BOMBAY HIGH COURT - Working for 240 days for 12 months ensures job security to a Daily Wager

Working for 240 days for 12 months ensures job security to a Daily Wager - Bombay High Court

Hemant Babruvahan Parchake vs. Social Welfare Officer, Somalwar Bhavan, Nagpur & Ors

Outline 

The debate of getting casual worker absorbed by the company is on since infinite, my earlier writing provides sufficient evidence to pronounce that "No Contract Labour or Casual Worker or Temporary Worker can claim for being absorbed as permanent employee on the ground of providing any specific service any particular tenure"

The hon'ble Bombay High Court had pronounced that irrespective of the fact that an employee is a casual or temporary labour or daily wager, if such employee has completed continuous service for more than 240 days during preceding 12 months, then dismissal/termination of services of a daily wager is illegal if the same is without complying provisions of Section 25F of the Industrial Disputes Act, 1947.

Takeaway 

• Settled law is that dismissal/termination of services of a daily wager is illegal if the same is without complying provisions of Section 25F of the Industrial Disputes Act, 1947 when such an employee has completed continuous service for more than 240 days during preceding 12 months, irrespective of the fact that he was a casual/ temporary labour or daily wager.
• Granting reestablishment isn't appropriate, in any event when termination is unlawful, if the workman was daily wager or having no legitimate right to continue even as a daily wager and termination of services is illicit only on account of non-payment of retrenchment compensation and one month's notice pay.
• Awarding reinstatement is not automatic when termination of services of a daily wager is held to be illegal.
• When termination of a daily wager is illegal as a result of violation of principle of last come first go or on account of unfair labour practice, where juniors were regularized under some policy but concerned workman was terminated from service, granted reinstatement with back or without back wages is justified.
• If termination of services of daily wager/workman was not as a result of non-renewal of the contract of employment or of such contract being terminated under a stipulation in that behalf contained therein, provisions of Section 2(oo)(bb) of Industrial Disputes Act, 1947, would not be attracted to the benefit of management.
• Since the workman has worked for about 18 months as a daily wager, he is not entitled to regular service, lumpsum compensation in lieu of reinstatement and back wages is justified.
• Section 2(oo)(bb) provides that termination of employment on non - renewal of employment agreement upon its expiry shall not be considered as 'retrenchment'

Hemant Babruvahan Parchake vs. Social Welfare Officer, Somalwar Bhavan, Nagpur & Ors.

A. DISMISSAL – From services – Daily wager – When illegal 

– Appellant was appointed as Senior Caretaker on 02.05.1998 on daily wage basis 

– His services were terminated on 06.11.1999

– He filed before the Labour Court 

– He was reinstated with full back wages 

– Industrial Court set aside the order of Labour Court remanding the matter back to decide the matter in accordance with law 

– Complaint was dismissed holding that it falls under Section 2(oo)(bb) of the I.D. Act 

– Appellant challenged that judgement by filing writ petition which was dismissed 

– Appellant filed LPA 

– Held, settled law is that termination of services of a daily wager is illegal if the same is without complying provisions of Section 25F of the Industrial Disputes Act, 1947 when such an employee has completed continuous service for more than 240 days during preceding 12 months

– Appeal is accordingly partly allowed. Paras 29 and 30

B. REINSTATEMENT – Not automatic – Even when termination is illegal

– Held, since workman was daily wager, he did not have any legal right for regularization 

– He has no right to continue even as a daily wager 

– Termination of services is illegal only account of non-payment of retrenchment compensation and one month's notice pay 

– Hence, granting relief of reinstatement is not proper. Para 27

C. REINSTATEMENT – When justified 

– Held, when termination of daily wager is illegal as a result of violation of principle of last come first go or on account of unfair labour practice, where juniors were regularized under some policy but concerned workman was terminated from service, granted reinstatement with wages is justified. Para 28

D. RETRENCHMENT – When would not attract Section 2(oo)(bb) of Industrial Disputes Act, 1947

– Held, since termination of services of daily wager / workman was not as a result of non-renewal of the contract of employment or of such contract being terminated under a stipulation in that behalf contained therein, management is not entitled to take benefit of this section. Para 15

E. COMPENSATION – In lieu of reinstatement – Justification 

– Held, workman worked for about 18 months as daily wager 

– His services were terminated illegally 

– He is entitled to reinstatement with back wages 

– However, since he was daily wager not entitled to regular service, lumpsum compensation of Rs. 25000/- in lieu of reinstatement and back wages is justified 

– Management is directed to pay the compensation within 2 months failing which it will carry interest @ 9% per annum. Para 31

For Appellant: Mr. P.D. Meghe, Advocate.
For Respondent: Mrs. S.S. Jachak, AGP.

Judgment

BOMBAY HIGH COURT

Hon'ble Mr. A.S. Chandurkar, J.

Hon'ble Ms. Pushpa V. Ganediwala, J.

LPA No. 314/2010 in W.P. No. 5982/2005,

Dt/–29-6-2021

Hemant Babruvahan Parchake vs. Social Welfare Officer, Somalwar Bhavan, Nagpur & Ors.

1. This Letters Patent Appeal is directed against the judgment and order dated 14.12.2009 passed by the learned Single Judge of this Court in Writ Petition No. 5982 of 2005.

2. A short question, which arises for consideration of this Court, reads thus:

“Whether the retrenchment of a workman without complying with the conditions in terms of Section 25F (a) and (b) of the Industrial Disputes Act, 1947, would automatically result in the reinstatement of the workman ?”

3. The facts necessary to decide the present Appeal, are as under:

The appellant was appointed as a ‘Senior Caretaker' on daily wage basis by respondent No. 2 with effect from 02.05.1998 at Government Beggar's Home. His services were terminated by respondent No. 2 on 06.11.1999.

