The Deputy Director Employees' State Insurance Corporation vs Sri Ramnarayan Mills Limited

M. Jaichandren, J.—This writ appeal has been filed against the order of the learned single Judge of this Court, dated 16.6.2010, made in

W.P. No. 25752 of 2004, holding that the conveyance allowance paid to the employees concerned would not come under the definition of

''wages''. The learned single Judge of this Court had relied on the decisions of the Division Bench of this Court, in Regional Director, Employees''

State Insurance Corporation Vs. Sundaram Clayton Ltd. and Others, and Management of Oriental Hotels Ltd. Vs. Employees'' State Insurance

Corporation, in arriving at his conclusion. Paragraph 3 of the order of the learned single Judge of this Court, dated 16.6.2010, made in W.P. No.

25752 of 2004, reads as follows:

It is contended by the learned counsel appearing for the petitioner that the conveyance allowance paid to the employees cannot be treated as

part of wages so as to calculate the same for the purpose of ESI contribution. To substantiate the said contention, the learned counsel relies on the

judgments of the Division Bench of this Court in Regional Director, Employees'' State Insurance Corporation Vs. Sundaram Clayton Ltd. and

Others, and Management of Oriental Hotels Ltd. Vs. Employees'' State Insurance Corporation,

The learned senior counsel appearing for the appellant had submitted that the employees had been receiving the traveling allowance, as well as

the conveyance allowance, as shown in the traveling expenses account of the ledger concerned.

The learned senior counsel appearing for the appellant had also submitted that the conveyance allowance is only an additional remuneration. The

conveyance allowance had been paid, separately, under the head of conveyance allowances account and at the time of the payment of wages,

every month. Therefore, the payment of the conveyance allowance, to the employees concerned, would come under the definition of ''wages'' u/s

2(22) of the Employees'' State Insurance Act, 1948. The learned senior counsel appearing for the appellant had relied on the decision, in The

Management of Magus Customer Dialog Private Limited Vs. The Deputy Director, Employees'' State Insurance Corporation, in support of his

contentions.

Per contra, the learned counsel appearing for the respondent had submitted that the conveyance allowance had been paid to the employees

concerned, only as conveyance allowance, as defined u/s 2(22) of the Employees'' State Insurance Act, 1948. The learned counsel appearing for

the respondents had relied on the decisions, in Management of Oriental Hotels Ltd. Vs. Employees'' State Insurance Corporation, and S. Ganesan

Prop. Sonamuthu Roadways Vs. The Regional Director, E.S.I. Corporation, , in support of his contentions. In view of the submissions made by

the learned counsels appearing for the appellant, as well as the respondent and on a perusal of the records available, it is found that the matter

relates to certain factual disputes as to whether the conveyance allowance paid to the employees concerned are paid, separately, in addition to the

traveling allowance paid to them and as to whether it would come under the definition of Section 2(22) of the Employees'' State Insurance Act,

1948. Such disputed factual aspects should be decided by the appropriate court, established u/s 75 of the Employees'' State Insurance Act, 1948.

Hence, we find it appropriate to set aside the order of the learned single Judge of this Court, dated 16.6.2010, made in W.P. No. 25752 of 2004.

The respondents are permitted to approach the Deputy Director, Employees'' State Insurance Corporation concerned, established u/s 75 of the

Employees'' State Insurance Act, 1948, within a period of four weeks from the date of receipt of a copy of this order. It is made clear that it would

be open to the appellant, as well as the respondent, to raise all the issues before the Court concerned, in the manner known to law. The writ

appeal is ordered accordingly. No costs.