kvrm2002
10

Hi! Everybody!

I have given a detailed narration about interpretation of 'wages' for ESI purpose on 3-6-2010 under the thread 'ESI Act-Inviting Discussions'. However, it appears that it did not receive the attention of many members.I am therefore giving below a detailed discussion on 'interpretation of wages under ESI Act' .

Suggestions and further discussion are welcome.

The term 'wages' under Section 2(22) of the ESI Act has been divided in to four parts as follows:

1. All remuneration paid or payable in cash to an employee, if the terms of contract of employment, express or implied, were fulfilled;

2. and includes any payment to an employee in respect of any period of authorized leave, lockout, strike which is not illegal or lay off;

3. and other additional remuneration, if any paid at intervals not exceeding two months;

4. but does not include:-

a) any contribution paid by the employer to any pension fund or provident fund, or under this Act;

b) any traveling allowance or the value of any travel concession;

c) any sum paid to the person employed to defray the special expenses entitled to him by the nature of his employment; or

d) any gratuity payable on discharge.

Each part is explained below.

Part I

1. The remuneration must be in ‘cash’ and not in ‘kind’.

2. It need not necessarily be paid. It is sufficient that it is accrued and payable. An employee may leave the employment in the middle of a month without receiving his wages for the period he worked. Though, the salary was not paid to him, contribution is due on it as the salary has accrued to him and is payable.

3. There is no periodicity or duration. Salary paid once in a quarter or annually is also thus wages.

4. The remuneration must be in terms of contract of employment. It may be oral or written. Thus, an offer of appointment specifying the nature of job and quantum of wages admissible to an employee or an agreement between the employer and the employees’ union/Association, whether orally agreed to or reduced to writing can be termed as contract of employment. The standard rules of the company regulating the pay structure and other fringe benefits binding on the employee are also a contract of employment. Normally, the following items come under this category.

a) Basic Pay, Wages, Salary;

b) D.A./HRA/CCA/Overtime/officiating allowance /Night shift allowance/efficiency allowance/Heat, Gas, Dust allowance/Education allowance/Food & Tea allowance/conveyance allowance etc;

c) Wages/salary/pay for weekly off and public holidays;

d) Commission paid to sales staff;

e) Subsistence allowance paid to an employee during the period of suspension;

f) Attendance Bonus or incentive or exgratia in lieu of Attendance Bonus or production incentive;

g) Regular Honorarium or salary or remuneration paid to a Director;

h) Collection Batta paid to running staff.

This list is only illustrative and not exhaustive.

Part II: The second category includes any payment actually made for:-

a) Authorized Leave, b) Lock-out, c) Lay-off and d) Legal strike.

Thus, in the case of a ‘salary’, contribution is due even though the salary is not actually disbursed to the employee. But, in the case of ‘leave salary’ or any other items of wages shown above, contribution becomes due only when it is actually paid to the employee and not otherwise.

In a case where an employee worked for the first 15 days of a month and proceeded on authorized leave for the remaining 15 days. But he did not return back and left the service, without receiving the wages for that month. In this case, the first 15 days, falls under the first category. Therefore contribution is payable even though ‘salary’ was not disbursed to the employee. No contribution need be paid on the leave wages for the second 15 days, as the leave salary was actually not disbursed to the employee.Contribution is due on the leave wages as and when it is actually disbursed to the employee.

Lay-off compensation might have been paid to an employee after the lay-off is lifted or after a considerable time. The contribution is then payable within 21 days of the expiry of the calendar month in which the lay-off compensation has actually been disbursed to the employee. Similar is the case with wages for the strike period.

Part III: This part deals with ‘any additional remuneration’ that is not covered under part I and II, and also not covered by any service condition or terms of contract of employment. This additional remuneration must also be actually paid, and the duration between each such payment should not exceed ‘two months’. Normally, no payment is termed as additional remuneration which is not forming part of the service condition or without inclusion in the terms of contract of employment. Where the employer pays this kind of remuneration on his own will and pleasure without any ‘right’ on the part of the employee to claim its continuance or regular payment, and the employer has the ‘right’ to withdraw, modify, alter or revise the scheme of payment, comes under this category. Production incentive paid by the employer quarterly at his option, without any agreement with the employees comes under this category, and was held as ‘not wages’ by the Supreme Court in the case of M/s Whirepool India Ltd.vs. ESIC in civil Appeal No. 1903 of 2000.

Part IV: Deals with exclusions of employers’ share of PF/ESI Contribution, traveling allowance, washing allowance, gratuity etc.