4. Being aggrieved by the said termination, the appellant filed U.L.P.A. bearing Complaint No. 740/1999 before the Labour Court, Nagpur. In the complaint, he has stated about rejection of his request for appointment on compassionate ground in place of his father, who had retired as a Class-IV employee with the respondents' department. However, he was given temporary appointment as a Senior Caretaker with effect from 02.05.1998. He worked till his termination, i.e., 06.11.1999. It is his case that his services have been terminated orally without complying with the mandate of Section 25F of the Industrial Disputes Act (for short “I.D. Act”).

5. The contesting respondent No. 4, in his reply, denied all the adverse allegations in the complaint and stated that the appointment of the appellant was made purely on temporary basis and only a stop-gap arrangement at the relevant point of time, as the regular Caretaker Mr. B.K. Hadke was suspended and thereafter reinstated by an official order. As the services of the appellant were not required, he was terminated.

6. The Labour Court framed issues and recorded evidence as adduced by both the parties and after considering the material on record, allowed the complaint and resultantly, the appellant was reinstated with full back wages. The Revisional Court / Industrial Court, however, set-aside the judgment and order of the Labour Court, and remanded the matter for reconsideration in accordance with law. The Labour Court then reconsidered the matter and dismissed the Complaint vide judgment and order dated 06.05.2004 especially on the ground that the case of the complainant/ appellant falls under Section 2(oo)(bb) of the I.D. Act, as he was appointed on daily wage basis temporarily as per the terms and conditions mentioned in Exhibit 38 by the respondent. It is further observed that the complainant / appellant has also given a ‘Pratigya Patra' that the services shall be terminated at any time without assigning any reasons. According to the learned Judge, as the termination of the complainant / appellant falls under Section 2(oo)(bb) of the I.D. Act, there was no need to comply with the provisions of Section 25F of the I.D. Act while terminating the services of the complainant / appellant. The judgment and order of the Labour Court was further upheld in Revision Application No. 68/2004 before the Industrial Court, Nagpur, vide judgment and order dated 19.07.2005.

7. The appellant assailed the said judgment by filing Writ Petition bearing No. 5982 of 2005. The learned Single Judge in this Writ petition observed that there was no material on record to hold that the provisions of Section 2(oo)(bb) of the I.D. Act were attracted. The facts disclosed by the petitioner himself show that he was aware that he had no right to remain in employment and that he had not worked on any sanctioned vacant post. By referring to the judgment of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors. [AIR 2006 SC 1806], the learned Single Judge observed that the Labour Court could not have given the relief of reinstatement to the petitioner. The learned Single Judge didn't find any jurisdictional error or perversity in the judgment of the Courts below, and accordingly dismissed the Writ Petition. This judgment of the learned Single Judge is impugned in this appeal.

8. We have heard Shri P.D. Meghe, learned counsel for the appellant and Mrs. S. Jachak, learned Assistant Government Pleader for the respondents.

9. Shri Meghe, learned counsel for the appellant, strongly placed reliance on the judgment of the Hon'ble Supreme Court in the case of Anoop Sharma vs. Executive Engineer, Public Health Division No. 1, Panipat (Haryana) [(2010) 5 SCC 497], and submitted that it has been repeatedly held that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Sections 25F(a) and (b) of the I.D. Act, has the effect of rendering the action of the employer as nullity and the employee is entitled to continue in employment as if his service was not terminated.

10. The learned counsel further submitted that the learned Single Judge has wrongly applied the ratio laid down in the case of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors. (supra), as the said judgment was in respect of claim made by an employee for regularization; whereas the issue involved in the present case is in respect of legality of termination when statutory provisions are not complied with. He further submitted that the impugned judgment is based on erroneous application of case law, and thus needs to be quashed.

11. Per contra , Ms. Jachak, learned AGP appearing on behalf of the respondents – State, submits that the appellant could not have claimed reinstatement, as he was knowing since beginning that his services are on temporary basis and terminable without notice. Accordingly, he had also executed one ‘Pratigya Patra' .

12. The learned AGP further submits that the appointment of the appellant was made only as a stop-gap arrangement at the relevant point of time in place of regular Caretaker Mr. B.K. Hadke, who was suspended and thereafter reinstated by an official order. As the services of the appellant were not required, he was terminated.

13. It is further submitted that the appellant being a temporary employee, who was not appointed against sanctioned post, in view of the ratio laid down in the case of Umadevi (supra), he could not have been reinstated without following the statutory Rules and the mandate of the Constitution. The learned AGP further submits that the terms and conditions in the appointment letter (Ex. 38) was agreeable to the appellant and hence, now, the appellant has to be estopped from claiming reinstatement with continuity of service. In support of her submission, learned AGP placed reliance on the judgment of the Hon'ble Apex Court in the case of Bhuvnesh Kumar Dwivedi vs. Hindalco Industries Limited [(2014) 11 SCC 85].

14. We have considered the submissions made on behalf of both the sides and carefully perused the record. Before adverting to discuss the rival contentions and the law laid down on the issue, it would be apposite to reproduce Section 25F of I.D. Act, which reads thus:

“ 25-F. Conditions precedent to retrenchment of workmen—

No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until –

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.”

15. The term ‘retrenchment' is defined under Section 2(oo) of the I.D. Act, which reads thus:

“ 2(oo) “retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include –

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

(bb) termination of the service of the workman as a result of the non renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or

(c) termination of the service of a workman on the ground of continued ill-health;”

16. The findings recorded by the Courts below as regards the status of the appellant as ‘workman' and the Social Welfare Department of the respondent as ‘industry', have reached finality. The learned Courts below also recorded negative finding with regard to the commission of unfair labour practice at the hands of the respondents.

