T. U. MEHTA, J. ( 1 ) THE question which is involved in this petition is whether an employee who is found to be receiving a salary of more than Rs. 1000. 00 per month on the date on which the Payment of Gratuity Act 1972 came into force is entitled to the payment of gratuity under the said Act on the basis of 5 years continuous service on a non-managerial post in the past on the salary of less than Rs. 1000. 00 per month. This question arises in the following set of facts. ( 2 ) THE petitioner is a Limited Company and the respondent was in its employment as a Sales Engineer. The respondent joined the service of the petitioner as an Assistant Sales Engineer on 20th June 1962 on the salary of Rs. 450. 00per month. He was thereafter promoted as Sales Engi- neer on 1-5-1970 when his salary was more than Rs. 1000. 00 per month. The Gratuity Act 1972 came into force on 16th September 1972 On that date the respondent was receiving the salary of Rs. 1200. 00 per month i. e. more than Rs. 1000. 00 per month. Thereafter the respondent resigned on the 6th August 1973 when his salary was Rs. 1250. 00 per month. On his resignation he claimed gratuity under the provisions of the Act but since his claim was not entertained by the petitioner he approached the Control- ling Authority Baroda under the provisions of the Act. The said authority found that though on the date of the application of the Act the respon- dent was receiving the salary of more than Rs. 1000. 00 per month the respondent was entitled to gratuity because he had already rendered in the past the continuous service of more than 5 years on a salary which was less than Rs. 1000. 00 per month. The said authority accordingly awarded him gratuity on the basis of 8 years service from 20th June 1962 to 30th April 1970 during which period his salary was less than Rs. 1000. 00 per month. The total amount of gratuity thus awarded by the said Authority was Rs. 4000. 00. ( 3 ) AGAINST this order the petitioner preferred Appeal before the appellate authority being Appeal No. 34/35. The said authority confirmed the view taken by the Controlling Authority and dismissed the appeal. 1000. 00 per month. The total amount of gratuity thus awarded by the said Authority was Rs. 4000. 00. ( 3 ) AGAINST this order the petitioner preferred Appeal before the appellate authority being Appeal No. 34/35. The said authority confirmed the view taken by the Controlling Authority and dismissed the appeal. Being aggrieved by that decision of the appellate authority the petitioner has approached this court by this writ petition. ( 4 ) SHRI Shah who appeared on behalf of the petitioner contended that the definition of the word employee as given in cl. (e) of sec. 2 of the Act uses the present tense with reference to the employment of an employee and therefore unless the case of the respondent-employee was falling within the ingredients of the said definition on the date on which the Act came into force no gratuity would be admissible to the respon- dent. In other words according to Shri Shah the respondent must be found complying with all the requirements of the definition of the word employee with reference to the date on which the Act came into force i. e. on 16th September 1972 because the provisions of the Act are expected to operate prospectively and not retrospectively. Shri Shah pointed out that on 16th September 1972 when the Act came into force the salary of the respondent was admittedly more than Rs. 1000. 00 per month and therefore he is not entitled to any gratuity under the Act. This was the only contention raised by Shri Shah on behalf of the petitioner and therefore we shall concentrate our attention only to this contention. ( 5 ) CLAUSE (e) of sec. 1000. 00 per month and therefore he is not entitled to any gratuity under the Act. This was the only contention raised by Shri Shah on behalf of the petitioner and therefore we shall concentrate our attention only to this contention. ( 5 ) CLAUSE (e) of sec. 2 of the Act gives the definition of the word employee as under: (e) employee means any person (other than an apprentice) employed on wages not exceeding one thousand rupees per mensem in any establishment factory mine oilfield 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 employment are express or implied but does not include any such person who is employed in a managerial or administrative capacity or who holds a civil past under the Central Government or a state Government of who is subject to the Air Force Act 1950 the Army Act 1950 or the Navy Act 1957 explanation: In the case of an employee who having been employed for a period of not less than five years on wages not exceeding one thousand rupees per mensem is employed at any tine thereafter on wages exceeding one thousand rupees per men- sem gratuity in respect of the period during which such employee was employed on wages not exceeding the one thousand rupees per mensem shall be determined on the basis of the wages received by him during that period. The question is whether a person should comply with all the requirements of the definitions of the word employee as given above at the time when the Act came into force or whether in order to get the benefits of gratuity contemplated by the Act it would be sufficient if the said person complied with all the requirements of the definition of the word employee during the course of his service at any time in the past. A question which was more or less similar to the present one has been considered and deal with by this very Bench in SARABHAI CHEMICALS LTD. V. AMBARAM AMITHARAM PALE XVIII G. L. R. 455. Spl. C. A. No. 29/76 which is decided on 1 April 1976 In that case the facts were that on the date of his resig- nation the concerned employee was drawing a salary which was more than Rs. 1000. 