The main legal point established in the judgment is the interpretation of the definition of 'wages' under Section 2(22) of the ESI Act in relation to specific allowances, and the burden of proof on the employer regarding these allowances.

JUDGMENT

(Prayer: Civil Miscellaneous Appeal filed under Section 82(2) of the Employees State Insurance Act 1948, to call for the records relating to the fair order and Ex-Order dated 20.02.2020 passed by the Hon''ble E.S.I Judge, E.S.I Court (Labour Court) Madurai in E.S.I.O.P.No.54 of 2012 and set aside the same.)

1. The Civil Miscellaneous Appeal is directed against the order passed in E.S.I.O.P.No.54 of 2012, dated 20.02.2020 on the file of the Employees'' State Insurance Court (Labour Court), Madurai.

2. For the sake of convenience and brevity, the parties herein after will be referred as per their ranking/status before the ESI Court.

3. It is not in dispute that the Social Security Officer attached to the respondent, inspected the petitioner''s Mill on 16.06.2011 and 17.06.2011; that on the basis of the report filed by the Social Security Officer, the respondent has issued a notice in Form C-18, dated 07.07.2011 proposing to levy E.S.I., contribution at Rs.51,66,359/- and that after the personal hearing and after receipt of written representation from the employer and on perusing the records produced by them, the respondent has passed an order, dated 13.06.2012 under Section 45-A of the Employees'' Insurance Act Act, determining the contribution payable at Rs.4,04,335/-. Aggrieved by the said order passed under Section 45-A of the ESI Act, the employer has filed a petition under Section 75(i)(g) of ESI Act, before the E.S.I, Court (Labour Court) Madurai.

4. The respondent has filed their reply statement.

5.During enquiry, the petitioner''s Human Resources Manager Tr.R.Saravanan, has been examined as P.W.1 and exhibited nine documents as Ex.P.1 and Ex.P.9. The respondent has examined their Social Security Officer Thiru.G.Rajendran as R.W.1 and exhibited one document as Ex.R.1. The learned E.S.I., Judge, upon considering the evidence both oral and documentary and on hearing the arguments of both the sides, has passed the impugned judgment, dated 20.02.2020, allowed the petition and thereby setting aside the order dated 13.06.2012 passed under Section 45-A of E.S.I., Act. Aggrieved by the said order, the respondent Corporation has preferred the present appeal.

6. At the time of admission, the following Substantial Questions of law were framed :

(i) Whether any payment made under the head of “Travelling/Conveyance Allowance” and “Tiffin/Meals Allowance” is excluded from the definition of Wages prescribed under Section 2(22) of the ESI Act even in the absence of materials to substantiate that they were paid towards the actual expenses incurred under the said heads ?

(ii) Whether the burden lies upon the employer to show that monthly payments made under the heads of “Travelling/Conveyance Allowance” and “Tiffin/Meals Allowance” are paid towards actual expenses incurred by producing materials or that they were paid under an available contract or agreement ?

7. The case of the petitioner is that the respondent has claimed contribution for the Travelling/Conveyance allowance and Tiffin/Meals allowance paid to the employees; that Travelling/conveyance allowance and the Tiffin/Meals allowance does not form part of wages and as such, no E.S.I., contribution is to be claimed. But on the other hand, the defence of the respondent is that the Travelling/conveyance allowance and Tiffin/Meals allowance are to be considered as wages under Section 2(22) of E.S.I, Act and as such, E.S.I., contribution is to be claimed.

8. Before entering into further discussion, it is necessary to refer Section 2 (22) of E.S.I., Act 1948.

“ (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 11[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, 22[paid at intervals not exceeding two month