Kerala High Court
The Chairman And Managing Director vs Sudhish P.S on 25 March, 2026
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M.F.A.(ECC)No.52 of 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
WEDNESDAY, THE 25TH DAY OF MARCH 2026 / 4TH CHAITHRA, 1948
MFA (ECC) NO. 52 OF 2025
AGAINST THE JUDGMENT DATED 22.03.2024 IN ECC NO.34 OF
2017 OF THE COMMISSIONER FOR EMPLOYEES COMPENSATION (INDUSTRIAL
TRIBUNAL), ALAPPUZHA
APPELLANT/OPPOSITE PARTY:
THE CHAIRMAN AND MANAGING DIRECTOR,
KERALA STATE ELECTRICITY BOARD LTD.,
VYDUDHI BHAVANAM, PATTOM,
THIRUVANANTHAPURAM, PIN - 695004.
BY ADVS.
SRI.C.JOSEPH ANTONY
SRI.JOSEPH JOSE
SRI.RAJU JOSEPH (SR.)
RESPONDENT/APPLICANT:
SUDHISH P.S.
S/O SUKESHAN, HOUSE NO, NRA/145,
VALLIPPARAMBIL HOUSE, SUFDERHASHMI LANE, PACHALAM PO,
KOCHI, PIN - 682012.
BY ADVS.
SRI.B.ASHOK SHENOY
SRI.P.S.GIREESH
SRI.UMASANKER U.U.
SRI.ADITYA A. SHENOY
THIS MFA (ECC) HAVING BEEN FINALLY HEARD ON 04.03.2026,
THE COURT ON 25.03.2026 DELIVERED THE FOLLOWING:
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[CR]
S.MANU, J.
--------------------------------------------------
M.F.A.(ECC)No.52 of 2025
-------------------------------------------------
Dated this the 25th day of March, 2026
JUDGMENT
Appellant was the opposite party in E.C.C.No.34/2017
before the Commissioner for Employees’ Compensation,
Alappuzha. The respondent was a Lineman Grade-II in Kumily
Electrical Section under the appellant. On 4.4.2015, when the
respondent and some other employees were engaged in
replacing an old electric post, the post fell on the shoulder of the
respondent resulting in a severe injury to his spinal cord. An
amount of Rs.7,17,696/- was deposited by the appellant as
compensation. The respondent approached the Commissioner,
discontented with the amount deposited by the appellant. The
appellant contended that it had deposited the compensation
before the Tribunal and in addition to the same sanctioned an
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amount of Rs.4,56,445/- towards reimbursement of medical
expenses. It also extended the benefits under Section 47 of the
Persons with Disabilities Act,1995. Taking into account the
disability of the respondent, he was accommodated in a
supernumerary post with all service benefits. Under such
circumstances, there was no loss of earning to the respondent.
Therefore, the appellant prayed that the application for
compensation was liable to be rejected. In his rejoinder, the
respondent contended that the compensation deposited by the
appellant was inadequate. The respondent is suffering from
paraplegia and is bedridden. He therefore contended that the
compensation ought to have been calculated treating the loss of
earning capacity as 100%.
2. The respondent was examined as AW1 and a doctor
was examined as AW2 before the Commissioner. Exts.A1 to A11
were marked on the side of the respondent.
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3. The learned Commissioner held that the benefits
granted under Section 47 of the Persons with Disabilities Act,
1995 would not preclude the respondent from claiming benefits
under the Employees’ Compensation Act, 1923. It was also
found that the disability had to be accepted as 100%.
4. Relying on the judgment of this Court in Fertilizers
and Chemicals Travancore Limited v. Sushama Kumari
[2023 SCC OnLine Ker 1564], the Commissioner fixed the
compensation on the basis of the actual monthly wages of the
respondent. Interest at the rate of 12% was granted for the
period from the date of the accident till the date of deposit of
the admitted amount by the appellant. The compensation
payable was fixed as Rs.24,52,950/-. Subtracting the amount in
deposit, the appellant was directed to deposit an amount of
Rs.17,35,254/- along with interest. Aggrieved by this order, the
instant appeal has been filed.
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5. The following substantial questions of law have been
raised in this appeal:-
“i) Can the Commissioner for Employees
Compensation suo-moto award compensation far
beyond the request made by the applicant?
ii) Whether the Commissioner is justified in
disregarding notification issued by Central Government
under Sec 4(1B) and taking recourse to Sec 5 of the
Employees Compensation Act while awarding amount of
compensation?
iii) Whether, in the light of facts involved in the case
and on a correct interpretation of Sections 4(1), 4(1B)
and Section 5 of the Employees’ Compensation Act, an
employee is entitled to get compensation reckoning any
amount beyond the monthly wages fixed by the Central
Government invoking its power under Section 4(1B) of
the Employees’ compensation Act, 1923?
iv) Whether the decision rendered by this Hon’ble Court
in MFA(ECC) No.65 of 2017 dated 02.03.2023 (2023 (2)
KHC 385), is correctly decided on a proper
interpretation of Sections 4(1), 4(1B) and 5 of the
Employees’ Compensation Act, 1923?”
6. The first aspect to be discussed is whether the
Commissioner has the power to fix a higher compensation than
that claimed in the application. The duty enjoined on the
Commissioners under the Act is to provide just and proper
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compensation to the victims of employment accidents. The
Commissioners play the most crucial role in implementing the
provisions of the Act. Apart from adjudicating the claims for
compensation, various other responsibilities are also enjoined
on the Commissioners under various provisions of the Act. The
proceedings before the Commissioner are not governed by
stringent rules regarding pleadings and evidence as in the case
of criminal and civil trials. It is also to be noted that applications
for compensation will be filed by injured employees or their
dependents who may not be much educated or equipped to
engage in a complex legal fight. The legal assistance if any
obtained by them may be of varying degrees in quality. Hence,
if a strict view is taken that in no case shall the Commissioner
grant compensation beyond what is sought for, even if the
applicant is actually entitled to a higher sum, the outcome will
be injustice. The Employee’s Compensation Act is a beneficial
legislation, one among various legislative measures adopted to
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ensure social security to the labour force of the country. While
interpreting such a law, the Court shall bear in mind the peculiar
environments of the intended beneficiaries. An interpretation
without such sensitivity may lead to frustration of the objectives
of the Act. Summing up the discussion on this issue, I hold
that in view of the provisions of Sections 3 and 4 of the Act, the
Commissioner is bound to grant just and proper compensation
even though the compensation determined by the Commissioner
in accordance with the provisions of the Act exceeds the amount
claimed by the applicant. Power of the Commissioner to award
just and proper compensation is not circumscribed by the
amount claimed in the application for compensation.
