Employees State Insurance Corporation and Ors. Vs. Kesoram Industries Limited and Anr. - Court Judgment

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION ORIGINAL SIDE PRESENT: The Hon’ble Mr. Rakesh Tiwari The Hon’ble Mr. Justice Mir Dara Sheko APO465of 2015 APO466of 2015 GA No.3454 of 2015 GA No.3458 of 2015 With WP1657of 2003 WP1992of 1995 Employees State Insurance Corporation & Ors. Vs. Kesoram Industries Limited & Anr. For the Appellants : Mr. S.C. Moitra, Adv. Ms. K. Bhattacharyya, Adv. Mr. A. Moitra, Adv. For the Respondents : Mr. Siddhartha Mitra, Sr. Adv. Mr. D. Gomes, Adv. Ms. R. Mishra, Adv. Ms. R. S. Mitra, Adv. Heard On :

10. 02.2017,25.01.2017,24.01.2017 Judgment on :

14. h July, 2017. Mir Dara Sheko, J.

:

1. The appeals being A.P.O. 465 of 2015 and A.P.O. 466 of 2015 have been preferred by the appellants Employees State Insurance Corporation (hereinafter called as ESI Corporation) who were respondents in the writ preferred by Kesoram Industries Limited against the Employees’ State Insurance Corporation and two others. The appellants are aggrieved by the composite judgment delivered by the Writ Court on 31st August, 2015 allowing the writ petition No.1992 of 1995 and Writ Petition No.1657 of 2003 prayers of which are quoted respectively:(i) Prayers in W.P. No.1992 of 1995:(a) A Writ of and/or in the nature of Mandamus and/or appropriate direction do issue commanding the respondents nos. 1 to 3 and each of them, their servants, agents and/or assigns to forthwith withdraw, revoke, cancel and/or rescind the impugned direction and/or clarification as contained in the notice dated September 5/6, 1995 being Annexure “K”. hereof and to refrain from taking any steps in terms thereof or pursuant thereto and to act in accordance with law; (b) A Writ of and/or in the nature of Certiorari and/ or appropriate direction do issue calling upon the respondents to certify and send to this Hon’ble Court all records relating to the order dated September 5/6, 1995 being Annexure “K”. hereof so that the same be quashed and conscionable justice rendered; (c) Appropriate orders and/or directions do issue for the production of all relevant records and for the protection of all the rights of the petitioners and for granting the petitioners such further reliefs as in the circumstances shall be just; (d) A Writ of and/or order in the nature of prohibition prohibiting the respondents and each of them, their servants, agents and/or assigns from giving further effect to or from taking any step pursuant to or in furtherance of the directives and/or clarifications contained in the letter dated September 5/6, 1995; (e) Rule Nisi in terms of prayers above. (f) Injunction restraining the respondents and each of them, their men, servants, agents and/or assigns or otherwise howsoever from giving any effect or further effect or acting in terms of or pursuant to the directives and/or clarifications as contained in the notice dated September 5/6, 1995 or from initiating any recovery proceedings under the ESI Act in pursuance of the directives and/or clarifications contained in the notice dated September 5/6, 1995 being Annexure “K”. hereof. (g) Stay of the operation of and further action on the notice dated September 5/6, 1995 till the disposal of the Writ Petition. (h) Ad-interim order in terms of prayers (f) and (g) above. (i) Suitable orders as to costs of and incidental to this application be made. (j) Such further or other order or orders be made and/or direction or directions given as to this Hon’ble Court may seem fit and proper. (ii) Prayers in W.P. No.1657 of 2003 set out:(i) A Writ of or in the nature of mandamus and/or appropriate directions do issue commanding and directing the respondents and each of them their servants, agents and/or assigns to forthwith revoke, rescind and/or cancel the impugned order dated 8th August, 2003 being annexure ‘P-18’ to the petitioner and to refrain from taking any steps in terms thereof or pursuant thereto and to act in accordance with law. (ii) Writ of or in the nature of certiorari and/or appropriate directions do issue calling upon the respondents to certify and transmit to this Hon’ble Court all records culmination in the order dated 8th August, 2003 being annexure ‘P-18’ hereof so that the same may be quashed and conscionable justice rendered. (iii) Appropriate order and/or orders be issued and/or direction be given for the production of all relevant records for the protection of all the rights of the petitioners and for granting the petitioners such further relief as in the circumstances shall be passed. (iv) A Writ of or in the nature of prohibition prohibiting the respondents and each of them, their servants, agents and/or assigns from giving any effect to or taking any further steps pursuant to the purported order dated 8th August, 2003 being annexure ‘P-18’ hereof. (v) Rule Nisi in terms of prayers above. (vi) Injunction restraining the respondents and each of them, their men, servants, agents and/or assigns or otherwise howsoever from giving any effect or further effect or acting in terms of or pursuant to the impugned order dated 8th August, 2003 passed in purported exercise of powers under Section 45-A of the Employees State Insurance Act.

