Order. One Pramanand Sanghi has been tried by the Sixth City Magistrate, Hyderabad, for an offence under section 36 read with section 41 of the Hyderabad Shops and Establishments Act (X of 1951) and convicted and sentenced to pay a fine of Rs. 20 or in default to suffer simple imprisonment for 5 days. This matter has come on a reference made by the learned Chief City Magistrate under section 438, Criminal Procedure Code. The learned Chief City Magistrate who heard the revision petition filed by the accused is of the view that in a case where an employee is paid salary he cannot be considered as an employee receiving wages, as the decision of the Andhra Pradesh High Court in Bhagvandas and three others, In re1, will govern the case and as also the amendment of the definition of the word ‘wages’ contained in section 2(vi) of the Payment of Wages Act, 1936, cannot apply retrospectively, the order of the Sixth City Magistrate convicting the accused requires to be set aside. The accused is a petrol dealer trading under the style of ‘Prem Brothers’. The employee whom he discharged on 21st March, 1958, is Sheik Mohammed. The latter had been in the service of the former from 23rd December, 1949. He had been paid a salary of Rs. 65 at the time when he was discharged. The complaint made by the discharged employee is that he was not paid gratuity which he is entitled to receive under the provisions of section 36 of the Hyderabad Shops and Establishments Act. The accused does not deny the non-payment of the gratuity, but contends that he is not under an obligation to pay gratuity to an employee who is only entitled to payment of salary and not to wages. It is on this contention there has been a difference of opinion between the trial Court and the revisional Court. The learned Sixth City Magistrate held that even though the Andhra Pradesh High Court followed the decision reported in K.V.V. Sarma, In re2, the view of the same High Court in a later decision in Managing Director, T.S.T. Co. v. Perumal Naidu3, has to be preferred, in that, that later decision of the Madras High Court dissented from the earlier one. As already adverted to, the learned Chief City Magistrate was unable to agree with this view of the trial Court. v. Perumal Naidu3, has to be preferred, in that, that later decision of the Madras High Court dissented from the earlier one. As already adverted to, the learned Chief City Magistrate was unable to agree with this view of the trial Court. It is necessary to have to state the submission of Mr. Kulkarni, the learned counsel for the petitioner-accused, in order to show how the definition of ‘wages’ contained in the Payment of Wages Act (IV of 1936) has become important in the determination of this case. The learned counsel for the petitioner while aware that what is complained of against the accused is the non-compliance of the provisions of section 36 that led to the application of the penal consequence contained in section 41 of the Hyderabad Shops and Establishments Act, he relied upon the employment of the term ‘average wages’ occurring in sub-section (1) of section 36. He submitted that inasmuch as section 2(20) of the same enactment adopts the definition of ‘wages’ as contained in the Payment of Wages Act, the case of a person who is paid wages but not salary is distinguishable and in the latter instance the employer cannot be compelled to pay gratuity. Sub-section (1) of section 36, which is material, may be read. Sub-section (1) of section 36, which is material, may be read. It is as follows: “No employer shall, except for misconduct, dispense with the services of an employee who has been in his continuous employment for a period of not less than six months including the part of the period, if any, before the commencement of this Act, without giving such employee a gratuity amounting to fifteen days average wages for each year of continuous service, subject to a maximum of average wages for fifteen months.” At the relevant period, viz., when the petitioner was prosecuted, the definition of ‘wages’ contained in section 2(vi) of the Payment of Wages Act was as follows: “‘Wages’ means all remuneration, capable of being, expressed in terms of money, which would, if the terms of contract of employment, express or implied, were fulfilled, be payable, whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed or otherwise, to a person employed in respect of his employment or of work done in such employment, and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment.” Also laying stress on the mode of calculation mentioned in section 36 of the Hyderabad Shops and Establishments Act, which is 15 days’ wages for each year, it is argued that the wage-earners are alone within the purview of section 36 but not the salaried employees. In support of this argument, reliance is placed on the decision in K.V.V. Sarma, In re1. In that case, the Court was finding out whether the Factories Act applied to the Studio and whether the Studio was a ‘factory’. The Court was concerned with finding out whether there were more than 20 workers. Therefore, it had to make out which of the persons employed in the Studio were ‘workers’. In such an effort to find out this, the Court had to consider the definition of the word ‘wages’ occurring in the Payment of Wages Act. The Court, of course, came to the conclusion that persons who are paid salaries monthly are to be excluded from the definition of ‘workers’. In such an effort to find out this, the Court had to consider the definition of the word ‘wages’ occurring in the Payment of Wages Act. The Court, of course, came to the conclusion that persons who are paid salaries monthly are to be excluded from the definition of ‘workers’. No doubt, the conclusion arrived at by Govinda Menon, J., in that decision has given