17. It is not in dispute that the appellant was engaged as a daily wager and his appointment was not against any vacant post. Evidently, the appellant was appointed by way of stop-gap arrangement as the erstwhile incumbent on the post of Senior Caretaker was suspended. No sooner than the suspended employee reinstated as per official order, the services of the appellant came to be terminated. However, undisputedly, the period of service rendered by the appellant with the respondent's department was more than 240 days in a preceding year. The finding recorded by the learned Single Judge that the provisions of Section 2(oo)(bb) of the I.D. Act were not attracted is not challenged by the respondents. It is thus clear that such termination fits in the definition of retrenchment in terms of Section 2(oo) of the I.D. Act and the retrenchment was ordered without complying with the conditions in terms of Section 25F (a) and (b) of the I.D. Act, i.e. , neither he was issued one month's advance notice nor paid one month's salary in lieu thereof. It is pertinent to note that no amount was paid to the appellant as compensation. Now, the question before us is whether his termination, in the absence of compliance of the mandatory conditions (a) and (b) of Section 25F of the I.D. Act, is illegal warranting his reinstatement ? Considering the recent judicial pronouncements of the Hon'ble Apex Court, the answer to this question would be clear ‘No'. The Hon'ble Apex Court in a catena of decisions has clearly laid down that although an order of retrenchment passed in violation of Section 25F of the I.D. Act, may be set aside, the award of reinstatement should not be ordinarily passed especially in the case of a daily wager, who does not hold a post as a permanent employee.

18. In the case of Bharat Sanchar Nigam Ltd. vs. Man Singh [(2012) 1 SCC 558], and Assistant Engineer, Rajasthan Development Corporation vs. Gitam Singh [2013 (5) Mh LJ 1] in similar facts and circumstances, as are in the present case, the Hon'ble Apex Court has held that the respondents – workmen were engaged as ‘daily wagers' and they had merely worked for more than 240 days, hence the relief of reinstatement cannot be said to be justified and instead monetary compensation would meet the ends of justice.

19. In the case of Incharge Officer and Ors. vs. Shankar Shetty [2011 (1) ALL MR (SC) 931], the question before the Hon'ble Apex Court was, “should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section 25F of the I.D. Act ?” The Hon'ble Apex Court has held that the course of decisions of this Court in recent years has been uniform on the above question. The Hon'ble Apex Court has relied on a series of earlier decisions mainly Jagbir Singh vs. Haryana State Agricultural Marketing Board and Anr. [(2009) 15 SCC 327], wherein it is held as under:

“It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice”.

20. In the case of Punjab Land Development and Reclamamation Corporation Ltd. vs. Presiding Officer Labour Court, Chandigarh [(1990) 3 SCC 682], the Hon'ble Apex Court in paragraph 59 has held as under:

“59. In a fast developing branch of Industrial and Labour law it may not always be of particular importance to rigidly adhere to a precedent, and a precedent may need be departed from if the basis of legislation changes. The House will depart from a previous decision where it is right to do so and where adherence to a previous decision may lead to injustice in a particular case. Constitutional and administrative law are not fields where it is of particular importance to adhere to precedent. A recent precedent may be more readily departed from than one which is of long standing. A precedent may be departed from where the issue is one of statutory construction.”

21. In the case of Haryana State Electronics Development Corporation Ltd. vs. Mamni [AIR 2006 SC 2427], the Hon'ble Apex Court observed that, even if the respondent is reinstated in her service on an ad-hoc basis, her services cannot be regularized in view of the decision of the Hon'ble Apex Court in Secretary, State of Karnataka and Ors. vs. Uma Devi and Ors. (supra). It is further observed by the Hon'ble Apex Court that interest of justice would be sub-served if in place of reinstatement with back wages, a lump sum amount is directed to be paid by way of compensation.

22. The Hon'ble Apex Court in the case of Mahboob Deepak vs. Nagar Panchayat Gajraua and Ors. [(2008) 1 SCC 575] observed in para 6 as under:

“6. Such termination of service, having regard to the fact that he had completed 240 days of work during a period of 12 months preceding the said date, required compliance of the provisions of Section 6N of the U.P. Industrial Disputes Act. An order of retrenchment passed in violation of the said provision although can be set aside but as has been noticed by this Court in a large number of decisions, an award of reinstatement should not, however, be automatically passed”.

23. In the case of Senior Superintendent Telegraph (Traffic) Bhopal vs. Santosh Kumr Seal and Ors . [AIR 2010 SC 2140], in similar facts, i.e. , casual employee having worked for more than 240 days, the Hon'ble Apex Court has observed that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that the monetary compensation in lieu of reinstatement and back wages can be granted.

24. In the case of BSNL vs. Bhurumal (supra), the Hon'ble Apex Court held in paragraph Nos. 33, 34 and 35, which read thus:

“33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.

34. Reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka vs. Uma Devi (2006) 4 SCC 1). Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.

35. We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz ., while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him wee regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be

denied”.

25. It is now well settled by a catena of decisions of the Hon'ble Apex Court referred to above that in a situation where appointment of the employee is not regular and his retrenchment is proved to be illegal for not complying with Section 25F of the I.D. Act, instead of directing reinstatement with full back wages, the workmen should be granted adequate monetary compensation.

