ORDER
Jawahar Lal Gupta, J.
1. M/s Ralson (India) Limited, Ludhiana, is an Establishment covered under the provisions of the Employees' State Insurance Act, 1948. There was default in payment of contribution in respect of the remuneration paid to the workmen regarding building repair and production incentive. A notice calling upon the appellants to make the payment as also to show cause as to why the damages be not imposed was issued. The contribution was made. After consideration of the matter, the Regional Director of the Employees' State Insurance Corporation passed an order under Section 85B on September 11, 1987. Damages amounting to Rs. 44,801/- were imposed. The appellants challenged the order before the Insurance Court. On the pleadings of the parties, the following issues were framed :-
i) Whether the order dated September 11, 1987 regarding claim of damages of Rs. 44,801/- is illegal, arbitrary, without jurisdiction and is liable to be set aside on the grounds mentioned in the application
ii) Whether the petition is bad for misjoinder of parties
iii) Relief.
2. After consideration of the matter, the Court found that the Establishment had committed default and that the order passed by the Corporation was legal and valid. Thus, the application was dismissed. These findings : having been confirmed by the learned Single Judge in the first appeal FAO No. 1372 of 1991, the Establishment has filed the present Letters Patent Appeal.
3. Mr. V. G. Dogra, counsel for the appellants contended that according to the decision of Their Lordships of the Supreme Court in M/s. Braithwaite and Co. (India) Ltd. v. The Employees' State Insurance Corporation (1968-I-LLJ-550)(SC) the amount paid to the' employee on account of production incentive etc. did not fall within the mischief of 'wages' as defined under Section 2(22) of the Employees' State Insurance Act, 1948. However, in M/s. Harihar Polyfibres v. The Regional Director ESI Corporation, (1984-II-LLJ-475)(SC) the Court had taken a different view. The appellants had not made the payment only on account of the fact that it was not due in view of the decision in M/s. Braithwaite and Co.'s case (supra). Thereafter, on receipt of the notice, the payment had been made. The appellants had good reason for not making the payment and since there was change in the judicial opinion, the action of the respondent-Corporation in imposing damages was not fair. The claim made on behalf of the appellants has been controverted by Mr. B. S. Bhatia who has appeared on behalf of the respondent.
4. Indisputedly, the employer has to make contribution in respect of the wages paid to an employee. While doing so, not only the remuneration which is payable to the employee in accordance with the terms of the contract of employment has to be kept in view but even the 'additional remuneration' has to be taken into account. The requirement of considering the additional remuneration as a part of the wages existed even prior to the amendment of the provision by Act No. 44 of 1996. Consequently, in view of the provisions of Section 2(22) the appellants were liable to make contribution in respect of the remuneration paid on account of building repair and production incentive. This was admittedly not done. Thus, the plea that the appellants had doubts on account of the judicial interpretation of the provision is wholly fallacious. The appellants having tailed to make the contribution, the authority had given them a notice indicating that the defaults had commenced on February 25, 1976 and had continued till January 1986. During this interregnum, substantial amount of money-more than Rs. 1,75,000/- had fallen due in respect of different periods of time. There was delay ranging from 21 days to more than two years. After examination of the situation, the authority had taken the view that the payment of Rs. 44,801/- as damages would be just and fair. This view has been affirmed by the Insurance Court as well as the learned Single Judge. We are not persuaded to hold that there was an error of law which may call for correction in this appeal.
5. Resultantly, we find no ground to interfere. The appeal is, accordingly dismissed. However, the parties are left to bear their own costs.