room for the argument that a distinction is sought to be made between salaried employees as if the whole class of them do not at all come under the definition of persons employed for wages and workers. But this, as has been mentioned by the trial Court in the instant case, has been considered in a later decision by a Division Bench of the Madras High Court consisting of Rajagopalan and Rajagopala Ayyangar, JJ., in Managing Director, T.S.T. Co. v. Perumal Naidu2. On examination of the several provisions of the Payment of Wages Act which has a bearing, the definition of ‘wages’ has also been gone into by this Division Bench. The learned Judges have been of the view that a combined reading of sections 2(vi) and 4(2) will lead to the irresistible conclusion that ‘wages’ as defined in clause (vi) of section 2 of the Act has no further limitation, that the definition shall not apply only to the wages which exceed Rs. 200 a month in respect of the wage period (vide section 1(6) of the Payment of Wages Act which according to section 4 shall not exceed one month), but will cover the cases of wages upto Rs. 200. Rajagopala Ayyangar, J., observed at page 348 as hereunder: “We do not see how this could be construed as by implication providing that in every case where the remuneration was calculated on the basis of wage periods extending over a month, the employees in receipt of wages so calculated were notwithstanding that the quantum of wages payable to them was less than that provided by section 1(6) were also outside the enactment. In our judgment, the remuneration payable to a workman which is wages as defined by section 2(vi) of the Act does not cease to be wages as so defined merely because the wage period on the basis of which remuneration is calculated is the month.” This Division Bench also noticed the earlier decision in K.V.V. Sarma1, In re., and distinguished it as a case which was only concerned with the question whether a Film Studio was a ‘factory’ within the meaning of the Factories Act (LXIII of 1948) and as one with which they could not agree in the construction of section 2(vi) of the Payment of Wages Act. It is also pertinent to have to point out that the decision reported in Managing Director, T.S.T. Co. v. Perumal Naidu2, was concerned only with the definition of ‘wages’ before the Amendment Act (LXVIII of 1957). It is instructive to note that the amended definition of ‘wages’ has placed beyond doubt by amplifying the meaning of the words ‘remuneration’ by the addition of the following words in brackets, viz., “whether by salary, allowance, or otherwise”. This also supplies the justification that the unamended definition of ‘wages’ meant what is made explicit by the amendment. After the amendment, the question whether ‘remuneration’ mentioned in the definition of wages in section 2(vi) also includes salaries within the limits as mentioned in section 1(6) is now placed beyond doubt. That the same was also the position even before the amendment but was made out to be so by implication and interpretation, in my view, could be said to the effect of the ratio of the decision in Managing Director, T.S.T. Co. v. Perumal Naidu2. The latter view of the Madras High Court has found favour also with the Patna High Court as is evident from the decision in Manager, S. Press v. Factories Inspector3, They considered that the latter pronouncement of the Madras High Court should be taken as the prevailing law. A Division Bench of the Assam High Court consisting of Sarjoo Prasad, C.J., and Daka, J., had occasion to consider in Mani Bhusan v. Sunil Kumar4, the ambit of the definition given in the Payment of Wages Act as it stood before the amendment. They were concerned with the jurisdiction of the authority under the Payment of Wages Act as the employees received monthly payments. They were concerned with the jurisdiction of the authority under the Payment of Wages Act as the employees received monthly payments. The contention before the learned Judges had been that those were not paid ‘wages’ but received salaries. The learned Chief Justice relying upon the decision in A.V.D. Costa v. B.C. Patel1, as supporting the contention that the definition of ‘wages’ under section 2(vi) applies even to monthly payments upto a limit, held accordingly. The state of authority as well as the examination of the language of the section of Payment of Wages Act do, in my view, impel the conclusion that salaries payable monthly to the extent of Rs. 200 fall under the definition of ‘wage’ contained in section 2(vi) of the Payment of Wages Act, and, therefore, a person who is paid only a salary of Rs. 65 monthly cannot be taken out as being outside the scope of section 36 of the Hyderabad Shops and Establishments Act. I may now refer to the decision Bhagwandas and three others, In re2 of this High Court. There, the conviction of a shop owner for contravention of the provisions of section 20(4) and section 27(2) of the Hyderabad Shops and Establishments Act was questioned. The decision in K.V.V. Sarma, In re3, had been relied upon and cited before the Court. But the latter decision, viz., Managing Director, T.S.T. Co. v. Perumal Naidu4, was not brought before the Court obviously because it was not then available for reference. That fact has led this Court, of necessity, to follow the binding decision rendered earlier than the reconstitution of the Andhra High Court. But the same cannot be the case now as that decision is not followed even by that High Court. In view of the aforesaid discussion, I am unable to agree with the Chief City Magistrate, Hyderabad, that the Order of the trial Court needs to be set aside. It follows that this reference has to be rejected. The conviction and sentence imposed on the accused will therefore stand. A.S.R. ----- Reference rejected.