00. V. AMBARAM AMITHARAM PALE XVIII G. L. R. 455. Spl. C. A. No. 29/76 which is decided on 1 April 1976 In that case the facts were that on the date of his resig- nation the concerned employee was drawing a salary which was more than Rs. 1000. 00. Therefore on behalf of the employer it was urged that since cause of action to get gratuity arises under sec. a of the Act on the date of the resignation the question whether the employee concerned fulfils the requirements of the definition of the word employee given in cl. (e) of sec. 2 of the Act should be decided with reference to the date on which the said cause of action arose i. e. the date on which the employee put his resignation. This contention was negatived by this court holding that the interpretation which was put on the definition of the word employee by the petitioner in that case. was unacceptable as it sought to add some more words to statutory definition of the word employee by limiting its operation with reference to a particular date even though the words and language of the definition clause were wide enough to cover the case of an employee who held a non-managerial post and had received wages of not more than Rs. 1000. 00per month at any time in the past. speaking about the definition of the word employee this court has observed in that case as under: the definition clause obviously speaks of a person employed on wages. It does not use the word employee with reference to any specified period of time. In other words the employment which is contemplated here is employment simplicitor without being hedged by any condition as regards time ( 6 ) SHRI Shah who appeared on behalf of the petitioner however laid great stress on the present tense which is used in the definition of the word employee given in cl. (e) of sec. 2. He drew out attention to the fact that the said definition uses the verb means in the present tense and also refers to an employee as one who is employed in the later portion of the main definition clause. (e) of sec. 2. He drew out attention to the fact that the said definition uses the verb means in the present tense and also refers to an employee as one who is employed in the later portion of the main definition clause. He therefore contended that the use of the present tense in this definition conclusively shows that the benefit under the Gratuity Act was intended to be confined only to that employee whose case fell within the said definition clause on the date on which the said Act came into force. ( 7 ) BE find that even this aspect has been considered by us in the above referred Spl. C A. No. 29/76. In that case we have made reference to the decision given by the Supreme Court in BENNETT COLEMAN AND CO. PVT. LTD. V. PUNYA PRIYA DAS GUPTA A. I. R. 19d S. C. 426. We have observed in that case as under with reference to this Supreme Court decision while considering the implications of the expression is employed: similar situation was considered by the Supreme Court in BENNETT COLEMAN AND CO. PVT. LTD. V. PUNYA PRIYA DAS GUPTA A. I. R. 1970 S. C. 526 The Supreme Court in that case considered the provisions contained in cl. (f) of sec 2 of Working Journalists (conditions of Service) and Miscellaneous Provisions Act (1955 ). Accor- ding to this clause a working journalist means a person whose principle vocation is that of a journalist and who is employed as such in or in relation to any news- paper establishment. In view of the use of the words is employed a contention which was raised before the Supreme Court was that since the respondent workman was not in continuous employment at the time he filed his claim in the Labour Court he was not a working journalist and his cases did not fall within the defin- tion contained in cl. (f) and therefore he was not entitled to avail himself of the provisions of the above referred Working Journalists Act This contention was rejected by the Supreme Court holding that the expression who is employed as in sec. (f) and therefore he was not entitled to avail himself of the provisions of the above referred Working Journalists Act This contention was rejected by the Supreme Court holding that the expression who is employed as in sec. 2 (f) of the Act was not restricted to newspaper employee who was presently employed in a newspaper establishment but it also related to an ex-employee whose employment had come to an end as a result of acceptance of his resignation and therefore such an ex-employee could also resort to the provisions of the Act. While taking this view the Supreme Court has made the following pertinent observations: the scheme of all Acts dealing with industrial questions is to permit an ex- employee to avail of the benefits of their provisions the only requirement being that the in claim in dispute must be one which has arisen or accrued whilst the clai- mant was in the employment of the person against whom it is made. (emphasis supplied by us ). The portion emphasised from the above excerpt taken from the said Supreme Court decision clearly brings out the ratio that if the claim has arisen or accrued whilst the claimant was in employment the use of the present tense would not be a determinant factor and such a use of the present tense must be construed with reference to the scheme and object of such beneficial legislation. ( 8 ) NOW if construction of the definition of the word employee is