Calcutta High Court (Appellete Side)
M/S. Heinen And Hopman Engineering (I) … vs The State Of West Bengal & Ors on 11 April, 2025
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Shampa Dutt (Paul)
WPA 1646 of 2025
M/s. Heinen and Hopman Engineering (I) Pvt. Ltd.
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Barnamoy Basak.
For the State : Mr. Biswabrata Basu Mallik, ld. A.G.P.
Mr. Tamal Taru Panda.
For the Respondent No.3 : Mr. Saurabh Sankar Sengupta,
Mr. Richik Rakshit.
Hearing concluded on : 12.03.2025
Judgment on : 11.04.2025
Shampa Dutt (Paul) , J.
1. The present writ application has been preferred against an order
dated 18.11.2024 passed by the Referee and Controlling Authority
under the West Bengal Shops & Establishment Act, 1963
Barrackpore in S.P.-01/2024.
2. The petitioner’s case in short :-
i) Upon executing a Trust Deed on 01.07.2005, the petitioner
Company created a Non-contributory Pension Scheme to be
2maintained by the Board of Trustees with the Life Insurance
Corporation of India, under the name “Heinen & Hopman
Engineering (I) Pvt. Ltd. Employees‟ Group Pension Scheme.”
ii) On 11.07.2011 the petitioner Company amended clause 8 of
Section III of the Trust Deed dated 01.07.2005, which was
approved by the Income Tax Authority on 23.09.2011 and
circulated to the employees on 03.05.2012.
iii) On 11.12.2014, the petitioner Company again amended clause
8 of Section III of the Trust Deed dated 01.07.2005, which was
approved by the Income Tax Authority on 11.05.2016.
iv) To check the misuse of non-contributory Pension Scheme, the
petitioner Company made an application before the Income
Tax Department, amending that superseding all the other
clauses and Deed of Variations made in the past, the benefits
of the Superannuation Fund will only be provided to
employees attaining the age of retirement that is, sixty
years with continuous service in the Company not less
than twenty years, except in the case where any sick
employee becoming totally invalid to work and move, to be
certified by a team of Doctors, before attaining the age of
retirement.
v) The Deed of Variation was signed and submitted to the Income
Tax Department in June, 2020.
vi) The eligibility of availing Pension only on retirement was
indicated to the employees in the letter of increment and the
3
same was further communicated through email on
23.08.2022.
vii) The approval of the Deed of Variation from the Income Tax
Department was accorded, which was given effect from
04.07.2022.
viii) The respondent no.3 tendered his resignation through E-mail
dated 02.02.2023.
ix) The respondent no.3 was released from the petitioner
Company and was paid full and final settlement through
Cheque No.273854 dated 03.11.2023 drawn on DBS Bank
India Limited for an amount of Rs.2,61,197/-.
x) Gratuity was paid through cheque No.179810 dated
03.11.2023 drawn on DBS Bank India limited for an amount of
Rs.4,93,328/-.
xi) The respondent no.3 has accepted his full and final
settlement and gratuity with the remark that
Superannuation benefits as per circular dated 03.05.2012
is due from the Company.
xii) On 05.02.2024, the respondent no.3 submitted Form-N under
Rule 31 of the West Bengal Shops and Establishment Rules,
1964, in the office of the Joint Labour Commissioner,
Barrackpore, which was registered as SP-01/24.
xiii) The petitioner Company submitted its written objection before
the respondent no.2, wherein an objection was raised on the
point of maintainability as the West Bengal Shops and
4
Establishment Act, 1963 does not have any provision to deal
with the subject of superannuation.
3. On hearing the parties, the respondent no.2 herein passed the order
under challenge which is as follows :-
“ORDER
I have gone through the written statement and
written objection by the OP as well as counter affidavit
on behalf of the complaint and counter affidavit on
written objection by the applicant.
Now, the Referee under the Shops &
Establishment Act, 1963 is on the decision that the
pension as enshrined in the Payment of the Wages
Act, 1936 and the Pension of the employees of Heinen
& Hopman Engineering (I) Pvt. Ltd. are different in
nature.
