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2004 DIGILAW 457 (MP)

BHARAT COMMERCE AND INDUSTRIES LTD. , BIRLAGRAM NAGDA v. REGIONAL DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION, INDORE

2004-05-11

A.M.SAPRE, ASHOK KUMAR TIWARI

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A. M. SAPRE, J. ( 1 ) THE decision rendered in this appeal shall govern the disposal of other three appeals being m. A. Nos. 388, 489 and 730 of 1997 because all the appeals arise between the same parties and involve identical points. ( 2 ) THIS is an appeal filed by the employer under Section 82 of the Employees' State insurance Act (for short called "act") against an order dated April 10, 1977, passed by presiding Officer of the Labour Court, Ujjain under the provisions of Section 75 of the Act. ( 3 ) IN short and substance, the question raised before the lower Tribunal in Section 75 proceedings was whether overtime amount paid by the employer (appellant herein) is a part of wage as defined under Section 2 (22) of the Act. In other words, the question that arises for consideration in the case is, whether the overtime can be regarded as wage under section 2 (22) of the Act. The Tribunal i. e. Labour Court by impugned order held it to be so and decided this issue against the appellant. In other words, it was held that overtime is a part of wage and is in fact a wage within the meaning of wages as defined under Section 2 (22) ibid. It is this question again which is being debated in this appeal as larger issue. ( 4 ) IN my opinion, this issue now no longer remains res integra and settled by the decision of Supreme Court in the case of Indian Drugs and Pharmaceuticals Limited v. Employees State insurance Corporation 1997 (9) SCC 71 : 1997-II-LLJ-700. It is in this decision, their lordships ruled that overtime paid to employee/workman by his employer is a wage within the meaning of Section 2 (22) of the Act and hence, has to be taken into account while determining the liability of any payment under the Act. In other words, it was held that in order to calculate/determine any benefit and/or liability as the case may be under the Act, the payment made as over-time has to be included and/or treated as a wage within the meaning of section 2 (22) of the Act. In other words, it was held that in order to calculate/determine any benefit and/or liability as the case may be under the Act, the payment made as over-time has to be included and/or treated as a wage within the meaning of section 2 (22) of the Act. ( 5 ) ONCE the issue is settled by the decision of Apex Court, then no more discussion is called for except to follow the law so laid dawn and decide the issue strictly in accordance with the law. ( 6 ) SINCE the view taken by the Labour court is in accord with the view so taken by the supreme Court in the case of Indian Drug (supra), the appeal has no and hence, is liable to be dismissed. It is accordingly, dismissed. All interim orders passed by this Court in this appeal and in Miscellaneous Appeal. No. 388 of 1997, are vacated because these appeals only involve the aforementioned point. ( 7 ) THE next question involved in these appeals is, whether apprentice working with the employer can be held to be an employee within the meaning of Section 2 (9) of the Act and if so, whether any stipend paid to him can be a part of the wage attracting the rigour of the Act. Even this issue no longer remains res integra and decided by the Supreme Court in the case of Employees' State Insurance corporation v. Tata Engineering and locomotive Co. Ltd. AIR 1976 SC 66 : 1975 (2) SCC 835 : J976-I-LLJ-81. It is in this decision, their Lordships ruled that apprentice is not an employee within the meaning of section 2 (9) of the Act and hence, they cannot be equated with that of an employee working in the company (employer) for the purpose of the Act in question. In this view of the matter, the view taken by the learned Presiding Officer of Labour Court cannot be faulted with as the same is based on the view so taken in the case of Tata Engineering (supra ). No interference is hence, called by this Court on this issue. ( 8 ) IN view of this discussion, the appeal m. A. No. 189 and 730 of 1997 are also dismissed. No costs. .