C N SURENDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The question arising for consideration in this Original Petition is whether under the provisions of the Kerala Toddy Workers' Welfare Fund Act, 1969 (for short "the Act") an employer is liable to pay contribution on twice the wages payable to an employee who actually works on a day which he is entitled to treat as a holiday with wages

(2.) Petitioner was the contractor of Toddy Shop No. 12 in the Quilon Range at Pullikkada in Quilon during the year 1983-84. Under the Act every employer is liable to pay contribution to the Toddy Workers'-Welfare Fund constituted under S.3 of the Act at the rate fixed as per S.4 on the amount of 'wages' payable to the employees engaged by him in the manner provided in the Act. Toddy Welfare Fund Inspector is to determine the quantum of contribution payable following the procedure prescribed in S.8 of the Act. As per the final order of assessment passed, the petitioner's liability for Contribution for the assessment year 1983-84, was fixed at Rs. 44,919.00. Out of the amount so fixed, the petitioner has already paid an amount of Rs. 41,520/-. the petitioner is disputing his liability to pay the balance amount of Rs.3,399/-. Accordingly he preferred an appeal before the first respondent under S.8(5) of the Act. The appeal so filed was dismissed by the first respondent as per Ext. P1 order, dated 26-11-1985. Challenging the validity of the final assessment order and Ext. P1 order passed in the appeal, the petitioner preferred O.P. No. 11004 of 1985. This court as per Ext. P2 judgment allowed the O.P. by quashing Ext. PI order and directing the first respondent to take back the appeal to file and dispose of the same after giving the petitioner an opportunity of being heard. On the basis of the direction contained in Ext. P2 judgment, the first respondent again considered the appeal and has passed Ext. P7 order dismissing the appeal once again and confirming the final assessment order passed by the second respondent. In Ext. P7 order, the first respondent has accepted the contention raised on behalf of a section of his employees, that if an employee works on a day which is a holiday with wages for him, he is entitled to 'double wages' and that the employer is bound to pay contribution for the total amount so payable to the employees. It is seen that such a contention was raised only by a Section of employees while all others have accepted the stand of the petitioner.

(3.) Learned counsel for the petitioner has contended that the wages which an employee earns by actually working on a day which is a holiday with wages for him, can be treated only as overtime allowance or something paid as compensation for the work done on a day which is a holiday with wages for him. The wages earned on a holiday is not one earned while on duty. Only wages earned while on duty can be taken into account for calculating the contribution amount payable under the Act. Such is the effect of the provisions in S.2(j) and 8 is the submission of the counsel for the petitioner. If the amount payable to an employee who works on a day which he is entitled to treat as a holiday with wages is treated as wages, the employee will be able to earn wages in a year for 356+59 days, since 59 days in a year are allowed to be treated as holidays with wages for employees governed by the Act. Overtime allowance or allowance payable to an employee who actually works on a day which he is entitled to treat as a holiday with wages cannot be treated as wages as defined in S.2(j) of the Act. Contributions under S.4 of the Act is payable only on wages as defined in the Act. As such the balance amount of contribution, namely, Rs. 3,399/- calculated on the amount of wages paid to employees who have actually worked on a day which they are entitled to treat as a holiday with wages cannot be treated as the liability of the petitioner.