1948. (vii) Stay of operation of and further action on the order dated 8th August, 2003 being Annexure ‘P-18 hereof till the disposal of the writ petition and/or alternatively till the disposal of the restoration application in appeal No.152 of 1996 pending before Their Lordships the Hon’ble Justice Mr. P.N. Sinha. (viii) Ad interim order in terms of prayers (vii) and (vii). (ix) Suitable orders as to the cost be made. (x) Such further order and/or orders be made and /or orders be made and/or direction be given as this Hon’ble Court may deem fit and proper.

2. The appellants have assailed the impugned judgment as a wrongful exercise of discretion without applying judicial mind and as an outcome of error of law yielded manifest injustice on the grounds as mentioned in the memorandum of appeal.

3. Therefore the moot points for decision in the appeal are:(a) Whether the writ court arrived at the correct decision that “Milk Allowance”. would not be counted as part of wage of the working employees or, the settlement of September, 1988 would be binding upon the parties?. (b) Whether working on paid holidays by such employee(s) having been remunerated not exceeding Rs. 3,000/- per month, can be remunerated by providing composite wages as overtime?. (c) Whether the impugned judgment can be sustained both in fact and law?.

4. Since Annexure ‘K’ in W.P. No.1992 of 1995 and Annexure P-18 in W.P. No.1657 of 2003 respectively were under challenge in the writ petitions the text of those two annexures are reproduced as ready reference. Annexure-K EMPLOYEES STATE INSURANCE CORPORATION51. Grant lane, Calcutta-700012 REGD.WITH A/D NO.C/INS-V/41-5115-19/242 Dated, the 5th September, 1995 M/s. Kesoram Rayan (Units M/s. Kesoram Industries Limited). P.O. Nayasarai, Dist:Hooghly. West Bengal, Pin Code:

71251. Sub: Coverage of holiday wages, milk allowance etc. under the ESI Act, 1948. Dear Sirs, With reference to your letter dated 9.8.94 and the discussions your representatives Shri B.N. Kedia, Deputy General Manager (Law). Shri B.P. Pandey, Senior Manager (Personnel) and Shri J.K. Sharma, Manager (Stores and time office) had with the Joint Regional Director of this office on 19.5.95, I am to inform you as follows:- 1. The wages paid against holiday work are in the nature or overtime and hence are not to be taken into account for the purpose of deciding coverage of an employee under Section 2(9) of the ESI Act.

2. “Milk Allowance”. if paid only on the days as employee attends to work, irrespective of the nature of employment of such person, the same is to be treated as not wages as such payment is in the nature of defraying special expenses entailed on him by the nature of his employment as provided under Clause ‘C’ of Section 2(22).

3. The extension of National wages is to be regulated strictly in accordance with the provisions of the Act. Taking into account the wages an employee might have earned in a wage period, when he did not do so, though he attended the factory on all working days, cannot be accepted. In view of the above clarifications, you are requested to pay contribution due in respect of the above types of wages as furnished by our Inspector vide his spot observation dated 8.7.94 and 26.7.94. Yours faithfully, (R.S.RAO) DY.REGIONAL DIRECTOR Annexure :-P-18 AUG1403 12:07 KESORAM RAYON TEL:26846461 P:01/ Kind attn.:Mrs. Roopa Mitra REGISTERED WIH A/D. REGIONAL OFFICE EMPLOYEES’ STATE INSURANCE CORPORATION “PANCHDEEK BHAWAN”. 5/1, GRANT LANE, KOLKATA-700 012 No.: N/INS-V/41-5115-19/65 Date :