The pension or the superannuation plan of the
above mentioned company is the terms and condition
of employment or work done in such employment and
it is crystal clear.
So, this pension is very much a wage under
the definition of 2(iv) of Payment of Wages Act,
1936 and so under the jurisdiction of Shops &
Establishment Act, 1963.
Hence, all the objections including the jurisdiction
issue as raised by the OP is overruled.
The OP is directed to take part in these
proceedings.
The next date is fixed on 02.12.2024 at 3.30pm for
submission of E-I-C along with tendering of documents
in duplicate duly affirmed by the Notary on that day
by the applicant.
5
Serve notice to the both parties via register post
with A/D.
Sd/-
Referee 18.11.2024
Controlling authority
Under the Shops & Establishment Act, 1963
Barrackpore, North 24 Parganas”
4. The petitioner in this case has challenged the jurisdiction of the
authority, on the ground that the issue to be decided by the
authority concerned, relates to contribution paid only by the
employer to pension or Provident Fund and interest thereon and as
such said amount is not a “wage” and as such the findings of the
authority concerned being not in accordance with law is liable to be
set aside.
5. The petitioner has relied upon the following judgment:-
Ltd. & Ors., (2001) 4 SCC 139; Para 17 & 21.
ii) Inspector, Railway Protection Force, Kottayam vs. Mathew
K Cherian and Another; 2025 SCC OnLine SC 51; Para 21
to 26.
iii) Sudhir Chandra Sarkar vs. Tata Iron and Steel Co. Ltd. &
Ors.; (1984) 3 SCC 369; Para 16 & 17.
6. The respondent no.3 herein on filing a written note has relied upon
the following judgment :-
i) Balaram Abaji Patil and Ors. Vs. M. C. Ragojiwalla & Ors.,
in Special Civil Appln. No. 1322 of 1959, decided on
622.03.1960, Bombay High Court. Wherein it has been held
as follows:-
“……….It is clear from the definition that all
remuneration would be “wages” if the
remuneration satisfies two conditions : (1) that it
should be payable to “a person employed in
respect of his employment or of work done in
such employment”, and (2) it should be payable
“if the terms of the contract of employment,
express or implied were fulfilled.” In the present
case, it is not disputed that the remuneration which is
claimed as minimum wages was payable to persons
employed, in respect of their employment or of work
done in their employment. It is however, disputed that
the remuneration claimed by way of minimum wages
satisfies the other condition, namely, that it should be
payable if the terms of the contract of employment,
express or implied, were fulfilled. Now it seems clear
that the expression “if the terms of the contract of
employment, express or implied, were fulfilled” refers
only to such of the terms of the contract of employment
as are required to be fulfilled by the employed person.
The expression has no reference to the terms of the
contract which are to be fulfilled by the employer. This
is obvious from the fact that, if all the terms of the
contract of employment were fulfilled by both the
parties to the contract, i.e. by the employer as well as
the employee, no question of unpaid wages would
arise in those cases where the workers are entitled
only to contractual wages. It follows that the definition
of “wages” does not confine that expression to
contractual wages. The definition does not define
“wages” as the remuneration which is payable to the
employed person under the terms of the contract of
employment, express or implied, but defines it as all
remuneration which is payable to the employed person
if the latter fulfils the terms of the contract of
employment, express or implied. Moreover, the
definition uses the words “all remuneration”, with the
result that, once the worker has fulfilled his part of the
contract, whatever he is entitled to receive from the
employer in respect of his employment or of work done
in his employment amounts to wages, provided the
right of the worker to the remuneration in question
flows directly from the fulfillment of his part of the
contract. The definition makes no reference to the
origin of the employer’s obligation to pay the
7remuneration. The obligation may arise from contract,
from a binding award, or from a statute. In all such
cases, if the amount which the employer is obliged to
pay is an amount payable to his employee in respect
of his employment or of work done in such
employment, and if further amount becomes payable
in consequence of the worker having fulfilled the terms
of the contract of employment, the amount is “wages”
within the definition……….”
