Shawas Homes Pvt. Limited vs The Deputy Labour Commissioner & Ors.

^1. The Management in an Industrial Dispute is the Petitioner in both these Writ Petitions. Petitioner is a Private Limited Company engaged in the construction and sale of apartments.

^2. W.P.(C) No.18973 of 2016 is filed challenging Exts.P23 to P26 Orders issued by the Authority under the Kerala Payment of Subsistence Allowance Act, 1972, directing payment of subsistence allowance to the Workman. W.P.(C) No.10576/2024 is filed challenging Exts.P20 and P21 Preliminary Orders and Ext.P24 Award of the Labour Court. The Workman is the Respondent No.3 in W.P.(C) No.18973/2016 and Respondent No.2 in W.P.(C) No.10576/2024.

^3. W.P.(C) No.10576/2024 is treated as the leading case and the parties and documents are referred to in accordance with the said Writ Petition, unless otherwise specifically referred.

^4. The short facts necessary for the disposal of these Writ Petitions alone are stated herein: The Respondent No.2 had been employed as a ‘Manager – Customer Care’ of the Petitioner since 04.01.2010 as per Ext.P1 Appointment Letter. She was promoted as ‘Senior Manager – Customer Care’ of the Petitioner on 06.04.2010. The Respondent No.2 discharged the duties of Senior Manager – HR of the Petitioner for some time. The Respondent No.2 absented from duty from 16.06.2011. According to the Respondent No.2, on account of her pregnancy, she was entitled for maternity leave under the Maternity Benefit Act, 1961, for a period of three months from 16.06.2011; that she had issued Ext.R2(a) e-mail communication dated 14.06.2011 to the Petitioner requesting maternity leave and the Petitioner did not deny the same by sending any Reply and hence she continued under statutory maternity leave. The further case of the Respondent No.2 is that she had sent another e-mail dated 16.08.2011 seeking extension of the leave for a further period of three months, and the Petitioner did not send any reply to the said e-mail as before, and she continued the leave on the bona fide belief that the extension of leave had been granted. Accordingly, the Respondent No.2 continued on leave under the bona fide belief that the leave had been granted. According to the Petitioner, the Respondent No.2 was entitled to get maternity leave only for three months which expired on 15.09.2011 and she had to be present for duty on 16.09.2011. Since the Respondent No.2 absented from duty, the Petitioner issued Ext.P11 Memo dated 07.10.2011. The Charges in Ext.P11 are that:- (1) The Respondent No.2 had unauthorizedly absented herself from duty since 16.09.2011; (2) The Respondent No.2 made false assertions to the customers regarding the services and products of the Petitioner and acted prejudicially to the interests and business of the Petitioner; and (3) The Respondent No.2 committed fraud and misrepresentation of facts to the Petitioner at the time of entering into service by making a false representation that she was a postgraduate in Business Administration from IGNOU. The Respondent No.2 submitted Ext.P12 Reply to Ext.P11 Memo. Thereafter, the Petitioner appointed Enquiry Officer to enquire into the allegations in Ext.P11 and the Enquiry Officer submitted Ext.P14 Report, finding that the Charges Nos.1 and 3 in Ext.P11 are proved. On the basis of Ext.P14 Enquiry Report, the Petitioner issued Ext.P15 Order dated 12.05.2015 dismissing the Respondent No.2 from service. The Respondent No.2 raised an Industrial Dispute invoking Section 2A of the Industrial Disputes Act, 1947. The Labour Court considered the issue – ‘Whether the dismissal dated 12.05.2015 is valid, legal or liable to be set aside?’