G. T. NANAVATI, S. H. SHETH, J. ( 1 ) THIS petition is directed against the award made by the Industrial Court Gujarat in Reference No. (1c) 69 of 1980 under sec 73 of the Bombay Industrial Relations Act 1946 The facts of the case briefly stated are as under: ( 2 ) THE Chalthan Kamdar Mandal the petitioner served upon the company respondent No. 2 a notice of change in which they demanded that for the purpose of payment of bonus to the workmen employed by respondent No. 2 company detention allowance should be regarded as remuneration or wages. There were conciliation proceedings between the parties which failed. Therefore reference of the dispute was made to the Industrial Court under sec. 73a of the Bombay Industrial Relations Act 1946 The Industrial Court by its award dated 11/07/1980 held that retention allowance was not a remuneration and that therefore it could not be included in the wages for the purpose of payment of bonus under the Payment of Bonus Act 1965 It is that award which is challenged in this petition by the workmens Union. ( 3 ) THE nature of retention allowance is as follows. Respondent No. 2 runs a seasonal factory which crushes sugar cane and produces sugar. It does not work for all the twelve months in a wear. There is an off-sea- son during the year during which the factory remains closed. For this off-season during which the workmen suffer forced idleness full wages are not paid. There are several categories of workmen employed by respon- dent No. 2 company. There are unskilled workmen who are paid 10% of basic wages and deadness allowance as retention allowance during the off season. The second category consists of semi-skilled workmen who are paid 25% of basic wages and deadness allowance during the off-season. The rest are paid 50% of basic wages and deadness allowance during the off- season. The rest include skilled workmen Class C Class B Class A and Class A/1 and supervisory staffs Class C Class B Class A/2 and Class A/1. ( 4 ) THE Tribunal in its award has tried to amplify the nature and character of retention allowance. It has made the following observations. During the off-season workmen are not required. Therefore they are not retained. Therefore they are discharged. ( 4 ) THE Tribunal in its award has tried to amplify the nature and character of retention allowance. It has made the following observations. During the off-season workmen are not required. Therefore they are not retained. Therefore they are discharged. The Tribunal does not appear to be correct in saying that during the off-season the workmen are discharged. We shall revert to it a little later. Workmen in sugar factory require some sort of special skill. Therefore if they return to the factory after expiry of the off-season it helps the production. Workmen in sugar factories in Gujarat generally come from Uttar Pradesh. During the off- season they engage themselves in different occupations. Retention allowance is a suit of incentive which is offered to the workmen to attract them to return to the factory after the expiry of the off season. The Industrial Court has further observed that the word retaining itself suggests that the workmen are retained in service for the next season. We are taking note of this observation because rotation of a workman for the next season is inconsistent with his discharge during the off-season. Both these observation have been made by the Industrial Court in its award. They appear to us to be contadictory. Retention allowance is paid to a work- man if he reports to duty during the next season. He is actually paid after he completes work for about 40 days during the next season. From these facts the Industrial Court has drawn an inference that it is not a deferred wage. This is the nature of retention allowance which is paid by respondent No. 2 company to its workmen during the off-season. This allowance is paid in pursuance of the report of the Second Central Wage Board on sugar industry. It is not necessary for us to make a detailed reference to the report of the Second Central Wage Board because bet- ween this very company and its workmen there was an industrial dispute which went to the Supreme Court. The decision is reported in The Mana- gement of Shri Chalthan Vibhag Khand Udyog Sahakari Mandli Ltd. v. G. S. Barot and Another AIR 1980 S. C. 31. The contentions which were raised in that decision indeed reiterated the industrial dispute between the par- ties but the did not directly touch the question of retention allowance. The decision is reported in The Mana- gement of Shri Chalthan Vibhag Khand Udyog Sahakari Mandli Ltd. v. G. S. Barot and Another AIR 1980 S. C. 31. The contentions which were raised in that decision indeed reiterated the industrial dispute between the par- ties but the did not directly touch the question of retention allowance. However it is necessary to refer to the observations which the Supreme Court has made in paragraph 27 of the report. In regard to the retention allowance payable to unskilled workmen this is what has been observed in that paragraph: Regarding the award relating to the