UMESH PRASAD CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the parties. Employee and the Management of Sahara India has filed these two writ petitions challenging the judgment dated 29.11.2011 passed in B.S.E. Appeal Nos. 3, 4/2010 (Annexures-4, 8 respectively), whereunder appeal filed by them against order dated 12.3.2010 in B.S.E. Case No. 4/2004 (Annexures-3, 6 respectively) by the Deputy Labour Commissioner-cum-Appointed Authority under the Bihar Shops & Establishments Act (hereinafter referred to as the "Act") has been rejected. Earlier Shop Establishment Case No. 4/2004 was filed by the employee praying, inter alia, to direct the Management of Sahara India to pay the arrears of salary, Travelling Allowance and the prize money payable to the employee under different contest award, incentive schemes. In reply to the aforesaid petition Management of Sahara India filed petition Annexure-3 in C.W.J.C. No. 3568 of 2012 stating that request for payment of T.A. Bill and prize money payable under contest award and different incentive schemes are not part of the wages as defined under Section 2(VI) of the Payment of Wages Act, 1936 as such not payable and prayer made in this regard is fit to be rejected. It was submitted by the Management of Sahara India before the Deputy Labour Commissioner that the definition of term wages in the Payment of Wages Act may be wide but shall not include the Travelling Allowance as also the prize money payable to the employee under different incentive schemes for the reason that payment due under Travelling Allowance and incentive scheme is not part of terms of employment, expressed or implied. It is submitted with reference to Annexure-3 that unless payment of Travelling Allowance and incentive money is part of the terms of employment that cannot be paid to the employee and prayer for giving such direction is misconceived. The Deputy Labour Commissioner-cum-Appointed Authority having perused the pleadings made by the parties and the evidence led both oral and documentary passed order dated 12.3.2010 directing the Management of Sahara India to pay the arrears of wages for the months of March, 1996-June, 1996 amounting to Rs. 18,325/- with five times penalty amounting to Rs. 91,625/-, total amount Rs. 1,09,950/-. The Deputy Labour Commissioner, however, refused the request of the petitioner for payment of Travelling Allowance and the amount payable to the employee under different incentive schemes holding that Travelling Allowance and the amount payable under the different incentive scheme is not part of wage as defined under the Payment of Wages Act.

(2.) Management of Sahara India challenged the order passed by the Deputy Labour Commissioner vide B.S.E. Appeal No. 3/2010 assailing the findings with regard to payment of wages for the months of March, 1996-June, 1996 with five times penalty. The employee challenged the Award in B.S.E. Appeal No. 4/2010 on the ground that Deputy Labour Commissioner erred in law in not including the amount payable to the employee under Travelling Allowance and different incentive schemes as according to the employee the definition of the term wages under the Payment of Wages Act include all remuneration payable to the employee by way of salary, allowance, or otherwise. It is submitted that Travelling Allowance would have become part of the wages by virtue of the inclusion of word 'allowance' as part of wages. As regards the payment of amount under different incentive schemes, it is submitted that the word 'otherwise' included in the definition of the term wages would take within its sweep amount payable to the employee under different schemes for the reason that the definition of the term wages provides for inclusion of all money payable to the employee as terms of employment expressed or implied. It is submitted that no sooner the incentive schemes for procuring investment was notified and the employee began to work in terms of the incentive scheme for procuring deposit for the company the scheme became part of the terms of employment. The Appellate Court i.e. Presiding Officer, Industrial Tribunal, Patna having referred to the definition of wages in Paragraph 12 of the judgment concluded in Paragraph 13 that prize money and bonus are not part of wages as the amount due thereunder are not payable in terms of employment. Having held as above in Paragraph 14, the learned Presiding Officer rejected both the appeals arising out of the order dated 12.3.2010 passed by the Deputy Labour Commissioner-cum-Appointed Authority under the B.S.E. Act.

(3.) By filing these two writ petitions the employee and the Management have challenged the judgment passed by the Presiding Officer, Industrial Tribunal, Patna on the selfsame ground i.e. according to the employee Travelling Allowance, Bonus and the amount due under different incentive schemes are part of the wages but according to the Management, employee is not even entitled for arrears of salary for the period March, 1996-June, 1996 with five times penalty. The challenge of the Management that arrears of wages for the months of March, 1996-June, 1996 is not payable to the employee with five times penalty is absolutely misconceived. Management having deprived the employee of his salary for the months of March, 1996-June, 1996 for which Shops and Establishment Case had to be registered in the year 2004 thereby the Management retained the salary of the employee for the said period i.e. for more than 8 years, in the circumstances, Deputy Labour Commissioner-cum-Appointed Authority rightly directed the court below for payment of the arrears of wages for the months of March, 1996-June, 1996 with five times penalty and the said finding was also not interfered by the Appellate Authority. This Court is also not inclined to interfere with the said finding. The other finding recorded by the authorities below that the Travelling Allowance, bonus and the amount due to the employee under different incentive schemes is not part of the wages as the amount payable thereunder is not included in the expressed or implied terms of employment is wholly restrictive interpretation of the term 'wages' as defined in subsection (vi) of Section 2 of the Payment of Wages Act which, inter alia, provide that wages means all remuneration (whether by way of salary, allowances, or otherwise) expressed in terms of money. No sooner the Travelling Allowance, incentive schemes and other amount was notified by the Management, it became part of the terms of employment and payable to the employee in view of the definition of the term wage in the Payment of Wages Act. The view taken by the authorities is too restrictive an interpretation of the term wages as defined in the Payment of Wages Act. Reliance in this connection may be placed over the judgment of this Court in the case of The Tata Iron and Steel Company Ltd. vs. Union of India and Others, 1995 2 PLJR 451.