26. Considering the ratio laid down in the aforesaid judgments which is squarely applicable to the facts of the present case, the judgment in the case of Anoop Sharma (supra) relied on by Shri P.D. Meghe, learned counsel for the appellant, could not be of any assistance to the appellant as this case is distinguishable on facts. In this case, the Hon'ble Apex Court has observed that the learned Division Bench of the High Court had set aside the award of the Labour Court without even adverting to the fact that other similarly situated employees whose services were also terminated, had been reinstated by the order of the Labour Court in separate proceedings which was confirmed by the High Court and then the Apex Court. The Apex Court specifically mentioned that it was not pleaded by the respondent before the Labour Court or even before the High Court that the appellant was engaged/ employed without following the statutory rules or Articles 14 and 16 of the Constitution of India and that was the basis for discontinuing his engagement. So, in the case of Anoop Sharma (supra), reinstatement of the employee was justified on the ground that similarly situated employees had been reinstated and the employer had failed to plead that the appointment of the employee was not in accordance with the statutory rules and Articles 14 and 16 of the Constitution of India. The facts in the present case are quite different. In the present case, evidently, the appointment of the appellant was on daily wage basis as a stop-gap arrangement and not against any vacant post.

27. One of the contentions of Shri Meghe, learned counsel for the appellant was that as non-compliance of the conditions in terms of Section 25F of the I.D. Act would result in illegal retrenchment, import thereof is reinstatement. We are unable to accept this argument considering the legal position discussed above, especially in the case of BSNL vs. Bhurumal (supra). In this case the Hon'ble Supreme Court has held that “when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka vs. Uma Devi (2006) 4 SCC 1).”

28. In said the case of BSNL vs. Bhurumal (supra), the Hon'ble Supreme Court added the words of caution by observing that “There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz ., while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him wee regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.”

29. Coming to the facts of the present case, the learned Single Judge has rightly held that the case of the appellant does not fall under Section 2(oo)(bb) of the I.D. Act, in the absence of any contract of employment between the parties which prescribes particular duration therefor. However, the learned Single Judge has failed to consider from the material on record that the termination of the appellant falls in the definition of retrenchment as defined under Section 2(oo) of the I.D. Act and the appellant had worked for more than 240 days and, therefore, statutory procedure as mandated under Section 25F ought to have been followed. The learned Single Judge directly came to the conclusion that as the appellant himself admits that his appointment was temporary, considering the ratio laid down in the case of Umadevi (supra), the appellant could not have been reinstated.

30. Admittedly, the appointment of the appellant was in the year 1998 on daily wage basis and he worked for about 18 months with artificial weekly break of one day. This shows that the appellant worked for more than 240 days in the preceding year. This fact is not disputed by the respondents too. Therefore, it was incumbent upon respondent No. 2 to comply with the conditions in terms of Sections 25F (a) and (b) of the I.D. Act. The non-compliance of these conditions would entitle the appellant for retrenchment compensation. There is no distinction in law for applicability of Section 25F of the I.D. Act, to the employee whose appointment is regular or temporary.

31. Now, with regard to the quantum of compensation, the appellant was engaged as daily wager on 02.05.1998 and he worked hardly for eighteen months from 02.05.1998 to 06.11.1999, hence, in our view, compensation of Rs. 25,000/- (Rs. Twenty five thousand only) to the appellant would meet the ends of justice. It is pertinent to note that the learned AGP could not point out from the record that the appellant was gainfully employed at any time during the pendency of the proceedings. Accordingly, the respondent No. 2 is directed to pay Rs. 25,000/- (Rs. Twenty five thousand only) to the appellant towards retrenchment compensation within a period of two months from today, failing which, the same shall carry interest @ 9% per annum from the date of this judgment.

32. The appeal is accordingly partly allowed to the above extent with no order as to costs.

Conveyance Allowance and Travelling Allowance does not Attract ESI Contribution

Expression ''Travelling Allowance'' has not been defined in the ESI Act - Under section 2(24) of the Act, all words and expressions used, but not defined in the ESI Act shall have the meaning assigned to them under the Industrial Disputes Act, 1947 - Travelling Allowance is also not defined in the ID Act - No provision in the ESI Act or in the ID Act, restricts the scope and ambit of Travelling Allowance - Hence, meaning of ''Travelling Allowance'' has to be construed as per its ordinary meaning in common parlance - There is no difference between Conveyance Allowance and Travelling Allowance.

- The Employees State Insurance Corporation vs. M/s Texmo Industries

2021 LLR 799
SUPREME COURT OF INDIA
Hon'ble Ms. Indira Banerjee, J.
Hon'ble Mr. Hrishikesh Roy, J.
C.A.J. S.L.P. (C) No. 811/2021,
Dt/–8-3-2021

The Employees State Insurance Corporation
vs.
M/s Texmo Industries

A. EMPLOYEES' STATE INSURANCE ACT, 1948 – Section 2(22) – Wages – ESI Authority passed order under section 45A of the Act by computing wages including conveyance allowance, leave salary, etc. directing employer to pay contributions with interest – Employer disputed the determined amount but remitted some amount towards difference in wages – Employer challenged order of ESI Authority before Employees Insurance (EI) Court in respect of conveyance allowance – EI Court allowed the application of employer rejecting claim raised by ESIC in respect of conveyance allowance – ESI Authority challenged order of EI Court by filing appeal which was dismissed by High Court – ESI Authority filed Special Leave Petition – Held, wages, in view of section 2(22) of the Act includes remunerative payments, but does not include 

(i) compensatory payments, 

(ii) travelling allowance/concession/free transport from residence to his place of work and would not cease to be ‘travelling allowance' only because it was a fixed sum paid along with wages or at regular intervals, 

(iii) any payment to reimburse or compensate for special expenses, incurred by reason of the nature of his employment – Including ‘conveyance allowance' in ‘wages' as it is paid every month to every employee to meet to and fro conveyance expenses, is an erroneous construction of section 2(22) of the Act. Paras 14 to 21

B. EMPLOYEES' STATE INSURANCE ACT, 1948 – Conveyance Allowance – When may be part of ‘wages' – If employer has provided accommodation to an employee within walking distance from his place of work and he may not have to incur any expenditure in connection with his employment. In such a case, Conveyance Allowance would be redundant and might be construed as part of allowance consisting wages. Para 25 to 28

C. WORDS AND PHRASES 

– Expression “Travelling Allowance” has not been defined in the ESI Act – Under section 2(24) of the Act, all words and expressions used, but not defined in the ESI Act shall have the meaning assigned to them under the Industrial Disputes Act, 1947 

– Travelling Allowance is also not defined in the ID Act 

– No provision in the ESI Act or in the ID Act, restricts the scope and ambit of Travelling Allowance

– Hence, meaning of “Travelling Allowance” has to be construed as per its ordinary meaning in common parlance

– There is no difference between Conveyance Allowance and Travelling Allowance. Paras 22 to 24

For Petitioner: Dr. Sumant Bharadwaj, Advocate.

