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2025 DIGILAW 303 (GUJ)

Saurashtra Chemicals v. Anil Dayalal Devani

2025-03-20

M.K.THAKKER

body2025
JUDGMENT : (M. K. THAKKER, J.) 1. Rule returnable forthwith. Learned advocate Mr. Pandya waives service of rule on behalf of the respondent No.1 and learned AGP Mr. Bhati waives service of rule on behalf of the respondent No.2. 2. This petition is filed under Article 227 of the Constitution of India challenging the order passed by the learned Appellate Authority under the Payment of Gratuity Act, 1972 dated 27.01.2025 in Gratuity Appeal No.123 of 2024 by which the order passed by the learned Controlling Authority in Gratuity Case No.8 of 2024 was affirmed and the petitioners were directed to pay the sum of Rs.9,44,717/- within a period of 30 days along with simple interest at the rate of 10% per annum on aforesaid amount. 3. The case of the present petitioner is that the petitioner No.1 is a division of petitioner No.2 and respondent No.1 is a Doctor by profession, at whose behest the proceeding under Section 7 of the Payment of Gratuity Act,1972 was initiated. It is claimed by the respondent No.1 that he was engaged by erstwhile Saurashtra Chemicals ie. petitioner No.1 to provide the honorary service for the well-being of the workers and respective families and was paid honorarium to the tune of Rs.1,200/- per month. It is the case of the present petitioner that respondent No.1 discharging duty only for one and half hours i.e from 8:00 AM to 9:30 AM from the date of his appointment i.e. 23.05.1985. For rest of day, the respondent was running his own dispensary situated in Porbandar on 08.01.2020. On reaching the age of 60 years, as per the practice of petitioner No.2, respondent No.1 was relieved from honorary service with effect from 31.01.2020. However, subsequently, the respondent No.1 and petitioner No.1 entered into the agreement for consultancy on 23.01.2020, wherein the respondent No.1 was to give the necessary assistance at the Medical Center of the Township of the petitioner No.1, which came to be renewed upto 31.03.2024. However, subsequently, the respondent No.1 and petitioner No.1 entered into the agreement for consultancy on 23.01.2020, wherein the respondent No.1 was to give the necessary assistance at the Medical Center of the Township of the petitioner No.1, which came to be renewed upto 31.03.2024. It is further case of the petitioner that the respondent No.1 has abruptly abandoned the agreement on 30.09.2023 and demanded the gratuity for the period of 10.03.1985 to 08.01.2020 on the basis of the Form No.I. The respondent No.1 has filed the application under Section 7(4)(b) of the Act before the learned controlling authority claiming the gratuity and as there was delay of more than 4 years in claiming the gratuity the respondent has also filed an application for condonation of delay along with the documents being Form No.N and the petitioner and the respondent No.1 have filed the affidavit in the proceedings and learned Controlling Authority, after considering the evidence adduced, has allowed the application, filed by the respondent for condonation of delay as well as claiming the gratuity and petitioners were directed to pay the amount of Rs.9,44717/- within a period of 30 days at the rate of 10% interest, which was challenged before learned Appellate Authority by way of filing the appeal, which was also dismissed affirming the order passed by the learned Controlling Authority, which is the subject matter of the challenge before this Court. 4. Heard learned advocate Mr. Shah for the petitioners and learned advocate Mr. Pandya for the respondent No.1. 5. Learned advocate Mr. Shah for the petitioners has submitted that learned Controlling Authority has committed error in passing the order in the main application along with the condoning the delay of 1440 days in filing the application before the learned Controlling authority. Learned advocate Mr. Pandya submits that learned Controlling Authority ought to have decided the application for condonation of delay first and thereafter, ought to have adjudicated the claim on merits. Relying on the decision rendered by the High Court of the Madras in the case of M. Devarajulu V/s. Asst. Commissioner of Labour and Others reported in 1992 SCC Online Mad 546 Learned advocate Mr. Shah has submitted that learned Controlling Authority must have to condone the delay on being shown the sufficient ground and ought to have entertained the application on merits. Commissioner of Labour and Others reported in 1992 SCC Online Mad 546 Learned advocate Mr. Shah has submitted that learned Controlling Authority must have to condone the delay on being shown the sufficient ground and ought to have entertained the application on merits. If there is no condonation of delay, the main matter does not get entertained for the purpose of considering the merits. In deciding the main application on merits the learned Controlling Authority as well as the learned Appellate Authority has committed an error. Learned advocate Mr. Shah submits that the respondent was appointed for rendering the honorary service and getting the honorarium the same cannot be termed as wages as defined under the Payment of Gratuity Act. Learned advocate Mr. Mr. Shah submits that the petitioner No.1 was engaged in the Chemical business and doing the extraction of salt from the river