RAJASHREE CEMENT Vs. DEPUTY DIRECTOR I BANGALORE

JUDGEMENT

(1.) A common-question of law arises for consideration in all these cases which were heard together and shall stand disposed of by this common order. The question precisely is whether conveyance allowance paid by the management to its employees is a wage within the meaning of Secrion 2 (22) of the employees' state insurance act so as to entitle the corporation to demand contribution under the said act. The ei courts have taken the view that the payment of allowance is a wage especially when the same is under a settlement arrived at between the employees and the management. Aggrieved by the said view, the corporation had filed m. f. as. No. 2251, 2657, 2655, 132, 3594 and 2240/2001 inter alia contending that the payment of conveyance allowance was not a part of the wage as defined under the act and therefore the management were not entitled to seek exclusion of employees whose wage would go beyond the prescribed limit by clubbing the payment made on account of conveyance allowance with the admitted wages drawn by them. The corporation's worry it appears was that if conveyance allowance was treated to be a part of the wage, a large number of employees who were otherwise covered by the act could go out of its coverage on account of their wage exceeding the prescribed limit. After the matter was argued at considerable length by counsel for the parties and reserved for pronouncement of orders, the corporation appears to have examined the correctness of its stand in the light of the legal position settled by the decisions of the supreme court and the language employed by the parliament in Secrion 2 (22) of the ESI act. It has based on a review of its stand filed as (sic) synopsis in m. f. a. No. 1879/1999 inter alia stating that the corporation has reconsidered the matter in the light of the judgments of the supreme court and those delivered by this court and formulated its stand according to which any remuneration paid or payable to the employees in terms of the contract of employment express or implied or by a settlement entered between the employees and the management falls within the first part of the definition of wages, given in Secrion 2 (22) of the act and consequently fixed conveyance allowance paid to all the employees flowing out of their contracts of employment or settlements entered into between the employees and the management also falls within the first part of the definition of wages. 'travelling allowance' paid to defray specific expenses incurred by the employees by reason of the nature of their employment including travelling allowance paid or reimbursed to any employee for specific duty related journey and reimbursement of actual cost of the journey subject to proof of actual expenditure could constitute a wage within the meaning of Secrion 2 (22) of the act. Also liable to be excluded are payments of certain amounts for vehicle maintenance subject to production of records demonstrating actual maintenance of the same. The corporation has further stated that upon review of the facts and circumstances relevant to the appeals filed by it, it has noticed that the conveyance allowance paid in the same is a fixed amount payable to all the employees. Such payments flow from the contract of employment or the settlements arrived at between the management and the employees. The management are therefore liable to pay contributions on the said amount except in cases where the income upon inclusion of the conveyance allowance in the same crosses the ceiling limit fixed for coverage of risks. The synopsis in the light of the above accepts the ei court's view to be correct and seeks to withdraw the appeals filed by the corporation in terms of separate memos filed in each one of them. In the light of the said specific stand taken by the corporation as also the memos filed by it in each one of the appeals, the appeals filed by the corporation shall have to be dismissed as withdrawn.

(2.) THAT leaves us with m. f. as. No. 1879/1999, 2031/2001 and 3165/2001. In so far as m. f. a. No. 1879/1999 is concerned, the same has been filed by the management of rajashree cement, aditya nagar, gulbarga, against an Orderpassed by the ei court dated Februaary 27, 1999 whereby the said court has held that conveyance allowance paid pursuant to a settlement arrived at between the management on the one hand and the employees on the other is not a wage within the meaning of Secrion 2 (22) of the ESI act. M. f. a. No. 2031/2001 has also been similarly filed by the management of the appellant therein against an Orderpassed by the ei court whereby the said court has also held that conveyance allowance paid to the employees forms part of the wages and that the management is not liable to pay contribution on the salaries of such of the employees as go out of coverage after inclusion of the said allowance. The ei court has in that case declined the claim made by the management relying upon the decision of this Court in Mysore Kirloskar Ltd. , v. Deputy Regional Director, employees' state insurance corporation 1999 (4) fjr 333. The grievance of the appellant in the appeal is however limited to the extent the ei court has declined refund of the amount paid by the management. M. f. a. No. 3165/2001 too arises out of an Ordermade by the ei court in which the said court has allowed the application filed by the appellant-management in part and while setting aside the demand for payment of interest raised by the ESI corporation declined to Orderrefund of the amount already paid.

(3.) THE short question that falls for consideration in the appeals filed by the management therefore is whether the conveyance allowance paid by the management to their employees in terms of the contracts of employment/settlement arrived at with the employees forms a part of the wage within the meaning of Secrion 2 (22) of the act and if so, whether payments made by the management qua employees who would have gone out of the coverage by inclusion of the allowance was liable to be refunded to them. The term wages is defined by Secrion 2|22) of the ESI act as under: