ORDER
1. The present petition is filed by an employee, who is being refused hispayment of gratuity under the Payment of Gratuity Act.
2. Initially, the authority concerned had found him entitled to thepayment of gratuity of Rs.7,007/- on the basis of eight years service renderedby him to the organisation Salem Refractories Private Limited. It is anadmitted position that this petitioner has actually served the organisationfor eight years. It is also an admitted position that he was being paid anhonorarium of Rs.1,735/- per month and that after eight years of service, heresigned from the organisation. The payment of gratuity having been refusedto him, he approached the authorities under the Payment of Gratuity Act and asstated earlier, the first authority found him entitled. However, in anappeal, the appellate authority took the view that since he was paidhonorarium and since he was a retired employee (from other organisation), hewas not an employee within the meaning of Section 2(e) of the Payment ofGratuity Act and that it could not be said he was earning wages as he wasbeing paid only honorarium. The appellate authority, it seems, has reliedupon the following two decisions:
1.Binay Kumar Chatterjee v. Jugantar Ltd. And Others 1983 II L.L.N.302.Edwin A Daniel and another v. Labour Court, Coimbatore and another 1993 I L.L.N.169
The only reason why the appellate authority has come to the conclusion thatthe petitioner was not an employee is on account of the law laid down in thesedecisions. Therefore, it will be better to consider these decisions.
3. In the Binay Kumar Chatterjee's case, the employee was serving thesame organisation and he retired therefrom and thereafter he sought a freshemployment under contract and that was not continuation of the originalservice. The Supreme Court was concerned with Section 14 of the Working Journalists (Conditions of service and Miscellaneous Provisions) Act and itcame to the conclusion that the workman could not contend that the furtheremployment given to him was in reality a continuation of the previous employment and that the termination of his service should be taken to beeffective from the date of termination of the fresh contract and that heshould be given the benefit of continuation. Firstly, this is not a caseunder the Payment of Gratuity Act and secondly, the factual matrix is alsodifferent, in the sense that, the petitioner herein was not an erstwhileemployee of the employer. His was an independent and separate contractdehorse of and apart from the earlier employment. Further, this is not aquestion of continuation being claimed by the employee. Therefore, the lawlaid down in this case would not be applicable.
4. The other case of Edwin Daniel is again no different. There, thisdecision which is rendered by Honourable Justice M.Srinivasan as his Lordshipthen was, suggests that an employee who was an erstwhile employee of the employer and is retired, and thereafter re-employed again cannot claim confirmation as of right and cannot claim to be a regular employee. Again,this was a case where a fresh appointment was made and the petitioner thereinwas appointed on probation, but he was terminated later on during the courseof his probation. That termination was challenged and an award was passed against the employee holding that the non-employment was justified. It isalso accepted by the Labour Court that the petitioner was not governed bySection 2( oo) of the Industrial Disputes Act. His Lordship JusticeM.Srinivasan, as his lordship then was, came to the conclusion that theconfirmation was not automatic and that unless a specific order ofconfirmation was passed, the petitioner could not claim that he should betreated as a regular employee. His Lordship also made a reference to theSupreme Court judgment in Binay Kumar Chatterjee's case and observed that aperson, who had attained the age of superannuation and is given a fresh employment thereafter, could not claim the benefits of the standing orders andthat such appointment is only contractual and the termination of his serviceswill not amount to retrenchment within the meaning of Section 25F of theIndustrial Disputes Act.
5. In my opinion, the said judgment is not all apposite to thecontroversy involved. I have also explained as to why the judgment in BinayKumar Chatterjee's case would not apply to the present case. In both thecases, the question was regarding the standing orders and the benefits beingclaimed therein. The benefit under Payment of Gratuity Act is entirely anindependent statutory benefit covered by a different Act altogether. We are concerned only with that Act. Both the judgments were, therefore, notapposite to the controversy and the appellate authority has clearly erred inrelying upon them and holding that the petitioner was not an employee. Theword 'employee' is defined in Section 2(e) as follows:
'2(e):- 'employee' means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oil-field, plantation, port,railway company or shop, to do any skilled, semi-skilled or unskilled, manual,supervisory, technical or clerical work, whether the terms of such employmentare express or implied, [and whether or not such person is employed in amanagerial or administrative capacity, but does not include any such personwho holds a post under the Central Government or a State Government and isgoverned by any other Act or by any rules providing for payment of gratuity.]'
When we see the simple language of the definition, there can be no doubt thatthe petitioner herein was an employed person. It was tried to be suggestedthat he did not earn wages. The word 'wages' is also defined in Section 2(s)and the definition is as follows:-
'2(s):- '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 employmentand 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.'
Reading the definition, there could be no doubt that the employee was being regularly paid for his services the so called 'honorarium' which would amount to emoluments paid for the work and therefore, would be covered in the term'wages'. The different nomenclature given to the emoluments is of noconsequence.
6. Mr.Raghavan, learned counsel for the third respondent however, byway of almost a desperate argument, relied on Section 4 and suggested that thesection will apply only if the employee is superannuated or retired or hasresigned or has expired. Even accepting this argument, I am of the view thatthe petitioner would still be entitled because, he has resigned his job andtherefore his case would be covered under Section 4(1)(b). There is no dispute about the fact that he has put in eight years of service and hasthereafter ceased to serve on account of his resignation. There is also nodispute that the calculation is correct. Therefore, the appellate authorityhas erred in coming to the contrary conclusion. The order of the appellateauthority is set aside and the earlier order passed by the AssistantCommissioner of Labour, Salem is restored. The Writ Petition is allowed. Rule is made absolute.