has been made on behalf of the writ petitioner for stay of operation of the order which is considered and rejected. Abhijit Gangopadhyay J) 

Summary: When calculating ‘wages’, the bonus would not be included but while paying wages to an illegally dismissed employee “bonus” is to be added to the “wages” due to the legal fiction that the illegally dismissed employer was in continuous service. It is to be kept in mind that “bonus” not included within the meaning of “wages” and “bonus” of an illegally dismissed employee are different things. A single Judge bench comprising Hon’ble Justice Abhijit Gangopadhyay in the matter of Kanchan Oil Industries Limited Vs. Sri Ranganath Sukla &amp; Anr (WPA 3111 of 2016), Dealt with an issue where an employer filed a writ application against the order passed by the Second Labour Court in connection with an application under Section 33C(2) of the Industrial Disputes Act, 2 1947, (ID Act, in short). In the present case, the employee was a security person/darwan in the oil mill of the petitioner, who was on unauthorised leave for some time. Because the leave was unauthorised, a disciplinary proceeding was initiated against him, where on the first day he arrived with a stranger, and hence was not allowed to participate and other next further dates he remained absent, hence the proceeding went Ex-parte and the employee was terminated. The employee challenged the termination and the matter was taken up by the 7th Industrial Tribunal where oral evidence was adduced by the parties and documents were exhibited. To this, the employer had submitted before the court that the 2nd labour court had gone beyond its jurisdiction and have wrongly awarded interest on the amount due to the employee. The petitioner further clarified my mentioning the definition of wages as given in Section 2(rr) of the ID Act that the wages can never include the VDA, the bonus and the medical allowance. The petitioner also stated that the amount that was required to be paid as per the award has been paid but the respondent was not entitled to get any more amount any further. The employee/Respondent submitted the petitioner had withheld the salary statement etc, to suppress it from the tribunal that the employee was getting VDA, Medical Allowances and bonus. The respondent also submitted that he was getting house rent which he could not prove as well as the petitioner submitted that the 2nd labour court did not exceed its jurisdiction if it only calculated the amount which comes within the definition and meaning of wages. Further the respondent submitted that as the dismissal was held illegal, so a legal fiction comes into play which holds the employee was in service without any break and hence he cannot be deprived of the bonus. Moreover, a Bonus is something paid in excess of the wages. Therefore, as per the respondent, the direction by the 2nd Labour Court for payment of bonus cannot be said as a direction beyond Jurisdiction as because the 2nd Labour Court had only calculated the benefits to be given to the employee in accordance with the award. After hearing both sides the court observed that- “that the employee/respondent was deprived of the amount of money which he is entitled to and therefore, he is also entitled to interest as consequential benefit. Calculating the interest part as 10% per annum is not an exorbitant rate at all and the same need not be interfered with”. Further, the court directed to pay the amount which earlier had been deposited the Registrar General of this Court by the Company (i.e. the writ petitioner) within a period of one month from the date the said amount to respondent No.1 with accrued interest thereon till the date of withdrawal of the amount from the bank. Further, it directed, the petitioner to pay the rest of the amount with interest @ 10% per annum from the date of dismissal of the employee till the date immediately before the date of payment. Thereby the court dismissed the writ petition with a cost of Rs.25,000/-, that the petitioner needs to pay to the respondent. Click Here For The Judgement