IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD DATE.11-04-2011. PRESENT THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL Nos.1042 & 1043 OF 2006 Between: CIVIL MISCELLANEOUS APPEAL Nos.1042 OF 2006 A.P. Foods, Nacharam, Hyderabad, Rep. by its Managing Director through Authorised Signatory i.e., Deputy Manager (HRD) Devender, S/o. Late Ramaiah, Hindu, Aged about 55 Years, R/o.Hyderabad. --- Appellant/ Petitioner. AND 1. Deputy Director, ESI Corporation, 5-9-23, Hill Fort Road, Hyderabad - 63. 2. Recovery Officer, ESI Corporation, 5-9-23, Hill Fort Road, Hyderabad – 63. --- Respondents/ Respondents. CIVIL MISCELLANEOUS APPEAL Nos.1043 OF 2006 A.P. Foods, Nacharam, Hyderabad, Rep. by its Managing Director through Authorised Signatory i.e., Deputy Manager (HRD) Devender, S/o. Late Ramaiah, Hindu, Aged about 55 Years, R/o.Hyderabad. --- Appellant/ Petitioner. AND 1. Deputy Director, ESI Corporation, 5-9-23, Hill Fort Road, Hyderabad - 63. 2. Recovery Officer, ESI Corporation, 5-9-23, Hill Fort Road, Hyderabad – 63. --- Respondents/ Respondents. The Court made the following: HONOURABLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL Nos.1042 & 1043 OF 2006 COMMON JUDGMENT: These Appeals are filed under Section 82 of the Employees State Insurance Act, 1948 (for short, ‘the ESI Act’) assailing common order dated 02-09-2006 passed in E.I.C. No.42 and 43 of 2003 filed under section 75 (1) (g) of the E.S.I. Act, on the file of the Employees Insurance Court and Chairman, Industrial Tribunal-I, Hyderabad, dismissing the plea of the petitioner to declare “The reimbursement of conveyance allowance paid to the employees of the petitioner does not come under the definition of ‘wages’ under Section 2 (22) of the ESI Act and consequently the E.S.I. Act is not applicable so far as the conveyance allowance is concerned” and further to set aside the corresponding orders dated 05-09-2003 in CP-2 for the period from April 2002 to April 2003 and dated 23-07-2003 in CP-2 for the period from April, 2002 to August, 2002 issued by the respondent respectively. 2. Whereas the appellant is the petitioner and the respondents are the respondents in the said cases accordingly, they will be referred to before this Court. 3. The respondents contested the matter. The relevant facts of the case are clearly noted in the orders passed by the Tribunal and there is no need to reiterate the same. 4. The Tribunal dismissed the applications on the ground that by virtue of the decisions reported in Regional Director, ESI Corporation Vs. IT Solutions (India) Pvt. Limited[1] and Rajashree Cement and Others Vs. deputy Director (I), Bangalore and others[2] rendered following the decisions of the Supreme Court in Wellman (India) Pvt. Ltd. Vs. Employees’ State Insurance Corporation[3] and Modella Woolens Ltd. Vs. Employees’ State Insurance Corporation and another[4] the travelling allowance would come within the purview of Section 2 (22) of the ESI Act which defines what is meant by ‘wages’ and held that the appellant should pay necessary contributions for its employees to the Respondents. Hence, aggrieved by the same, the present Appeals have been preferred. 5. Therefore it is to be mainly examined as to : Whether the travelling allowance forms part of wages as defined under Section 2 (22) of the ESI Act and correspondingly the appellant should pay necessary contributions to the respondents with regards to its employees concerned with? 6. Point : Section 2(22) of the E.S.I Act contemplates : “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 traveling allowance or the value of any traveling 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; 7. In Wellman (India) Pvt. Ltd. Vs Employees’ State Insurance Corporation reported in AIR 1994 SC 1037, the Supreme Court considered as to whether bonus payable to the employees of the appellants therein under terms of settlement reached in conciliation under Section 12(3) of the Industrial Disputes Act, 1947 would form part of their wages within the meaning of Section 2(22) of the Act and observed “The expression “other additional remuneration, if any, paid……” in the second part of definition of wages given in S.2(22) implies that the said remuneration is not payable under any contract of employment, express or implied. This is so because while the first part of the definition refers to remuneration under the contract of employment, the second part does not refer to remuneration under any such contract. Secondly, the definition is inclusive and includes only such payments outside the contract as are mentioned in its second part and none other. Thirdly, the expression “if any, paid” after the words “other additional remuneration” will be inconsistent if the remuneration is payable under the contract of employment since such payment is not dependent on the will of the employer but on the fulfillment of the terms of the contract. Lastly, the second part of the definition includes only such contractual payments as are specifically mentioned therein. Hence the expression “other additional remuneration, if any, paid” not only does not refer to remuneration payable under any contract but refers to such remuneration which is payable at the will of the employer. Every remuneration that is payable under the contract would, therefore, fall under the first part of the definition.” I n Modella Woollens Ltd. Vs Employees’ State Insurance Corporation and another also similar view was taken with reference to the question of bonus forming part of wages. 