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Judgment
Nagendra Prasad Singh, J.—The petitioner in this writ application is a public limited company which carries its business at Ranchi. It is a factory within the meaning of the term as defined in the Employees'' state Insurance Act, 1948 (Act 34 of 1948) (hereinafter to be referred to as the Insurance Act). Being a factory several persons are employed as employees thereof. In this writ application a prayer has been made for quashing the two communications dated 29th February, 1972 addressed by the Regional Director of the Employees'' State Insurance Corporation, Patna, a Corporation constituted under the Insurance Act (hereinafter to be referred to as the Corporation) to the Collector, Patna. In the aforesaid two communications, the Regional Director of the said Corporation has stated that amounts of Rs. 13197/-- and Rs. 10216.58 paise, which were liable to be paid by the petitioner company as the employer''s special contribution and employees'' contribution respectively, under the provisions of the Insurance Act have not been deposited as the aforesaid amounts have not been deposited on behalf of the Petitioner company, they should be recovered as arrears of land revenue under the provisions of the Insurance Act read with Section 5 of the Revenue Recovery Act, 1890 (hereinafter to be referred to as the Revenue Act). Copies of the aforesaid two communications have been annexed to the writ application and marked as Annexures ''2'' and ''3'' respectively. According to the petitioner, it is not liable to pay any such contribution under the provisions of the Insurance Act and the demand for realisation of the same is per se arbitrary and without any authority in law. According to the case of the petitioner, in order to raise the production, the management introduced job incentive scheme on 16th March, 1965. Under that scheme the bonus was to be given to different group of workmen as an incentive for higher production. A copy of the said scheme is annexure-1 to the writ application. This incentive bonus was to be paid to different group of workmen over and above what they were entitled as wages, but at no stage the amount paid under this scheme to the workmen formed part of their wages so as to attract the provisions of the Insurance Act.
In it not in dispute that the question of contribution in respect of such payments will arise only if such payments are held to be part of wages. "Wages" has been defined u/s 2(22) of the Insurance Act as follows:--
�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 included 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, 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.
It has been asserted on behalf of the petitioner that this incentive bonus is neither paid under the terms of the contract of employment, express or implied, or as any other additional remuneration. It is just an ex gratia payment which can be altered, modified or withdrawn at the discretion of the management and in that view of the matter by no stretch of imagination it will be deemed to be wage for the purpose of applicability of the provisions of the Insurance Act. Learned counsel pointed out that from clauses 2, 6, 8, 9, 10, 13, 14 and 18 of the Scheme (Annexure-1) it is apparent that it is or the management to make the scheme applicable to a particular group of workmen; it is up to them to revise it at their own discretion and even to delete the same as and when they think it proper. Clauses 13 and 18 are as follows:--
Incentive earnings will not form part of wage and will not be taken into account for purposes of calculating leave with wages, provident fund, overtime, ESI, annual bonus (if any declared) or any other payment/contribution under any scheme.
Any rules and regulations in this office order may be modified/added/deleted at the discretion of the Management.
On the basis of the aforesaid clauses it has been submitted that the amount paid under that scheme can neither be held to be payment under the terms of some contract, because the workmen have no discretion in the matter, nor can it be held to be an additional remuneration because it is an ex gratia payment at the discretion of the management, only to give incentive for higher production. In support of the contention, learned counsel placed reliance on a Supreme Court judgment in (1) Braithwaite and Co. (India) Ltd. Vs. The Employees'' State Insurance Corporation, . In that case a question arose as to whether ''Inam'' paid or to be paid to its workmen under a scheme initiated, will be deemed to be ''wages'' as defined in the Employees'' State Insurance Act. Under that scheme also, as will appear from paragraph 4 of the judgment, the payment of ''Inam'' was not covered by the original terms of the contract of employment of the employees. It was just an incentive payment, if certain specified conditions were fulfilled by the employees. The management of that case also reserved the right to withdraw the scheme altogether without assigning any reason or to revise its conditions at its sole discretion. It had been also mentioned in the scheme that if targets were not achieved due to lack of orders, lack of materials, breakdown of machinery, strike, lock-out etc., then no Inam was to be awarded. One of the clauses of that schema also specially stated that any such payment was not to be treated as part of the wages. It was held that the payment in question was neither being made under the terms of contract of the employment or as additional remuneration so as to form part of the wages. In the instant case also the terms of the scheme are more or less similar including that no claim for incentive payment shall arise in respect of the period when there was shortage of raw materials, breakdown, power failure, strikes, lock-out etc. Learned counsel, in this connection, also placed reliance on the cases of (2) Carborundum Universal Limited V. E.S.I. Corporation [ 1976 (I) L.L.J. 17], (3) Regional Director, Employees'' State Insurance Corporation, Patna V. Bata Shoe Co. Ltd, (1976 Labour & Industrial Cases, 12) and (4) Baidyanath Ayurved Bhawan (P) Limited Vs. Employees'' State Insurance Corporation and Others, , where this aspect of the matter has been considered as to whether any payment of goodwill bonus made by the management to its employees can be included in the term ''wages'' so as to attract the provisions of the Insurance Act making the management liable to pay employer''s contribution as well as employees'' contribution and it has been answered in negative saying that unless such payment can be held to be under the terms of contract of employment or as an additional remuneration it cannot be held to be included in the term "wages".