7. In Bridge and Roof Co. (India) Ltd. vs Union of India (UOI), (1963)
3 SCR 978, the Supreme Court laid down the interpretation of
allowances that should be taken into consideration for the purpose of
deduction of contribution under Section 6 of the EPF Act and defined
„Basic wages‟.
8. A report has been filed on behalf of the respondent no.2, The Deputy
Labour Commissioner (P), Barrackpore. Exception to the report is
also on record.
9. In the report, the Deputy Labour Commissioner (P), the authority
concerned, whose order is under challenge has reiterated his
reasons as stated in his order and has further stated as follows:-
“…………….iii) Thus, from the language of the
provisions of Section 2(vi) of the Payment of Wages Act,
1936 that “all remuneration (whether by way of
salary, allowance or otherwise) if the terms of
employment, expressed or implied, were fulfilled,
be payable to a person employed in respect of his
employment or of work done in such employment”
and 2(vi)(d) of the payment of Wages Act that “Any
sum which by reason of the termination of
employment of the person employed is payable
under any law, contract or instrument which
provides for the payment of such sum, whether
with or without deductions, but does not provide
for time within which the payment is to be
made;”, it is clearly apparent that any component
8
which is payable as per the expressed terms of
employment and the component, which payable to an
employee at time of termination is liable to be
considered as “wage” as per the definition of the
Payment of Wages Act, 1936. Accordingly, as and
when the payment of such superannuation is
expressly included in the terms of employment and
therefore, at the termination, such superannuation is
payable to the respondent no. 3 by the petitioner, such
payment under the head of superannuation is
obviously part and parcel of definition of “wage”.
iv) Under the perspective of such interpretation of law,
if the fact as asserted in paragraph 2 and 3
hereinabove is analysed, in that case, it would be
apparent that the employer M/s Heinen & Hopman
Engineering (I) Pvt Ltd, has issued circular to its all
employees the criteria for entitlement of
Superannuation benefit——–for various tenure of
complete continuous service, various percentage on
his/her last drawn wages are declared as Pension. It
is evident from appointment to every increment letter
and thus, here arises the question of “terms of
employment, expressed or implied”. Accordingly,
the pension or superannuation benefit of M/s Heinen &
Hopman Engineering (I) Pvt Ltd is nothing, but the
terms of employment, hence it is in this instant case is
a wage.
v) ……………. that the clause, 2(3) of the Payment of
Wages Act, 1936 has been relied upon by the opponent
party (herein the petitioner) to exclude such
superannuation payment from wages is grossly non-
sustainable as such provision of Section 2(3) clearly
indicates that a contribution is not part of
wages, but there is a difference between the term
“contribution” and “actual payment”. Hence, if, it
is the question of contribution, it is obviously not
a part of the wage, but, when the question of
payment of such superannuation arises, it is the
part of wage as per the definition of wages as
enshrined in the Payment of Wages Act, 1936.
vi) Without any prejudice to the above, the referee
(respondent no. 2) states and submits further that
inclusive clause and exclusive clause to the main
9
provisions of Section 2(vi), shall come into play, when
the terms of employment is not expressed enough
about the payment of wages in terms of employment.
But, if it is so expressive, which gives clear indication
as to which component shall be part and parcel of
wages, that case, the expression of such exclusive
clause shall have no role to play in that regard as
such…………”
10. On hearing the parties and on perusal of the materials on record and
the order under challenge, it appears that the authority herein has
categorically held that „pension‟ in respect of which the application
was made before the authority concerned is to be treated as „wages‟
under the definition of Section 2(iv) of Payment of Wages Act, 1936.
On the said findings the authority held that he had the jurisdiction
under the Act.
