K. P. SIVASUBRAMANIAM, J.

This appeal is directed against the order of the learned I Additional City Civil Judge, Madras in E.S.I. O.P. No. 133 of 1988. The petitioner before the E.S.I. Court is the appellant in the above appeal.

As against the order passed under Section 45 of the Employees' State Insurance Act, 1948 (hereinafter called as 'the Act') by the Assistant Regional Director, O.P. 133 of 1988 came to be filed by the appellant. According to the appellant they are carrying on business of sales, service and repairs of fountain pens, employing 16 employees. It also employs salesman in all the above three show rooms and they are paid wages as per the scales prescribed. One month's salary is paid as bonus at the time of Pongal. In order to motivate the individual salesmen to optimise the sales, the petitioner pays to them an annual commission on the sales effected by them during the period of April 1 of every year to March 31 of the following year. After the completion of the year, sales effected by each salesman is worked out and the commission is credited to the individual salesman. When the salesmen wishes to draw money from his sales commission account, he draws amount by submitting vouchers. Depending upon the performance and also the progress of sales, the petitioner in its discretion allows the individual salesman to draw advance against commission in the course of the year also. The petitioner at his sole discretion increases or decreases the percentage of commission and the petitioner also has the right to discredit the claim. In other words the payment of the commission was not a condition of service nor does it form part of wages, to the salesman. The payment was only annual. The payment was to motivate them to maximise their efforts in achieving sales. They are not entitled to demand commission as a matter of right or as a matter of course. The amounts paid as commission to salesmen will not form part of their wages nor could it be treated as an additional remuneration within the meaning of 'wages' as defined under Section 2(22) of the Act. The petitioner is covered under the Act from January 10, 1977 and has been making contribution in respect of its employees without any default. By a communication dated August 15, 1988 the respondent demanded that the petitioner should pay contribution on the sales commission paid to the salesmen and required the petitioner to send the declaration forms to the concerned local office. Simultaneously notice under Section 45-A of the Act was issued claiming contribution on sales commission paid to salesmen during the period from April, 1985 to March, 1986. The petitioner produced all documents and accounts and contended that the sales commission was not paid at intervals not exceeding two months, and, therefore, it would not fall within the meaning of 'wages'. However by an order dated November 18, 1988, the respondent held that the sales commission would form part of the contract of employment. Therefore, the petitioner was directed to pay Rs. 3090.20 as contribution for the period April, 1985 to March, 1986. The petitioner further contended that the commission paid to salesmen was not 'wages' and hence, the order passed by the respondent was illegal. There was no failure on the part of the petitioner to submit his returns or to pay contribution in terms of the Act. There was also a dispute between the petitioner and the respondent as to whether the commission payable to the salesmen would fall within the scope of wages and the dispute can be dissolved only by the E.S.I. Court under Section 75 of the Act. Therefore, the demand made by the respondent was invalid.In the written statement filed by the respondent-E.S.I. Corporation, it was contended that even though the petitioner was complying with the provisions of the Act as a result of the inspection by the Inspecting Officer, it was found out that non-payment of contribution in respect of the period in question on t