7. I find support for the above view from various
precedents. The Hon’ble Supreme Court in Rajesh and others
v. Rajbir Singh and others [(2013) 9 SCC 54] held as under
with respect to the proceedings before the Motor Accidents
Claims Tribunal:
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8“11. Underlying principle discussed in the above
decisions is with regard to the duty of the court to fix a
just compensation and it has now become settled law
that the court should not succumb to niceties or
technicalities, in such matters. Attempt of the court
should be to equate, as far as possible, the misery on
account of the accident with the compensation so that
the injured/the dependants should not face the
vagaries of life on account of the discontinuance of the
income earned by the victim.”
Though the Apex Court held as above in a case arising under
the Motor Vehicles Act, in my view, the principle can be applied
to the proceedings under the Employees Compensation Act as
well.
8. More precisely, in the following judgments, Madras
and Bombay High Courts have held that the Commissioner
under the Employee’s Compensation Act is empowered to grant
compensation in excess of the amount claimed:-
1) Century Chemicals and Oils (Private) Ltd. v.
Esther Maragatham [ 1998 (2) L.L.N. 583 ]
2) Oriental Insurance Company Ltd. v. Srimati S.
Sawant and another
[2001 SCC OnLine Bom 356].
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3) Raiwantabai W/O Ramdas Sard Are v. Nagpur
Municipal Corporation
[2017 SCC OnLine Bom 9846].
9. Relevant observations in Century Chemicals and Oils
(Private) Ltd (Supra) are as follows:
“17. Learned counsel for the appellant further
submitted that the compensation claimed by the
claimants is much less than what has been awarded
and, therefore, the authority has exceeded in its
jurisdiction. The said submission also cannot be
accepted. Once it is found that he is a skilled labourer,
the Act provides that formula under which the
compensation has to be calculated. That compensation
will have to be awarded irrespective of the claim. Even
if a mistake has been committed by the claimants, the
authority is bound to pay due compensation payable on
account of the death of the deceased. None of the
grounds urged by learned counsel for the appellant can
be sustained. The appeal is, therefore, dismissed. No
costs. Consequently, the connected C.M.Ps are also
dismissed.”
10. It was held in Oriental Insurance Company Ltd.
(Supra) as under:-
“21. In this behalf it would be appropriate to advert to
the decision of the Madras High Court in Century
Chemicals and Oils (Private) Ltd. v. Esther
Maragatham) reported in 1998 (2) L.L.N. 583, which
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10has taken a view that even if a mistake has been
committed by the claimant while setting up the claim
for compensation under the provisions of the Act,
however, it is the duty of the Commissioner to award
compensation in terms of the provisions of the Act and
not with reference to such a faulty claim. In my view,
although the respondent No.1 claimant had filed
application praying for compensation of Rs.30,000;
however, the Commissioner was well justified in
awarding higher compensation that what was prayed
for by the applicants/respondent No.1, so long as the
said compensation was in accordance with the
provisions of the Act. In the circumstances, the
grievance made on behalf of the respondent No.2 that
the amount awarded travelled beyond the relief prayed
for is wholly misplaced and untenable. In my view, the
Commissioner was justified in awarding higher
compensation than the one actually prayed for in the
application, for it is the duty of the Commissioner to
pass such order so as to meet the ends of justice in
accordance with law. On plain language of S.4 of the
said Act, it is seen that it is mandatory that,
irrespective of the relief, it is the duty of the
Commissioner to award amount of compensation as
provided in the said Act.”
11. In Raiwantabai W/O Ramdas Sard Are (Supra)
the Bombay High Court held as under:-
“5. As rightly submitted by learned counsel for
appellant, the reasoning given by the Commissioner for
awarding this amount of Rs.1,28,330/-, merely because
it was claimed by the appellant, when in fact she was
found to be entitled legally to get the amount of
Rs.1,88,645/-, is completely erroneous and that finding
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11has to be quashed and set aside. Needless to state that
it is the duty of the Commissioner under Workmen’s
Compensation, to award the amount of compensation
which is just, adequate and fair and which amount the
claimant is found entitled to get under the statute and
not that amount which the claimant demands or does
not demand. The Commissioner for Workmen’s
Compensation has thus, failed in his duty in not
awarding the reasonable amount of compensation to
which the Commissioner has held the appellant entitled
to, that is the amount of Rs.1,88,645/-. Hence, to that
extent definitely interference is warranted in the
impugned judgment and order of the Commissioner.”
12. The next issue relates to the impact of the
notification issued by the Central Government under Section
4(1B) of the Employees’ Compensation Act, 1923.
13. In Fertilizers and Chemicals Travancore Limited
(Supra), a learned Single Judge of this Court held that the
monthly wages shall be the actual wages of the employee for
the purpose of calculating compensation. The learned Senior
Counsel for the appellant contended that the said judgment is
incorrect. He submitted that if the interpretation of the
provisions of Section 4(1B) and Section 5 of the Act adopted in
the said judgment is accepted, then the provisions of Section
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4(1B) would become redundant. He further submitted that an
interpretation which would render a provision of the Act
redundant should be avoided. He submitted that, at the time of
the accident in this case, the notification issued by the Central
Government fixed Rs.8,000/- as the monthly wages. He hence
submitted that the learned Commissioner ought to have
calculated the compensation by taking Rs.8,000/- as the
monthly wages of the respondent. He placed heavy reliance on
the judgment of the Hon’ble Supreme Court in Sivaraman K
and others v. P. Sathishkumar and another [(2020) 4 SCC
594]. He contended that the Hon’ble Supreme Court has taken
note of the cap on monthly wages incorporated by the
legislature and in view of the law laid down by the Hon’ble
Supreme Court, the judgment of the learned Single Judge in
Fertilizers and Chemicals Travancore Limited (Supra)
requires reconsideration. The learned Senior Counsel further
contended that in the case at hand, the respondent has been
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accommodated in a supernumerary post by the appellant and
therefore he is still employed. He submitted that under such
circumstances, if the respondent is treated as incapable of any
work and compensation is granted for total loss of earning
capacity, the same would lead to injustice as far as the appellant
is concerned. The respondent will be in a position to work even
after receiving compensation for total loss of earning capacity.
