Orissa High Court
Secretary vs Sri Bhaba Sundar Dalai And Others .... ... on 7 September, 2021
Author: B. P. Routray
Bench: B. P. Routray
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.8128 of 2019
Secretary, Berhampur Cooperative .... Petitioner
Central Bank Ltd., At/Po/Town-
Berhampur, Dist-Ganjam
Mr.K.P. Nanda, Advocate
-versus-
Sri Bhaba Sundar Dalai and others .... Opposite Parties
Mr. S.K. Mishra, Advocate for O.P. Nos.1 to 6
CORAM:
THE CHIEF JUSTICE
JUSTICE B. P. ROUTRAY
ORDER
07.09.2021 Order No. I.A. No.6325 of 2020
06. 1. This is an application by the workmen praying that a direction should be issued to the Petitioner-Management to pay the workmen the arrears of wages in terms of Section 17-B of the Industrial Disputes Act, 1947 (ID Act) at the rate of prevalent minimum rate of wages notified by the State Government for skilled workers with applicable variable dearness allowance from time to time.
2. It is pointed out para 6 of the present application that since the date of their termination of services i.e. 5th August, 2014, the workmen are not gainfully employed in any establishment and the time of their termination of services and their last drawn wages in terms of commission @2.5% on the amount collected were Rs.10,940/-, Rs.19,319/-, Rs.22,351/-, Rs.8,667/-, Rs.34,072/- and Rs.3,216/- respectively from different Branches of Petitioner Bank for collecting Rs.4,37,580/-, Rs.7,72,740/-, Rs.8,94,050/-, Page 1 of 4 Rs.3,46,670/-, Rs.13,62,900/- and Rs.1,28,654/- respectively from the customers.
3. Pursuant to the notice issued, a reply has been filed by the Petitioner-Management in which it is contended that although the deposit collectors of the Bank are indeed workmen within the meaning of the ID Act, their work is different from that of regular employees and therefore, they were never paid „wages‟ as understood in common parlance. It is sought to be contended that the commission at the rate of 2.5% on the deposit may not be considered to be „wages‟ either on daily basis or on monthly basis. It is further contended that the Supreme Court of India in Indian Banks Association v. Workmen of Syndicate Bank and Others AIR 2001 SC 946 did not hold that work performed by the daily deposit agents was to be treated at par with skilled work.
4. This Court has heard the submissions of Mr.K.P. Nanda, learned counsel appearing for the Petitioner-Management and Mr.S.K. Mishra, learned counsel appearing for the workmen.
5. Section 2 (rr) of the ID Act defines wages to be as under:
"(rr) "wages" means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment, and includes--
(i) such allowances (including dearness allowance) as the workman is for the time being entitled to;
(ii) the value of any house accommodation, or of supply of light, water, medical attendance or other Page 2 of 4 amenity or of any service or of any concessional supply of food-grains or other articles;
(iii) any travelling concession;
[(iv) any commission payable on the promotion of sales or business or both;] but does not include--
(a)any bonus;
(b) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force;
(c)any gratuity payable on the termination of his service;]"
6. It is, therefore, clear from Section 2(rr)(iv) that any commission payable for the collection of deposits would fall within the definition of „wages‟ under the ID Act. To the same effect in Indian Banks Association (supra), the Supreme Court agreed with the finding of the Tribunal in that case that deposit collectors of the Bank were workmen within the meaning of the ID Act and that the commission received by such deposit collectors is, in terms of Section 2(rr) of the ID Act "nothing else but wages, which is dependent on productivity." In view of the settled position, this Court is unable to agree with the submission of learned counsel for the Management that the commission paid to the workmen in the present case is not „wages‟.
7. Mr. Mishra, learned counsel for the workmen has drawn the attention of this Court to the decisions of the Supreme Court in Dena Bank (I) v. Kirti Kamar T. Patel 1998 (78) FLR 45 (SC) and Dena Bank (II) v. Ghanshyam JT 2001 (Supp-I) SC 229 Page 3 of 4 which have been followed by the Delhi High Court in Phool Singh v. Delhi Transport Corporation 2009 (120) FLR 727 to urge that the last wages drawn or minimum wages whichever is higher would be payable under Section 17-B of ID Act. Once it is not disputed that the commission paid to the workmen in the present case is wages as defined under Section 2(rr) of the ID Act, then the last wages drawn or the minimum wages whichever is higher would be payable under Section 17-B of ID Act.
8. In the absence of any specific finding by the Tribunal in this case that the workmen should be considered to be „skilled‟, this Court directs that the minimum wages payable to an unskilled worker as long as it is higher than the commission paid to them will be paid to the workmen in the present case from 26 th September, 2018 till date and till disposal of the present writ petition. The arrears will be paid within eight weeks.
9. The application is disposed of in the above terms.
W.P.(C) No.8128 of 201910. List for compliance of the above directions and final hearing of the writ petition on 13th December, 2021.
11. An urgent certified copy of this order be issued as per rules.
(Dr. S. Muralidhar) Chief Justice (B.P. Routray) Judge B.K. Barik Page 4 of 4