T.V. Ramakrishnan, J.
1. The question arising for consideration in this original petition is whether under the provisions of the Kerala Toddy Workers' Welfare Fund Act, 1969 (for short 'the Act'), an employer is liable to pay contribution on twice the wages payable to an employee who actually works on a day which he is entitled to treat as a holiday with wages?
2. The petitioner was the contractor of Toddy Shop No. 12 in the Quilon Range at Pullikkada in Quilon, during the year 1983-84. Under the Act, every employer is liable to pay contribution to the Toddy Workers' Welfare Fund constituted under Section 3 of the Act at the rate fixed as per Section 4 on the amount of 'wages' payable to the employees engaged by him in the manner provided in the Act. The Toddy Welfare Fund Inspector is to determine the quantum of contribution payable following the procedure prescribed in Section 8 of the Act. As per the final order of assessment passed, the petitioner's liability for contribution for the assessment year 1983-84, was fixed at Rs. 44, 919. Out of the amount so fixed, the petitioner has already paid an amount of Rs. 41, 520. The petitioner is disputing his liability to pay the balance amount of Rs. 3,399. Accordingly he preferred an appeal before the first respondent under Section 8(5) of the Act. The appeal so filed was dismissed by the first respondent as per Exhibit P-1 order, dated November 26, 1985. Challenging the validity of the final assessment order and Exhibit P-1 order passed in the appeal, the petitioner preferred O.P. No. 11004 of 1985. This Court, as per Exhibit P-2 judgment, allowed the original petition by quashing Exhibit P-1 order and directing the first respondent to take back the appeal to file and dispose of the same after giving the petitioner an opportunity of being card. On the basis of the direction contained in Exhibit P-2 judgment, the first respondent again considered the appeal and has passed Exhibit P-7 order dismissing the appeal once again and confirming the final assessment order passed by the second respondent. In Exhibit P-7 order, the first respondent has accepted the contention raised on behalf of a section of his employees, that if an employee works on a day which is a holiday with wages for him, he is entitled to 'double wages' and that the employer is bound to pay contribution for the total amount so payable to the employees. It is seen that such a contention was raised only by a section of employees while all others have accepted the stand of the petitioner.
3. Learned counsel for the petitioner has contended that the wages which an employee earns by actually working on a day which is a holiday with wages for him, can be treated only as overtime allowance or something paid as compensation for the work done on a day which is a holiday with wages for him. The wages earned on a holiday is not one earned while on duty. Only wages earned while on duty can be taken into account for calculating the contribution amount payable under the Act Such is the effect of the provisions in Sections 2(j) and 8 is the submission of counsel for the petitioner. If the amount payable to an employee who works on a day which he is entitled to treat as a holiday with wages is treated as wages, the employee will be able to earn wages in a year for 356 + 59 days, since 59 days in a year are allowed to be treated as holidays with wages for employees governed by the Act. Overtime allowance or allowance payable to an employee who actually works on a day which he is entitled to treat as a holiday with wages cannot be treated as wages as defined in Section 2(j) of the Act. Contributions under Section 4 of the Act is payable only on wages as defined in the Act. As such, the balance amount of contribution, namely, Rs. 3,399 calculated on the amount of wages paid to employees who have actually worked on a day which they are entitled to treat as a holiday with wages, cannot be treated as the liability of the petitioner.
4. Second respondent has filed a counter-affidavit justifying the assessment order and the order passed in appeal by the first respondent and has contended that remuneration or wages payable to an employee for the work done by him on a day which he is entitled to treat as a holiday with wages can only be treated as wages earned by him while on duty. Such wages earned by an employee by working on a day which he is entitled to treat as a holiday with wages is also wages as defined in Section 2(j) of the Act. While working on a holiday with wages, he is undoubtedly on duty and earns his wages while on duty. The only payments to the employees excluded from the purview of the definition of the word 'wages' under the Act are : (i) the cash value of any food concession; and fin overtime allowance, bonus and commission. The amount paid or payable for a day's work an employee does on a holiday with wages as far as he is concerned, cannot be treated as any one of the excluded categories of payment As such the orders passed by respondents Nos. 1 and 2 are valid and binding.
5. Section 2(j) which defines the word 'wages' is as under:
'2(j) 'Wages' means all emoluments which are earned by an employee while on duty or on leave with wages in accordance with the terms of the contract of employment and which are paid or payable in cash to him, but does not include,-
(i) the cash value of any food concession;
(ii) overtime allowance, bonus and commission.'