No counter-affidavit has been filed on behalf of the Corporation, but the learned counsel appearing for the Corporation pointed out that the writ application of the petitioner before this Court has abated under the provisions of the Constitution (Forty-second Amendment) Act, 1976 (hereinafter to be referred to as the Constitution Act) in view of the fact that the petitioner has an alternative remedy in law.
The aforesaid Constitution Act has come into force, so far as Article 226 of the Constitution is concerned, on 1st February, 1977, Section 58 of that Constitution Act prescribes that every petition made under Article 226 of the Constitution which was immediately pending on the appointed day, i.e., 1st February, 1977, shall be disposed of in accordance with the provision of Article 226 as substituted by Section 38 of that Act, Sub-section (2) of Section 58 further provides that every such petition which has already been admitted but would not have been admitted by the High Court under the provisions of Article 226 as substituted by Section 38, such petitions shall abate. In view of the aforesaid Section 58 of the Constitution Act it has to be examined as to whether this writ application could have been entertained under the provisions of new Article 226. It is an admitted position that in the instant case petitioner claims relief only under clauses (b) and (c) of Article 226(1); as there is no question of invoking jurisdiction of this Court under Clause (a) of Article 226(1). Sub-article (3) of new Article 226 provides as follows:
No petition for the redress of any injury referred to in Sub-clause (b) or Sub-clause (c) of Clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force.
In view of the language of this Sub-Article (3) it appears that a bar has been placed on the power of this Court to entertain any application for invoking the jurisdiction of this Court'' under Clauses (b) and (c) of Article 226(1) if any other remedy for redress of the grievances is provided by or in any other law for the time being in force. Under the old Article 226, the bar in such situation was self imposed. But, in my opinion, in view of this clause if it is found that there is any other remedy available to the person concerned in any law for the time being in force this Court cannot entertain any such writ application. Of course, this will mean some statutory remedy because the words used are "any other law for the time being in force".
Learned counsel appearing for the respondent-Corporation has pointed out that under the Insurance Act a court of exclusive jurisdiction has been constituted u/s 74 by the State Government to decide such disputes, and, as such, the application of the petitioner before this Court will be deemed to have abated. Section 74 provides for constitution of a court known as "Employees'' Insurance Court". Section 75 enumerates the matters which can be decided by such Employees'' Insurance Court, Subsection (1) of Section 15 refers to the nature of dispute and Sub-section (2) about the different claims which can be adjudicated by such court. In the present context Section 75(1)(g) is relevant which is as follows:--
any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate employer, or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act or any other matter required to be or which may be decided by the Employees'' Insurance Court under this Act.
Clause (a) of Sub-section (2) of Section 75 prescribes that a claim for recovery of contributions from the principal employer can be decided by the Employees'' Insurance Court, Section 77 of the Insurance Act provides the mode for the commencement of the proceeding.
Section 78 sets out the power of such court. Sub-section (4) of Section 78 is as follows:--
An order of the Employees'' Insurance Court shall be enforceable as if it were a decree passed in a suit by Civil Court.
Under Section 81, such court can make a reference to the High Court on any question of law for a decision. u/s 82, appeal lies to this Court from an order passed by such court if it involves a substantial question of law. Subsection (3) of Section 75 bars the jurisdiction of Civil Court to decide or deal with any question or disputes which can be adjudicated by such Insurance Court.
From a perusal of the aforesaid sections it is obvious that the Insurance Act has constituted a court of exclusive jurisdiction vesting in it powers to adjudicate certain disputes which are covered by Section 75 of the Insurance Act and even the jurisdiction of the ordinary Civil Court has been barred in respect of such disputes. The dispute which has been raised on behalf of the petitioner is covered by Clause (g) of Sub-section (1) of Section 75 because it will amount to a dispute between a principal employer and the Corporation in respect of any contribution payable under this Act. It will be also covered by Clause (a) of Sub-section (2) of Section 75 being a dispute in respect of 4 claim for recovery of contribution from the principal employer.