. The Petitioner raised a preliminary objection that the Respondent No.2 is not a Workman within the definition under Section 2(s) of the Industrial Disputes Act, 1947, and the Labour Court rejected the same as per Ext.P20 Order. The Respondent No.2 raised a preliminary objection regarding the validity of the enquiry, and the same was considered by the Labour Court in Ext.P21. The Labour Court set aside the Enquiry Report finding that the enquiry was conducted not in accordance with the principles of natural justice, which resulted in handicap and prejudice to the Respondent No.2. Petitioner challenged Exts.P20 and P21 Orders in this Court by filing W.P.(C) No.23887/2021 and this Court dismissed the Writ Petition as per Ext.P22 judgment. The Writ Appeal No.701/2022 filed by the Petitioner was allowed as per Ext.P23 judgment, taking note of the decision of this Court in Chelamattom Sree Krishna Swami Devaswom Trust v. State of Kerala and Others [2022 (4) KHC 215] to the extent of vacating the observations and findings of the Learned Single Judge in Ext.P22 Judgment making it clear that the Petitioner is free to raise all the contentions on merits, including the legality of the Preliminary Orders in the proceedings, if any, instituted by the Petitioner against the final Award. Thereafter, both parties were permitted to adduce evidence before the Labour Court to prove and disprove the charges. On the side of the Petitioner, its Deputy General Manager and the Enquiry Officer were examined as MW1 and MW2 and marked Exts.M1 to M19. On the side of the Respondent No.2, she was examined as WW1 and marked Exts.W1 to W8. The Labour Court passed Ext.P24 Award ordering reinstatement of the Respondent No.2 in service with 50% back wages, with interest at 7% per annum from 17.09.2011, along with all attendant benefits and continuity of service. Petitioner filed W.P.(C) No.10576/2024 challenging Exts.P20 and P21 Preliminary Orders and Ext.P24 Award. Since the Petitioner did not pay the subsistence allowance during the pendency of disciplinary proceedings, the Respondent No.2 had filed Exts.P13 to P16 Applications produced in W.P.(C) No.18973/2016, before the Authority under the Kerala Payment of Subsistence Allowance Act, 1972, claiming subsistence allowance with Ext.R3(g) to (i) Applications to condone delay and as per Ext.P23 to P26 Orders produced in W.P.(C) No.18973/2016, the Authority ordered the Petitioner to pay the subsistence allowance to the Respondent No.2. The Petitioner filed W.P.(C) No.18973/2016 challenging Ext.P23 to P26 Orders produced therein. In W.P.(C) No.10576/2024, the Respondent No.2 filed I.A. No.1/2024 under Section 17B of the Industrial Disputes Act, seeking a direction to the Petitioner to pay wages to her at the rate of the last drawn wages during the pendency of the Writ Petition. This Court dismissed the said Application as per Order dated 18.07.2025, finding that the Respondent No.2 did not disclose the two establishments conducted by her in her Application and hence, the Application could not be allowed.

