M.M. Ismail, J.
1. The petitioner herein who is employed as a driver by the second re pendent, along with nine other persons, field applications bet ore the Labour Court, Comibatore, under Section 33C(2) of the Industrial Disputes Act. 1947, claiming payment of additional bonus to the year 1965-66 on the ground that me food allowance which was paid to him am. the value of the uniformed chappals supplied to him by the second respondent pursuant to the provisions contained in the Motor Transport Workers' Act. 1961 (Central Act 27 of 1961), and the Madras Motor Transport Workers' Rules, 1965, made under the Act formed part of salary or wages as defined in he Payment of Bonus Act, 1965 (hereinafter referred to as the Act)and that bonus should have been calculated on the salary or wages including the said food allowance and the value of the uniform and chappals. The Labour Court by its order dated '6th June, 1967, rejected the claim of the petitioner and dismissed the application. It is to quash this order of the Labour Court the present writ petition under Article 226 of the Constitution of India has been filed.
2 Mr. Dolia, the learned Counsel for the petitioner, contended that the definition of the term 'salary or wage' occurring in Section 2(21) of the Act will cover the food allowance referred to and claimed by the petitioner and therefore the order of the Labour Court in this respect is wrong. For the purpose of appreciating this contention is. is necessary to consider the definition of the words 'salary or wage' as contained in the Act.
Section 2(21). ''salary or wage' means all remuneration (other than remuneration in respect of over-time work) capable of being expressed in terms of money which would, if the terms of employment, express or implied, were fulfilled, be payable to an employee in respect of his employment or work done in such employment and includes dearness allowance (that is to say, all cash payments, by whatever name called, paid to aw employee on account of a rise in the cost of living), but does not include-
(i) any other allowance which the employee is for the time being entitled to;
(ii) the value of any house accommodation or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of food grains or other articles;
(iii) any travelling concession;
(iv) any bonus (including incentive, production and attendance bonus);
(v) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the employee under any law for the time being in force;
(vi) any retrenchment compensation or any gratuity or other retirement benefit payable to the employees or any excretion payment made to him;
(vii) any commission payable to the employee.
Explanation,-Where an employee is given in lieu of the whole or part of the salary or wage payable to him, free food allowance or free food by his employer, such food allowance or the value of such food shall, for the purpose of this clause, be deemed to form part of the salary or wage of such employee.
3. Thus it will be seen that for the purpose of the claim falling within the scope of the main provision it must be a remuneration capable of being expressed in terms of money which would, if the terms of employment, express or in plied, were fulfilled, be payable to an employee in respect of his employment or of work dune in such employment. Consequently, the petitioner should establish that the food allowance formed part of the remuneration which was payable to him if the terms of the employment were fulfilled, before he could succeed in his claim. Admittedly, in this case no material whatever was placed before the Labour Court for the purpose of establishing what were the terries of the employment, express or implied, so that it may be deduced that the food allowance formed part of the remuneration. Mr. Dolia relies in this connection on exhibit W-2 placed before the Labour Court, being a communication dated 2nd November, 1966, addressed by the second respondent herein to the Labour Officer II, Coimbatore. In that communication the second respondent had stated:
There is no allowance known as 'food allowance' in the Motor Transport Workers' Act. In fact the calculation of any food allowance is included in the dearness allowance. An award was passed by the Labour Court on this management only on 13th May, 1966 and which is in force even this day and the dearness allowance of Rs. 48 per month which takes into account any item of food also is valid even this day and as such the demand for any separate food allowance cannot be entertained. No other transport company in Coimbatore District pays food allowance. This management pays batta which is equivalent to food allowance and the following rates of batta paid for the following trips compare favourably with similar comparable concerns in Coimbatore District.
Based on this statement the argument of Mr. Dolia is that the second respondent itsalf admitted that what it paid as food allowance was really batta. I am of the opinion that this contention does not advance the case of the petitioner any further. As I pointed out already For the purpose of bringing the case within the main part of Section 2(21) of the Act, it has to be established that the food allowance with which we are concerned, formed pat of remuneration payable to the petitioner under the terms of the employment. For that purpose no material whatever was placed before the Labour Court for the pus pose of showing what exactly the twins of the employment were and whether those terms included or comprehended the food allowance or batta as part of the remuneration. Consequently, the argument based on the contention that the food allowance is part of the remuneration and therefore comes within the definition of the term 'salary or wage' contained in the Act fails.
Mr. Dolia attempted an alternative argument based upon the Explanation. For the Explanation to apply if must be established that the employee is given free food allowance or free food by his employer in lieu of the whole or part of the salary or wage payable to him. Consequently, unless the petitioner established before the Labour Court that the food allowance which he claimed was given to him in lieu of the whole or part of the salary or wage payable to him, the petitioner could not succeed on this point. As a matter or fact, the Labour Court itself points out in its order that the petitioner did not allegs in his petition that he was supplied with free food or food allowance as past if his wages. The correctness of this statement is not challenged, in view or this firstling recorded by the Labour Court, there is no scope for placing any reliance on the Explanation to the definition of the terms 'salary or wage', occurring in Section 2(21) of the Act. Therefore, the conclusion of the Labour Court that the petitioner is not entitled to claim the inclusion of the food allowance as part of the salary or wage for the purpose of calculating bonus payable to him is correct and does not call for any interference.
As far as the value of the uniform and ehappals is concerned, it is Section 10 of the Motor Transport Workers' Act, 1961, which deals with this matter Section 10(1) states that the State Government may, by notification in the official Gazette, make rules requiring an employer of a motor transport undertaking to provide for the drivers, conductors and line checking staff employed in that undertaking such number and type of uniforms, raincoats or other like amenities for their protection from rain or cold as may be specified in the rules. Pursuant to this section the State Government have, under the rules made by them, namely, the Madras Motor Transport Workers' Rules. 1965, provided in Rule 23 thereof the details of the uniform and the chappals that have to be supplied by the employer to the employee. The value of this uniform and chappals cannot come within the scope of the main part of the definition of 'salary or wage' occurring in Section 2(21) of the Act, because by no stretch of imagination the value of the uniform or chappals can be said to be remuneration, capable of being expressed in terms of money, which would, if the terms of employment, express or implied were fulfilled, be payable to an employee in respect of his employment or of work done in such employment. Apart from the remuneration, the only other allowance that is included in the definition is dearness allowance, by whatever name it is called, paid to an employee on account of the rise in the cost of living. The value of the uniform or chappals cannot form part of this allowance as well. Once the value of the uniform and chappals does not fall either under the head of remuneration or under the head of dearness allowance, there is no provision in the Act for including it in the concept of 'salary or wage' as defined in the Act for the purpose of calculating the bonus payable to the employee. Hance the claim in this behalf also was rightly rejected by the Labour Court.
Under these circumstances, no case has been made out for interference with the order of the Labour Court and hence this writ petition fails and is dismissed. There will be no order as to costs.