For Respondents: Ms. Mridula Ray Bharadwaj, AOR.

Key Takeaway Points

Wages, under section 2(22) of the Employees' State Insurance Act, 1948 includes remunerative payments, but does not include:

1. compensatory payments,
2. travelling allowance/concession/free transport from residence to his place of work and would not cease to be ‘travelling allowance' only because it was a fixed sum paid along with wages or at regular intervals,
3. any payment to reimburse or compensate for special expenses, incurred by reason of the nature of his employment
4. Including ‘conveyance allowance' in ‘wages' on the basis that it is being paid every month to every employee to meet to and fro conveyance expenses, is an erroneous construction of section 2(22) of the Act.
5. If employer has provided accommodation to an employee within walking distance from his place of work and he may not have to incur any expenditure in connection with his employment, in such a case, Conveyance Allowance would be redundant and might be construed as part of allowance consisting wages.
6. Expression “Travelling Allowance” has not been defined in the Employee' State Insurance Act, 1948.
7. Under section 2(24) of the Act, all words and expressions used, but not defined in the Act shall have the meaning assigned to them under the Industrial Disputes Act, 1947.
8. Travelling Allowance is also not defined in the Industrial Disputes Act, 1947.
9. Meaning of “Travelling Allowance” has to be construed as per its ordinary meaning in common parlance since there is no provision either in the Employee' State Insurance Act, 1948 or in the Industrial Disputes Act, 1947, which restricts the scope and ambit of Travelling Allowance.
10. There is no difference between Conveyance Allowance and Travelling Allowance.

Judgment

Indira Banerjee, J.

1. This Special Leave Petition is against a judgment and order dated 8th October 2020 passed by the High Court of Judicature at Madras, dismissing the appeal being C.M.A. No. 1527 filed by the Employees State Insurance Corporation, hereinafter referred to as the ‘Petitioner Corporation', under section 82(2) of the Employees State Insurance Act, and affirming the order dated 31st July 2020 passed by the Employees State Insurance Court, Coimbatore allowing E.S.I.O.P. No. 1/2016 filed by the Respondent Company under section 5 of the Employee State Insurance Act, 1948 (for short, ‘ESI Act').

2. The Respondent Company manufactures different kinds of agricultural pumps and other products and has ten branches in Coimbatore, Tamil Nadu. The ESI Act is applicable to the factories and establishments of the Respondent Company, and the employees of the Respondent Company are required to be insured in the manner provided by the ESI Act.

3. The Respondent Company is liable to pay Employees' State Insurance Contribution in respect of its employees, as provided in section 39 of the ESI Act. Section 44 of the ESI Act requires the Respondent Company to maintain a register, containing particulars of its employees, and to submit Returns to the Petitioner Corporation, in the manner prescribed by the Regulations framed under the ESI Act.

4. On or about 23 January 2015, officials of the Petitioner Corporation inspected the records of the Respondent Company for the period from December 2010 to December 2014 and detected discrepancies in the wages, and consequential short payment by the Respondent Company, towards Employees State Insurance contributions, totaling Rs. 21,52,829/-, out of which Rs. 9,48,517/- was towards Conveyance Allowance, paid by the Respondent Company to its employees.

5. By an order dated 19 March, 2015, the Corporation called upon the Respondent Company to pay its outstanding contributions totaling Rs. 21,52,829/- , with interest, within 15 days from the date of the order, failing which the same would be recovered as arrears of land revenue. The Respondent Company was, however, given the opportunity of personal hearing, if it disputed the claim of the Corporation.

6. The Respondent Company made a representation against the claim, pointing out that the Corporation had erroneously computed the salary, by including Conveyance Allowance, leave salary, etc. which did not constitute wages as defined in section 2(22) of the ESI Act.

7. Thereafter the Petitioner Corporation passed an amended order dated 6th July, 2016 under section 45A of the ESI Act, determining the differential contribution payable by the Respondent Company at Rs. 19,38,300/- as per the break up given in the said amended order, that is, Rs. 9.89,783/- towards difference in wages and Rs. 9,48,517/- towards Conveyance Allowance. The Respondent Company duly remitted Rs. 9,89,783/- towards difference in wages.

8. The Respondent Company instituted proceedings in the Employees State Insurance Court being E.S.I.O.P No. 1 of 2016 in respect of the claim of the Corporation of Rs. 9,48,517/- in respect of the Conveyance Allowance paid by the Respondent Company to its employees.

9. By a judgment and order dated 31 st July, 2020, the Employees' State Insurance Court allowed the E.S.I.O.P. No. 1 of 2016, and set aside the claim of Rs. 9,48,517/- in respect of Conveyance Allowance, paid by the Respondent Company to its employees.

10. Being aggrieved by the judgment and order dated 31 st July, 2016 of the Employees State Insurance Court, the Corporation filed an appeal therefrom in the High Court under section 82(2) of the ESI Act. The said appeal has been dismissed by the judgment and order impugned in this Special Leave Petition.

