E. S. I. Corporation, Hyderabad v. Chitivalasah Jute Mills, Chittivalasa
2004-10-11
L.NARASIMHA REDDY
body2004
DigiLaw.ai
L. NARASIMHA REDDY, J. ( 1 ) COMMON questions of fact and law are involved in both these Civil Miscellaneous appeals filed under Section 82 of the employees State Insurance Act, 1948 (for short the Act ). Hence, they are disposed of through a common Judgment. ( 2 ) THE parties are common to both the appeals. The ESI Corporation is the appellant and the respondent is a jute mill, which is covered by the provisions of the Act. The officials of the appellant-Corporation inspected the office of the respondent and found that the contribution under the Act was not paid, on the amount representing wages of its employees on festival and holidays. Separate proceedings were initiated for the period from 1996 to 1999 and 1999 to 2000. The respondent challenged the said proceedings by filing E. I. Case Nos. 49 of 2000 and 57 of 2001 on the file of the employees Insurance Court-cum-Industrial tribunal-, Hyderabad (hereinafter referred to as the Tribunal ). Through separate orders dated 30-11-2001 and 29-1-2004, the tribunal allowed the cases before it and set aside the demand made by the appellant. C. M. A. 3521 of 2002 is filed against the order in E. I. Case No. 49 of 2000 and c. M. A. No. 3022 of 2004 is filed against the one in E. I. Case No. 57 of 2001. ( 3 ) LEARNED Standing Counsel for the appellant, Sri B. G. Ravinder Reddy and smt. Pushpender Kaur, submit that in view of the amendment caused to sub-section (22) of Section 2 of the Act, it is no longer permissible to maintain a distinction between the wages for working days and the one earmarked for holidays. They contend that the wages of an employee is a complete package, covering the working days, holidays, festival days etc. , that occur in the unit, be it month, fortnight or week and the same cannot be divided into separate compartments. They submit that the judgments relied upon by the trial Court arose under the unamended provisions. It is their case that if such a distinction is to be maintained, it would be difficult for operating the provisions of the Act, in relation to any industry and the wages itself would vary depending on the number of holidays or festival days that occur in a month.
It is their case that if such a distinction is to be maintained, it would be difficult for operating the provisions of the Act, in relation to any industry and the wages itself would vary depending on the number of holidays or festival days that occur in a month. They draw the attention of this Court to the provisions of the Act, which stood before and after the amendment Act through Act 44 of 1966. ( 4 ) SRI S. Ravindranath, learned counsel for the respondent, on the other hand, submits that the wages as defined under sub-section (22) of Section 2 of the Act represents the amount payable to an employee for the period during which he worked and not the amount payable by an employer in compliance with the provisions of other enactments, such as, the A. P. Factories and Institutions Holidays Act, 1974. He submits that though the Judgment of the Supreme Court in Assistant Regional director, Nagpur v. Model Mills Ltd. , Nagpur arose under the unamended provisions, the supreme Court affirmed the view taken by the Bombay High Court which dealt with the amended provisions also. ( 5 ) THE short question that falls for consideration in these two appeals is as to whether the amount representing the wages or salary paid for holidays and festival days, falls within the definition under sub-section (22) of Section 2 of the Act in the context of making contribution under the Act. There is no dispute that the respondent is-covered by the provisions of the Act. While making contribution under the Act, it omitted to take into account the amount payable for the holidays and festival days, out of the salaries of the employees. The appellant initiated proceedings, which, in turn, were challenged by the respondent before the tribunal. The Tribunal held that no contribution is payable on such amount. It placed reliance upon the Judgment of the supreme Court in Model Mill s case (1 supra), and extended the analogy of the interpretation placed by the Supreme Court on the term "remuneration" in Accountant general v. N. Bakshi. Therefore, much would depend on the meaning to be given to the word "wages" as defined under sub-section (22) of Section 2 of the Act.
Therefore, much would depend on the meaning to be given to the word "wages" as defined under sub-section (22) of Section 2 of the Act. It reads as under: "wages" means all remuneration paid or payable, in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled and includes any payment to an employee in respect of any period of authorised leave, lock-out, strike which is not illegal or lay-off and other additional remuneration, if any, paid at intervals not exceeding two months, but does not include- (a) any contribution paid by the employer to any pension fund or provident fund, or under this Act; (b) any travelling allowance or the value of any travelling concession; (c) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or (d) any gratuity payable on the discharge; this provision is the result of the amendment of the Act, through Act No. 44 of 1966. Earlier to that, the definition did not include any payment made to an employee in respect of authorised leave, lock-out, strike which is not illegal or lay-off. The inclusion of the amounts payable under these heads substantially enlarges the scope of the definition. In Accountant General s case (2 supra), the Supreme Court had an occasion to consider the meaning of the word "remuneration" which also occurs in tne above definition. After referring the dictionaries and certain decided cases, it was observed that it can be taken to mean, the consideration which a man gets for the services rendered by him. The provisions of the Act did not fall for consideration in that case. Still, the observation made therein can be made use of in understanding the meaning of "wages". The opening word in the definition itself says that it means "ail remuneration paid or payable, if the terms of contract of employment are fulfilled. " The use of word "all" has its own significance in this context. Further, the remuneration referred to therein is payable as a compliance with the terms of contract of employment. ( 6 ) IT is a matter of common knowledge that the contract of an employment invariably provides for the wages or salary for a particular period, be it month, fortnight or week.