^5. I heard the learned Counsel for the Petitioner, Sri. Ashok Shenoy B., and the learned Counsel for the Respondent No.2, Sri.K.A.Hazan.

^6. With respect to the challenge against Ext.P20, the learned Counsel for the Petitioner contended that it is clear from Exts.P1 to P10 documents, which were produced before the Labour Court as Exts.M1 to M10, that the Respondent No.2 was exercising managerial and supervisory functions in the Petitioner establishment. It would reveal that several subordinates were reporting to the Respondent No.2. She was holding control over the said employees. Ext.P4 would reveal that the Respondent No.2 was promoted as Senior Manager – Customer Care from the original post of Manager – Customer Care and she had been imparting the duties of Senior Manager HR continuously for a considerable length of time. If the Respondent No.2 had not been discharging duties in managerial capacity, there was no necessity for the subordinate employees to submit Applications to the Respondent No.2 for resignation and for relieving them from the duties. At any rate, the Respondent No.2 had been exercising supervisory role in the Petitioner/Establishment and there is evidence that she was drawing more than Rs.18,000/- from the Petitioner. Hence, Ext.P20 Order passed by the Labour Court is unsustainable and it may be held that the Respondent No.2 will not come under the definition of workman under Section 2(s) of the Industrial Disputes Act. Learned Counsel cited the decision of the Hon’ble Supreme Court in Bharti Airtel Limited v. A.S. Raghavendra [(2024) 6 SCC 418] clarifying the principles laid down in Ved Prakash Gupta v. Delton Cable India (P.) Ltd. [(1984) 2 SCC 569] and S.K. Maini v. M/s Carona Sahu Company Limited and Others [(1994) 3 SCC 510] in support of his contention. With respect to the challenge against the Ext.P21 Order, the learned Counsel submitted that the Labour Court set aside the Enquiry Report on unsustainable grounds. The first ground is that the Petitioner delayed the enquiry proceedings. Mere delay in completing the enquiry proceedings could not be a reason to set aside an Enquiry Report. It should have been proved by the Respondent No.2 before the Labour Court that prejudice was caused to her on account of the delay in concluding the disciplinary proceedings by the Petitioner. The second ground is that no proper Charge Sheet was issued to the Respondent No.2. In Ext.P11 Memo, three specific charges are levelled against the Respondent No.2. The Respondent No.2 understood the charges and submitted Ext.P12 Reply. Since the Respondent No.2 denied the Charges in Ext.P12 Reply, Enquiry Officer was appointed to enquire into the charges and the enquiry was conducted complying with the principles of natural justice. The third ground is that prejudice was caused to the Respondent No.2 on account of non-payment of subsistence allowance. It is clear from the Order passed by this Court rejecting the Application under Section 17B of the Industrial Disputes Act filed by the Respondent No.2 that she had been conducting two establishments as her own. In such case, the Respondent No.2 was having income much more than her subsistence during the enquiry proceedings. The Respondent No.2 has not adduced any evidence before the Labour Court to prove that she suffered prejudice on account of the non-payment of subsistence allowance during the enquiry. That apart, the Respondent No.2 was entitled to get subsistence allowance only if the Respondent No.2 was suspended from service during the pendency of the disciplinary proceedings. The Petitioner did not pass any order suspending the Respondent No.2 from service. The Respondent No.2 deliberately abstained from duties, which could not be treated as suspension. With respect to the challenge against the Ext.P24 Award, the learned Counsel contended that the findings of the Labour Court on Charges 1 and 3 are unsustainable. With respect to Charge No.1, it is submitted that, as per the unamended Section 5 of the Maternity Benefit Act, 1961, which is applicable in this case, the Respondent No.2 was entitled to get only 12 weeks’ maternity leave. The Respondent No.2 had submitted Ext.R2(a) (Ext.W6 before the Labour Court) Application through e-mail on 14.06.2011 claiming leave from 16.06.2011. There was no need for the Petitioner to send any Reply granting maternity leave since the Respondent No.2 was statutorily entitled to get maternity leave. But there was no proper Application from the part of the Respondent No.2 claiming extension of maternity leave. In Ext.R2(b) (Ext.W7 before the Labour Court) dated 16.08.2011, the extension was sought for a period of three months to take care of the baby. As per Section 10 of the Maternity Benefit Act, the Respondent No.2 is entitled to get a further leave for a period of a maximum of one month on account of illness with reference to specific matters mentioned therein and on production of proof for the same. The Respondent No.2 had not stated any such reason in Ext.R2(b) to seek extension of leave and no proof was also submitted. The Respondent No.2 could not assume that further leave of three months was granted to the Respondent No.2 and continue to abstain from duty. At any rate, the maximum permissible extension is only one month. The Labour Court illegally found that since the Petitioner did not give any reply to Ext.R2(b), the Respondent No.2 is entitled to continue on leave. With regard to Charge No.3, it is submitted that it is clear from Ext.M17 Employee Details Form and Ext.M19 Bio-Data furnished by the Respondent No.2 that she represented to the Petitioner that she had an M.B.A Postgraduate Degree at the time of joining the service of the Petitioner. Admittedly, the Respondent No.2 had not passed M.B.A. as claimed by her. Hence, the Labour Court ought to have found that the Petitioner has proved Charges Nos.1 and 3 through the evidence adduced by it. There is perversity in the appreciation of evidence and findings of the Labour Court, and hence, Ext.P24 Award of the Labour Court is liable to be set aside. With respect to the Orders passed by the Authority under the Kerala Payment of Subsistence Allowance Act, which are challenged in W.P(C) No.18973/2016, it is submitted that the Applications for condonation of delay were allowed without giving notice to the Petitioner. The Respondent No.2 can claim subsistence allowance only if she comes under the definition of ‘employee’ under Section 2(a) of the Kerala Payment of Subsistence Allowance Act. A person employed in a managerial or administrative capacity will not come under the definition of employee. As submitted earlier, the Respondent No.2 was not suspended from service by the Petitioner to claim subsistence allowance during the disciplinary proceedings. The learned Counsel concluded his arguments, praying for setting aside the Orders impugned in these Writ Petitions.

