1. This is a petition filed by the Madurai District Co-operative Supply and Marketing Society, Ltd., for the issue of a writ of certiorari to call for the records in Claim Petition No. 177 of 1966 on the file of the presiding officer, labour court, Madurai, and to quash the order dated 16 July 1966, and made therein.
2. Respondent 1 was working as a senior salesman in the above society at Madurai. He retired from service on 18 February 1965, as he had attained the age of superannuation. On 22 March 1965, he applied to the society for gratuity pay and for refund of the security deposit of Rs. 250. The society paid respondent 1 fifteen months' basic pay on 20 January 1966, for the grant of dearness allowance. On 2 February 1966, the society rejected the claim of respondent 1 thereafter, filed a petition under Section 33C(2) of the Industrial Disputes Act, before the presiding officer, labour court, Madurai, for dearness allowance and for certain other claims. In that petition, respondent 1 claimed fifteen months' pay including dearness allowance, as, according to him, pay would include dearness allowance also. It is unnecessary to refer to the other claims, because they are not in dispute in this writ petition. The labour court held that respondent 1 was entitled to fifteen months' dearness allowance towards gratuity payable to him.
3. According to the petitioner, pay would mean only the basic pay and not the dearness allowance, and, as the society had already paid fifteen months' basic pay, the further claim of respondent 1 was not maintainable. The only questions, therefore, for consideration in this writ petition is whether respondent 1 is entitled to fifteen months' pay including dearness allowance.
4. By law 15(9)(c) of the bylaws of the Madurai District Co-operative Supply and Marketing Society, Ltd., provides that the maximum amount payable to any employee shall not exceed fifteen months' pay under any circumstances. The note explaining the term 'pay' provides that pay means the average monthly salary drawn during the last year of the employee's service. But, as to whether 'pay' includes dearness allowance or not, the note is not clear. The question will, therefore, have to be decided on a reference to the meanings commonly attributed to the terms 'pay' in respect of Government servants is understood as distinct from other allowances. Fundamental Rule 9(21) defines 'pay' as the amount drawn monthly by a Government servant as
(i) the pay, other than special pay or pay granted in view of his personal qualifications,
(ii) special pay and personal pay, and
(iii) any other emoluments which may be specially classed as pay by Government.
Fundamental Rule 9(5) defines 'compensatory allowance' as an allowance granted to meet personal expenditure necessitated by the special circumstances in which duty is performed and it includes travelling allowance. Thus, so far as the Fundamental Rules are concerned, the word 'pay' is used as distinct from allowance.
5. In the Industrial Disputes Act, 'wages' is defined in Section 2(rr) as meaning all remuneration payable to a workman in respect of his employment, including such allowances as dearness allowance, etc. 'Wages' is defined in the Concise Oxford Dictionary as an amount paid periodically, especially by the day or week or month, for time during which workman or servant is at employer's disposal. The allowance such as dearness allowance is brought within the term of wages by the inclusive definition in the Industrial Disputes Act. So also, the term 'average pay' in Section 2(aaa) is defined as including the average of the wages payable to a workman, which would, by virtue of the definition, include dearness allowance. The word 'salary' is defined in the Concise Oxford Dictionary as fixed periodical payment made to a person doing other than manual or mechanical work. The payment towards manual or mechanical work is referred to as wages. The word 'pay' refers to the payment for services done which would include his salary as well as wages. In the Payment of Bonus Act, 1965, 'salary or wage' is defined in Section 2(21) as meaning all remuneration including dearness allowance. It will be thus seen that under the Industrial Disputes Act and the Payment of Bonus Act, the term 'wages' by virtue of the definition includes dearness allowance. So far as the Fundamental Rules are concerned, the word 'pay' is used as distinct from other allowances. As the extended meaning of the word 'wages' is given by the inclusive definition, normally the term 'wages' cannot be construed as including dearness allowance also. The word 'pay' can only be construed, respondent 1 will only be entitled to fifteen months' basic pay without taking into account the dearness allowance.
6. Sri Chellaswami, learned Counsel for the petitioner, referred to a decision of the Supreme Court in British Paints (India), Ltd. V. its workmen : (1966)ILLJ407SC where the Supreme Court held that in calculating the gratuity, only the basic wages should be taken into account excluding dearness allowance. In Hindustan Antibiotics, Ltd. v. their workmen : (1967)ILLJ114SC , the Supreme Court has ruled in the particular case before it that dearness allowance may be included in 'pay' for the purpose of arriving at the gratuity payable. It held that a decision on the question will depend upon the nature of industry, whether it is a flourishing one and has the capacity to pay, and will depend upon the facts and circumstances of the case.
7. It was submitted on behalf of respondent 1 that, when the labour court had construed the by lay in question in a particular manner, this Court should not interfere unless it was perverse and that when two constructions are open, the one given by the labour court should not be interfered with. The learned Counsel referred to the decision of the Supreme Court in Agnani (W.M.) v. Badri Das and Ors. 1963 I L.L.J. 684, wherein the Supreme Court held at p. 689:.if the tribunal put one interpretation upon the resolution and the High Court thought it better to pat another, that cannot be said to introduce an error apparent on the face of the record in the order of the tribunal.
In that case, a resolution was passed appointing a committee for enquiring into certain charges. The resolution was interpreted in one way by the tribunal and in a different way by the High Court. In this case, the interpretation relates to the construction of a by law, and as the matter is one of law, it is for the Court to arrive at a proper meaning of the by law. On a consideration of the various enactments and rules in which the terms 'pay' and 'allowance' are used, I have no hesitation in holding that on a proper construction of the word 'pay' in the by law, it can only mean the basic pay without including the dearness allowance.
8. For the reasons stated, the order of the labour court cannot be sustained. The writ petition is allowed. There will be no order as to costs.