08. 08.2003. ORDER

UNDER SECTION45A OF THE ESI ACT, 1948. M/s. Kesoram Rayon, a division of Kesoram Industries Ltd. a factory covered under the ESI Act and required to pay contributions & comply with various provisions of the Act read with ESI (General) Regulations 1950 was issued with a notice in Form k C-18 adhoc dt. 23.09.2002 for non-compliance. The matter arises out of an inspection of the records of the factory which took place on 8.7.1994 and 26.7.1994. During the course of inspection, the Inspector detected that due to a mistaken approach and wrong calculation of wages under section 2(22) of the Act, many employees were shown out of coverage although they continued to be employees under Section 2(9) of the Act. The Inspector also served Spot Observations accordingly. The matter was disputed vide letter dt. 9.8.1994 after which, the correct interpretation was provided vide our letter of even number dt. 6.5.1995. It is seen from records that writ petition No.1992/95 was filed against our letter dt. 6.5.1995 referred above. This was disposed of by the Hon’ble High Court on 24.4.1996, with directions to move before Ld. E.I. Court. Instead of moving the Ld. ESI Court, the employer filed an appeal No.APO15296 and this was dismissed on 16.05.2002 and all interim orders were vacated. In reply to the Notice, a reply dated 10.10.2002 was filed merely asking for an adjournment when the case was adjourned to 20.11.2002. No one appeared but a letter dt. 13.11.2002 was received from Khatian & Co. advocates stating that a restoration application was filed and requesting not to proceed further until disposal of the restoration plea. Thereafter, a final opportunity for hearing was provided on 22.07.2003 vide letter dt. 7.7.2003 when it was found that the restoration application was also dismissed on 16.05.2003. Again, a letter dt. 8.7.2003 was received from the said Advocates, mentioning that yet another restoration application has been filed and the matter would have therefore, to be brought to the notice of the Hon’ble Court. A copy of the restoration application was also endorsed to us. And the undersigned having to leave station for the entire week, the date of hearing was postponed to 01.08.2003 vide letter dt. 17.7.2003. Meanwhile, another letter dt. 22.7.2003 was received from the said advocates mentioning a prayer for adjournment on grounds that necessary steps are being taken to have their clients restoration application heard by the Bench and once again requesting us not to proceed till disposal of the application. The same plea was repeated by Smt. Roopa Mitra, representing the said advocate on 1.8.2003 but the brief narration of events mentioned hereinupto would adequately illustrate the fact that no substantive submission as to the core issues were made by the employer, no statements of wages and allowances listed for which they have had adequate opportunities and further, the scope of hearing was afforded to the employer who may have deputed authorized representatives which was also not done apart from the appearance of Smt. Roopa Mitra without due authority and who asked for adjournment merely to obtain further time to move the Hon’ble High Court when the Hon’ble High Court’s order dt. 24.4.1996 had already directed the employee to move the E.I. Court. Consequently it is considered appropriate that these proceedings under Section 45-A of the ESI Act are brought5 to their logical conclusion on the basis of available records as there is not legal infirmity on stay order of any court at present. We are greatly helped by the Spot Observation served by the area Inspector on 8.7,1994 in which, it was pointed out that: (i) Milk allowance paid to employees @ Rs. 2.25 per day of actual attendance is not wages u/s/ 2 (22) but employer is considering the same for coverage. (ii) When an employee is working in the factory on Holidays, he is paid Holiday wages and in addition to that, he is being paid double the normal wages in pursuance of an agreement. Thought he double wages is wages U/s. 2(22), it should not be taken into account for determining coverage of the employee u/s. 2(9) as it is nothing but remuneration for overtime work. (iii) National extension of variable wages such as fixed allowances linked with actual work, night shift allowance, acting allowance, incentives, canteen allowance should not be granted while considering coverage of an employee u/s. 2(9). All such allowances actually earned during a month should be considered. It is also on served that no such allowances are paid to an employee on leave/Holiday wages. The Inspector reported that due to such wrong calculations, many employees went out of coverage. He verified the wage records of a section of employees for April, 1993 and found forty six such coverable but not covered employees. Since it was impossible for him to verify wage records of thousands of employees who were paid fortnightly, he recommended that the coverage of an employee in the proper way and in case of failure therein, contributions claimed on ad hoc basis on the wages of all those fortnightly paid employees who were not considered for compliance. The Inspector gave the wage figures monthwise from 4/93 to 5/94 on which contributions worked out to Rs. 27,72, 325.00 as under: Month Amount of L/O wages contributions 4/93 410018.33 Rs. 2251.00 5/93 375850.55 Rs.20672.00 6/93 391954.92 Rs. 21552.00 7/93 364431.93 Rs. 20044.00 8/93 372436.06 Rs.20484.00 9/93 362074.07 Rs.19915.00 10/93 7672355.29 Rs.431980.00 11/93 6085809.40 Rs.334720.00 12/93 6170186.22 Rs.339361.00 1/94 6755599.85 Rs.371575.00 2/94 5621745.14 Rs.809196.00 3/94 5729413.12 Rs.370118.00 4/94 4456577.30 Rs.245112.00 5/94 4637057.24 Rs.255039.00 Rs.27,72.325 In the letter dt. 9.8.94 received in response, it was endeavored to distance overtime work from the double payment given (in addition to Holiday wages) for paid holidays. The position regarding overtime as such is now clear in that while it is wages u/s. 2(22) for payment of contributions, it should not be taken into account for deciding coverage of an employee u/s. 2(9). The argument for treating the double payment for paid holidays differently was that it was paid at intervals of less than two months and flowing from an agreement. It