^7. On the other hand, the learned Counsel for the Respondent No.2 submitted that the Labour Court as well as the Authority under the Payment of Subsistence Allowance Act rightly allowed the claims of the Respondent No.2. With respect to the legality of Ext.P20 Order, it is submitted that the Respondent No.2 was appointed to the post of Manager – Customer Care and later she was promoted to the post of Senior Manager – Customer Care. There is nothing on evidence either before the Enquiry Officer or before the Labour Court to prove that the Respondent No.2 had been discharging any managerial or supervisory duties. She was merely interacting with the customers as a customer care employee. Only for the purpose of creating confidence in the minds of the customers, the designation was made as Manager – Customer Care. Regarding the managerial or supervisory functions, the law is well settled right from the decision of the Hon’ble Supreme Court in Ved Prakash (supra), which has been consistently followed in the later decisions. The decision in Raghavendra (supra) has not in any way diluted the principles laid down in Ved Prakash (supra). The principles laid down in Ved Prakash (supra) are clearly applicable as there is no evidence to prove that the Respondent No.2 was holding the power of appointment and dismissal of any workman or ordering an enquiry against any workman. There is no evidence to prove that the Respondent No.2 had any subordinate employees and she had been exercising supervision or control over them. It is well settled that it is not the designation which is decisive to decide the question whether a person comes under the definition of workman. Learned Counsel cited the decision of the Hon’ble Supreme Court in Sharad Kumar v. Govt. of NCT of Delhi and Others [(2002) 4 SCC 490] in support of this contention. Merely because the Respondent No.2 had been discharging the duties of Manager – HR occasionally, it could not be said that she had been employed in a managerial or administrative or supervisory capacity. Learned Counsel cited the decisions of the Hon’ble Supreme Court in Arkal Govind Raj Rao v. Ciba Geigy of India Ltd., Bombay [AIR 1985 SC 985] and Ananda Bazar Patrika (P) Ltd. v. Workmen [(1970) 3 SCC 248] in support of this contention. Even in Ext.P11 Memo, the Respondent No.2 is addressed as Senior Manager – Customer Services and not Senior Manager – HR. The duties and responsibilities in Ext.P1 Appointment Letter of the Respondent No.2 do not include any managerial, administrative or supervisory duties. In order to exclude an employee from the definition of ‘workman’ as defined under Section 2(s) of the Industrial Disputes Act, the employee has to be employed mainly in a managerial or administrative capacity or he should be employed in a supervisory capacity drawing wages exceeding the prescribed limit. Even if the Respondent No.2 had done some managerial duties occasionally, that would not exclude her from the definition of workman. With respect to the challenge against Ext.P21, it is contended that the Respondent No.2 was illegally kept out of service by the Petitioner and the Petitioner had been harassing the Respondent No.2 throughout by delaying the enquiry proceedings even without payment of the subsistence allowance. Even during her pregnancy, the maternity benefit entitled to the Respondent No.2 under the Maternity Benefit Act was not extended to her. Learned Counsel invited my attention to Ext.P13 e-mail dated 16.12.2011 sent by the Petitioner to the Respondent No.2 refusing to permit the Respondent No.2 to rejoin duty. It can be seen from the trailing mail dated 14.12.2011 sent by the Respondent No.2 to the Petitioner in Ext.P13 that the Respondent No.2 expressed her willingness to rejoin duty on 17.12.2011 to resume service and expressed her inability to resume duty on 17.12.2011 as the Enquiry Officer asked her to appear on the said date. It would reveal that the Respondent No.2 continued under leave till 16.12.2011 as applied in Ext.R2(b) since the Petitioner did not send any Reply and promptly reported for duty immediately on the expiry of leave. It could not be said that the Petitioner did not suspend the