retention allow- ance of the unskilled workers at 10% of the basic wage and the deadness allowance payable during the crushing season it was not challenged before the High Court. The next observation which the Supreme Court has made in that paragraph is as follows: So far as the increment of the graded deadness allowance from Rs. 21 to Rs. 40 from the date of the award and the retention allowance at 10% of the basic wage and deadness allowance payable during the crushing season to the unskilled workers is concerned it is confirmed. This decision makes it clear beyond all doubts that reten- tion allowance is paid by respondent No. 2 company to its workmen un- der the award made in that behalf by the Industrial Court. In so far as the award regarding the retention allowance is concerned it was not cha- llenged. Therefore payment of retention allowance during the off-season is now a statutory obligation of respondent No. 2 company and is a con- dition of service for its workmen. ( 5 ) THE next question which arises for our consideration is whether retention allowance falls within the definition of the expression salary or wage given in the Payment of Bonus Act 1965 so as to attract pay- ment of bonus in the context thereof under sec. 10 of the Act. The obli- gation to pay bonus to the workmen has been created for employers under sec. 10. Under sec. 8 every employee has been rendered eligible for be- ing paid bonus. 10 of the Act. The obli- gation to pay bonus to the workmen has been created for employers under sec. 10. Under sec. 8 every employee has been rendered eligible for be- ing paid bonus. Sec. 2 (21) of the Act defines salary or wage as follows: (21) salary or wage means all remuneration other than remuneration in respect of overtime work) capable of being expressed in terms of money which would if the terms of employment express or implied were fulfilled be payable to any employee in respect of his employment or of work done in such employment and includes deadness allowance (that is to say all cash payments by whatever name called paid to an 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 foodgrains 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 under any law for the time being in force: (vi) any retrenchment compensation or any gratuity or other retirement benefit payable to the employee or any ex gratia 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. In light of this long definition of salary or wage what is the nature of retention allowance which respondent No. 2 company pays to its work- men during the off season under the force of an industrial award? There is no doubt or dispute about the fact that out of the seven exceptions which have been specified in sec. 2 (21) except the first exception none other is indisputably attracted to retention allowance. The question there- fore is whether retention allowance is a remuneration or is it an allo- wance which the employee is for the time being entitled to? 2 (21) except the first exception none other is indisputably attracted to retention allowance. The question there- fore is whether retention allowance is a remuneration or is it an allo- wance which the employee is for the time being entitled to? In our opinion one who is an employee is entitled to his salary or wages which will be his remuneration. A person may be paid allowance in addition to his salary or wages. It is difficult for us to imagine that an allowance can be paid in lieu of salary or wages. No person is employed merely on allowances. Therefore in our opinion an allowance is something which is paid either under the contract or under the law in addition to the basic wages or basic salary of a workman. It is therefore clear that every employee is entitled for rendering service to his employer to his wages or salary. He may be paid allowance in addition to it if other- wise he is entitled to it. ( 6 ) THE industrial Court was in error in making a loose observation in the impugned award that during the off-season the workmen are discharged. During an off-season the workmen are not discharged. They are retained in service. Retention in service and discharge are two contradictory concepts and cannot go together. It is in this con- text that we have stated in earlier part of our judgment that the Tribu- nal has made contradictory observations in its impugned award. The very fact that retention allowance is paid to workmen clearly shows that ser- vices of workmen are retained. Therefore the relationship of employer and employee subsists between them during that period. The only diffe- rence which is made during the off-season is that an employer is not in a position on account of natural factors or other reasons to provide work to his workmen. Therefore on account of the inability of the employer the workmen are forced to suffer idleness. However even though the employer is not able to provide work to his workmen he is eager not to do away with them during the off-season because he wants them with their skill and experience to return to work when the next crushing sea- son commences. ( 7 ) MR. Nanavaty who