is not denied that this double payment was paid on the basis of an agreement. But essentially, since this double payment was in addition to normal payment for working on a particular holiday, this was not doubt in the nature of overtime although that particular nomenclature may not have been used. This is abundantly clear from the very fact that employees were required to work in Holidays and paid Holidays at that. Records reveal the existence of a supplement to the Memorandum of settlement dt. 25.10.1970, where it is seen that ten holidays were agreed upon and in addition on holiday to be declared by the Government or the Company. Worker would be required to work on paid holidays and shall be paid twice the normal wages, in addition to payment for paid holiday. Now, the holidays would fall on different dates/months in different years such as Idul Fittar, Iduzjoha, Durgapuja etc. There would not always be less than two months intergeosum from one holiday to the other. Therefore, the argument of payment in intervals of less than 2 months, flowing out of an agreement, and therefore the payment qualifying unambiguously as wages u/s. 2(22), thereby to be taken into account for deciding coverage u/s/ 2(9) as an employee, cannot rest on solid grounds. This is not therefore, a valid criteria. The only valid point is that double wage payments have been made for working on holidays in addition to normal wages for paid holiday. The normal wages for paid holiday is definitely wages u/s. 2(22) but the double payment is clearly overtime and overtime payments may also very well be based on agreements, there is certainly no bar. We therefore come to the conclusion that the double payment is actually OT in its intrinsic meaning. Regarding milk allowance, it was contended that this is also paid regularly to all employees and flows out of a settlement and therefore, is wages under the Act. It was contended that in the case of Harihar Poly Fibres -Vs.- ESIC, the Hon’ble Supreme Court has held that Night Shift Allowance, Heat, Gas and Dust Allowance are wages and therefore, on the same analogy, milk allowance will also qualify as wages. But then, there cannot be exact analogy because payment of allowances to compensate for adverse environments and payment of milk allowance, appear to be governed by different considerations. Further, there is already an authoritative interpretation that milk allowance and tea allowance are not wages (ESIC Vs. Gedoere Tools, 1987 Lab IC570, we conclude accordingly. The last issue is about notional extension of variable wage components for the full months for deciding coverage of an employee under section 2(9). The Inspector had advised in his spot observations to consider only such allowances that are actually earned during a month. The Inspector had also observed that while paying leave wages or holiday wages, such notional extension is not resorted to. In the employer’s reply, the definition of average daily wages during a wage period given in Rule 2(1B) (a) was reproduced. The Rule says that in respect of an employee who is employed on time rate basis, the amount of wages which would have been payable to him for the complete wage period, divided by 26 if he is monthly rated, 13 if he is fortnightly rated, 6 if he is weekly rated and 1 if he is daily rated, is the average daily wages during a wage period. It was stated that, accordingly, allowances qualifying as wages u/s. 2(22) were taken into account, and therefore it follows that wages not actually earned during a wage period were computed by notional extension to decide coverage. There is a basic fallacy here in that the particular Rule 2(1B) (a) gets attracted only in respect of an employee. An ‘employee’ as defined in Section 2(90 does not include persons employed whose wages (excluding remuneration for overtime work) exceed (such wages as may be prescribed by the Central Govt.) a month. Therefore, the procedure of computing average daily wages in a wage period is to be followed only after a person’s coverage is decided. This cannot be resorted to, for deciding coverage itself. The issue could have been examined in detail had actual workouts been given, which was done in case of additional double remuneration for work on paid holidays. However, the employer as we have seen, has preferred not to come forward with statements and details. It is, therefore concluded that the disputes are not sustainable and therefore, coverage has been denied to large sections of workmen. Consistent failure to come up with statements of actual wages would also have another connotation in that the entire population of fortnightly paid employees that has not been covered, would become coverable. However, from the Inspector’s report as discussed in these proceedings, it appears that the entire amount of wages of fortnightly paid employees that has not been considered for coverage, may not be coverable because he has stated that he was verified wage, records of a section of employees for April 93 and found 46 persons coverable. He did not pay that all those persons whose wage records were verified, were found coverable. And therefore, in the absence of the employer coming forward with actual details, 80% of the total wages of fortnightly paid employees who were not considered for compliance is held to be a reasonable approximation of actually coverable wages, which works out to Rs. 50405801 X80 at Rs. 40324640/The amount of Rs. 40324640/- is therefore held as omitted wages on which contributions were due but not paid. And therefore, contributions of Rs. 22,17,855.00@ 5.5% are determined finally and it is confirmed that such determination is fair, reasonable and according to law. Therefore, I, S. Biswas, Dy. Director, in exercise of powers delegated by the ESI Corporation, think fit and accordingly order that contributions of Rs. 22, 17, 855/- (Rupees Twenty Two lakhs seventeen thousand eight hundred and fifty five) only are finally determined and payable by the employer with respect to the Notice in Form C-18 under reference and you, as one of the Principal employer are hereby ordered to pay the amount within 15 days from the date of issue of this order; failing which it shall cause to be recovered under recovery provisions of the Act.