11. The short question involved in this Special Leave Petition is whether ‘wages', as defined in section 2(22) of the ESI Act, would include Conveyance Allowance paid by the Respondent Company to its employees.

12. Section 22(2) of the ESI Act is set out hereinbelow for convenience:

“2. Definitions. —In this Act, unless there is anything repugnant in the subject or context,—…...

(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”.

13. A reading of section 2(22) of the ESI Act, makes it amply clear that ‘wages' means all remuneration paid or payable in cash to an employee, under a contract of employment, express or implied, as consideration for discharging his duties and obligations under such contract of employment, including 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. The definition of ‘wages', however, expressly excludes any contribution paid by the employer to any pension fund or provident fund or under the ESI Act, any travelling allowance or the value of any travelling concession, any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment or any gratuity payable on discharge.

14. From the definition of wages in section 2(22) of the ESI Act, it is amply clear that wages includes remunerative payments, but does not include compensatory payments. Travelling allowance including the value of travelling concession has expressly been excluded from the definition of wages, as also any payment made to an employee to reimburse or compensate for special expenses that an employee might incur by reason of the nature of his employment.

15. The Employees' State Insurance Court held, and in our view, rightly, that Conveyance Allowance is in the nature of travelling allowance, the object of which is to enable the employee to reach his place of work and to defray costs incurred on travel from his place of residence to his place of work. If instead of paying the Conveyance Allowance, the employer provided free transport to the employee, the monetary value of that benefit of travel from his residence, to his place of work would also not be regarded as forming part of his wages.

16. In Management of Oriental Hotels Ltd., Chennai vs. Employees' State Insurance Corporation, Chennai, 2002 (1) LLJ 14, a Division Bench of Madras High Court held:–

“8. In so far as the conveyance allowance is concerned, even though it forms part of the wages being the amount payable in terms of the contract of employment, having regard to the settlement and even de hors the settlement, the payment of the amount would fall within the ambit of “additional remuneration”. Nevertheless, that amount will have to be excluded having regard to the specific exclusion provided in the definition itself for travelling allowance or the value of any travelling concession. The conveyance allowance paid is in the nature of travelling allowance as the object of that payment is to enable the employee to reach his place of work and to defray a part of the cost incurred on the travel from his place of residence to the place of work. If instead of paying the conveyance allowance, the employer had provided free transport to the employees, the monetary value of that benefit of free travel from his residence to the place of work would not have been capable of being regarded as forming part of the wages. The conveyance allowance paid in cash for the purpose of being utilised on the travel from place of residence to the place of work, is of the same character and there is no reason why it should not be regarded as travelling allowance for the purpose of section 2(22)(b) of the Employees' State Insurance Act.”

17. In Regional Director, ESI Corporation vs. Sundaram Clayton Ltd. , 2004 (II) LLJ 30 another Division Bench of the Madras High Court reiterated that, payment towards Conveyance Allowance for the travel of employees from their place of residence to their place of work would have to be construed as Travelling Allowance and excluded from ‘wages' in view of clause (b), sub-section (22) of section 2 of the ESI Act.

18. We affirm the view taken by Madras High Court in Oriental Hotels Limited, Chennai ( supra ) and Sundaram Clayton ( supra ). In Regional Director, ESI Corporation, Thrissur vs. Royal Plastics Industries, Aluva, 2015 (2) KLT 64, a Single Bench of Kerala High Court referred to the judgment of the Madras High Court in Oriental Hotels' case ( supra ) and held that, clauses (a) to (d) of sub-section (22) of section 2 of the ESI Act are in the nature of exception to the main part of the sub-section. Any Travelling Allowance or the value of any travelling concession would be outside the purview of the term ‘wages', and that it would make no difference whether the Travelling Allowance was paid as part of the contract of employment, or whether it was paid in lump sum or whether it was paid at regular intervals. It would not cease to be Travelling Allowance only because it was a fixed sum paid along with the wages, as per the terms of the contract of employment. We agree with the view taken by the Single Bench of Kerala High Court in Royal Plastics Industries ( supra ).

19. We are unable to agree with the view taken by the Single Bench of Karnataka High Court in Regional Director, Employees State Insurance Corporation vs. M/s IT Solutions (India) Private Limited, ILR 2002 Karn 4019, that the value of Conveyance Allowance cannot be excluded from the definition of ‘wages'. The reasoning of the Karnataka High Court that Conveyance Allowance cannot be excluded from the definition of ‘wages' because Conveyance Allowance is paid every month to every employee like House Rent Allowance, in terms of the contract of employment, so as to meet to and fro conveyance expenses, whereas travelling allowance is paid to the concerned employee when he or she is sent out of station on duty to meet travelling expenses, is in our view, unsustainable in law.

20. We are of the view that, the reasoning that Conveyance Allowance cannot be excluded from the definition of ‘wages' as it is paid every month to every employee, like House Rent Allowance, in terms of the contract of employment, so as to meet to and fro conveyance expenses, is based on an erroneous construction of section 2(22) of the said Act.

21. The definition of wages in section 2(22) of the ESI Act clearly excludes Travelling Allowance. The distinction sought to be made by the Petitioner Corporation between Travelling Allowance and Conveyance Allowance, based on the Single Bench judgment of the Karnataka High Court in M/s IT Solutions (India) Private Limited ( supra ), is in our view misconceived. There is no cogent reason why Conveyance Allowance which is in effect and substance the same as Travelling Allowance, should be treated differently from Travelling Allowance.