Learned counsel appearing for the petitioner, however, submitted that the aforesaid provisions cannot be construed to be an alternative remedy available to the petitioner in law. According to him, the Regional Director of the Corporation has requested the Collector, Patna by the aforesaid two communications (Annexures 2 and 3) to realise the amounts in question in accordance with the provisions of the aforesaid Revenue Act, Pursuant to that request a proceeding has already been initiated under that Act. As such, it has to be ascertained now as to whether the petitioner has an alternative remedy under the provisions of the Revenue Act. Under the Revenue Act, whenever it appears to the Collector that an arrear of land-revenue or a sum recoverable as arrear of land-revenue is payable to the Collector or to any public officer other than a Collector, then the Collector shall sign a certificate in accordance with Sub-section (2) of Section 3 of that Act. The Collector has also power u/s 3 to send that certificate to the Collector of another district in which the property of the defaulter is situate. The Act does not mention anything as to how the actual amount shall be realised and in spite of our queries to that effect, no satisfactory answer was given. But, it has been held by a Bench of this Court in (5) C.W.J.C. Nos. 36, 40, 41 and 263 of 1973 (R) (M/S Mahalaxmi Fibres & Industries Ltd. V. The State of Bihar and others), disposed of on 6th May, 1976, that the provisions of the Revenue Act have to be read along with the provisions of Bihar and Orissa Public Demands Recovery Act (hereinafter to be referred to as the Demand Recovery Act), and it was observed that the Demand Recovery Act provides an ancillary machinery for realisation of the dues. This view is supported by the decisions of other High Courts also. In this connection reference can be made to (6) Ram Ranjan Rakshit Vs. The Chief Administrator, Rehabilitation Finance Administration, New Delhi and Others, (7) Bulu Rani Seal Vs. Member, Board of Revenue and Others, , (8) G.T.R. Co. Private Ltd. Vs. The Certificate Officer, 24 Parganas and Others, and (9) Prabhakar Vishnu Naik Vs. Union of India, . From the Revenue Act, it does not appear that the person concerned, who is being described as defaulter, has any right to dispute the liability and to show that that amount cannot be realised. Section 4 of that Act only prescribes that if the amount sought to be realised is paid under protest made in writing at the time of payment, then such person later may institute a suit for declaration that he was not liable to pay.
Learned counsel appearing for the petitioner submitted that now if the petitioner is directed to file an application u/s 77 of the Insurance Act, firstly an application at his instance will not be maintainable and secondly even if his application is held to be maintainable and a relief is granted to him saying that be is not liable to pay the amount in question, any such decision of such court will not be binding on the Collector under the Revenue Act or on the Certificate Officer under the Demands Recovery Act. It was also pointed out that the Employees'' Insurance Court will have no power to issue injunction restraining the Collector or the Certificate Officer from proceeding further for realisation of the amount.
So far as maintainability of the application under the Insurance Act at the instance of the petitioner is concerned, learned counsel appearing for the petitioner could not urge that any such application is not covered by clause (g) of Subjection (1) of Section 75, but, according to him, the matters referred to under Sub-section (1) have to be decided, If the application is maintainable under Sub-section (2) of Section 75. It was submitted that the person who is making claim for the recovery of contribution from the principal employer has to file an application under Sub-section (2) of Section 75 for adjudication, meaning thereby, application for relief under that Section can be filed only by the Corporation. In my opinion, there is nothing in that Sub-section (2) from which it can be held that once there is a repudiation by the person concerned, it is obligatory on the Corporation to file an application for adjudication of its claim. The forum appears to be available for both the person who is said to be liable to pay, as well as to the Corporation who claims recovery of the contribution from such person. It will depend on situation arising in each particular case as to which of the two should approach such Insurance Court. The apprehension that such Insurance Court cannot grant injunction, or has no power to enforce its order passed in such proceeding is also unfounded. It is well settled that even Courts and Tribunals which are constituted under different Acts, have inherent power to issue appropriate relief by way of injunction, to the party before it and it can enforce its orders. To hold otherwise will amount to hold that such Courts and Tribunals have only to make declarations which are not meant to be obeyed. This can never be conceived, specially in cases of courts to which exclusive jurisdiction of ordinary Civil Court is barred and ousted. I have already pointed out that Sub-section (3) of Section 75 says in clear and unambiguous term that no Civil Court shall have jurisdiction to decide or deal with any question or dispute which can be adjudicated by such insurance Court. Sub-section (4) of Section 78 makes an order of such Court enforceable as a decree passed in a suit by a Civil Court. A similar question had arisen before this Court in the case of (10) M/s Baidyanath Ayurved Bhawan (P) Ltd. Vs. The Employees'' State Insurance Corporation and Others, . In that case also the Corporation had sent a requisition to the Collector under the Revenue Act. The Collector after having signed the certificate sent it to the Collector of another district under that Revenue Act. The Collector of the other district took step for realisation by certificate proceeding under the provisions of the Demands Recovery Act. In the meantime, the employer filed an application in accordance with the provisions of the Insurance Act for a declaration that it was not liable to pay either the employer''s special contribution or employees'' contribution in respect of the allowance paid to some of its employees. A declaration was also sought that such an allowance was not wage within the meaning of the Insurance Act, and an injunction was prayed for restraining the Corporation and the Collector of Patna through the Certificate Officer from proceeding with or collecting any amount on account of any such contribution. The Insurance Court held that the allowance will amount to wage, but on another ground it held that the amount could not be realised from the employer. On that finding, it restrained the Corporation from realising any amount through the certificate proceeding. Appeals were filed under the provisions of the Insurance Act by the employer as well as the Corporation. This Court came to the conclusion that the allowance was not covered by the term ''wages'', and, as such, the employer was not liable to pay as contribution over that amount. In that very connection while repelling an argument raised on behalf of the Corporation that the Insurance Court had no power to grant injunction. It was observed as follows:
It cannot be imagined that while the Court under the Act has been given power to give declaration that certain payments are not wages and no contributions can be assessed and realised on it, it cannot stop its realisation. As the power of the Civil Court has been completely taken away in respect of such matter, if it cannot stop realisation of contribution the declaration given by the Court under the Act would be redundant. Every Court must have inherent powers to enforce its orders so that they may not be rendered nugatory.
I am in respectful agreement with the aforesaid judgment. An Insurance Court can, inappropriate cases, grant injunction restraining the Corporation from taking steps for realisation of the amount. A Bench of Calcutta High Court also in the case of (11) M/s. Agarwal Hardware Industries V. The Employees'' State Insurance Corporation (1976 Labour and Industrial Cases 1354) held that when the Act has conferred jurisdiction on such Insurance Court to adjudicate a dispute specified in Section 75 of the Act, it will be deemed that Impliedly it had granted power of doing all such acts and to employing all such means as are essentially necessary for effectively discharging Its obligation to adjudicate. It was also held that this statutory power carries with it duty in proper cases to make order for stay. The Supreme Court also in the case of (12) Income Tax Officer Vs. M.K. Mohammed Kunhi, , while construing the power of the appellate Tribunal under the Income Tax Act, held that an express grant of statutory power, carried with it by necessary implication to use all reasonable means to make such grant effective, and it was held that the Appellate Tribunal must be held to have power to grant stay as incidental or ancillary to its appellate jurisdiction. Once it is held that the relief claimed on behalf of the petitioner can be granted by the Insurance Court under the provisions of the Insurance Act which has also power to enforce Its orders, the necessary corollary will be that this will deem to be a remedy for redress of the grievance of the petitioner provided under any other law for the time being in force. The result will be that no relief can be granted to the petitioner under Article 226 of the Constitution, and in view of Sub-section (2) of Section 58 of the Constitution Act the petition will be deemed to have abated. The proviso to Sub-section (2) of Section 58 of the Constitution Act provides that for seeking relief under any other law for the time being in force. If some limitation is prescribed, in computing the period of limitation, the period during which the writ application was pending before this Court has to be excluded. It is not one of those cases where the limitation prescribed under the Act or Statute for redress of the grievances had already expired before filing the writ application before this court so as to disentitle the petitioner to pursue that alternative remedy. u/s 77(1A) of the Insurance Act, the period of limitation prescribed for filing such application is three years from the date on which the cause of action arose. This writ application was filed on 25th April, 1972 and since then it has remained pending. If this period is excluded in view of Sub-section (2) of Section 58 of the Constitution Act, the petitioner''s application which may be filed before the Insurance Court will be well within time. The stay granted by this Court on 8th May, 1972 will also be deemed to have been vacated in view of Sub-section (2) of Section 58 of the aforesaid Constitution Act. If an application is filed, it will be open to the said Insurance Court to grant an Injunction after hearing the parties. It is also expected that, if an Injunction is granted restraining the Corporation from proceeding with the Certificate case for realisation of the amount in question, the Collector concerned of the Certificate Officer, before whom the case is pending, shall not proceed with that case. It is true that there is no specific provision under the insurance Act under which such Insurance Court can restrain or stay a proceeding pending before the Collector or the Certificate Officer, under the Revenue Act or the Public Demands Recovery Act, but it is well settled that two authorities constituted under two different enactments should not act in a manner which may lead to conflict of jurisdiction. In such a situation, any order passed by a Court which has exclusive jurisdiction over the matter has to prevail. In the result, the writ application is held to have abated and it is, accordingly, dismissed. In the circumstances of the case, there will be no order as to costs.
B.S. Sinha, J.
I agree.