1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Writ Petition No.5609/2009 ( Zonal Manager, Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. & another -: versus :- The Appellate Authority (Additional Commissioner of Labour), Nagpur & others ) with Writ Petition No.162/2010 ( Zonal Manager, Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. & another -: versus :- The Appellate Authority (Additional Commissioner of Labour), Nagpur & others ) with Writ Petition No.164/2010 ( Zonal Manager, Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. & another -: versus :- The Appellate Authority (Additional Commissioner of Labour), Nagpur & others ) with Writ Petition No.165/2010 ( Zonal Manager, Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. & another -: versus :- The Appellate Authority (Additional Commissioner of Labour), Nagpur & others ) with Writ Petition No.166/2010 ( Zonal Manager, Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. & another -: versus :- The Appellate Authority (Additional Commissioner of Labour), Nagpur & others ) with Writ Petition No.167/2010 ( Zonal Manager, Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. & another -: versus :- The Appellate Authority (Additional Commissioner of Labour), Nagpur & others ) with Writ Petition No.168/2010 ( Zonal Manager, Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. & another -: versus :- The Appellate Authority (Additional Commissioner of Labour), Nagpur & others ) 2 with Writ Petition No.170/2010 ( Zonal Manager, Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. & another -: versus :- The Appellate Authority (Additional Commissioner of Labour), Nagpur & others ) with Writ Petition No.5582/2009 ( Zonal Manager, Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. & another -: versus :- The Appellate Authority (Additional Commissioner of Labour), Nagpur & others ) with Writ Petition No.5589/2009 ( Zonal Manager, Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. & another -: versus :- The Appellate Authority (Additional Commissioner of Labour), Nagpur & others ) with Writ Petition No.5590/2009 ( Zonal Manager, Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. & another -: versus :- The Appellate Authority (Additional Commissioner of Labour), Nagpur & others ) with Writ Petition No.5611/2009 ( Zonal Manager, Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. & another -: versus :- The Appellate Authority (Additional Commissioner of Labour), Nagpur & others ) with Writ Petition No.5619/2009 ( Zonal Manager, Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. & another -: versus :- The Appellate Authority (Additional Commissioner of Labour), Nagpur & others ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JULY 13, 2010. The matter was heard yesterday for sometime and was adjourned today. Today Adv. Shri Paunikar states that he has instructions 3 to press only two points. First one is about the waiver by employee of his alleged entitlement to receive the amount of gratuity and second one is about the inclusion of amount of special allowance as part of wages by competent authority. Adv. Shri Paunikar argues that the employees after superannuation were offered the amount of gratuity which they have taken without any objection and hence they must be deemed to have waived their right to claim balance amount, if any. Reliance is being placed on judgment of learned Single Judge of Hon'ble Madras High Court reported in 1997 (2) L.L.J. 146 (The Management, Binny Ltd, (Buckingham & Carnatic Mills), Madras V/s. The Deputy Commissioner of Labour and Ors.). He further states that in view of provisions of section 2 (5), the special allowance is specifically excluded from definition of wages and hence amount of gratuity by adding amount of special allowance as emolument is incorrect. Learned A.G.P. for respondent no.1 is supporting the impugned order. It is apparent that petitioners have not cross examined any of the respondents. They have not brought on record any material to show that the amount paid as special allowance by them to respondents was not as part of contract of employment with them and therefore, because of its nature was not covered by substantive part of definition of wages under section 2 (5) of Payment of Gratuity Act. In the above cited case, the Hon'ble Madras High Court held that when the employer had specifically contend that employees were entitled to gratuity for 520 days only, the employees were claiming it for 600 days. The dispute was thus already in 4 existence and in the face of dispute the employees accepted the gratuity for 520 days. The Hon'ble Madras High Court has found that it was accepted as full and final settlement without reserving any right and after the judgment of the Hon'ble Apex Court rendered on 29th of August, 1984 reported in Jeevan Lal (1929) Ltd. etc. V/s. Appellate Authority Payment of Gratuity Act (1984-II-LLJ-464) holding otherwise, the dispute was raised. The amount was accepted way back in 1980 and the dispute was sought to be raised in 1984. In this view of matter, the Hon'ble Madras High Court has held that employees had relinquished their claim to balance gratuity. Here, facts conducive to inference of the relinquishment are not brought on record. I do not find anything wrong in appreciation of the said authority. Writ petition is therefore, dismissed. No order as to costs. JUDGE Tambaskar.