22. The expression “Travelling Allowance” has not been defined in the ESI Act. Under section 2(24) of the ESI Act all words and expressions used, but not defined in the ESI Act shall have the meaning assigned to them under the Industrial Disputes Act, 1947, hereinafter referred to as the ‘ID Act'. Travelling Allowance is also not defined in the ID Act. There is no provision in the ESI Act or in the ID Act, which restricts the scope and ambit of Travelling Allowance. In the absence of any definition or explanation of the expression “Travelling Allowance” in either of those Acts, the expression has to be construed as per its ordinary meaning in common parlance.

23. Conveyance Allowance may or may not be payable to every employee. For that matter, House Rent Allowance may also not be paid to all employees. It is immaterial whether an allowance is paid regularly or intermittently depending on exigencies. It is the nature and purpose of the allowance which is relevant.

24. House Rent Allowance cannot possibly be equated to Conveyance Allowance, since House Rent Allowance is not necessarily connected with the employment of an employee. Irrespective of whether a person is employed or not and irrespective of the nature of his employment, he needs shelter.

25. Conveyance Allowance, on the other hand, compensates expenses that might be incurred by an employee for reporting to his usual place of work or to any other place of work, where he may have to report. If an employer were to provide the employee with accommodation within walking distance from his place of work and that employee were not required to go to any other place in connection with his duties under his contract of employment, the employee may not have to incur any expenditure in connection with his employment. In such a case, Conveyance Allowance would be redundant and might be construed as part of allowance consisting wages. In this case, it is not the case of the Corporation that the employees concerned did not need to avail any conveyance expenditure to report for duty to their place of work, or otherwise in connection with their duties under their contracts of employment. Nor is there any such finding. We see no reason why Conveyance Allowance should not be excluded from the definition of wages.

26. As per the Oxford Learner's Dictionary, 8 th Edition, conveyance means the process of taking somebody from one place to another. A vehicle or other mode of transport is also formally referred to as conveyance. As per the same dictionary, the word “travel” means “to go from one place to another especially a long distance”. That distance could also be a few kilometers. One might travel 10 kms to one's place of work. In many cities people may have to travel for hours to reach their place of work. Travel is an expression with a wide meaning to include long distance. It also covers short distances.

27. Had it been the intention of section 2(22) to exclude only occasional long distance travel from one city to another, from the definition of wages, the Act would have specifically provided so. The expression ‘travel' is also often used interchangeably with the expression ‘commute' which means “to travel regularly by bus, train, car etc. between one's place of work and home, as per the said dictionary. An example given in the said dictionary is “she commutes from Oxford to London everyday”. Another example given is “people are prepared to commute long distances if they are desperate for work. The employees State Insurance Corporation Court was right in holding that there was no difference between Conveyance Allowance and Travelling Allowance.

28. There can be no doubt, as held by this Court in Whirlpool of India Limited vs. ESI Corporation, (2000) 3 SCC 185 that the ESI Act is a social legislation enacted to provide benefits to employees in case of sickness, maternity and employment injury and to make a provision for certain other matters in relation thereto. When there is any ambiguity in any provision, the Court would ordinarily favour a construction that would be beneficial to those for whom the legislation is enacted. In Whirlpool of India Limited ( supra ), this Court held that production incentive falls within the definition of wages. In this case, there is no ambiguity. There is no such difference between Conveyance Allowance and Travelling Allowance to justify the stand of the Petitioner Corporation that Conveyance Allowance would not fall within the ambit of Travelling Allowance. Travelling Allowance includes Conveyance Allowance. The use of the expression “any travelling allowance” in section 2(22)(b) makes it clear that all kinds of travelling allowance are excluded from the definition of wages.

29. In Whirlpool of India Limited ( supra ), this Court referred to and relied inter alia on Wellman (India) (P) Ltd. vs. ESI Corporation, (1999) 1 SCC 219, Modella Woollens Ltd. vs. ESI Corporation, 1994 Supp (3) SCC 580 and Harihar Polyfibres vs. Regional Director, ESI Corporation, (1994) 4 SCC 7. In Wellman ( supra ), this Court held that attendance bonus payable to employees under the terms of settlement, which became part of the contract of employment was well within the definition of wages. In Modella Woollens ( supra ), the payment of production bonus to the employees at the end of each quarter was held to be wages. In Harihar Polyfibres ( supra ), this Court held that payment made at intervals not exceeding two months such as “House Rent Allowance”, “Night Shift Allowance”, “Incentive Allowance” and “Heat, Gas and Dust Allowance” was covered by the definition of wages under section 2(22) of the ESI Act. None of the judgments dealt with Conveyance Allowance or Travelling Allowance.

30. There is no infirmity at all in the concurrent findings of the High Court and the Employees' State Insurance Court, which calls for interference under Article 136 of the Constitution of India. The Special Leave Petition is dismissed.

Casual Workers are covered by ESIC

I often receive receive some question like 

• Do Casual Worker involved in Grass Cutting, occasionally, will cover under ESI Act
• Do Casual Worker involved in Faced Cleaning, occasionally, of Hotel or High-rise building will cover under ESI Act
• Do Casual Worker i involved in cleaning of Swimming Pool, occasionally, at Hotel, Club or Resort will cover under ESI Act
• and so on ...

Here I'll like to inform that any activity which is perennial in nature of an establishment & for such perennial activity if there is any casual worker involved, even for a few days also, then such casual worker cannot be deprived of the beneficial provisions of the ESI Act. The employees’ work for the day which is perennial activity of any establishment then by the view of the provisions of the ESI Act, Rules, Regulations and notification, such employees are covered and consequently are entitled for benefit of the ESI Act  consequently are entitled for benefit of the ESI Act and wage period as defined in section 2(23) does not exclude the wages payable to casual workers. They cannot be deprived of the beneficial provisions of the Act.

