The main legal point established in the judgment is that lay-off compensation should be included within the meaning of 'salary or wage' for the purpose of computing the bonus under the Payment of Bonus Act.

D.J. Jagannadha Raju, J.

1. This O.P. is filed by the petitioner, who is a partner of Malabar Tile Works, Feroke, and who has been appointed as receiver by Court in O.S. No. 237 of 1984. The petitioner prays for the relief of quashing Ext. P2 order dated 13.12.1985 passed by the Deputy Labour Commissioner, the authority appointed under Section 21 of the Payment of Bonus Act, in Bonus Application No. 2 of 1984.

2. The short question that arises for consideration in this O.P. is whether the lay-off compensation paid to the employees is to be considered as "salary" or "wages" under the Payment of Bonus Act (hereinafter called the "Act") for the purpose of determining the bonus payable to the employees.

3. When the matter was taken up, the petitioner's counsel brought to my notice order dated 10.8.1990 passed by T.L. Viswanatha Iyer, J in O.P.No. 1779 of 1986, and requested that as His Lordship was pleased to refer an identical matter for consideration by a Division Bench, the present O.P. may also be referred to a Division Bench. I am unable to accede to this request. In that order my learned Brother referred to Nutan Mills v. E.S.I Corporation, AIR 1956 Bom. 336, which deafs with a case under the E.S.L Act and Chalthan Vibhag Sahakari Khand Udyog v. Govt. Labour Officer, 1981(1) LLJ 450, a decision of the Supreme Court which deals with retaining allowance paid to seasonal employees during the off-season, and came to the conclusion that, as the question is of general importance, it would be proper to have an authoritative decision by a Division Bench. I find that as far as the Kerala High Court is concerned there is not a single decision dealing with the question of lay-off compensation and the Bonus Act. In the absence of a decision of this Court, it is the bounden duty of the Judge concerned to decide the matter which arises before him. I feel that I have necessarily to decide the matter to the best of my lights in the light of the learned arguments addressed on both sides. It is open to the aggrieved party to test the correctness of this Court s judgment by preferring a Writ Appeal (2). 1 also find that the two decisions mentioned in the order relate to the ESI Act as it stood prior to the amendment and the Supreme Court decision which deals with retaining allowance and as to how it should be considered under the Payment of Bonus Act cannot be said to be conflicting decisions. In this view of the matter, I have requested counsel on both sides to argue the matter elaborately and they have argued the matter in extenso.

4. The facts pertinent for decision of this O.P. are as follows. The first respondent is the Deputy Labour Commissioner, the authority appointed under Section 21 of the Act, and respondents 2 to 112 are the employees of the petitioner. Regarding bonus for the year 1983 there was a settlement between the employer and the employees, and it was agreed that bonus should be paid at 20% of the salary, and in addition to that 5.4.% of the salary is to be paid as ex-gratia. Accordingly bonus and ex-gratia were disbursed to the employees. The employees were dissatisfied with the mode of calculation of "salary". They claimed that salary should be computed including the "lay-off" compensation paid to them during the year. The employer resisted their claim. Then an application was fixed before the first respondent and the first respondent decided that lay-off compensation paid is part of "salary or wages and hence the petitioner should pay a sum of Rs. 13,218.23 to respondents 2 to 112 in settlement of their claim. His order includes the lay-off compensation paid to the workers as part of salary" or "wages". The petitioner challenges Ext. P2 order as illegal and void.

5. Shri Chandrasekhara Das, appearing on behalf of M/s. Menon & Menon, for the petitioner, contends that Ext. P2 is illegal and without jurisdiction and it is vitiated by errors of law apparent on the face of the record. The lay-off compensation paid under Se