Agrawal, C.J:— A short but interesting question that arises for decision in this writ application is as to whether the money value equivalent to the free meals supplied by the petitioner to opposite party 5, its employee, could be added to his salary for working the amount of gratuity payable to him.

2. According to the findings recorded by opposite party 1 in annexure 2, opposite party 5 was working as a supervisor under the petitioner from 10 October, 1971 to 29 October, 1981. This finding has not been assailed before us.

3. Some dispute had arisen between the petitioner and opposite party 5 earlier also, but on the intervention of the District Labour Officer, Mayurbhanj, a settlement was arrived at under which opposite party 5 accepted a lumpsum of Rs. 1,500 in final settlement of all his claims from the petitioner.

4. Subsequently, on 28 July, 1982, opposite party 5 filed an application before the Controlling Authority under the provisions of the Payment of Gratuity Act, 1972 (for short, the Act), claiming Rs, 2,200 towards gratuity. A case was accordingly registered on that basis and the petitioner was noticed.

5. The stand of the petitioner in the said proceeding was that opposite party 5 was only a temporary employee for a brief period and had left his service after full settlement of his claims long back on 24 April, 1978, and thereafter he had joined another firm.

6. In the said proceeding, the following findings of fact have been recorded which were rightly not assailed before us:

(1) Opposite party 1 was drawing a cash salary of Rs. 230 per month besides free food while working as a supervisor in the petitioner's establishment; and

(2) he worked in that capacity from 10 October, 1971 to 29 October, 1981.

7. On the basis of the above findings, opposite party 1 computed the sum of Rs. 2,596-15 as gratuity payable by the petitioner taking the salary as Rs. 230 per month and adding thereto a sum of Rs. 220 as the money equivalent of the free food supplied to opposite party 5, an amount even larger than that which was claimed.

8. It is this way that the question mentioned above arises, viz., as to whether Rs. 220 could be added to the salary of opposite party 5 as the money equivalent of the free food for computing the gratuity. Our attention was also invited to a mistake committed by opposite party 1 in the impugned order (annexure 2) with reference to Notification No. 9138, dated 28 January, 1982, issued by the Department of Labour and Employment of the Government of Orissa. According to this notification, the minimum wages of a supervisor working in a scheduled establishment (saw mill) were Rs. 450 per month. This notification came into force only since 3 February, 1982. It is observed by opposite party 1 in annexure 2 that:

“Since the applicant was employed in a similar scheduled establishment, wages payable to him definitely come to Rs. 250”.

Opposite party 1 perhaps lost sight of his own finding that opposite party 5 had worked in the petitioner's establishment only till 29 October, 1981. Obviously, therefore, the rate of wages fixed under the notification was not admissible to opposite party 5. Annexure 2 is impugned by the petitioner firstly on this ground. But this would not help him as I find that opposite party 1 has also taken into consideration the fact of supply of free food and has calculated Rs. 220 as the money equivalent for that benefit and added that amount to the salary of opposite party 5 thus making a total of of Rs. 450 per month.

6. It was vehemently contended on behalf of the petitioner that opposite party 1 has committed a serious error of law in adding Rs. 220 to the wages for working out the amount of gratuity. This contention at once necessitates reference to the definition of “wages” given in the Act which is as follows:

“‘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, house rent allowance, overtime wages and any other allowance”.

On the basis of this definition, it was submitted that since the free food supplied to opposite party 5 was not a cash receipt, the same could not be treated as a part of the wages.

10. The term “wages” has been defined in some other labour legislations also. The definitions in some of the important Acts are extracted here:

“Wages” is defined in the Industrial Disputes Act, 1947, as follows:

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

Besides the above, it also includes dearness allowance, the value of any house accommodation and other amenities or of any service or of any concessional supply of foodgrains or other articles.

In the Payment of Wages Act, 1936, the definition of “wages” is as follows:

“‘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. …”

In this Act, unlike the Industrial Disputes Act, the value of house accommodation or other amenities or of any service is excluded from computation.