1. M/s. Kesoram Rayan, (a Division of Kesorm Industries Ltd.), P.O.-Nayasarai, Sd/- Illegible (S. Biswas) Dy. Director. District: Hooghly, Pin:713 513.

2. The Occupier, M/s. Kesoram Rayan, Head Office at 10, Camac Street, Kolkata-700 017.

5. Mr. Maitra, learned counsel for the appellants with reference to the definition of “wages”. under Section 2(22) of the ESI Act argued that since the Writ Court did not hold that the wages are paid to the employees on a paid holiday at the double rate than the normal day it would be deemed as overtime payment and would not be taken into account for coverage purpose under Section 2(9) (b) of the Act. He has placed reliance on the decision in ESI Corporation Vs. Ramadhar Jaiswal & Ors., reported in (2004) 3 LLJ998(Calcutta) and argued that since the wages paid on holiday would form part of monthly wages under Section 2(22) of the ESI Act, therefore such an employee in receipt of wages and the milk allowances, in excess of the ceiling limit, would not be an employee under Section 2(9) of the Act.

6. It is stated that since the employees pursuant to the memorandum of settlement were required to work on a paid holiday at an incentive to be received at the rate of twice the normal rate of wages there would be no provision of getting extra wages for overtime under Section 59 of the Factories Act, 1948.

7. Mr. Maitra also placed reliance on the decision rendered in ESI Corporation Vs. Gedoere Tools India Pvt. Ltd. reported in (1987) Labour & Industrial Cases 570 (Punjab & Haryana) wherein it has been held that milk allowance was due only to those employees who are working in some hazardous atmospheric conditions of employment in certain sections of the establishment. Whereas, in the instant case, as per the memorandum of settlement the milk allowance would have been paid to all the workmen irrespective of their nature of work. Therefore, according to Mr. Maitra Section 2(22) (c) of the ESI Act would have no application in this case. It is submitted by him that when an employee under the terms of contract would be entitled to a holiday with wages then such wage would become a condition of service, since subsistence allowance forms part of wages. Criticised the judgment of the writ Court by captioning that the proposition of law as laid down by the Writ Court was wholly irrelevant as it was the contention of the appellants that they were not making the contribution to the ESI authorities as they did not make any deduction from the wages of the employees. Mr. Maitra also relied upon the following cases:(i) Indrapuri Studio (P) Ltd. Vs. ESI Corporation, AIR1961Calcutta 381. (ii) Regional Director, ESI Corporation Trichur Vs. Raj Cashew Co. 1991 Labour & Industrial Cases 1989 Kerala. (iii) M/s. Graphite India Ltd. Vs. ESI Corporation, FIR199264) 1017 Karnataka. (iv) (1997) 7 Supreme Court Cases 665.

8. Per contra, for the respondents Mr. Siddhartha Mitra submitted that while inspection was held by the concerned Insurance Inspector several irregularities were detected for which the appellants were directed by the Inspector not to take the wages so paid against work on holiday for the purpose of determining the coverage of an employee under Section 2(9) of the ESI Act, and also not to treat “milk allowance”. as part of wages since it fell in the nature of defraying special expenses within ambit of Section 2(22) (c) of the Act.

