GUMAN MAL LODHA, J. - (1.) AN interesting question of law is involved in this appeal about the nature of service charges of 10% collected and part of it paid to its employees by the respondent M/s Laxmi Misthan Bhandar. The important question is whether this amount is to be included in the wages of the Employees for the purposes of collecting the contribution under the Employees State Insurance Act.
(2.) THE ESI Court has held that these service charges cannot be considered as wages for the purpose of ESI contribution. In appeal Mr. Gupta has mainly relied upon an ward between the parties, according to which it has not been left discretionary to the management of the respondent to pay or not to pay the whole or part of service charges. It has been directed that 66.6% of the service charges would be paid to the employees. Clause 22 of Section 2 of the ESI read as under: 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 lockout 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 entail on him by the nature of his employment; or (d) any gratuity payable on discharge;
(3.) THE ESI Court in its impugned order has considered the various decisions and it would be useful to refer them.;