8. I n Regional Director, ESI Corporation vs. IT Solutions (India) Pvt. Limited, the Karnataka High Court held : A careful reading of Section 2 (22) of the Act would show that all remuneration paid or payable in cash to an employee in terms of the contract of employment whether it is express or implied are wages within the meaning of the said expression . That payments made by the management under a settlement with the employees would constitute payments made under the contract of employment is fairly well settled by the decisions of the supreme court in Wellman (india) Pvt. Ltd., v. Employees State Insurance Corporation AIR 1994 sc 1037: 1994 (1) SCC 219: 1194-i-LLJ-545, and Modella Woollens Ltd. V. Employees’ State insurance corporation and another 1994 (suppl) (3) SCC 580: 2001-iii-llj (suppl)-1427. To the same effect is the decision of this court in Escorts Limited and another v. Regional Director, ESI corporation m.f.a No.5626/1998 cav 1339/1999 dated December 17,2003. If that be so, as it indeed is the payment of conveyance allowance made in terms of the contract of employment or the settlement would be a wage under Section 2(22) of the act especially when such payment is made to all the employees and regardless whether they are using any conveyance and if they are the type of conveyance which they are using. The corporation has in our opinion rightly came to the conclusion after review of the facts and a proper appreciation of the pronouncements of the supreme court and those of this court that conveyance allowance is different from travelling allowance or travelling concession referred to in clause (b) of Section 2(22) of the act. Travelling allowance referred to in clause (b) is a payment meant to defray specific expenses incurred by the employees by reason of the nature of employment and May include any allowance paid or reimbursed to any employee for specific duty related journey. It May also include reimbursement of actual cost of journey subject to proof of actual expenditure. Payment of conveyance allowance on a uniform basis regardless whether the employee concerned has or has not incurred any expenditure on his journey to a place of his work is not however synonymous to travelling allowances as is envisaged under clause (b) of Section 2(22). 9. In the other decision rendered by the Karnataka High Court similar view was taken with reference to conveyance allowance. 10. Significantly the Karnataka High Court making a distinction between conveyance allowance and travelling allowance found that they are not synonymous to each other while bringing conveyance allowance with in the ambit of the definition of Wages as envisaged in Section 2 (22) of the Act. It infers the assessment of Karnataka High Court that travelling allowance excluded from the definition of wages should not be taken as part of wages irrespective of whether it was paid under certain terms of settlement between the management and its employees. In any case, I am in disagreement with the distinction so made that conveyance allowance is not synonymous to traveling allowance because, both travelling allowance and conveyance allowance are with reference to mode of transportation only. 11. In Management of Oriental Hotels, Lt v Employees’ State Insurance Corporation 2002 1 LLJ 14 (Mad DB) – a question arose as to whether conveyance allowance payable to employees under similar circumstances would form part of wages within the meaning of Section 2(22) of the act and it is rightly held therein. “In so far as the conveyance allowance is concerned, even though it forms part of the wages being the amount payable in terms of the contract of employment, having regard to the settlement and even de hors the settlement, the payment of the amount would fall within the ambit of ‘additional remuneration’. Nevertheless, that amount will have to be excluded having regard to the specific exclusion provided in the definition itself for travelling allowance or the value of any travelling concession. The conveyance allowance paid is in the nature of travelling allowance as the objection of that payment is to enable the employee to reach his place of work and to defray a part of the cost incurred on the travel from his place of residence to the place of work. If instead of paying the conveyance allowance, the employer had provided free transport to the employees, the monetary value of that benefit of free travel from his residence to the place of work would not have been capable of being regarded as forming part of the wages. The conveyance allowance paid in cash for the purpose of being utilized on the travel from place of residence to the place of work, is of the same character and there is no reason why it should not be regarded as travelling allowance for the purpose of Section 2(22)(b) of the Employees’ State Insurance Act”. 12. Further the inclusion of bonus paid to such employees within the definition of wages by the Supreme Court of India is also quite different from bringing travelling allowance within its ambit whether it was made under any terms of settlement or not. Had the Supreme Court considered the question of including travelling allowance within the definition of wages paid to the employees under certain terms of settlement and answered it affirmatively then a different interpretation is possible. Further when the statute without any ambiguity and without any restrictions or limitations excludes travelling allowance from the definition of wages in other words, when the exclusion of it is complete any attempt to draw different inference is not permissible. 13. For the foregoing reasons the Observations made by the Karnataka High Court are not applicable here. Therefore, the conveyance allowance payable to the employees of the appellant should be excluded from the purview of “wages” as defined under Section 2 (22) of the E.S.I Act. The Tribunal failed to appreciate the matters properly and arrived at incorrect conclusions and therefore its orders are liable to be set aside. In the result, the orders passed by the Tribunal are set aside and both the Civil Miscellaneous Appeal are allowed as prayed for declaring that the corresponding notices invalid, with cots. __________________________ G. KRISHNA MOHAN REDDY, J Date.11-04-2011. Dsh. [1] 2002 III LLJ Page 757. [2] 2004 III LLJ Page 1039. [3] AIR 1994 1037. [4] 2001 III LLJ (Suppl) 1427.