JUDGMENT
Alok Kumar Basu, J.
1. In spite of service of notice, nobody appears on behalf of the opposite parties to contest this application which has been filed by the Employees’ State Insurance Corporation challenging Order No. 18, dated February 7, 1997 and order No. 21 dated August 19, 1997, passed by the learned Judge, Employees’ Insurance Court, West Bengal in Case No. 97 of 1994.
2. Opposite party No. 1 Sri Ramadhar Jaiswal being an employee under opposite party No. 2 Texmaco Ltd., approached the Employees’ Insurance Court for giving necessary direction to the Corporation for referring the case of the opposite party No. 1 to the Medical Board for assessment of his disability so that he can get the benefit of the Act.
3. Opposite party No. 2, in course of the; proceeding filed its written statement. The learned Judge of the Employees’ Insurance Court did not under objection raised by the Corporation that said Ramadhar Jaiswal cannot be considered to be an employee for getting the; benefit under the Act on the ground that his monthly wages exceeded the ceiling amount of Rs. 1,600 at the relevant time.
4. Learned Judge by his order, dated February 7, 1997, after hearing; the parties was: of the view that if the wage paid on holiday is excluded, then, the wages of. the employee would certainly come within the ceiling limit and learned Judge was of the view that wages paid on holiday cannot be considered to be; wages within the meaning of Section 2(22) of the Act. The learned Judge, accordingly allowed the prayer of the employee and referred his case to the Medical Board.
5. On getting report of the Medical Board’ recommending 10 per cent loss of earning capacity due to disablement, the learned Judge thereafter by the order, dated August 19, 1997, passed an order directing for payment of benefit as available to the employee under the Act.
6. The Corporation has now challenged both the parent/order, dated February 7, 1997, and also the consequential order, dated August 19, 1997, on the ground that the finding of the learned Judge that holiday payment cannot be considered to be wage, is totally wrong and hence, both the orders of the learned Judge are required to be set aside.
7. Sri Mokherjee appearing for the Corporation submits that the entire question would depend upon whether payment on holiday to an employee can be considered to be an integral part of wages paid to him under Section 2(22) of the Act. Sri Moitra submits that this question has since been settled by the Apex Court through the judgment recorded in Civil Appeal No. 3851-53 of 1993 in the case of Employees’ State Insurance Corporation v. Malabar Cashew and Allied Products. Sri Moitra contends that from the copy of the said judgment delivered by the Apex Court it is found that the Apex Court observed that wages paid on holiday to an employee would form part of the wages as per Section 2(22) of the Employees State Insurance Act, 1948.
8. Having regard to the submissions made by Sri Moitra and after considering the decision of the Apex Court as indicated above, I find that the observation of the learned Judge, Employees’ Insurance Court cannot be supported in law and hence the wages received by the employee at the beginning of the insurance period was above the ceiling limit and that being the position he was not an employee under Section 2(9) of the Act and hence, he was not entitled to derive any benefit under the Act.
9. Accordingly, there is merit in the present application and the same is allowed and the impugned order, dated February 7, 1997 and August 19, 1997, are hereby set aside.
10. There will be no order as to costs.
11. Send back the Lower Court records at once along with the copy of this order.