Respondent No.2 from service during the pendency of the disciplinary proceedings. As per Ext.P13, the Petitioner kept the Respondent No.2 out of service during the pendency of the disciplinary proceedings and the same amounts to suspension from service. The Respondent No.2 was entitled to get subsistence allowance during the period of suspension pending enquiry. The enquiry was purposefully delayed by the Petitioner and at the same time, the Respondent No.2 was denied subsistence allowance. Admittedly, there occurred a delay of nearly four years in completing the enquiry proceedings. The Petitioner has not assigned any specific reason for the delay on the part of the Petitioner in concluding the enquiry proceedings. Ext.P11 is not a Memo of Charges. The allegations are vague. It does not contain any misconduct. The Respondent No.2 submitted Ext.P12 Reply. The Petitioner ought to have considered Ext.P12 Reply and ought to have issued a proper Memo of Charges specifically alleging the misconduct committed by the Respondent No.2, with Statement of allegations. Ext.P21 Order passed by the Labour Court is clearly sustainable and there is nothing to be interfered with in the said order. The Labour Court rightly found in Ext.P21 Order that the enquiry was conducted not in compliance with the principles of natural justice. With respect to the Ext.P24 Award, it is submitted that the Labour Court rightly found that the charges against the Respondent No.2 are not proved and ordered reinstatement of the Respondent No.2 in service with 50% back wages. Learned Counsel reiterated his arguments with respect to the alleged absence submitted earlier. With respect to the allegation of misrepresentation of educational qualification, the Counsel contended that there was no representation on the part of the Respondent No.2 at the time of joining duty that she had secured M.B.A. Ext.M19 Bio-Data is not signed by the Respondent No.2. In Ext.M17, in the column ‘educational background’, it is recorded as M.B.A. It does not mean that the Respondent No.2 has secured M.B.A. Postgraduate Degree. Admittedly, the Respondent No.2 had been pursuing her M.B.A. Degree course. With respect to W.P.(C) No.18973/2016, the Counsel submitted that admittedly, the Petitioner did not pay the subsistence allowance during the pendency of the disciplinary proceedings. As submitted earlier, the Respondent No.2 was kept out of service as per Ext.P13 Communication and it amounts to suspension. The Respondent No.2 had filed Ext.R3(g) to R3(i) Applications in W.P.(C) No.18973/2016 to condone delay and the same were considered by the Authority and were allowed at the initial stage and thereafter reports were sought from the Assistant Labour Officer regarding the claim. No prejudice was caused to the Petitioner as the delay was well explained by the Respondent No.2 in the Applications that the delay occurred on account of the pendency of the disciplinary proceedings, expecting that the Petitioner will pay the subsistence allowance. The Respondent No.2 had been repeatedly requesting for the subsistence allowance. The Respondent No.2 did not want to precipitate the situation as she expected re-entry in the service of the Petitioner. The definition of employee under Section 2(a) of the Kerala Payment of Subsistence Allowance Act is wider than the definition of workman under Section 2(s) of the Industrial Disputes Act. In view of Ext.P20 Order finding that the Respondent No.2 is a workman, there is no scope for any dispute that the Respondent No.2 will not come under the definition of employee under Section 2(a) of the Kerala Payment of Subsistence Allowance Act. It is well settled by the decision of this Court in Dhanalakshmi Bank Ltd. v. Authority under the Kerala Payment of Subsistence Allowance Act and Others [(1997) II LLJ 978 Ker] that an employee is entitled to get subsistence allowance even if he was subsequently dismissed on the culmination of the disciplinary proceedings. Hence, the Authority is perfectly justified in passing Exts.P23 to P26 Orders granting subsistence allowance to the Respondent No.2. Learned Counsel concluded his arguments praying to dismiss both the Writ Petitions.