The learned Senior Counsel submitted that, since the appellant
seriously challenges the correctness of the judgment in
Fertilizers and Chemicals Travancore Limited (Supra), the
appeal may be referred for consideration by a Division Bench.
He also placed reliance on the judgment of the Andhra Pradesh
High Court in Nagarjuna.D. v. DRN Infrastructure [2024
KHC 2586] and submitted that the court elaborately considered
the impact of notification under Section 4(1) and decided the
dispute by following the notification issued by the Central
Government under Section 4(1B).
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14. Learned counsel for the respondent per contra
submitted that the judgment of the learned Single Judge in
Fertilizers and Chemicals Travancore Limited (Supra) was
rendered by adopting an interpretation keeping in mind the
object of the Employees’ Compensation Act. He further
submitted that the Hon’ble Supreme Court in Sivaraman K and
others (Supra) has categorically held that the intention of the
Amendment Act of 2009 was to remove the cap on the monthly
income of employees and extend to them compensation on the
basis of the actual monthly wages. He further contended that
the notification would apply when there is no reliable evidence
to prove the monthly income of the employee and when the
employee is able to prove the monthly wages, the compensation
is to be calculated as provided under Section 5 of the Act. The
learned counsel relied on a judgment of the Madras High Court
in Mahalakshmi v. Krishna Raj [2024 KHC OnLine 5472]. He
also referred to a judgment of the High Court of the Himachal
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Pradesh in New India Assurance Company Limited v.
Smt.Govindi Devi and others [2019 SCC OnLine HP 2529].
The learned counsel further submitted that the observation of
the Hon’ble Supreme Court in paragraph 26 of the judgment in
Sivaraman K and others (Supra), even if treated as obiter has
binding force in view of the law laid down by a Full Bench of this
Court in State of Kerala v. Parameswaran Pillai Vasudevan
Nair [1974 SCC OnLine Ker 87]. He pointed out that the law
laid down by the Full Bench was quoted with approval by a
Bench of three Judges of the Hon’ble Supreme Court in
Municipal Committee, Amritsar v. Hazara Singh [(1975) 1
SCC 794]. The learned counsel also referred to a judgment of
the Hon’ble Supreme Court in Rani v. Branch Manager,
Shriram General Insurance Company Limited [2024 KHC
5474].
15. To address the questions of law raised in this appeal
reference to the relevant statutory provisions is vital. Section
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2(1)(m) defines ‘wages’. The provision reads as under:-
“2. Definitions.–(1) In this Act, unless there is
anything repugnant in the subject or context,–
…………………………………………………………………….
(m) “wages” includes any privilege or benefit which is
capable of being estimated in money, other than a
travelling allowance or the value of any travelling
concession or a contribution paid by the employer of a
employee towards any pension or provident fund or a
sum paid to a employee to cover any special expenses
entailed on him by the nature of his employment;”
16. Section 4 deals with the amount of compensation.
The relevant part of the provision is extracted hereunder: –
“4. Amount of compensation.–(1) Subject to the
provisions of this Act, the amount of compensation shall
be as follows, namely:–
(a) Where death results from the injury – an amount
equal to fifty per cent of the monthly wages of the
deceased employee multiplied by the relevant factor;
or
an amount of one lakh and twenty thousand rupees,
whichever is more;
(b) Where permanent total disablement results from
the injury – an amount equal to sixty per cent of the
monthly wages of the injured employee multiplied by
the relevant factor,
or
an amount of one lakh and forty thousand rupees,
whichever is more:
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17Provided that the Central Government may, by
notification in the Official Gazette, from time to time,
enhance the amount of compensation mentioned in
clauses (a) and (b).”
17. Section 5 deals with method of calculating wages.
The provision reads as under:-
“5. Method of calculating wages.–
In this Act and for the purposes thereof the expression
“monthly wages” means the amount of wages deemed
to be payable for a month’s service (whether the wages
are payable by the month or by whatever other period
or at piece rates) and calculated as follows, namely:–
(a) where the employee has, during a continuous
period of not less than twelve months immediately
preceding the accident, been in the service of the
employer who is liable to pay compensation, the
monthly wages of the employee shall be one-twelfth of
the total wages which have fallen due for payment to
him by the employer in the last twelve months of that
period;
(b) where the whole of the continuous period of service
immediately preceding the accident during which the
employee was in the service of the employer who is
liable to pay the compensation was less than one
month, the monthly wages of the employee shall be the
average monthly amount which, during the twelve
months immediately preceding the accident, was being
earned by a employee employed on the same work by
the same employer, or, if there was no employee so
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18employed, by a employee employed on similar work in
the same locality;
(c) in other cases [including cases in which it is not
possible for want of necessary information to calculate
the monthly wages under clause (b)], the monthly
wages shall be thirty times the total wages earned in
respect of the last continuous period of service
immediately preceding the accident from the employer
who is liable to pay compensation, divided by the
number of days comprising such period.”
18. Comprehensive amendments were brought in to force
by the Amendment Act of 2009 to the provisions of the Act.
