Orissa High Court
Regional Director, E.S.I.C. vs Indian Paints And Chemicals Pvt. Ltd. ... on 28 October, 1999
Equivalent citations: [2000(85)FLR275], (2000)ILLJ770ORI, 1999(II)OLR635
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. The Regional Director, Employees' State Insurance Corporation, has filed this appeal under Section 82(2) of the Employees' Stale Insurance Act (in short, the "E.S.I Act"), against the decision of the District Judge-cum-E.S.I. Court, Cuttack in E.S.I. Misc. Case No. 2/92. The aforesaid case had been initiated on the basis of the application of present respondent No. 1 under Section 75(1)(c) of the E.S.I. Act. One of the questions raised was as to whether payments made to the workers for doing work overtime can be considered to be "wages" as per the definition contained in Section 2(22) of the E.S.I. Act. Issue No. 5 related to the aforesaid question. Relying upon the decision of the Orissa High Court reported in Regional Director, E.S.I., Corporation v. P. B. Gupta (1994-II-LLJ-19) it was held that the allowance paid towards overtime work cannot be considered to be "wages". On the basis of aforesaid finding, it was directed that the Corporation cannot recover a sum of Rs. 1,350/-as contribution for the period of 5/ 89 to 3/90 and consequently, the notice issued by the Corporation was quashed. Against the aforesaid portion of the order the present appeal has been filed.
2. Though-the conclusion is supported by the decision of this Court, such conclusion cannot be affirmed in view of the subsequent decision of the Supreme Court on the point. In the decision reported in Indian Drugs and Pharmaceuticals Ltd., etc. v. Employees' State Insurance Corporation etc. (1997-II-LLJ-700) (SC), it has been specifically held by the Supreme Court that payment made towards overtime work can also be considered to be coming within the term "wanes" as defined in Section 2(22) of the E.S.I. Act. While arriving at this conclusion, though the Supreme Court has not specifically referred to the decision of the Orissa High Court, it has overruled other decisions of other High Courts taking similar view. In view of the aforesaid decision of the Supreme Court, it must be taken that the decision of Orissa High Court reported in (1994-II-LLJ-19)(supra) has been impliedly overruled and cannot be said to be good law. For the aforesaid reason, the appeal of the Corporation is allowed and respondent No. 1 is required to comply with the notice relating to payment of contribution for the period of 5/89 to 3/90. Such amount may be paid within a period of one month from today failing which it would be open to the appellant to proceed with the Certificate case already instituted in accordance with law. There would be no order as to costs.