^8. I have considered the rival contentions.

^9. The challenges are against two Preliminary Orders holding that the Respondent No.2 is a workman defined under Section 2(s) of the Industrial Disputes Act and that the Enquiry is invalid, and the Award ordering reinstatement with back wages and the Orders granting subsistence allowance. In view of the arguments advanced before me, the following questions arise for consideration.

^10. As far as the challenge against Ext.P20 Order, the contention raised by the Petitioner before the Labour Court was that the Respondent No.2 herein does not come under the definition of workman as defined under Section 2(s) of the Industrial Disputes Act. The contention is that Respondent No.2 was employed in a managerial and supervisory capacity and she had been supervising several other employees and drawing wages exceeding the prescribed limit. The learned Counsel relied on Exts.P1 to P10 which were produced as Exts.M1 to M10 before the Labour Court to substantiate these points. The Respondent No.2 was appointed as Manager – Customer care and promoted as Senior Manager – Customer Care. In Sharad Kumar (supra), the Hon’ble Supreme Court held that determination of the question depends on the type of duties assigned to the employee and not merely on the designation of the post held by him. As rightly pointed out by the learned Counsel for the Respondent No.2, as per Ext.P1 Appointment Letter, the duties and responsibilities of the Respondent No.2 do not cover any managerial or supervisory duties. She was asked to report to AGM (Operations) who will assign the job and responsibility to the Respondent No.2. There is nothing on record to prove that there are any other employees who had been supervised by the Respondent No.2 herein. It is clear from Exts.P6 and P7 that she had been discharging the duty as HR Manager. But the Petitioner has no case that the Respondent No.2 was appointed as the HR Manager in addition to her duty as Senior Manager – Customer Care. As rightly pointed out by the learned Counsel for the Respondent No.2, even in Ext.P11 Memo also, the Respondent No.2 is addressed as Senior Manager – Customer Services. In order to exclude a person from the definition of workman under Section 2(s) of the Industrial Disputes Act, he has to be employed mainly in a managerial or administrative capacity. Hence occasional discharge of managerial functions is not sufficient to exclude a person from the definition of workman. In Arkal Govind Raj Rao (supra), the Hon’ble Supreme Court held that the test is what was the primary, basic or dominant nature of duties for which the person whose status is under enquiry was employed; that a few extra duties would hardly be relevant to determine his status; and that the words like managerial or supervisory have to be understood in their proper connotation and their mere use should not detract from the truth. In Ananda Bazar Patrika (P) Ltd. (supra), the Hon’ble Supreme Court held that the nature of employment depends upon main and principal duties being performed. In the absence of any evidence from the part of the Petitioner to show that the Respondent No.2 was employed mainly in managerial or administrative capacity or also in supervisory capacity, the Respondent No.2 cannot be excluded from the definition of workman defined under Section 2(s) of the Industrial Disputes Act. Hence, the Labour Court rightly passed Ext.P20 order in this regard. This question is answered in the affirmative and in favour of the Respondent No.2.

^11. The legality of Ext.P14 Enquiry Report is considered by the Labour Court in Ext.P21 Order. As far as the Ext.P21 Order is concerned, admittedly, there occurred a delay of more than four years in completing the enquiry proceedings. The contention of the Counsel for the Petitioner is that there is no evidence to show that the delay has occasioned any prejudice to the Respondent No.2. According to the Counsel, it is the burden of the Respondent No.2 to prove that the prejudice has been occasioned on account of the delay in completing the disciplinary proceedings. But as rightly pointed out by the learned Counsel for the Respondent No.2, the Petitioner has not adduced any evidence to explain the delay in completing the proceedings. Admittedly, the Petitioner denied subsistence allowance also to the Respondent No.2. When there is unexplained delay in completing the disciplinary proceedings coupled with non-payment of subsistence allowance to the employee, the fact of prejudice to the Respondent No.2 is implicit and there is no need for any evidence from the part of the Respondent No.2 to prove prejudice.

^12. The second finding is that no proper Charge Sheet was issued to the Respondent No.2. In Ext.P11 Memo, three specific charges are levelled against the Respondent No.2. The misconduct alleged against the Respondent No.2 are clear from Ext.P11. Since the Petitioner is a private establishment, and as there are no Standing Orders applicable, there could not be any prescribed form for the Memo of Charges. The Respondent No.2 clearly understood the charges and misconducts alleged and submitted Ext.P12 Reply. Hence, the finding of the Labour Court that there was no proper Memo of Charges is unsustainable.