Further, the remuneration referred to therein is payable as a compliance with the terms of contract of employment. ( 6 ) IT is a matter of common knowledge that the contract of an employment invariably provides for the wages or salary for a particular period, be it month, fortnight or week. The dictionary meaning of the word salary is "a periodical payment (usually at longer intervals than a week) for one s labour" (Chambers Dictionary ). Such period naturally includes the weekly holidays, national holidays and festival days, as are notified under the relevant provisions. In a given month, the number of holidays or festival days may be more or less. The structure of wages or salary cannot be dissected to represent partly, the amount payable for working days, and partly the one for holidays. If such a course of action is adopted, the salary payable, at least from the point of view of the Act, would vary from period to period depending on the occurrence of holidays or festival days, as the case may be. The Payment of Wages act does not permit of such a division or variation. ( 7 ) IT is true that an employer is under obligation to provide for certain number of national and festival holidays under the A. P. Factories and institutions Holidays Act. The weekly holidays are also provided for as a statutory obligation. For that matter, the working hours on a particular day themselves are fixed in compliance with the statutory norms. The wages, commonly known as salary, represent the amount payable for the unit of time irrespective of the number of holidays or festival days that may occur in it. ( 8 ) HEAVY reliance was placed by the tribunal as well as the counsel for the respondent on the Judgment of the Supreme court in Model Mills case (1 supra ). It is not in dispute that the case arose under the un-amended provisions. The following sentences of the Judgment makes it amply clear. "the dispute relates to a period prior to the amendment of the definition of the term "wages" under S. 2 (22) of the Act by Act No. 44/66. There is no dispute that the amount paid towards the authorized leave as aforesaid was not included in the definition of the term "wages" at it then stood.
"the dispute relates to a period prior to the amendment of the definition of the term "wages" under S. 2 (22) of the Act by Act No. 44/66. There is no dispute that the amount paid towards the authorized leave as aforesaid was not included in the definition of the term "wages" at it then stood. "when the Parliament has brought in the fold of the term "wages" even the amount payable for authorized leave or lock-out, it is unimaginable to exclude the amount paid for the holidays and the festival days from the purview of wages. The theory that wages shall mean only that whatever may have been the reasoning adopted by the Bombay high Court and the Supreme Court in Model mills case (1 supra), the same does not hold good with reference to the amended provisions. ( 9 ) RELIANCE is placed upon a Full Bench judgment of the Kerala High Court in employees State Insurance Corpn. v. Malabar Cashewnut and Allied Products. The Kerala High Court held that the definition of "wages" takes in its fold four kinds of payments, viz. , (1) remuneration paid in cash to an employee in terms of the contract, (2) any payment in respect of authorized leave, lock-out, strike etc. , (3) additional remuneration (incentive) paid at intervals not exceeding two months, and (4) amounts not excluded under clauses (a) to (d) of that provision. It took the view that the amount payable for holidays, as discharge of the obligation by the employer under the A. P. Factories and Institutions holidays Act, cannot be treated as "wages" and an employee has an independent right to receive that amount. In arriving at this conclusion, it relied upon the Judgment of the Bombay High Court as well as the supreme Court in Model Mills case (1 supra ). As observed earlier, the Model mills case arose under the provisions before the definition was amended and there does not exist any justification to adopt the same principle for the cases, which arose under the amended Act. From a reading of the judgment of the Bombay High Court in that case, it is not evident that the implication of the amended provisions was considered, obviously because there was no necessity.
From a reading of the judgment of the Bombay High Court in that case, it is not evident that the implication of the amended provisions was considered, obviously because there was no necessity. Further, Schedule I of the Act, which left scope for division of the unit of wage period into various categories, was done away with through the Act No. 44 of 1966. The omission is not without purpose. ( 10 ) FOR the foregoing reasons, this Court is of the view that the orders under appeal cannot be sustained. They are accordingly set aside. Both the Civil Miscellaneous appeals are allowed. Since the omission on the part of the respondent in payment of the contribution was on account of the possibility of different view, being taken, it is directed that the arrears of contribution shall not carry any interest, if they are paid in six monthly instalments, commencing from the first of january 2005. If any part of the amount remains unpaid beyond that period, it shall carry interest at the rate of 9% per annum from the date on which it becomes due. There shall be no order as to costs.