N. Sivadasan v. Appellate Authority Under The Payment Of Gratuity Act And Others

1. This writ petition has been filed for the issue of a writ certiorified mandamus calling for the records of the first respondent relating to Payment of Gratuity Appeal No. 30 of 1980, dated 31 October, 1980, confirming the second respondent's order in Payment of Gratuity Case No. 252 of 1979, dated 5 December, 1979, and quashing the same in so far as it denies the petitioner from receiving full gratuity and consequently directing the third respondent to pay the petitioner a sum of Rs. 247.50 towards the balance of gratuity.

2. The brief facts which are necessary for the disposal of this writ petition can be stated as follows: The writ-petitioner herein filed a petition before the Controlling Authority under the Payment of Gratuity Act, 1972, in which both parties made an endorsement to the effect that the parties agreed about the services of the applicant as six years and the parties agreed that the applicant's last drawn wages in cash is Rs. 45 per month. The contention of the petitioner was that the cash equivalent to the food value per mensem, i.e, Rs. 82.50 should be counted as wages while the respondents argued that the definition clause of wages refers only to the amount paid in cash and shall not include the food allowance or amount equivalent to the food or tiffen given along with wages as conditions of employment. The parties agreed that the controlling authority may pass orders on the basis of the endorsement. The controlling authority came to the conclusion that in view of the definition of wages under the Payment of Gratuity Act it is not possible to accept that the food equivalent as paid in cash, and as such the petitioner is entitled to claim gratuity on the basis of last drawn wages paid at Rs. 45 per month and on the basis of the same he was awarded a sum of Rs. 135. He was unsuccessful before the appellate authority. Hence the writ petition.

3. The learned counsel for the petitioner mainly submitted that the value of food supplied to the petitioner is also included in the wages and if it is included the salary of the petitioner would come to Rs. 147 and the petitioner is entitled to get more gratuity and he would submit that for construing the terms “wages” reliance should be placed on the definition in Tamil Nadu Catering Establishments Act, 1958, he also cited a decision Lakshmi Coffee Hotel v. Their workmen [1967 — I L.L.J 258], which arose out of the Industrial Disputes Act.

4. The point that arises for determination in this petition is whether the definition of wages under the Tamil Nadu Payment of Gratuity Act, would include the value of food provided. According to the learned counsel for the petitioner it would come under the word “wages” in accordance with the terms and conditions of the employment even though the same was not paid in cash. For proper appreciation of the rival contentions it is worthwhile to consider the relevant definition of “wages” under the Payment of Gratuity Act.

“‘Wages’ means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, houserent allowance, overtime wages and any other allowance.”

It is seen from this definition that all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus can be termed as wages. As per the definition bonus, commission, houserent allowance, overtime wages and any other allowance cannot be included in the definition of “wages.”

5. Section 2(13)(A) of the Tamil Nadu Catering Establishments Act, 1958, defines wages:

“‘Wages’ means the basic wages, dearness allowance, the cash equivalent of the meals and tiffin supplied to the employee free of charge and the value of any other amenity or of service or of any concessional supply of foodgrains or other articles which can be computed in terms of money but does not include bonus.”

It is clear from the above definition that the cash equivalent of the meals and tiffin supplied to the employees free of charge is also included in the term “wages.” The learned counsel for the petitioner submitted that in view of the said definition in the abovesaid Act which is a special enactment the same can be imported in the case of the petitioner in the matter of granting payment of gratuity. I do not any force in the said contention.

6. Now we will deal with the question of payment of gratuity. It is clear from the definition of “wages” in the Tamil Nadu Catering Establishments Act, 1958 (sic. Payment of Gratuity Act) that the value of food supplied cannot be included in the term of wages as it is only the amount paid as cash equivalent to the meals. In this connection the learned Government Advocate drew the attention of the Court to the decision of the Supreme Court in Delhi Cloth and General Mills Company, Ltd. v. Their workmen [A.I.R 1970 S.C 919], wherein their Lordships had observed thus:

“In determining the scope of an industrial reference it cannot be held that the words used either in the claim advanced or in the order of reference made by Government under S. 10 of the Industrial Disputes Act must have the meaning they have under the Industrial Disputes Act. Merely because the expression “wages” includes dearness allowance within the meaning of the Industrial Disputes Act, the Tribunal is not obliged to based a gratuity scheme on consolidated wages. Normally gratuity is based not on the consolidated wage but on basic wage.”

7. The learned counsel for the petitioner relied upon a decision of this Court in Lakshmi Coffee Hotel v. Their workmen [1967 — I L.L.J 258] (vide supra), which arose under the Industrial Disputes Act and wherein S. 2(rr) of the Industrial Disputes Act was considered. The definition of wages under S. 2(rr) of the Act is very wide enough to include the free food and tiffin supplied to the employee. Section 2(rr) of the Industrial Disputes Act reads as follows:

“‘Wages’ means all remuneration capable of being expressed in terms of money which would if the terms of employment expressed or implied were fulfilled be payable to a workman in respect of his employment or of work done in such employment and includes—

(i) such allowances (including dearness allowance) as the workman is for the time being entitled to;

(ii) the value of any house accommodation or supply of light, water, medical attendance or other amenity or of any concessional supply of foodgrains or other articles;

(iii) any travelling concession;

(iv) any commission payable on the promotion of sales or business or both, but does not include—

(a) any bonus;

(b) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force;

(c) any gratuity payable on the termination of his service.”

It is only in view of the definition under the said Act it was held so in the said decision that the value of the food supplied forms part of the wages. The decision cited by the learned counsel for the petitioner is not applicable to the fact of this case. On a careful consideration of the entire material and the relevant provisions with regard to the definition of wages under the Payment of Gratuity Act, I am of the view that the authorities have rightly interpreted the word “wages” while granting relief to the petitioner and as such no case is made out for the issue of a writ of certiorarified mandamus as prayed for.

8. In the result, the writ petition fails and is dismissed. There will be no order as to costs.