Case: SHRI H.D. SHRMA Vs. NORTHERN INDIA TEXTILE RES.ASSN

never paid to the appellant after August,1986 till 24.04.1987 (date of dismissal order). It is for this reason, the respondent contended that a sum of Rs.110/- is neither a wage and nor its component and nor the appellant has any right in law to claim such amount under the terms of his employment from the respondent. 29. What types of payment would constitute a wage or its component within the meaning of the word wages as defined under Section 2 (rr) of the Industrial Disputes Act has been the subject matter of several decisions of this Court. The word wages defined in Section 2(y) of the Act is in peri materia with the definition of word wagesdefined in Section 2(rr) of the Industrial Disputes Act. 30. A question arose before the Three Judge Bench in the case of Bharat Electronics Limited vs. Industrial Tribunal, Karnataka, Bangalore & Anr. (1990) 2 SCC 314 as to whether night shift allowance would form part of wages in the context of Section 33 (2) (b) of the Industrial Disputes Act, 1947. 31. Justice M.M. Punchhi (as His Lordship then was and later CJI) speaking for the Bench examined the object of Section 33(2)(b) of the Industrial Disputes Act. After referring to earlier decision of this Court in Syndicate Bank Limited vs. Ramanath (1968) 1 SCR 327 , it was held that the intention of the legislature in providing for such a contingency is not far to seek. It was held that the section was enacted to soften the rigour of unemployment that will face the workman against whom an order of discharge or dismissal has been passed This Court held that one months wages as thought and provided to be given are conceptually for the month to follow, the month of unemployment and in the context wages for the month following the date of dismissal and not a repetitive wage of the month previous to the date of dismissal. This Court further held that if the converse is read in the context of the proviso to Section 33(2)(b), it inevitable would have to be read as double the wages as earned in the month previous to the date of dismissal and that would, in our view, be reading in the provision something which is not there, either expressly or impliedly. This Court held that we have to blend the contextual interpretation with the conceptual interpretation to come to the view that night shift allowance could never be part of wages, and those would be due only in the event of working. It was held that the conclusion is inescapable that the workman had to earn night shift allowance by actually working in the night shift and his claim to that allowance was contingent upon his reporting to duty and being put to that shift. It was held that the night shift allowance automatically did not form part of his wages and it was not such an allowance which flowed to him as his entitlement not restricted to his service. 32. Now coming to the facts of this case, we find that it has come in evidence that the respondent had paid Rs.110/- to the appellant in August 1986 by way of interim relief as an ex gratia payment. It is not in dispute that a sum of Rs.110/- was paid only once in August 1986 and not thereafter. 33. In our opinion,such payment cannot be termed either as wages or its component within the meaning of Section 2 (y) read with Section 6E (2) of the Act. 34. The reason is that any isolated one time ex gratia payment made by way of an interim relief neither satisfies the requirement of Section 2 (y) and nor it satisfies the requirement of clauses (i) to (iii) of Section 2 (y) of the Act. 35. If such amount had been paid regularly by the respondent to the appellant in compliance with his terms of employment, it would have been regarded as wages or its component within the meaning of Section 2(y) of the Act.In order that any payment is regarded as wages, it must be proved that it was being paid by the employer to his employee pursuant to the terms of his employment. It is only then a right is created in employees favour to claim such amount from the employer provided the employee proves that he has fulfilled the terms of his employment. 36. A question arose before the Two Judge Bench in Ghaziabad Zila Sahkari Bank Ltd. vs. Additional Labour Commissioner & Ors. (2007) 11 SCC 756 as to whether any ex gratia payment made to the employee by the Bank would be regarded as Bonus (production, incentive or customary). This Court held that it was not. It was held that it is not possible to employ a term of service on the basis of employment contract. It was held that the payment made as ex gratia was neither in the nature of production bonus nor incentive bonus nor customary bonus and nor any statutory bonus. It cannot be regarded as part of the contract employment. It was accordingly held that the ex gratia payment made by the Bank cannot be regarded as remuneration paid or payable to the employees in fulfillment of the terms of the contract of employment within the meaning of definition of wage under Section 2 (rr) of the ID Act. 37. We are, therefore, of the considered opinion that the respondent rightly paid Rs.1103.40 to the appellant by way of his wages for one month along with his dismissal order. Such payment, in our view, was made strictly in accordance with the requirements of Section 2(y) read with Section 6E (2) of the Act. On the other hand, we find that the appellant failed to adduce any evidence to prove that Rs.110/- was being paid to him every month by the respondent as a part of his term of the employment and, if so, under which head. 38.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]21. Having heard the learned counsel for the parties at length and on perusal of the record of the case, we are inclined to uphold the conclusion arrived at by the High Court but we do so on our reasoning given hereinbelow. In other words, though we uphold the conclusion arrived at by the High Court,but not the reasoning of the High Court. This we say for the following reasons22. In our view, the respondents application made underSection 6E(2) of the Act deserves to be allowed by granting them approval to the appellants dismissal32. Now coming to the facts of this case, we find that it has come in evidence that the respondent had paid Rs.110/- to the appellant in August 1986 by way ofinterim relief as an ex gratia payment. It is not in dispute that a sum of Rs.110/- was paid only once in August 1986 and not thereafter33. In our opinion,such payment cannot be termed either as wages or its component within the meaning of Section 2 (y) read with Section 6E (2) of the Act34. The reason is that any isolated one timeex gratia payment made by way of an interim relief neither satisfies the requirement of Section 2 (y) and nor it satisfies the requirement of clauses (i) to (iii) of Section 2 (y) of the Act35. If such amount had been paid regularly by the respondent to the appellant in compliance with his terms of employment, it would have been regarded as wages or its component within the meaning of Section 2(y) of the Act.In order that any payment is regarded as wages, it must be proved that it was being paid by the employer to his employee pursuant to the terms of his employment. It is only then a right is created in employees favour to claim suchamount from the employer provided the employee proves that he has fulfilled the terms of his employment37. We are, therefore, of the considered opinion that the respondent rightly paid Rs.1103.40 to the appellant by way of his wages for one month along withhis dismissal order. Such payment, in our view, was made strictly in accordance with the requirements of Section 2(y) read with Section 6E (2) of the Act.On the other hand, we find that the appellant failed to adduce any evidence to prove that Rs.110/- was being paid to him every month by the respondent as a part of histerm of the employment and, if so, under which head.