11. Section 2(vi) Payment of Wages Act, 1936 is reproduced herein:-
“2. Definitions .-
(vi) “wages” means all remuneration (whether by way
of salary, allowances, or otherwise) expressed in
terms of money or capable of being so expressed which
would, if the terms of employment, express or
implied, were fulfilled, be payable to a person
employed in respect of his employment or of work
done in such employment, and includes-
(a)any remuneration payable under any award or
settlement between the parties or order of a Court;
(b)any remuneration to which the person employed is
entitled in respect of overtime work or holidays or any
leave period;
(c)any additional remuneration payable under the terms
of employment (whether called a bonus or by any other
name);
(d)any sum which by reason of the termination of
employment of the person employed is payable under
any law, contract or instrument which provides for the
payment of such sum, whether with or without
deductions, but does not provide for the time within
which the payment is to be made;
10
(e)any sum to which the person employed is
entitled under any scheme framed under any law
for the time being in force,
but does not include-
(1)any bonus (whether under a scheme of profit-sharing
or otherwise) which does not form part of the
remuneration payable under the terms of employment
or which is not payable under any award or settlement
between the parties or order of a Court;
(2)the value of any house-accommodation, or of the
supply of light, water, medical attendance or other
amenity or of any service excluded from the
computation of wages by a general or special order
of the appropriate Government]
(3) any contribution paid by the employer to any
pension or provident fund, and the interest which
may have accrued thereon;
(4)any travelling allowance or the value of any travelling
concession;
(5)any sum paid to the employed person to defray
special expenses entailed on him by the nature of his
employment; or
(6)any gratuity payable on the termination of
employment in cases other than those specified in sub-
clause (d).”
12. Admittedly the petitioner company has a trust created for „non-
contributory pension scheme‟.
13. The petitioner herein has claimed that Section 2(vi)(3) of the
payment of wages Act, 1936 is applicable in this case and as such
the „pension‟ claimed by the worker is not „wages‟ and thus the
controlling authority herein under the Shops & Establishment Act,
1963, Barrackpore, North 24 Parganas, does not have the
jurisdiction in this case. It is stated that the worker/employee has to
approach the Civil Court for his pensionary relief.
14. Such conduct/view of the company goes against the thoughts
behind the beneficial legislations.
11
15. It appears that, Section 2(vi)(3) of the Act, leaves out “the
contribution paid by the employer to any pension fund and the
interest which may accrue there on, “from the definition of „wages‟”,
and not the pension which is due to the employee.
16. The statutory provision herein is plain and unambiguous. The
language of the enactment is clear and as such it would not be
proper for the Courts to evolve some legislative intent not found in
the statute (Inspector, Railway Protection Force, Kottayam vs.
Mathew K Cherian and Another, (Supra)).
17. The said “contribution” with “interest” which may accrue is, thus not
part of “wages” as defined, as in such circumstances a
worker/employee has no say regarding such contribution, which is
entirely the decision of the company/management/trustees.
18. In the present case, the claim before the authority is for ‘pension’
which is well within the definition of “wages”, as it is a sum payable
to a person employed in respect of his employment for work done in
such employment, in the manner as “wage” is paid.
19. The petitioner has further stated that the workman/employee has
resigned and as pension is payable on superannuation, the
employee/respondent no. 3 herein is thus not entitled.
20. Admittedly the petitioner has paid all retiral dues to the
employee/respondent no. 3 herein, including gratuity and as such if
the employee is eligible for pension, he is entitled to receive the same.
21. As such, the prayer for ‘pension’ being within the definition of
‘wages’ under Section 2(vi) of the payment of wages Act 1936, is
12
not covered under Section 2(vi)(3) of the Act. The claim of the
petitioner herein thus having no merit stands rejected.
22. WPA 1646 of 2025 is dismissed.
23. All connected application, if any, stands disposed of.
24. Interim order, if any, stands vacated.
25. Urgent Photostat certified copy of this judgment, if applied for, be
supplied to the parties, expeditiously after complying with all
necessary legal formalities.
( Shampa Dutt (Paul), J. )