The following items are treated as “not wages’

1. Salary drawn by the proprietor, Partners and the contractor himself;

2. Daily allowance paid to running staff;

3. Reimbursement of actual cost of conveyance for coming to work and going back on production of tickets or season ticket or buss pass subject to proof of actual expenditure;

4. Washing allowance if dress is provided by the Employer;

5. Cycle allowance, if the cycle is used for official purpose;

6. Shoe allowance for polishing the shoes, if shoe is supplied;

7. Service charges collected by the Hotel management on behalf of their employees in lieu of direct tips and the same is paid to the employees at a later date. (M/s Rambagh palace Hotel, Jaipur, vs. ESIC)

8. Annual Bonus;( But if this bonus is paid every month, it is considered as wages. In the case of Beedi establishments, 8.33 percent of wages is paid every month as bonus, which is considered as wages)

9. Annual sales commission;

10. Payments made for Annual/periodical service contracts ;

11. Commission paid to dealers/agents;

12. Payments made to Labour consultants, Lawyers, Engineers, Counsels, chartered Accountants;

13. Encashment of un-availed leave;

14. Inam or incentive paid at an interval exceeding two months in the absence of any agreement or contract and the employer has got right to revise or withdraw it at his will;

This list is not exhaustive bur only suggestive.

Why all allowances are to be included?

The cash benefits payable to an employee are always a percentage of wages he could have earned. An employee who loses his wages during his abstention from work due to sickness, disablement etc. is expected to get cash compensation proportionate to to the total wages and allowances he would have received had he been working during this period. It is therefore, necessary to include all allowances for the purpose of wages and payment of contribution. If the contribution is confined to only basic wages, the cash benefits would be too low, to subsist the employee himself. It also tempts the employers to keep the basic wages to the barest minimum and show the balance as package of various allowances, to avoid their share of contribution, but the employee is put to loss when he receives the cash benefit at a lower rate.

Why overtime should be included in wages for payment of contribution but

not for deciding coverage of an employee?

Overtime is not a regular and continuous payment, but it is of an occasional nature. If overtime is also taken for wage limit for coverage of an employee, he may be going out of coverage for some time and again coming within the orbit of the scheme, when overtime is not there. This frequent interruption from the scheme deprives him of the benefits admissible under the scheme even after making payment of contribution for part of a contribution period. To ensure continued security and protection, overtime is excluded for determining the wage ceiling for coverage of an employee. However, it is included for payment of contribution to cover the accident risk during the period he was on overtime work, and to enable him to draw the cash benefits at an enhanced rate, as by adding overtime wages to his average daily wages, he is fitted in to the next higher slab in the Standard Benefit rate table in Rule 54 for claiming cash benefits.

Why contribution should be paid on the total wages beyond the wage ceiling limit when an employee crosses the wage limit prescribed by the Central Government? (The present limit is Rs. 15,000/- from 01-5-2010)

An employee whose wages (excluding O.T.)crosses the prescribed ceiling limit in any month at any time after commencement of the contribution period, continue to be an employee till he end of that contribution period.

Though there is a wage ceiling limit for coverage of an employee, there is no ceiling limit in the definition of wages for payment of contribution. Hence contribution is payable on the total wages without any ceiling limit. As the cash benefit is regulated on the average daily wages in a contribution period, such employee gets fitted in to higher wage slab in the standard benefit table in view of payment of contribution on the total wages.Now, there are 99 wage groups in the standard rate table, and the maximum daily standard benefit rate is Rs. 480/

Wage period related to an employee is the period in respect of which wages are ordinarily payable to him in terms of the contract of employment, express or implied or otherwise. It may be daily, weekly, fortnightly or monthly. (Sec. 2(23))

Average daily wages during a wage period: (Rule 1-B)

i ) Time-rate basis: in respect of an employee who is employed on time rate basis, the amount of wages which would have been payable to him for the complete wage period had he worked on all the working days (including paid holidays) in that wage period, divided by 26 if he is monthly rated, 13 if fortnightly rated, 6 if weekly rated and 1 if he is daily rated.

As the wage ceiling of Rs. 15,000/- is prescribed for a month, to arrive at the average daily wages, it is to be divided by 26.Thus, employees drawing 576.92and below for a day stand covered.

ii) Other basis (piece rated): in respect of an employee on any other basis, the amount of wages earned during the complete wage period (including paid holidays) divided by the number of days in full or part for which he had worked for such wages in that wage period.