Before the amendment, Section 4(1) contained an explanation
providing that where the monthly wages of a workman exceed
four thousand Rupees, his monthly wages for the purposes of
Clauses (a) and (b) of sub-section (1) shall be deemed to be
four thousand Rupees only. Hence there was a cap on the
monthly wages for the purpose of granting compensation. It is
pertinent to note that the said cap was removed by Act 45 of
2009. Instead, Section 4(1B) was incorporated providing that
the Central Government may by notification in the official
gazette, specify, for the purposes of sub-section (1), such
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monthly wages in relation to an employee as it may consider
necessary. The Central Government issued notifications under
sub-section 1B and as per the latest notification dated 3.1.2020
the monthly wage has been notified for the purpose of Section 4
as Rs.15,000/-.
19. The conclusion of the learned Single Judge of this
Court in Fertilizers and Chemicals Travancore Limited
(Supra) was that the amount mentioned in the notification of
the Central Government would not dis-entitle an employee from
seeking compensation on the basis of the actual monthly wages.
The learned Single Judge held that no provision was
incorporated in the Act either by way of a non obstante clause
or by deemed provision so as to curtail or limit or to take away
the application under Section 5 of the Act. The learned Single
Judge held that the amended provision, sub-section (1-B) will
not have any overriding effect and Section 5 of the Act would
come into operation in the matter of assessment or method of
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calculation of monthly wages as mentioned under Section 4(1)
of the Act. The relevant discussion in the judgment is extracted
hereunder:-
“4. There are two provisos attached to Section 4(1) and
4(1-B) of the Act. The proviso attached to Section 4(1)
says that the Central Government may by notification in
the Official Gazette from time to time enhance the
amount of compensation mentioned in clauses (a) and
(b). But clauses (a) and (b) has got two limbs, which
are extracted below for reference:
“4. Amount of compensation – (1) Subject to the
provisions of this Act, the amount of compensation
shall be as follows, namely:-
(a) Where death results from the injury – an amount
equal to fifty per cent of the monthly wages of the
deceased employee multiplied by the relevant
factor; or an amount of one lakh and twenty
thousand rupees, whichever is more;
(b) Where permanent total disablement results
from the injury – an amount equal to sixty percent
of the monthlywages of the injured employee
multiplied by the relevant factor, or an amount of
one lakh and forty thousand rupees whichever is
more:
Provided that the Central Government may, by
notification in the Official Gazette from time to time,
enhance the amount of compensation mentioned in
clauses (a) and (b).”
5. Going by the provision, it is clear that in clauses (a)
and (b), there are two separate limbs and in both the
clauses, the first limb deals with monthly wages and
calculation of compensation thereof without specifying
any amount to be paid by way of compensation. It is in
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21the second limb of both the clauses (a) and (b), an
amount of compensation is made mentioned as a sum
of Rs.1,20,000/- and Rs.1,40,000/- respectively. The
proviso attached to Section 4(1) refers only
enhancement of “amount of compensation” mentioned
in clauses (a) and (b), which stands for the respective
second limb of those clauses, hence may not have any
application to the first limb of both the said clauses. So
the authority given to the Central Government by virtue
of the proviso to Section 4(1) is only to enhance the
respective amount of Rs.1,20,000/- and Rs.1,40,000/-
mentioned in the second limb of clauses (a) and (b)
and it may not have any application to alter the amount
that can be assessed as “monthly wages” and it is clear
from the language used in the proviso which is
restricted to enhance the “amount of compensation”
made mentioned in clauses (a) and (b).
6. The amended provision, sub-section (1-B), which was
inserted by virtue of the Amended Act is extracted
below for reference:
“(1-B) The Central Government may, by
notification in the Official Gazette, specify, for the
purposes of sub-section (1), such monthly wages
in relation to an employee as it may consider
necessary.”
7. The earlier provision – Explanation II attached to
Section 4(1) of the Act is also extracted below for
reference:-
“Explanation II – Where the monthly wages of a
workman exceed four thousand rupees, his
monthly wages for the purposes of clause (a) and
clause (b) shall be deemed to be four thousand
rupees only.”
(emphasis supplied)
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8. The said provision – Explanation II had been
taken away by virtue of the Amendment Act 45 of 2009
with effect from 18/1/2010 and thereby deleted the
deeming provision therein and substituted with the
newly inserted provision – Section 4(1-B), without a
deeming provision or any restriction or upper limit
regarding “monthly wages” made mentioned therein.
Sub-section (1-B) says only that the Central
Government may specify for the purpose of sub-section
(1) such “monthly wages” in relation to an employee
“as it may consider necessary”. The expression initially
used that “the Central Government may” makes the
provision directory and not mandatory without
imposing any obligation on the part of the Central
Government to notify any such amount, but left open
to the discretion of the Central Government, which is
well evident from the wording and language used “as it
(the Central Government) may consider necessary” in
that provision. It is incorporated and inserted not in
derogation of the application of Section 5 of the Act,
which deals with the method of calculating “monthly
wages”, which stands and means the amount of wages
deemed to be payable for a month’s service, whether
the wages are payable by month or whatever other
period or at piece rate and should be calculated in
accordance with clauses (a) to (c) therein. Clause (a)
says that where the employee has, during the
continuous period of not less than 12 months
immediately preceding the accident, been in service of
the employer who is liable to pay compensation, the
monthly wages of the employee shall be 1/12th of total
wages, which have fallen due for payment to him by
the employer in the last twelve months of that period.
The victim involved in the case was in continuous
service for a longer period of more than 12 months
prior to the alleged incident, hence falls under clause
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(a) of Section 5 of the Act and his monthly wages for
the purpose of the said Act should be calculated as
1/12th of the total wages payable to him for the last 12
months. No provision was incorporated either under
the Amendment Act 45 of 2009 or anywhere in the Act
either by way of a non-obstante clause or by deemed
provision so as to curtail or limit or to take away the
application of Section 5 of the Act. Necessarily, the
newly amended provision – sub-section (1-B) to
Section 4 of the Act and the language employed therein
which makes the provision not mandatory to notify any
sum by the Central Government must be understood
not to make the other provision inoperative. It is also
not permissible to have an interpretation to the
abovesaid newly inserted provision so as to take away
the method available for computation of monthly
wages made mentioned under Section 5 of the Act.