^13. Nevertheless, the former finding alone is sufficient to sustain Ext.P21 Order. This question is answered in the negative and in favour of the Respondent No.2.

^14. In Ext.P24 Award, the Labour Court has found that the Charges Nos.1 and 3, which are found to be proved by the Enquiry Officer, are not proved in the light of the evidence adduced before it, consequent to the setting aside of the Enquiry Report. Charge No.1 is unauthorised absence from 16.09.2011. The Respondent No.2 absented from duties from 16.06.2011 after sending Ext.R2(a) Email dated 14.06.2011 for granting maternity leave with effect from 16.06.2011. The Petitioner treated the Respondent No.2 as under maternity leave for three months as provided under the Maternity Benefit Act, 1961, which expired on 15.09.2011. According to the Petitioner, the Respondent No.2 should have reported for duty on 16.09.2011. The contention of the Respondent No.2 is that she had sent Ext.R2(b) Email dated 16.08.2011 seeking extension of leave for another three months and no reply was sent by the Petitioner refusing to grant the same, and hence the Respondent No.2 continued under leave up to 16.12.2011. The subject matter in the present dispute is regarding the absence from 16.09.2011. Hence, this Court has to consider the justification of the Respondent No.2 regarding the absence with effect from 16.09.2011. The Labour Court held that Charge No.1 is not proved, finding that the denial of leave for the second spell based on the same earlier pattern, through Email by the Petitioner, is against the established procedure that prevailed in the office and that they had granted leave for the first spell based on the same procedure, in formal application along with email. The Labour Court omitted to note Section 10 of the Maternity Benefit Act, which provides extension of leave only for one month for the illness arising out of the matters specified therein on production of proof for the same. The extension of leave sought by the Respondent No.2 is for three months which could not be granted by the Petitioner. The Respondent No.2 had not stated any illness arising out of the matters specified in Section 10 in Ext.R2(b) and had not produced any proof for the same. The reason stated in Ext.R2(b) is to take care of the baby, which is not covered under Section 10. Even otherwise, it could not be a reason for the extension of maternity leave. In such case, the Respondent No.2 could not have had any bona fide belief that her Application for extension was allowed by the Petitioner as there was no Reply from the Petitioner. By mere submission of an Application for leave or for extension, an employee cannot continue under leave for a long period. The granting of leave is the prerogative of the employer. It is for the employee to ensure that the leave or extension of leave is granted by the employer before continuing under leave for a long period. The Petitioner is fully justified in treating the period of absence of the Respondent No.2 since 16.09.2011 as unauthorised absence and initiating disciplinary proceedings on the charge of unauthorised absence. In the light of the evidence available before the Labour Court, the finding of the Labour Court in this regard is liable to be interfered with. There is perversity in the finding of the Labour Court that the Petitioner failed to prove Charge No.1 and the said finding is unsustainable.

^15. Charge No.3 is that the Respondent No.2 committed fraud and misrepresentation of facts to the Petitioner at the time of entering into service by making a false representation that she was a postgraduate in Business Administration from IGNOU. As rightly pointed out by the learned Counsel for the Respondent No.2, there is no representation from the part of the Respondent No.2 that she had passed M.B.A. Postgraduate Degree while securing job from the Petitioner. The Petitioner relies on Ext.M17 Employees Details Form and Ext.M19 Bio-Data in support of this Charge. In Ext.M17, in the column for academic background, the Respondent No.2 has shown MBA. It does not show that she had secured MBA Postgraduate Degree. Admittedly, the Respondent No.2 had studied MBA and had not passed MBA. Ext.M19 is a Bio-Data alleged to have been given by the Respondent No.2 at the time of securing the job. It is not signed by the Respondent No.2, and hence it could not be relied on. In such circumstances, it could not be held that the Respondent No.2 misrepresented to the Petitioner by stating that she had passed MBA while securing employment from the Petitioner. Hence, I find that the finding of the Labour Court with respect to Charge No.3 is sustainable. In view of the aforesaid finding with respect to Charge No.1, I am of the view that Ext.P24 Award of the Labour Court is liable to be set aside. This Question is answered holding that there is perversity in the finding of the Labour Court in Ext.P24 Award with respect to the Charge No.1 holding that it is not proved.