Average daily wages during a contribution period for the purpose of payment of cash benefits.: (Rule 1-A)

In respect of an employee for the purpose of the daily rate of sickness benefit, maternity benefit, disablement benefit and dependant benefit, the sum equal to one hundred and fifteen percent of the aggregate amount of wages paid or payable to him during that contribution period, divided by the number of days (including paid holidays and leave days) for which such wages are payable.

Thus, the average daily wages worked out on Return of contribution are enhanced by another 15 percent before fitting it in to the Standard benefit rate table to determine the daily rate of sickness benefit/disablement benefit /Maternity benefit/Dependants' benefit. This enhancement is however not admissible to an employee who sustains employment injury before completion of his first wage period, for payment of his disablement benefit.

From India, Hyderabad
kvrm2002
10

Further discussion:
1.In case D.A. or increment revised or wage revision is made from a retrospective date, whether contribution is to be paid on the arrears?
For any increase in Dearness allowance or increment from a retrospective date, the ESI Contribution is to be paid only from the month in which such increase is announced. This is applicable for coverage of an employee also. In case of revision of wages from a retrospective date as a result of agreement with the employees' organisation or otherwise, contribution is due only from the month in which such agreement is reached or the wage revision is announced as the case may be. No need to pay any contribution on the past arrears. Similarly, the employee cannot be exempted from ESI from a retrospective date due to crossing the wage ceiling, but continue to be covered till the end of the contribution period in which such revision is announced. If wages are increased from Jan'10, and announced in May, 10, contribution is to be paid on enhanced wages from May,10. If the employee cross the ceiling limit as a result of the revision, contribution is to be paid till the end of Sept.'10.

2.If for any month, Employees’ contribution is not deducted from the salary of the employee by oversight or otherwise, can the arrears of contribution be deducted from his present salary?

No. Employees’ contribution is deducted from the wages of the employees for the relevant month. According to proviso to Section 40(2) of the ESI Act, no such deduction shall be made from any wages other than the deduction relating to the period for which contribution is payable. Thus, if employees’ contribution is not deducted for any month, the same should be paid by the employer along with the employer’s share and not to be deducted from the employee’s wages for subsequent months.

From India, Hyderabad
kvrm2002
10

When an employee is on ESI leave during a benefit period, his sickness benefit is calculated based on the Average daily wages during the Corresponding contribution period.
Example: An employee is on ESI leave from 23-6-2010 to 06-7-2010. This falls in two benefit periods. 1. 1st Jan.2010 to 30th June 2010 and 2. 1st July to 31st Dec.2010.
The corresponding contribution periods are 1. 1st April 2009to 30th Sept.2009 and
2. 1st October 2009 to 31st March 2010.The total wages paid during the contribution period is divided by the number of days for which such wages were paid to arrive at the average daily wages. Then a weightage of 15 percent is added to it to arrive at the gross average daily wages.
There is a standard benefit rate table in Rule 54 consisting of 99 slabs in which the average daily wage slabs and the corresponding standard benefit rate is shown. The average daily wages arrived at as above is fixed in to this table to arrive at the Standard benefit rate. Then the cash benefit is determined as follows:
Sickness benefit: 120 percent of the Standard benefit rate per day. This works out to 60% of the wages.
Disablement & Dependents' benefit: 150 percent of the standard benefit rate per day. This works out to 75 percent of the wages.
During the leave period assumed above, the first two days i.e. 23rd and 24th June are treated as 'Waiting period and no benefit is paid for these two days. The employee is expected to sustain himself during this waiting period. Sickness benefit is payable from 25-6-2010 to 30-6-2010 at the rate based on the corresponding contribution period, and from 01-7-2010 to 06-7-2010 at the rate admissible based on the corresponding contribution period.If it is a case of Accident, no waiting period is deducted. If wages are paid by the employer for the day of Accident, no benefit is paid by ESIC for that day. The condition is that during the period of leave for which ESI benefit is paid, the employee should not be in receipt of any wages for that period. This rule is not applicable to the Maternity Benefit. Maternity Benefit is double the Standard benefit rate which is equal to full wages.
K.V.Ramana Murty

From India, Hyderabad
JayVerma
Dear Sir,
We are an educational academy having 50 employees, only 2 employees get a salary of less than Rs.15,000/- per month. We have outsourced security and housekeeping services and the contractors have their own ESI and PF accounts. Kindly advise if we have to get ESI registration for our organization.
Thank you.
Kind regards,
J Verma

From India, Hyderabad
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