Even though the day on which an employee actually works is a holiday with wages as far as he is concerned, it may not be possible to treat, him otherwise than on duty. He is not actually availing a holiday with wages. As a matter of fact, the toddy workers are forced to work and be on duty even on holidays with wages because of the peculiarity of the activity in which they are engaged. When tapping of a tree begins every day the tree has to be tapped and toddy collected continuously on all days for a particular period. If not regular employees other substitute hands may have to be engaged to work on holidays with wages availed by regular employees. If that be so, the amount which the employer is liable to pay to the employee for the actual work he does on a holiday with wages, is nothing but emoluments which he earns while on duty. Of course, being a day which he is entitled to treat as a holiday with wages, the employee will also be entitled to get the wages treating the day as a holiday. Thus for the 59 holidays with wages in a year an employee will be entitled to get double wages if he Works on all those 59 holidays. There is no contention for the petitioner that if an employee works on a day which he is entitled to treat as a holiday with wages, he can be denied payment of one wage for which he is entitled treating that day as a holiday with wages. There is also no case for the petitioner that for the work which an employee does on a day which he is entitled to treat as a holiday with wages, the employer is not liable to pay such amount which is equal to the normal wages of the employee over and above the wages he is liable to pay treating the day as a holiday with wages. Simply because the day on which an employee works can be treated as a holiday with wages as far as that particular employee is concerned, that is no reason to say that while doing the work he is not on duty. If an employee attends or discharges his duties even on a day which he is entitled to treat as a holiday with wages he can only be considered as on duty and what is payable to him is also bound to be treated as emoluments earned by him while on duty. If on such days the employee is treated as not on duty, serious other consequences would follow. For example, if an accident occurs and the employee loses his life or gets seriously injured himself, he or his legal heirs may not be entitled to claim any benefits for which he or his legal heirs will otherwise be entitled if he is considered as on duty.
6. Further, as pointed out in the counter-affidavit, it is also difficult to hold that the amount payable to an employee for the work he actually does on a holiday with wages would come under any of the category of payments excluded from the definition of the word 'wages' in Section 2(j) of the Act. Overtime allowance is a well known concept in the industrial law and in any view there is no justification to treat the amount payable to an employee who works on a holiday with wages as overtime allowance, so also it cannot be treated as bonus, commission or cash value of any food concession allowed as per the terms of employment or otherwise. The word 'wages' has been defined to take in all emoluments which are earned by an employee on duty or on leave with wages. The only payments to be excluded are those mentioned in the latter part of the section and nothing else. In this view, I am unable to accept the contention of the petitioner's counsel that the emoluments which an employee earns on a holiday with wages by being on duty and working for a day is overtime allowance and the same should be excluded from reckoning while the wages earned by the employee for the purpose of calculating the contribution payable by the employer under the Act is determined.
7. Earning twice the wages on a day by working on a day recognised or treated as a holiday with wages is not an unusual or uncommon concept in the field of industrial law. Section 5(2) of the Kerala Industrial Establishments (National and Festival Holidays) Act, 1958, specifically recognises or grants me right of an employee who works on a holiday allowed under Section 3 of that Act to get twice the wages. It further gives such an employee a right to avail himself of a substituted holiday on another day. The effect of the above provision is also to add some more days to the actual number of days in a year on which the employee can earn wages and the argument that the claim in this case if accepted would result in treating the number of days in a year as 356 + 59 is also unsustainable.
8. Further, I find no justifiable reason to exclude the emoluments which an employee earns by working on a holiday with wages from the definition of the word 'wages' in the Act, taking note of the object or purpose for which the Act is brought into force. The avowed object of the Act is to constitute a fund to promote the welfare of toddy workers as a whole in the State of Kerala. One of the contributors to the fund is the employer. His contribution as per Section 4 of the Act is on the basis of the wages payable to each of the employees. The employee's contribution shall also be equal to the contribution payable by the employer in respect of such employee. The fund constituted under the Act and the Scheme framed under the Act is one intended to promote the welfare of the toddy workers and as such is undoubtedly a welfare measure for the benefit of the weaker sections of the society. It is by collecting contribution from the employer and employees the fund is constituted. The basis for determining the quantum of contribution is indicated as the 'wages' earned by an employee while on duty or on leave with wages. The word 'wages' has been defined in the Act to include all remuneration earned by an employee while on duty or on leave with wages excluding only the category of payments mentioned in the section itself. Being a welfare legislation intended to collect contributions for the welfare of the toddy workers on the basis of wages earned by them it may not be legal or proper to understand the definition of the word 'wages' in a narrow sense so as to exclude substantial amounts earned by an employee as emoluments for the work he does on a day on the ground that the day on which he has so worked is a holiday with wages as far as he is concerned.
9. In the light of the above discussion, I would hold that the view taken by the assessing authority, as confirmed by the second respondent in Exhibit P-7 order, is perfectly justifiable and legal and there is no reason to quash Exhibit P-7 order. Original petition is accordingly dismissed as without any merit. No order as to costs.