In the Employees' State Insurance Act, 1048, “wages” has been defined in these words:

“‘Wages’ means all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express or implied, and…”.

11. All the above Acts, besides generally defining “wages” have also given various other items which are included in the term “wages”. Thus, all the definitions can be broadly divided into three parts, namely,—

(1) the defining part;

(2) the inclusive part; and

(3) the exclusive part.

I have deliberately avoided to refer to the long list of items mentioned in the inclusive part or the exclusive part and have picked up from them only some relevant items which may have a little bearing on the investigation of the question in issue.

12. The chief feature of the definition of “wages” in the Payment of Gratuity Act is that it refers to the payments and in cash, paid or payable to an employee, that is, “all emoluments earned while on duty or on leave”. The emoluments must be earned in accordance with the terms and conditions of employment and be paid or payable in cash.

13. According to Webster's Dictionary emoluments' means:

“The profit arising from office or employment usually in the form of compensation or perquisite; (Something necessary to the carrying out of a function)”.

14. The computation of the value of the food supplied by the employer to the employee in terms of money for the purpose Of adding it to the monthly salary apparently seems to be outside the purview of the above definitions and the legislative intent particularly when nothing has been brought on record to show that food was supplied by the petitioner to opposite party 5 in accordance with any term or condition of the employment. It may well be that if the food was not supplied by the petitioner to opposite party 5 his rate of wages (salary) would have been higher. But yet the supply of free food cannot be anything other than an amenity.

15. Bonus, commission, house rent allowance, overtime wages and other allowances though are paid in cash have been deliberately excluded by the Legislature to form part of the emoluments although with respect to these items also it can be very safely contended that the provision of bonus, commission, house rent, overtime wages, etc. are sufficient allurements for an employee to accept the employment for lesser wages. I find full support for this view from a decision of the Rajasthan High Court in the case of General Manager, Northern Railway, New Dehli v. Sajjanraj, [A.I.R 1957 Raj. 78], cited on behalf of the petitioner. This was a case of a railway employee to whom foodgrains were supplied at concessional rates, and a similar argument was repelled by the Court which took the view that the facility of purchasing grains enjoyed by the railway employee from the railway grain shop at concessional rate was only an amenity although capable of being expressed in terms of money since it could be valued. The scheme of the Act (Payment of Wages Act) showed that this sort of concession was excluded from the purview of the term “wages” as it was mere amenity and, therefore, could not be called “wages” under the Act.

16. The Rajasthan decision has taken support from the case of Divisional Engineer G.I.P Railway v. Mahadeo, [A.I.R 1955 S.C 295], where the question for consideration was as to whether house rent allowance could come within the purview of the term “wages” and on a reference to the definition of the term “wages” again under the Payment of Wages Act, it was held that under the definition of “wages” under the Act, the house rent allowance could not include the value of any house accommodation supplied by the petitioner to the employee.

17. Yet in another decision in the case of Indian Tea Association v. Workmen of Tea Estates in Assam, [A.I.R 1957 S.C 206], where the management of the tea estates in Assam had to supply rice to their workmen at concessional rates, the claim of inclusion of the value of the rice so supplied was disallowed on the ground that it was merely an amenity or concession.

18. It appears that opposite party 1 has been greatly obsessed by the notification where wages of Rs. 450 were fixed for a supervisor.

19. For the reasons discussed above. I come to the conclusion that supply of free food by the petitioner-company to opposite party 5 was merely an amenity and as such, its money equivalent could not form part of and be added to the cash salary paid to him to form his total wages for computing the amount of gratuity payable to him.

20. This writ application must, therefore, succeed and the impugned orders set aside.

21. I would accordingly quash annexures 2 and 3. The matter would now go back to opposite party 1 for a fresh computation of the gratuity payable to opposite party 5 on the basis of the wages received in cash by him.

22. Let a writ issue accordingly. No costs.

23. K.P Mohapatra, J.:— I agree.