appears on behalf of respondent No. 2 com- pany has argued that during the off-season the workmen are discharged. ( 7 ) MR. Nanavaty who appears on behalf of respondent No. 2 com- pany has argued that during the off-season the workmen are discharged. That is an incorrect submission which he has made to us. If they are discharged they are not entitled to retention allowance. The very fact that retention allowance is paid to them points indisputably to their being retained in service without work. Therefore retention allowance is a remuneration on a lower scale which is paid to workmen by his emp- loyer during the off-season. It is not as incorrectly argued by Mr. Nana- vaty an incentive so attract the workmen to return to work when the next crushing season starts. A workman may not return to work and may take up some other job or employment. The payment of retention allo- wance to its workmen during the off-season when there is no work and when the factory is not working clearly shows that it is the employer who is eager to retain their services for the next crushing season rather than the workmen being eager to return to work. Secondly bearing in mind the basic proposition that respondent No. 2 company retains the services of its workmen during the period of forced idleness in order that they may be available when the next crushing season starts we must come to the conclusion that relationship of employer and employee sub- sists between respondent No. 2 company and its workmen during the off-season. ( 8 ) MR. Nanavaty has further argued that remuneration means basic wages and not anallowance. He is absolutely right in that submission of his. However he forgets that an allowance does not become an allo- wance merely because it is so called. The Court has got to examine the basic nature and character of the payment which an employee is paid. The nomenclature with which it is clothed by the employer is not at all important. ( 9 ) IN the instant case as observed above retention allowance is the basic wage on a diminished scale which the employer pays to his workmen during the off-season. It is not an allowance because it is not paid in addition to basic salary or wage. This is the only payment which is made by the employer to his workmen during the off-season. There- fore it cannot be anything else but remuneration on a diminished scale. It is not an allowance because it is not paid in addition to basic salary or wage. This is the only payment which is made by the employer to his workmen during the off-season. There- fore it cannot be anything else but remuneration on a diminished scale. Merely because it is called an allowance it does not attain the character of an allowance in the sense that it is a payment made in addition to basic wages. ( 10 ) LET us now turn to find out whether other ingredients of the de- finition are satisfied. We have already observed that it is a remuneration. There is no doubt or dispute about the fact that it is capable of being expressed in terms of money. Wages of the workmen are fixed. Payment of 10% of wages or any other part of wages during the off-season is capable of being expressed in terms of money. Next in terms of employ- ment express or implied it must be payable to an employee in respect of his employment or work done in such employment. In the instant case it is payable in terms of the award made by the Industrial Court in that behalf. Therefore it is one of the express terms of employment between respon- dent No. 2-company and its workman and is therefore payable. It is payable not for the work done in such employment but it is payable to a workman in respect of his employment. The definition given in sec. 2 (21) of the Payment of Bonus Act 1965 is wide enough to cover payment which is made during an off-season for retaining the services of a workman. In our opinion therefore all ingredients of sec. 2 (21) are satisfied in so far as the retention allowance is concerned. ( 11 ) COMING to the first exception we find that it is not an allowance contemplated by that exception. We have given reasons to show why it is not an allowance. To repeat it is not an allowance because it is not some- thing which is paid in addition to the salary or wage. Secondly it is not a payment to which an employee is for the time being entitled under the terms of the industrial award made between the parties and but it is payable permanently that is to say so far as the award remains in force. Secondly it is not a payment to which an employee is for the time being entitled under the terms of the industrial award made between the parties and but it is payable permanently that is to say so far as the award remains in force. After the expiry of the period of award or after it is terminated a fresh dispute arises. Quantum then may be varied but not the basic liability to pay it. Therefore it is not a payment to which an employee is for the time being entitled. Therefore it does not fall within the first exception specified in sec. 2 (21 ). If a workman who receives a ret- ention allowance during the off-season does some other work in