1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:03.08.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL MISCELLANEOUS APPEAL No.708 of 2011 E.S.I. Corporation, Sub-Regional Office, Tirunelveli, Municipal Shopping Complex, Salai Street, Sindhupoonthurai, Tirunelveli – 627 001. represented by its Assistant Director. :Appellant/Respondent -Vs- M/s.Lakshmi Mills Company Limited, Lakshmipuram Post, Kovilpatti, represented through its Regional Vice-President. :Respondent/Petitioner Civil Miscellaneous Appeal has been filed under Section 82 of the Employees State Insurance Act, 1948, against the fair and decretal order dated 04.03.2011 passed in ESI.O.P.No.12 of 2006 by the Labour Court, Tirunelveli. For Appellant :Mr.K.C.Ramalingam For Respondent:Mr.T.Ravichandran JUDGMENT The impugned order dated 04.03.2011 passed in E.S.I.O.P.No.12 of 2006 by the Labour Court, Tirunelveli is being challenged in the present Civil Miscellaneous Appeal. 2.The respondent herein as petitioner has filed a petition under Section 75(a) of the Employees' State Insurance Act, 1948 praying to declare that the order passed in reference No.66-5406-11/45-A/177/06/INS.I/SRO/TLI dated 23.08.2006 is null and void, wherein the present appellant has been shown as respondent. 3.It is stated in the petition that the respondent has passed the impugned order dated 23.08.2006, wherein the petitioner has been directed to pay a sum of Rs.8,578/- as contribution towards leave travel concession and the same is nothing but void and in order to declare the same as void, the petition in question has been filed. 4.The Labour Court, Tirunelveli after considering the available evidence on record has allowed the petition filed in E.S.I.O.P.No.12 of 2006. Against the order passed by the Labour Court, Tirunelveli, the present Civil Miscellaneous Appeal has been preferred at the instance of the respondent as appellant. 5.Before contemplating the rival submissions made on either side, it would be apropos to look into the nature of proceedings initiated by the appellant/respondent and the circumstances under which the petition in question has been filed under Section 75(a) of the Employees' State Insurance Act, 1948. 6.The respondent has passed the order in question under Section 45-A of the Employees' State Insurance Act, 1948, wherein it has been stated that from April, 2003 to March, 2004, the respondent/petitioner has paid leave travel concession to the tune of Rs.1,31,962/- and therefore the respondent/petitioner is liable to pay contribution to the tune of Rs.8,578/-. After receipt of the order passed under Section 45-A of the said Act, the respondent/petitioner has filed the petition in question under Section 75(a) of the said Act so as to declare the same as null and void The Labour Court, Tirunelveli after considering the relevant provisions of law and also after perpending the nature of the impugned order, has allowed E.S.I.O.P.No.12 of 2006. https://hcservices.ecourts.gov.in/hcservices/ 2 7.The only point that comes up for consideration in the present Civil Miscellaneous Appeal is as to whether the amount given by the respondent/petitioner as leave travel concession to the tune of Rs.1,31,962/- would come within the contour of wages and the respondent/ petitioner is liable to pay contribution as mentioned in the order passed under Section 45-A of the said Act? 8.The learned counsel appearing for the appellant/respondent has repeatedly contended that as per Section 2(22) of the Employees' State Insurance Act, 1948, the amount which has been given as leave travel concession would also come within the purview of wages and under the said circumstances, the order in question has been passed under Section 45-A of the said Act, whereby the respondent/petitioner has been directed to pay a sum of Rs.8,578/- by way of contribution, but the Labour Court, Tirunelveli has erroneously found that the claim of the appellant/respondent is null and void and therefore the impugned order passed in E.S.I.O.P.No.12 of 2006 is liable to be set aside. 