Overtime wages fall within the definition of 'Wages' under the Employees' State Insurance Act, 1948, and the law declared by a Court will have a retrospective effect if not otherwise stated to be specifically.

JUDGMENT

Krishna Rao, J. - In both the writ petition subject-matters are similar and accordingly a common order is passed.

2. The petitioners have filed the instant writ application challenging the orders passed by the Deputy Director, Regional Office, Employees State Insurance Corporation, Calcutta vide No. C/INS.V/41-3176-12 dated 9th February 2001.

3. The petitioner no.1 is a Company registered under the Indian Companies Act, 1956 and is engaged in manufacturing of Jute Goods and Jute Products. The petitioner Company is covered under the Employees State Insurance Corporation (herein referred to as ESI Corporation) and the Code No. 41-3176-12 is allotted to the ESI Corporation.

4. On 25th May, 1992, the respondent no.1 had issued notice to the petitioner Company and demanded contribution on the overtime payment for the period from August, 1986 to December, 1988 amounting to Rs. 3,13,211/-.

5. On 24th March, 2000, the respondent no.1 issued had issued an order and imposed liability of Rs.2,91,075/- plus interest on account of overtime payment for the period from 8/86 to 12/88. Being aggrieved with the said order, the petitioners have preferred writ application before this Court being W.P. No. 685(w) of 2001 and this Court had set aside the order dt. 24th March, 2000 and remanded the matter for fresh consideration as the impugned order was passed without giving an opportunity of hearing to the petitioners.

6. In WPA 8906 of 2001, the respondent no. 1 had issued notice on 16.01.1999 and demanded contribution on one time wage and holiday's wages. Between 4/96 to 9/98 amounting to Rs. 5,33,954/- and the respondent no. 2 had fixed hearing on 1st March, 1999.

7. In compliance of the order of this Court and after giving an opportunity of hearing to the petitioners, the respondent no. 1 had passed the impugned order in the month of February, 2001.

8. Learned Counsel for the petitioner submits that the impugned order is passed in violation of Section 77(1A)(b) proviso of the Employees State Insurance Act, 1945 as the claim is for the period from 1986 to 1988 but the claim was made in the year 2000. It is further contended that respondent corporation cannot demand overtime wages because at the relevant point of time, overtime was declared to be not a part and parcel of wages by the Division Bench of this Court.

9. Learned Counsel for the petitioner submits that matter was closed in the year 1992 and the same cannot be reopen in the year 2000. It is further contended that the respondent Corporation cannot demand the overtime wages as the relevant point of time, overtime was declared to be not a part and parcel of wages in terms of the order passed by the Hon'ble Division Bench of this Court.

10. Learned Counsel for the petitioner submits that unless and until judgment of Hon'ble Supreme Court expressly mentioned that it would operate retrospectively the judgment of the Hon'ble Supreme Court cannot be given retrospective effect.

11. Per contra, Learned Counsel for the respondents submits that the Hon'ble Supreme Court had set aside the order passed by the Hon'ble Division Bench of this Court and held that the payment toward overtime allowance is 'wages' within the meaning of Section 2(22) of the ESI Act, 1948.

12. Learned Counsel for the respondents submits that the Judgment passed by the Hon'ble Supreme Court in the case of Drugs and Pharmaceuticals Ltd. is applicable in the instant case.

13. Learned Counsel for the respondent submits that the inspection was conducted on 08.09.1987 to 11.09.1987 and 06.02.1989 to 09.02.1989 and on the basis of the same notices were issued which ultimately culminated to Show Cause notice and thus there is no limitation.

14. Heard the learned counsel for the respective parties and considered the materials on record.

15. In the instant case the following issues are to be decided :

1. Whether the petitioner being the employer covered under the Employees' State Insurance Act, 1940 is required to pay contribution on certain