Hence, there cannot be any merit in the argument that
the amount notified (Rs.8,000/-) by the Central
Government by virtue of sub-section (1-B) should be
the “monthly wages” for the purpose of determination
of compensation cannot be accepted, otherwise,
Section 5 of the Act would stand redundant and
purposeless. Necessarily, the non incorporation of
either a deeming provision akin to that of in the earlier
provision – Explanation II attached to Section 4(1) of
the Act or any non-obstante clause or any provision
either limiting, reducing or specifying any upper limit
with respect to the application of Section 5 of the Act
would make the legal position clear that the “monthly
wages” and its method of calculation narrated under
Section 5 of the Act is applicable in the matter of
determination of compensation by virtue of Section
4(1) of the Act, especially when it deals with the
determination of compensation based on the “monthly
wages”. It is made clear in Section 5 of the Act that the
method available under that Section is for the purpose
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of calculating “monthly wages” under that Act. It is
Section 4 of the Act which says how the compensation
has to be computed based on the “monthly wages”.
Except in Section 4 of the Act, no where the expression
“monthly wages” is made mentioned in the Act. The
legislature has in its wisdom incorporated the
expression “monthly wages” with the highlight of
double inverted comas in that provision – Section 5 of
the Act. No restriction or limitation was incorporated so
as to limit the application of Section 5 anywhere in the
Act, even at the time of Amendment Act 45 of 2009.
On the other hand, the deeming provision under the
Explanation II limiting the liability has been taken away
by the abovesaid Amendment Act. Necessarily, the
amended provision (1-B) will not have any overriding
effect or any legal consequence over and above Section
5 of the Act and Section 5 of the Act would come into
operation in the matter of assessment or method of
calculation of monthly wages as made mentioned under
Section 4(1) of the Act.”
20. The learned Senior Counsel vehemently submitted
that the interpretation adopted in Fertilizers and Chemicals
Travancore Limited (Supra) would render the provisions of
Section 4(1B) redundant. He argued that the Court shall not
adopt a construction which would render any provision of the
law redundant. The learned Senior Counsel referred to the
following paragraphs of the judgment in State of Tamil Nadu
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and others v. K.Shobana [(2021) 4 SCC 686]:-
“12. The appellant relied on Hardeep Singh v. State
of Punjab [(2014) 3 SCC 92], paras 42 to 45 : (2014)
2 SCC (Cri) 86] wherein, though the dispute related
to the interpretation of the provisions of Section 319
CrPC, what is relevant is the proposition sought to be
laid down. It held that it was a settled principle of law
that if an interpretation leads to a conclusion that the
word used by the legislature is redundant, that
should be avoided as the presumption is that the
legislature has deliberately and consciously used the
word for carrying out the purpose of the Act. The
legal maxim a verbis legis non est recedendum which
means, “from the words of law, there must be no
departure” has to be kept in mind. There could be no
assumption that a legislature committed a mistake
when the language of the statute was plain and
ambiguous. No word in a statute has to be construed
as a surplusage nor could any word be rendered
ineffective or purposeless if the Court required to
carry out the legislative intent fully and completely.”
21. The learned Senior Counsel referred to the judgment
of the Hon’ble Supreme Court in Sivaraman.K. and others
(Supra) and made specific reference to the following
paragraph:-
“26. Prior to Act 45 of 2009, by virtue of the
deeming provision in Explanation II to Section 4,
the monthly wages of an employee were capped at
Rs.4000 even where an employee was able to
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26prove the payment of a monthly wage in excess of
Rs.4000. The legislature, in its wisdom and keeping
in mind the purpose of the 1923 Act as a social
welfare legislation did not enhance the quantum in
the deeming provision, but deleted it altogether.
The amendment is in furtherance of the salient
purpose which underlies the 1923 Act of providing
to all employees compensation for accidents which
occur in the course of and arising out of
employment. The objective of the amendment is to
remove a deeming cap on the monthly income of
an employee and extend to them compensation on
the basis of the actual monthly wages drawn by
them. However, there is nothing to indicate that the
legislature intended for the benefit to extend to
accidents that took place prior to the coming into
force of the amendment.”
22. He submitted that the issue considered by the
Hon’ble Supreme Court in the said judgment was regarding the
retrospective operation of the amendment and the observation
regarding the objective of the amendment was only a passing
reference made during the discussion.
23. The learned Senior Counsel earlier relied on a
judgment of the Andhra Pradesh High Court in Nagarjuna.D.
(Supra). Paragraphs 13 to 15 of the said judgment read as
follows:-
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27“13. S.4 of Act, 1923 provides the principle for
computation of compensation. By virtue of Act 45 of
2009, several amendments were brought into for this
S.4. The said Amendment Act came into force for most
part of it on 18.1.2010. Earlier to this amendment,
there was Explanation II to S.4 whereunder the
monthly wages of an employee were capped at
Rs.4,000. Thus, earlier to this amendment in the year
2009 even if the employee was able to prove that his
monthly wage was in excess of Rs.4,000, by virtue of
the cap fixed by the legislature, it was to be calculated
only at Rs.4,000. This Explanation II to S.4 was
omitted by the Amendment Act in the year 2009. The
effect of that amendment is what the Hon’ble Supreme
Court explained at para 26 of their Lordships’ judgment
which was extracted earlier in this judgment. However,
that is not the end of the matter. In the amendment
that was made in the year 2009, the legislature
brought in sub-section (1B) in S.4, which reads :
“(1B) The Central Government may, by notification in
the Official Gazette, specify, for the purposes of sub-
section (1), such monthly wages in relation to an
employee as it may consider necessary”.
14. Exercising powers under that provision Central
Government issued the following notification on
31.5.2010. The same is extracted here:
“S.O. 1258(E) – In exercise of the powers conferred by
sub-section (1B) of S.4 of the Employee’s
Compensation Act, 1923 (8 of 1923), the Central
Government hereby specified, for the purpose of sub-
section (1) of the said section, the following amount as
monthly wages, with effect from the date of publication
of this notification in the official gazette, namely Eight
thousand rupees.”
