- (1.) This appeal is directed against the decision of Shri M. R. Mallick, Judge, Employee's Insurance Court, Calcutta arising out of an application u/s 75 of the E.S.I. Act, 1948 filed by M/s. Hindusthan Motors Ltd., for a declaration that no employer's special contribution is payable for the remuneration paid by the applicant and its employees since 28th January, 1968 for the overtime work done by the employees and for certain other declarations. The learned Judge by an order dated 25-1-1975 refused the declaration sought for and held that E.S.I. Corporation was entitled to claim both the employee's contribution and employer's special contribution for the overtime wages paid to the employees drawing upto Rs. 500/-.
(2.) The case of the appellant is that it has all along been paying both employer's as well as employee's contribution to the Corporation. The definition of 'employee' under the E.S.I. Act, 1948 was amended with effect from 28th January, 1968 by the Amending Act No. 44 of 1966 whereby a person whose wages (excluding remuneration for overtime work) exceed Rs. 500/- a month was excluded from the definition of employee. Prior to such amendment the remuneration for overtime work was included in wages as defined in Sec. 2(2,2) of the Act for the purposes of contribution under the E.S.I.Act. As the remuneration paid to employees for overtime work does not come within the definition of 'wages', the petitioner company ceased to recover the contributions of the remuneration paid for overtime work since the date of amendment which came into force with effect from 28th January, 1968. It is the further case of the company that the 'overtime work' by an employee does not come within the contract by and between the company and its employees either expressly or impliedly and as such cannot come within the meaning of definition of 'wages'. In the circumstances, the Corporation is not entitled to claim contribution from either the employer or the employees over any remuneration exceeding Rs. 500/- for determination of which the sum. paid for overtime work is to be excluded.
(3.) According to the Corporation prior to the amendment of the definition of 'employee' a person whose total remuneration did not in the aggregate exceed Rs. 400/- a month was covered under the Act, but the amendment has largely extended the scope of the coverage as the amended definition of 'employee' includes any person whose remuneration extends upto Rs. 500/- a month. If the Legislature intended to exempt contributions being paid and/or realised for overtime wages, the words "excluding remuneration for overtime work" would not have found place in the amended definition of 'employees' only. There has been no such exclusion by way of amendment in the definition of 'wages'. So the overtime wages would not be excluded from the ambit of 'wages' for the purpose of payment of contribution by the employer and the employees.;