9. From the arguments advanced before us the dispute as to whether the wages paid for working of the employees in excess of working hours and the allowance in the name of milk allowance would be included within the definition of wages or not is also to be answered.

10. Before entering into the discussion the definition of wages under Section 2 sub-section (22) of the Employees’ State Insurance Act, 1948 and Section 9(b) of the said Act may be scrutinised and therefore those reproduced below for ready reference:Section 2(22):- “wages”. means all remuneration paid or payable, in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled and includes [any payment to an employee in respect of any period of authorised leave, lock-out, strike which is not illegal or lay-off and]. other additional remuneration, if any, [paid at intervals not exceeding two months]., but does not include(a)any contribution paid by the employer to any pension fund or provident fund, or under this Act; (b) any travelling allowance or the value of any travelling concession; (c)any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or (d) any gratuity payable on discharge; Section 2(9)(b):- any person so employed whose wages (excluding remuneration for overtime work) exceed [such wages as may be prescribed by the Central Government].: Provided that an employee whose wages (excluding remuneration for overtime work) exceed [such wages as may be prescribed by the Central Government]. at any time after (and not before) the beginning of the contribution period, shall continue to be an employee until the end of the period;]. are 11. As a matter of fact the definition of overtime remains confined to the payments received for working beyond normal working hours by the employee during the day, or, in a week as per the Factories Act. There is no doubt that working for extra hours i.e beyond normal working hours on a paid holiday would come within the meaning of sub-section (9) Clause (b) of Section 2 of the Act.

12. It is seen that sub-section (22) of Section 2 excludes contributions or allowance, or, any kind of expenses caused by the employer for its employee from the definition of wages. The matter also appears to have been set at rest by the settlement dated 25th October, 2010 between the employer and the employees, clause 10 of which provided that any worker, if would be required to work on paid holidays, the compensatory payment would be twice of the normal wages in addition to the payment to be made for the paid holidays.

13. There is also no dispute that by another settlement held in September, 1988 the milk allowance as was being paid to the workers was increased to Rs. 1.50 per day before which the workers would get Rs. 2.25 only as milk allowance. Meaning thereby, the milk allowance per day was allowed at the rate of Rs. 3.75/-. Therefore, in absence of any restriction or embargo in so far as the milk allowance is concerned, we find therefore that it would come within the meaning and ambit of special expenses under Section 2 sub-section (22) Clause (c) of the ESI Act, which eventually cannot come within the meaning of wages.

14. It is admitted that Learned Writ Court appreciating the guiding decisions as referred to in the judgments cited before it has rightly taken view, that “milk allowance in the circumstances of this case does not, fall within the category of a sum paid to defray special expenses entailed on an employee by the employer in his employment”.. We as such do not find any logical or legal reason to take any different view than that of the view taken by the writ court so far as milk allowance is concerned.

15. No employee under any law can be debarred of payment in lieu of the overtime work done by him beyond the contract. The remuneration for working overtime is therefore to be excluded from computation of the wages of an employee. It is apparent that the ESI Act is a beneficial piece of legislation for the welfare of the employee working in an establishment. Therefore also taking note of the guiding decisions as considered by learned Writ Court, we observed that correct approach would be to exclude the overtime payment from computing within the meaning of wage of an employee. Hence, an employee cannot be deprived of having overtimes payment in the instant case on the logic that his monthly remuneration was exceeding the limit of Rs. 3,000/- per month.

16. Thus to conclude in both the appeals we hold that the cases on which Mr. Moitra relied upon are not applicable to alter our above view, since overtime payment as well as the milk allowance paid by the employer to its employees do not fall within the meaning of the definition of wages, rather those benefits ought to be available to the employees as reward of their hard labours in uplifting the task to make also the employer gainer as a result of such work. The cases on which Mr. Moitra relied upon are clearly distinguishable from the facts and points of the law involved therein, hence they are not applicable to the facts and circumstances of this case. In our considered view the impugned judgment of Learned Writ Court is upheld, to which we do not find any cogent or legal reason to make interference.

17. For all the reasons stated above and in answering all the three moot points APO465of 2015 and APO466of 2015 are dismissed. All the connected applications are also accordingly disposed of. (Rakesh Tiwari, J.) (Mir Dara Sheko, J.)