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15. These aspects could be noticed at para 8 and para
14 of the judgment of the Hon’ble Apex Court of India
referred above. Thus, the cap of Rs.8,000 for the
purpose of considering monthly wages while computing
compensation under S.4 as notified by the Central
Government was followed by the learned Deputy
Commissioner of Labour in his impugned order here. It
is that aspect which is questioned by the learned
counsel for appellant based on what their Lordships of
the Hon’ble Supreme Court explained at para 26 of the
judgment. It has to be stated that in the said ruling,
their Lordships were not concerned with Central
Government notification of the year 2010 and sub-
section (1B) of S.4 of Act, 1923. At para 15 their
Lordships stated that the question that fell for
consideration before their Lordships was as to whether
the Amendment Act 45 of 2009 was prospective in
operation or retrospective in operation. In the case
before their Lordships, accident occurred on 31.1.2008.
By then by virtue of Explanation II cap of Rs.4,000 was
there. By the time the matter came to be decided
Amendment Act of the year 2009 came into force. It
was in those circumstances Hon’ble Division Bench of
the Madurai Bench of Madras High Court thought it fit
to apply the Amendment Act, 2009 retrospectively and
thereby cap of Rs.4,000 was not considered and the
actual wage was taken into consideration. After giving
various reasons and citing various precedents at para
33 of its judgment, Hon’ble Supreme Court found that
the approach of the High Court was erroneous and it
ought to have decided the compensation considering
Rs.4,000 cap and that the Amending Act, 2009 has no
retrospective effect. It was never in the consideration
of their Lordships as to whether under S.4(1B), Central
Government was empowered to notify monthly wages
or not. For the complete picture of the legal provisions,
their Lordships were pleased to mention those
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29
provisions. However, those provisions did not fall for
consideration before their Lordships. In that context of
the matter only the removal of the cap and its purport
was laid down by their Lordships at para 26 of the
judgment. In the case at hand, the subject accident
occurred on 3.3.2014. By then Amendment Act, 2009
already came into existence and by the time the case
fell for consideration before the Deputy Commissioner
of Labour, Kurnool, notification of the year 2010 from
the Central Government under S.4(1B) came into
existence. Bound by that notification and bound by the
legal mandate in S.4(1B), learned Deputy
Commissioner of Labour appropriately acted in
accordance with law. In the cited ruling, their Lordships
did not set aside Central Government notification dated
31.5.2010. In the cited ruling, the vires of S.4(1B) was
neither questioned nor considered. Therefore, learned
Deputy Commissioner, Kurnool acted in terms of
Central Government notification dated 31.5.2010.
Therefore it is to be upheld as it is in accordance with
law. Therefore, the contention of the appellant in
challenge to the cap of Rs.8,000 applied by the learned
Deputy Commissioner of Labour is incorrect and is not
in accordance with law and therefore this contention is
negatived.”
24. He submitted that the learned Single Judge of the
Andhra Pradesh High Court has rightly distinguished the
judgment of the Hon’ble Supreme Court in Sivaraman.K. and
others (Supra). He contended that the view of the Andhra
Pradesh High Court is in consonance with the statutory scheme
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30
of the Employees’ Compensation Act.
25. The learned Senior Counsel therefore contended that
the judgment of the learned Single Judge of this Court in
Fertilizers and Chemicals Travancore Limited (Supra) did
not lay down the law correctly. He submitted that the said
judgment requires reconsideration by a bench of higher
strength. He therefore urged that this appeal may be referred
for consideration by a Division Bench.
26. The learned counsel for the respondent supported the
judgment in Fertilizers and Chemicals Travancore Limited
(Supra) and urged that the contentions of the appellant may be
rejected and the appeal be dismissed following the dictum laid
down by the learned Single Judge. He argued that the Hon’ble
Supreme Court in Sivaraman K. and others (Supra) has
categorically held that the object of the amendment was to
remove the cap in the case of monthly wages and to enable the
employees to receive compensation on the basis of actual
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31
monthly wages. He contended that the observation by the
Hon’ble Supreme Court in the paragraph referred to by the
learned Senior Counsel is binding and the judgment in
Fertilizers and Chemicals Travancore Limited (Supra) is in
consonance with the principles laid down by the Hon’ble
Supreme Court. He referred to the following paragraph of the
judgment of the Full Bench in State of Kerala v.
Parameswaran Pillai Vasudevan Nair :-
“10. There was some discussion at the Bar about the
scope of Article 141 of the Constitution which says that
the law laid down by the Supreme Court shall be
binding on all the courts in the country. Judicial
propriety, dignity and decorum demand that being the
highest judicial tribunal in the country even obiter
dictum of the Supreme Court should be accepted as
binding. Declaration of law by that Court even if it be
only by the way has to be respected. But all that does
not mean that every statement contained in a judgment
of that Court would be attracted by Article 141.
Statements on mattes other than law have no binding
force, Several decisions of the Supreme Court are on
facts and that Court itself has pointed out in Gurcharan
Singh v. State of Punjab, 1956 Cri LJ 827 and Prakash
Chandra Pathak v. State of Uttar Pradesh, (1960 Cri LJ
283) that as on facts no two cases could be similar to its
own decisions which were essentially on questions of
fact and could not be relied upon as precedents for
decision of other cases. In the State of Orissa v.
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32
Sudhansu Sekhar Misra, (1968) 2 SCJ 236) and Madhav
Rao Jivaji Rao Scindia v. Union of India [(1971) 1 SCC
85], the Supreme Court held that it was not a profitable
task to extract a sentence here and there divorced from
the context from its judgment as containing a full
exposition of the law on a question when the question
did not even fall to be answered in that judgment and
build upon it. In Rajeswar Prasad Misra v. State of West
Bengal (1965-2 Cri LJ 317) the arguments advanced
before the Supreme Court disclosed a tendency to read
the observations made in the judgments of that court as
statutory enactments. Dealing with it the court said that
although the Indian Courts are bound by the law
declared by the Supreme Court it should not be
forgotten that that court does not enact. In Raval and
Co. v. K. G. Ramachandran [(1974) 1 SCC 424], the
Supreme Court held that general observations contained
in any judgment of that court should be confined to the
facts of that case and cautioned that they should not be
applied in interpreting the provisions of an Act unless it
had applied its mind and analysed the provisions of that
particular Act.”