^16. The Labour Court awarded the relief of reinstatement of the Respondent No.2 with 50% back wages since it was found that the charges levelled against the Respondent No.2 were not proved. Since the Charge No.1 is found to be proved in this judgment, punishment for the same is to be imposed on the Respondent No.2. The punishment of dismissal imposed by the Petitioner on Respondent No.2 is not commensurate with the charge for unauthorised absence proved against Respondent No.2. In normal case, the Respondent No.2 is liable to be reinstated in service imposing a lesser punishment proportionate to the gravity of the charge proved. The case originated from a disciplinary proceedings initiated in the year 2011. There is no point in remanding the matter back to the Labour Court to impose a punishment proportionate to the charge proved. It is found in the Order passed by this Court dated 18.07.2025 in I.A. No.1/2024 filed under Section 17B of the Industrial Disputes Act, that the Respondent No.2 has been conducting two establishments by way of self-employment. There is no need for any employment for the Respondent No.2. Hence, there is no need to order reinstatement of the Respondent No.2 in the Petitioner/Establishment. It is not desirable to order reinstatement of the Respondent No.2 at this distance of time. It is for this Court to mould the reliefs considering the totality of the facts and circumstances invoking the power under Section 11A of the Industrial Disputes Act. I am of the view that, considering the totality of these circumstances, instead of reinstatement, compensation awarded to the Respondent No.2 will meet the ends of justice. Considering the facts and circumstances of the case and also the long pendency of the litigation, I am of the view that Rs.3 lakhs can be fixed as compensation payable by the Petitioner to the Respondent No.2. This amount is fixed taking into consideration the burden of the Petitioner to pay subsistence allowance and interest thereon to the Respondent No.2.

^17. With respect to W.P.(C) No.18973/2016, it is clear from the records that the Petitioner was not given an opportunity to object to the condonation of delay. The impugned orders would reveal that the delay was condoned at the first instance itself before forwarding the cases for enquiry by the Deputy Labour Officer regarding the claims of the Respondent No.2. Going by the First Proviso to Section 4 of the Kerala Payment of Subsistence Allowance Act, the Application should be made within one year from the date on which the money became due to the employee from the employer. The Second Proviso provides for condonation of delay. The Authority has ample power to condone the delay if the applicant has sufficient cause for not making the Application within one year. Admittedly, Respondent No.2 submitted Exts.R3(g) to R3(i) Applications produced in W.P.(C) No.18973/2016 for condonation of delay. The Applications for subsistence allowance were made before passing the order of dismissal by the Petitioner. The disciplinary proceedings were delayed by the Petitioner for an unreasonable period. The Respondent No.2 has made out sufficient reasons for condonation of delay. The Petitioner has not produced the Orders condoning the delay passed by the Authority and has not challenged the same. Even if it is remanded to the original Authority, there are sufficient reasons for the Respondent No.2 for seeking condonation of delay. Considering the finality of the long-pending litigation on disposal of W.P.(C) No.10576/2024 by this judgment, I am of the view that no purpose would be served by remanding the matter back to the Authority for considering the Applications to condone the delay. The question whether the Respondent No.2 is an employee defined under Section 2(a) of the Kerala Payment of Subsistence Allowance Act does not arise for consideration in view of the answer to Question No.1 holding that the Respondent No.2 was not employed in a managerial or administrative capacity. There is nothing to interfere with Exts.P23 to P26 Orders produced in W.P.(C) No.18973/2016 and the said Writ Petition is liable to be dismissed. This Question is answered in the affirmative and in favour of the Respondent No.2.

^18. In view of the answers to the aforesaid questions, W.P.(C) No.18973/2016 is dismissed and W.P.(C) No.10576/2024 is allowed, modifying Ext.P24 Award by ordering the Petitioner to pay an amount of Rs.3,00,000/- (Rupees Three Lakhs only) to the Respondent No.2 within a period of two months from the date of receipt of copy of this judgment and in case the Petitioner does not pay the said amount of Rs.3,00,000/- within a period of two months, the same shall carry interest @ 8% per annum from today till payment/realisation.