order to supplement his income he does so for living and not because he has been discharged from service. It is difficult to imagine that a workman during off-season can live on 10% 25 or 50% of his usual wages In that view of the matter mere engagement of a workman in some occu- pation or work for the purpose of supplementing his depleted income during the off-season does not detract whatsoever from his employment under his original implore who has retained his services during the off- season so that they may be available when the next crushing season starts. ( 12 ) THE petitioner who is the General Secretary of the Chalthan Kamdar Mandal and who has argued the case in person has tried to in- vite our attention to the definition of wages given in the Employees Provident Funds Act 1952 and the Payment of Wages Act 1936 He has unnecessarily referred to these detentions because the concepts in those definitions are different from the one in sec. 2 (21) of the Payment of Bonus Act 1965 ( 13 ) MR. Nanavaty has further tried to argue that if we take the view that the relationship of an employer and an employee subsists between the parties during the off-season it may give rise to claims for gratuity for the off-season under the Payment of Gratuity Act 1972 and for com- pensation under the Workmens Compensation Act 1923 Having posed this question before us he did not examine it with reference to the Payment of Gratuity Act or the Workmens Compensation Act or conditions of service in relation to seniority. He raised the contention the soundness of which he did not examine. Suffice it to say for the purpose of this case that what we decide in this case has relation only to the Payment of Bonus Act 1965 and to no other Act. Payment of gratuity depends upon the provisions contained in the Payment of Gratuity Act 1972 Claim to com- pensation in case of an accident to a workman will be governed by the provisions of Workmens Compensation Act 1923 They have nothing to do with the Payment of Bonus Act 1965 ( 14 ) LASTLY Mr. Nanavaty has invited our attention to two decisions one of which is irrelevant for the purpose of the present case. The first decision is of Allahabad High Court in Amba Prasad v. Jaswant Sagar Mills Ltd. Meerut and Others (1966) 2 Labour Law Journal 702. It was a case under the Payment of Wages Act 1936 The question which arose in that case was whether under the provisions of the Payment of Wages Act reta- ining allowance which the employer had not paid to its workmen could be recovered through the Payment of Wages Authority. It was held by a Division Bench of that Court that retaining allowance was not Wages within the meaning of sec. 2 (vi) of the Payment of Wages Act and that therefore the Payment of Wages Authority had no jurisdiction to order its payment. We are unable to concur in the view which Allahabad High Court has expressed. Firstly Allahabad High Court was concerned with examining the definition of Wages given in sec. 2 (vi) of the Payment of Wages Act with which we are not concerned in the instant case. Secondly we are unable to agree on general interpretation that retention allowance is not Wages. In our opinion they are wages on the diminished scale for the off-season during which the services of the workmen are retained. According to the Allahabad High Court retention allowance is in the nature of compensation. With great respect to the learned Judges we are unable to agree with them. In our opinion they are wages on the diminished scale for the off-season during which the services of the workmen are retained. According to the Allahabad High Court retention allowance is in the nature of compensation. With great respect to the learned Judges we are unable to agree with them. In our view the retention allowance is not in the nature of compensation payable to a workman during the off- ason but it is basic wage for retaining him for the next crushing season ( 15 ) THE next decision to which he has invited our attention is in T. C. Ponnuswamy v. Labour Court Coimbatore and Another (1970) 2 La- bour Law Journal 507. It was a case under the Payment of Bonus Act 1965 The question which arose in that case was whether the value of uniforms and chappals could be said to be remuneration falling within the definition of wages given in the Payment of Bonus Act 1965 The second question which arose was whether food allowance formed a part of salary or wages as defined in the Payment of Bonus Act 1965 The facts of the case show that there was no evidence in that case to show that the allowances which the workmen claimed were payable under the terms of employment. In any case the nature of allowances which were claimed in that case were fundamentally and basically different in character from the retention allowance which the workmen claimed in the instant case. ( 16 ) IN the result we allow the petition quash the impugned award made by the Industrial Court and declare that bonus is payable under the Payment of Bonus Act 1965 to the workmen on retention allowance which is paid to them for the off-season. Rule is made absolute with costs. .