27. The learned counsel submitted that the above
conclusions of the Full Bench were quoted in the following
paragraph of the judgment of the Hon’ble Supreme Court in
Municipal Committee, Amritsar (Supra):-
“4.It is plain from submission of counsel that the
appellant’s grievance is not so much against the
acquittal as against a passing reference by the Sessions
Court to an obiter observation of this Court in Malwa
Cooperative Milk Union Ltd., Indore v. Biharilal [ Cri.As.
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33No. 235 and 236 of 1964, decided on 14-8-1967].
Obviously, the Sessions Judge had concluded that a
minor error in the chemical analysis might have
occurred. He was perhaps not right in saying so.
Anyway, a reading of his judgment shows that the
mention of this Court’s unreported ruling (supra) was
meant to fortify himself and not to apply the ratio of
that case. Indeed, this Court’s decision cited above
discloses that Hidayatullah, J. (as he then was) was not
laying down the law that minimal deficiencies in the
milk components justified acquittal in food adulteration
cases. The point that arose in that case was whether
the High Court was justified in upsetting an acquittal in
revision, when the jurisdiction was invoked by a rival
trader, the alleged adulteration having been so
negligible that the State had withdrawn the prosecution
resulting in the acquittal. Certainly, the revisional power
of the High Court is reserved for setting right
miscarriage of justice, not for being invoked by private
persecutors. Such was the ratio but, in the course of
the judgment, Hidayatullah, J. to drive home the point
that the case itself was so marginal, referred to the
microscopic difference from the set standard. To distort
that passage, tear it out of context and devise a new
defence out of it in respect of food adulteration cases,
is to be grossly unjust to the judgment. Indeed, the
Kerala case cited before us by counsel viz. State of
Kerala v. Vasudevan Nair [ Cr.A. No. 89 of 1973,
decided by the Kerala High Court on July 18, 1974 — All
India Prevention of Food Adulteration Cases Reporter,
1975 Part I, p. 8] itself shows that such distortion of
the passage in the judgment did not and could not pass
muster. When pressed with such misuse of this ruling,
the High Court repelled it. The law of food adulteration,
as also the right approach to decisions of this Court,
have been set out correctly there:
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34“Judicial propriety, dignity and decorum
demand that being the highest judicial
tribunal in the country even obiter dictum of
the Supreme Court should be accepted as
binding. Declaration of law by that Court even
if it be only by the way has to be respected.
But all that does not mean that every
statement contained in a judgment of that
Court would be attracted by Article 141.
Statements on matters other than law have
no binding force. Several decisions of the
Supreme Court are on facts and that Court
itself has pointed out in Gurcharan Singh v.
State of Punjab [1972 FAC 549] and Prakash
Chandra Pathak v. State of Uttar Pradesh [AIR
1960 SC 195 : 1960 Cri LJ 283] that as on
facts no two cases could be similar, its own
decisions which were essentially on questions
of fact could not be relied upon as precedents
for decision of other cases.
***
The standard fixed under the Act is one that is certain.
If it is varied to any extent, the certainty of a general
standard would be replaced by the vagaries of a
fluctuating standard. The disadvantages of the resulting
unpredictability, uncertainty and impossibility of arriving
at fair and consistent decisions are great.”
28. He hence argued that in view of the legal position as
clarified by the Hon’ble Supreme Court, the intention of the
Amendment Act, 2009 can be understood only as to provide for
compensation on the basis of actual monthly wages. The
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35
learned counsel made reference to a judgment of the Hon’ble
Supreme Court in Rani v. Branch Manager, Shriram General
Ins. Co.Ltd. [2024 KHC OnLine 5474] to show that the ratio in
K.Sivaraman and Others (Supra) was followed by the Hon’ble
Supreme Court in Rani (Supra) also.
29. The learned counsel for the respondent pointed out
that in Mahalakshmi (Supra) a learned Single Judge of the
Madras High Court considered the same issue and held as
under:-
“22. As clarified by the Apex Court in K.Sivaraman and
others vs. P.Sathishumar and others cited supra, if the
claimants able to prove their actual monthly salary,
which is more than the monthly wages notified by the
Central Government, they are entitled to get the actual
monthly wages. In the absence of proof of actual
monthly wages, the Labour Commissioner has no other
alternative, other than adopting the monthly wages
notified by the Central Government as per Section 4-
1(B) of the Act. Hence the question of law is answered
that the adoption of minimum wages prescribed by the
State Government could not be taken into account for
awarding compensation under the Act 1923 and the
monthly wages notified by the Central Government as
per Section 4(1-B) shall be adopted for awarding
compensation. Accordingly, the first question of law
raised in this appeal is answered.”
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30. He pointed out that the learned Single Judge of the
Madras High Court held that Section 4(1B) permits the Central
Government to notify the monthly wages, if the employee was
not able to prove his actual monthly wages.
31. In Sivaraman.K. And Others (Supra) the Hon’ble
Supreme Court held as under:-
“25. The 1923 Act is a social beneficial legislation
and its provisions and amendments thereto must
be interpreted in a manner so as to not deprive the
employees of the benefit of the legislation. The
object of enacting the Act was to ameliorate the
hardship of economically poor employees who were
exposed to risks in work, or occupational hazards
by providing a cheaper and quicker machinery for
compensating them with pecuniary benefits. The
amendments to the 1923 Act have been enacted to
further this salient purpose by either streamlining
the compensation process or enhancing the amount
of compensation payable to the employee.”
