Madras High Court
The Regional Director Employees vs The Pondicherry Cooperative on 9 March, 2021
C.M.A.No.717 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.717 of 2019
1.The Regional Director Employees
State Insurance Corporation,
Puducherry.
2.The Recovery Officer,
ESI Corporation,
Puducherry. ..Appellant
Vs.
1.The Pondicherry Cooperative
Whole sales stores Ltd., P-44
rep.by its Managing Director,
M.Jothiraj.
2.The Managing Director,
Pondicherry Cooperative
whole sales stores Ltd P-44. ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 82 of ESI Act,
praying to set aside the order and judgment passed by the Industrial
Tribunal cum Labour in ESIOP No. 1 of 2016 dated 18.01.2018 in
proceedings No.55.00.13089.000.1002/45-A/492/ dated 10.06.2016 and
allow the appeal.
For Appellant : M/s.S.Jayakumari
1/6
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C.M.A.No.717 of 2019
For Respondent : Mr.T.Arivoli
for Nr.M.Nirmal Kumar for R1
No appearnace for R2
JUDGMENT
The order dated 18.01.2018 passed in E.S.I.O.P.No.1 of 2016 is
under challenge in the present Civil Miscellaneous Appeal.
2. The substantial questions of law raised in the present appeal
reads as under:
“1. Whether the Labour Court commit grave error in
law by allowing the appeal by following the Judgment in a
reported in 1990 (11) LLJ page 195 ESI Corporation vs.
George Tools India Limited – liberal exclusion of clause
has to be taken as wages – where as meals allowances paid
to the employees is one that fall under clause (c) of Sec.2
(22) of ESI Act?
2.Whether the Lower Court commit grave error in
law following the Judgment ESI Corporation vs. George
Tools India Limited – whereas it was held that the
employer is exempted to pay the contributions under
Section 2 (22) (c) of Act?”
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C.M.A.No.717 of 2019
3. The learned counsel for the appellant mainly contented that the
meals expenses of the employees are also to be assessed for the purpose
of calculating the contribution to be paid.
4. The learned counsel for the appellant relied on the definition of
wages defined under Section 2 (22) of the ESI Act. Relying on the said
provision made a submission that the meals expenses are to be included
for the purpose of assessment.
5. However, the respondents denied the same by stating that if at
all any remuneration is paid in cash, then alone it can be considered
within the meaning of wages. However, the ESI Court itself made a
finding that there is some infirmity in respect of calculating meals
expenses as wages while passing the order under Section 45-A in
determining the contribution by treating the meals expenses incurred by
the petitioner establishment as wages and as such, the determination of
contribution passed by the first respondent under section 45-A is not
sustainable and hence the application filed by the petitioner
establishment has to be allowed partly in respect of the contribution
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C.M.A.No.717 of 2019
determined on meals expenses. However the respondent corporation is
entitle to reassess the contribution to be paid by the petitioner
establishment over the other wages including the incentive and to collect
the same from the petitioner establishment under the due process.
6. Accordingly, the order dated 10.06.2015 was set aside and the
appellant Corporation was directed to re-assess the ESI contribution to
be paid by the respondent corporation. When the ESI Court itself arrived
a conclusion that over meals expenses as wages and consequential
recovery proceedings commenced by the respondent corporation is as
null and void and the directed the authorities to re-assess the ESI
contribution, there is no reason that the corporation to prefer the present
appeal before this Court. There is no other valid reason under Section 82
of the Act.
7. This apart, the appellant has not raised any acceptable
substantial questions of law and, therefore, it requires further
adjudication. The assessment to be made towards meals expenses. The
authorities are bound to consider the issues under Section 2 (22) of the
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C.M.A.No.717 of 2019
ESI Act and accordingly, pass appropriate order as directed by the ESI
Court in its order dated 18.01.2018.
8. In this view of the matter, the order dated 18.01.2018 passed in
E.S.I.O.P.No.01 of 2016 stands confirmed and C.M.A.No.717 of 2019
stands dismissed. No costs.
09.03.2021
Pns
Index: Yes/No
Internet:Yes/No
Speaking order/Non speaking order
To
The Industrial Tribunal cum Labour Court.
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C.M.A.No.717 of 2019
S.M.SUBRAMANIAM, J.
Pns
C.M.A.No.717 of 2019
09.03.2021
https://www.mhc.tn.gov.in/judis/