required to be made with reference to the scheme of the object of the Act it cannot be gainsaid that the object of the Act is to provide for a scheme for the payment of gratuity to certain categories of employees engaged in certain specified type of concerns. The gratuity is in its essence a payment in consideration of past services made only at the end of the said service when the employment terminates. Therefore the very essence of gratuity is past and not the present. Under the circumstances it is clear that by using the present tense in the definition of the word employee the Legislature could not have intended to negative the gratuity claim of those employees who had rendered the requisite period of service in the past and who were not otherwise disqualified from getting gratuity under the provisions of the Act. Under the circumstances it is clear that by using the present tense in the definition of the word employee the Legislature could not have intended to negative the gratuity claim of those employees who had rendered the requisite period of service in the past and who were not otherwise disqualified from getting gratuity under the provisions of the Act. ( 9 ) THIS position becomes very evident by reference to the Explanation which is attached to definition of the word employee. The said Expla- nation says that in case of an employee who has been employed for a period of not less than 5 years on wages not exceeding Rs. 1000. 00 per month but who is employed at any time thereafter on wages exceeding Rs. 1000. 00 per month his gratuity shall be determined on the basis of the wages received by him for the period during which he has served on the wages of less than Rs. 1000. 00 per month. This explanation clearly contemplates the cases of those employees who have been employed in the past for a continuous period of 5 years on a salary which is not more than Rs. 1000. 00per month. Thus the Explanation makes it quite clear that the intention of the Legislature was to take into consideration the whole record of the past service of the employee and to give benefit of gratuity even to those employees who were receiving the salary of more than Rs. 1000. 00 per month on the date on which the Act came into force. This intention of the Legislature should therefore be carried out. ( 10 ) SHRI Shah contended that our above interpretation would render the operation of the Act retrospective. We find that this contention has no merits. The reason is that in order to make himself eligible to the benefit of the gratuity under the provisions of the Act the employee concerned must show that his case falls within the provisions of sec. 4 of the Act. This sec. 4 contemplates that the gratuity shall be payable to an employee on termination of his employment either by his superannuation or his retirement of resignation or his death or disablement due to accident or disease. Thus sec. 4 provides for the cause of action for an employee to get gratuity. 4 of the Act. This sec. 4 contemplates that the gratuity shall be payable to an employee on termination of his employment either by his superannuation or his retirement of resignation or his death or disablement due to accident or disease. Thus sec. 4 provides for the cause of action for an employee to get gratuity. This cause of action must arise after coming into force of the Act and not before that. Therefore in order to enable himself to get the advantage of the provisions of the Act the employee should continue in the employment even after coming into operation of the Act and should show that his cause of action to get gratuity under sec. 4 of the Act has arisen after the Act came into force. Thus the operation of the Act is undoubtedly prospective and not retrospective and surely it does not become retrospective on the interpretation of the word employee which we have given after referring to the Explanation which is attached to the main definition clause. ( 11 ) AS observed by us in the above referred Spl. C. A. No. 29/76 if a person wants to take advantage of the gratuity contemplated by the Act he has to prove the following facts:1 That at any time in the past during the course of his employ- ment he was receiving the wages not exceeding Rs. 1030. 00per mensem; 2 That this period of service was continuous for not less than 5 years; 3 That during this period he was not employed in a managerial or administrative capacity. If a person proves these three factors then he would be entitled to the gra- tuity contemplated by the Act irrespective of the question whether on the date on which the Act came into force his case was falling within the ingred- ients of the definition given in the main clause of the word employee. We find that if the contention which is canvassed on behalf of the petitioner by Shri Shah is accepted then the whole purpose of the definition of word employee would be frustrated. Under the circumstances we see no point in this contention. ( 12 ) THIS Special Civil Application should therefore fail and the rule is discharged with costs. ( 13 ) SHRI Shah orally prays for a certificate for leave to appeal to the Supreme Court. Under the circumstances we see no point in this contention. ( 12 ) THIS Special Civil Application should therefore fail and the rule is discharged with costs. ( 13 ) SHRI Shah orally prays for a certificate for leave to appeal to the Supreme Court. We find that there is no substantial question of law of public importance which in our opinion should be decided by the Supreme Court. The said prayer is rejected. Petition allowed. Leave to appeal refused. .