In this regard, please refer to the verdict pronounced by the Hon'ble Supreme Court of India in the case of the Royal Western India Turf Club Ltd. vs. E.S.I. Corporation & Ors

Royal Western India Turf Club Ltd. vs. E.S.I. Corporation & Ors

The Supreme Court held In the case of Royal Western India Turf Club Ltd. vs. E.S.I. Corporation & Ors. that the definition of employee is very wide. A person who is employed for wages in the factory or establishment, on any work of, or incidental or preliminary to or connected with the work is covered. The definition brings various types of employees within its purview. The ESI Act is a welfare legislation and is required to be interpreted so as to ensure extension of benefits to the employees and not to deprive them of the same which are available under the Act. Further it is apparent from section 39 that an employee who is employed for a part of the wage period is also covered for the purposes of contribution. The definition of the term “employee” in section 2(9) is also wide enough to cover casual employees who are employed for part of wage period. Hence casual workers are entitled all benefits available under ESI Act.

Facts of the Case

The main question involved in the present appeals whether the ESI Act is applicable to Royal Western India Turf Club Ltd. has been concluded by a 3 Judge Bench decision of this Court vide judgment dated 31.7.2014. It has been held that the Turf Club would fall within the meaning of the word ‘shop’ as mentioned in the notification issued under the ESI Act. Therefore, the provisions of ESI Act would extend to the appellant also. Thereafter the matters have been placed before a Division Bench to consider other questions on merit. The question raised is as below-

– whether casual workers are covered under definition of employee as defined in Section 2(9) of the Employees State Insurance Act, 1948 and pertaining to period for which Turf Club is liable to pay from 1978-79 or from 1987.

Contention of the Appellant

The ld counsel of the Appellant submitted that in view of the specific notification dated 18.9.1978 so far as Royal Western India Turf Club Ltd. is concerned in Maharashtra, position was clear as to applicability of ESI Act. The consent terms which have been relied upon related to the earlier period in which other establishments of the Turf Club were covered. In the notification issued on 18.9.1978, the departments in question of the Turf Club were also covered. Even the consent term reflects that there was no doubt that the Turf Club was covered under provisions of the ESI Act w.e.f. 1968.

Contention of the Respondent

The ld counsel of the respondent submitted that temporary staff engaged on race days for issue of tickets, would not be covered by the definition of the “employee” under Section 2(9) of the Employees State Insurance Act, 1948. It was also submitted that in view of the consent terms filed in Application No.16/1976 by the Turf Club before the ESI Court, Bombay, the casual labour engaged on race track were not to be covered under the ESI Act. It was further submitted that in view of Rule 2A of the Employees’ State Insurance (Central) Rules, 1950, contribution is required to be made for a period as may be prescribed in the Regulations and in view of Regulations 29 and 31 of the Employees’ State Insurance (General) Regulations, 1950, it would be difficult to calculate the contribution for the employees who work casually on the racing days.

It was also submitted that the direction issued by the High Court not to recover the amount before 1987 does not call for any interference in the appeal filed by ESI Corporation, for which reliance has been placed on a decision of this Court in Employees State Insurance Corporation v. Hyderabad Race Club (2004) 6 SCC 191.

Held by Supreme Court

Whether casual employees are covered within the purview of ESI Act

The Supreme Court held that the definition of “employee” is very wide. A person who is employed for wages in the factory or establishment on any work of, or incidental or preliminary to or connected with the work is covered. The definition brings various types of employees within its ken. The Act is a welfare legislation and is required to be interpreted so as to ensure extension of benefits to the employees and not to deprive them of the same which are available under the Act. Further It is apparent from section 39 that an employee who is employed for a part of the wage period is also covered for the purposes of contribution. The definition of the term “employee” in section 2(9) is also wide enough to cover casual employees who are employed for part of wage period. It is also provided in section 39(5) that in case contribution is not paid, it shall carry 12% interest per annum or such higher rate as may be specified in the Regulations till the date of actual payment and the amount is recoverable as arrears of land revenue.

This Court in Regional Director, Employees’ State Insurance Corporation, Madras v. South India Flour Mills (P) Ltd. [AIR 1986 SC 1686] has overruled the decision of the Madras High Court in Employees’ State Insurance Corporation v. Gnanambikai Mills Ltd. (1974) 2 Lab. Law Journal 530 (Mad.) in which the High Court laid down that though casual employee may come within the definition of the term “employee” under section 2(9) of the Act, yet they may not be entitled to sickness benefits in case their employment is less than the benefit period or contribution period and that it does not appear from the Act that casual employee should be brought within its purview. It was held that casual employees come within the purview of the Act. In view of the aforesaid decision it is apparent that the submission raised by Royal Turf Club that casual workers are not covered under the ambit of ESI Act is too tenuous for its acceptance.

Further the notification of 1978 is clear and has to be given full effect, for earlier period also the consent terms indicated that various other departments of Turf Club were covered under the notification of 1968. Reliance on the decision of this Court in Hyderabad Race Club case (2004) 6 SCC 191 so as to waive the contribution from 1975 to 1986, is not available as in the instant case there was no doubt as to applicability of ESI Act in view of the specific notification issued in 1978. The provisions of ESI Act were applied to various departments of Turf Club w.e.f. 1968. The decision in Hyderabad Race Club case (2004) 6 SCC 191 turned on its own different factual matrix. In this case, it was clear from 1968 itself that Turf Club was covered under ESI Act as is apparent from consent terms. The notification dated 18.9.1978 included other left out departments of race club. The provisions of ESI Act were complied with by Turf Club w.e.f. 1968. The High Court on the facts of the case has erred in quashing the demand for the contribution with effect from 1978 till 1987. In our opinion, the Turf Club is liable to make the contribution as per notification dated 18.9.1978 along with interest at such rate as provided in the Act and the Rules till the date of actual payment.

Accordingly, appeal of the appellant dismissed.