9.Per contra, the learned counsel appearing for the respondent/petitioner has contended that the amount paid as leave travel concession would not come within the purview of wages and under the said circumstances the respondent/petitioner has challenged the impugned order passed under Section 45-A of the Employees' State Insurance Act, 1948 by way of filing E.S.I.O.P.No.12 of 2006 and the Labour Court, Tirunelveli after considering the correct legal position and also after analysing the circumstances under which the impugned order has been passed under Section 45-A of the said Act has rightly allowed E.S.I.O.P.No.12 of 2006 and therefore the impugned order passed by the Labour Court, Tirunelveli is not liable to be interfered with. 10.For analysing the rival submissions made on either side, the Court has to look into Section 2(22) of the Employees' State Insurance Act, 1948 and the same reads as follows: "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 valid 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 discharge;" 11.Even from a mere reading of the said provision, it is made clear that wages means all remuneration paid or payable in cash to an employee. 12.In the instant case, the bone of contention is the amount paid towards leave travel concession. In the order passed under Section 45-A of the Employees' State Insurance Act, 1948, it is stated that the respondent/ petitioner has paid Rs.1,31,962/- towards leave travel concession. In the petition filed in E.S.I.O.P.No.12 of 2006, it has been clinchingly stated that the amount given towards leave travel concession would not amount to wages. https://hcservices.ecourts.gov.in/hcservices/ 3 13.Considering the fact that as per Section 2(22) of the said Act, wages means all remuneration paid or payable in cash to an employee and also considering that the amount in question is nothing, but leave travel concession, this court is of the view that the same would not come within the purview of wages. Since the same would not come within the purview of wages, the respondent/petitioner is not liable to pay any contribution towards the amount paid as leave travel concession. 14.The learned counsel appearing for the appellant/petitioner has drawn the attention of the Court to the following decisions: (a)In N.G.E.F. Ltd., v. Deputy Regional Director, E.S.I.C., Bangalore reported in 1980 LAB. I.C. 431 (Karnatakan High Court), it is held that if any amount is paid as incentive payment and settled between management and workmen comes within the purview of wages. (b)In E.S.I.C. Hyderabad v. Andhra Pradesh Paper Mills Ltd. and Others reported in 1976 I L.L.J. 469 (Andhra Pradesh High Court), it is held that wages includes incentive bonus paid under agreement and house rent allowance paid under settlement. (c)In Harihar Polyfibres and Regional Director, ESIC reported in 1984 II L.L.J. 475, the Hon'ble Apex Court has held that Night Shift Allowances paid to employees, House Rend Allowances and Incentive Allowances would come within the purview of Section 2(22) of the Employees' State Insurance Act, 1948. 15.In the instant case, the position is otherwise. As pointed out earlier, the impugned order has been passed under Section 45-A of the said Act stating that the respondent/petitioner is liable to pay contribution towards the amount given as leave travel concession. It has already been pointed out that leave travel concession would not come within the purview of Section 2(22) of the said Act and further in the decisions referred to supra, it has not been specifically pointed out that leave travel concession would also come within the purview of Section 2(22) of the said Act and therefore the decisions referred to supra cannot be attuned in the present case. 16.The Labour Court, Tirunelveli after considering the relevant provision of law and also the circumstances under which the proceeding in question has been initiated has rightly allowed E.S.I.O.P.No.12 of 2006. In view of the discussion made earlier, this Court has not found any force in the contention urged on the side of the appellant/respondent and altogether the present Civil Miscellaneous Appeal deserves to be dismissed. 17.In fine, this Civil Miscellaneous Appeal deserves dismissal and accordingly is dismissed without costs and the order passed in E.S.I.O.P.No.12 of 2006 by the Labour Court, Tirunelveli is confirmed. Sd/- Assistant Registrar (Crl.side) / TRUE COPY / Sub Assistant Registrar To:The Presiding Officer, The Labour Court, Tirunelveli. +1CC to Mr.K.C.Ramalingam, Advocate. SR.No.25780. +1CC to Mr.T.Ravichandran, Advocate. SR.No.25753. Smn C.M.A(MD)No.708 of 2011 RP/30.08.2011/3P/4C. 03.08.2011 https://hcservices.ecourts.gov.in/hcservices/