32. The issues arising for consideration in the case on
hand deserves to be analysed bearing in mind the objective of
the Act. If the interpretation canvassed by the learned Senior
Counsel is accepted, then the resultant position would be that in
no situation compensation can be granted taking into account
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37
the actual monthly wages if it exceeds the amount notified by
the Central Government under Section 4(1B). If the purpose of
Section 4(1B) is so understood, the provisions of Section 5 will
become superfluous. It is to be noted that Section 5 is a
specific provision providing for calculation of wages. The
expression ‘monthly wages’ as applicable to various situations is
specified under Section 5. If the intention of the legislature was
to fix a uniform rate as monthly wages for the purpose of
determining the compensation, Section 5 would not have been
incorporated in the Act. It is also pertinent to note that the
explanation, fixing a cap in the matter of monthly wages, was
deleted by the Amendment Act of 2009. The manifest intention
was therefore to remove the cap. If the construction suggested
by the learned Senior Counsel for the appellant is adopted, it
would amount to re-introduction of a ceiling in the matter of
monthly wages. I am of the view that such an interpretation
would not be in tune with the legislative intention, affirmed by
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the Amendment Act of 2009.
33. The Act is unquestionably a social welfare legislation
providing for remedies to employees who sustain injuries out of
the employment and during the course of the employment to
get adequate compensation. If an employee who draws monthly
wages at a higher rate than that is notified by the Central
Government under Section 4(1B) is deprived of compensation
proportionate to his actual monthly wages, it cannot be said
that just compensation was provided.
34. If the provisions of Section 4(1B) and Section 5 of
the Act are construed harmoniously it can be certainly held that
the provisions of Section 4(1B) enable the Government to fix
the monthly wages from time to time in order to ensure that
employees/dependants seeking compensation under the Act
would be entitled for reasonable compensation even if they fail
to adduce reliable evidence regarding the actual monthly wages.
In various sectors of employment in our country, employees are
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39
engaged under diverse arrangements. Large section of the
workforce in our country is engaged in unorganised sectors. In
many of the employments in the unorganised sectors, there
may not be any proper system of keeping records regarding the
wages. Hence in many situations, the employee/ dependents
may not be in a position to provide authentic evidence to the
Commissioner regarding the wages in the peculiar nature of
engagement. Under such circumstances, the Commissioners
can rely on the amount notified by the Central Government
under Section 4(1B) to calculate the compensation.
35. Nevertheless, when the applicant before the
Commissioner or the opposite parties adduces evidence proving
the actual monthly wages of the injured employee, in view of
the provisions of Section 5 of the Act, the Commissioner can
determine the compensation on the basis of the actual monthly
wages proved in evidence. But in view of the object of S.4(1B),
providing for periodical notification of monthly wages by the
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Central Government, the amount notified shall be considered as
the basic minimum. Just and proportionate compensation in
accordance with the provisions of the Act can be awarded even
if the monthly wages proved before the Commissioner is higher
than the amount notified by the Government. If the purpose of
incorporating Section 4(1B) can be understood as above, there
will not be any conflict between the two provisions. Such a
construction would definitely advance the object of the Act.
While interpreting two different provisions of an enactment, in
reference to which incongruity is alleged, endeavour of the
Court shall be to construe the provisions harmoniously, giving
effect to both.
36. I find considerable force in the contention of the
learned counsel for the respondent that the observation of the
Hon’ble Supreme Court in Sivaraman.K. And Others (Supra)
regarding the object of the amendment cannot be considered as
a mere passing observation. The Hon’ble Court opined that the
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objective of the amendment is to remove the deeming cap on
monthly income and to extend compensation on the basis of
actual monthly wages. It was held that the amendments to the
1923 Act were enacted to further the salient purpose of the Act,
either by streamlining the compensation process or by
enhancing the amount of compensation payable to the
employee. In other words, the relevant observation was made
after adverting to the nature of the legislation and its objectives.
As rightly contended by the learned counsel for the respondent,
even if the observation is reckoned as obiter, the same is
binding.
37. It is pertinent to note that the Act defines ‘wages’ as
including any privilege or benefit capable of being estimated in
money, other than the allowances, contributions, etc., that are
specifically excluded. Therefore, the expression ‘wages’ would
cover the remuneration earned by an employee as a whole
except the excluded elements. It is also relevant to note that
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under Section 5, the provision providing for the method of
calculating wages, no ceiling limit is contemplated. The opening
part of Section 5 is emphatic that the expression “monthly
wages” in the Act, for the purposes thereof, shall be understood
as provided in Section 5. Section 3 of the Act places liability on
the employer if personal injury is caused to an employee by
accident arising out of and in the course of his employment.
Section 4 provides for determination of compensation. Sub-
section (1-B) enables the Central Government to specify, for the
purposes of sub-section (1), such monthly wages in relation to
an employee as it may consider necessary. It is to be noted that
the provisions of Section 5 being placed in the statute following
the provisions of Section 4, the provisions of Section 5 shall be
deemed to have been incorporated keeping in mind the previous
provision. When sub-section 1B was incorporated by way of an
amendment in 2009, if the legislature had the intention to put a
ceiling in the matter of monthly wages, appropriate
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43
modifications to the provisions of Section 5 also would have
been made. Hence, an analysis of the statutory scheme would
show that the legislature had no intention to impose a cap on
the maximum compensation liable to be granted. On the other
hand, removal of the cap by the Amendment Act of 2009 is a
clear indication that the intention was to remove the ceiling.
38. The learned senior Counsel had argued that the
employee has been accommodated in a suitable post and
therefore there is no loss of earning. The said contention was
rightly rejected by the Commissioner taking note of the
provisions of S.47 of the PWD Act. I uphold the conclusion of
the learned Commissioner in this regard.
In the light of the discussion afore, all questions of law
raised in this appeal are answered against the appellant. I am
unable to subscribe to the view adopted by the Andhra Pradesh
High Court in Nagarjuna.D.(Supra) and find no reason to doubt
the correctness of the ultimate conclusion of the learned Single
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Judge of this Court in Fertilizers and Chemicals Travancore
Limited (Supra). The appeal therefore fails and it is accordingly
dismissed.
S.MANU
JUDGE
skj