water, where there was no need of any doctor. Therefore, it cannot be said that respondent has done the work of the petitioner - employer and he is an employee of the petitioner. Learned advocate Mr. Shah submits that the respondent was running the dispensary and giving his honorarium service for one and half hours with the petitioner No.1. In absence of any reasons assigned by the learned Controlling Authority dealing with the said submission, the impugned order deserves to be interfered with. Learned advocate Mr. Shah submits that the application, under the Act, 1972, would be maintainable, if the employee would demonstrate the 3 things, namely, (a) there is employee and employer relationship (b) the employee has completed continuous service of 5 years and (c) the employer has fail to make the payment. Learned advocate Mr. Shah submits that in absence of any evidence, satisfying first 2 conditions, the order passed by the learned Controlling Authority affirmed by the learned Appellate Authority requires interfered with. Learned advocate Mr. Shah submits that though the respondent No.1 has claimed that the petitioner has issued the appointment letter, however, the said appointment letter was not part of the record before learned Controlling Authority. In absence of said appointment letter, the findings given by the learned Controlling Authority that the respondent No.1 was employee of the petitioner No.1 is erroneous. Learned advocate Mr. In absence of said appointment letter, the findings given by the learned Controlling Authority that the respondent No.1 was employee of the petitioner No.1 is erroneous. Learned advocate Mr. Shah relies on the decision rendered in WPA No.23514 of 2023 by the High Court of Calcutta has submitted that the burden to be discharged by the respondent to show that he had worked continuously, failing which to discharge this primary burden, the respondent would be disentitled to claim any relief. Therefore, the impugned order deserves to be set aside and the petition is required to be allowed. 6. Per contra, learned advocate Mr. Pandya for the respondent has submits that initial appointment of the petitioner was made on 21.05.1985 and was paid honorarium of Rs.1,200/- per month, which reveals from the Annexure - A produced by the present petitioner. Learned advocate Mr. Pandya submits that certificate dated 07.06.2010 issued by the Factory Manager of petitioner No.1 - Institute suggests that the respondent has served continuously from 23.05.1985 to 07.06.2010 i.e the date of certificate. Learned advocate Mr. Pandya submits that on being attaining the age of the superannuation, the agreement of consultancy was executed, wherein also it is mentioned that the consultant will provide all necessary assistance in respect of Medical Center Department related activities of the company of Porbandar as directed by management from time to time. Learned advocate Mr. Pandya submits that this agreement itself shows that the engagement of the present respondent was made in the Medical Center Department and doing the activities of the company. Learned advocate Mr. Pandya submits that, in addition to, that the respondent has also produced the identity card, issued by the authorized signatory of the petitioner – company, wherein also the date of joining is mentioned by the petitioner of 10.03.1985. Learned advocate Mr. Pandya relies on the salary slip for the month of November, 2019 and submitted that the ESI number is also mentioned in the said salary slip as well as the date of joining is of 23.05.1985 and the basic salary was also prescribed as Rs.46,786/-. Learned advocate Mr. Pandya submits that after considering all evidence in detailed, learned Controlling Authority has passed an order directing the present petitioner to pay the amount towards the gratuity. Learned advocate Mr. Learned advocate Mr. Pandya submits that after considering all evidence in detailed, learned Controlling Authority has passed an order directing the present petitioner to pay the amount towards the gratuity. Learned advocate Mr. Pandya relies on the decision rendered by this Court in the case of Gujarat Rural Labour Welfare Board V/s Manjulaben Natwarlal Jani reported in 2019 AIJEL HC 243442 rendered in Special Civil Application No.8586 of 2015, wherein a similar case, this Court has granted the benefit of the gratuity to the person, who is serving and getting the salary in terms of honorarium. Learned advocate Mr. Pandya submits that the said decision was affirmed by the Division Bench of this Court and by the Hon’ble Apex Court in the Special Leave Petition No.7723 of 2020. Learned advocate Mr. Pandya submits that as the said issue is not more res-integra, therefore, learned Controlling Authority has not committed an error granting the benefits of the gratuity to the respondent. Learned advocate Mr. Pandya submits that, under Section 7 Sub-section (2), it is provided that whether an application is referred or not under Sub-section (1), determination of the gratuity is a must and same shall have to be paid within a period of 30 days from the date of entitlement. Learned advocate Mr. Pandya relies on the Rules of the Payment of Gratuity Act, 1972, more particularly, Rule No.7 Sub-rule (5) and submitted that as provided under this rule, no application can be rejected merely because claimant fails to present the application within the period of prescribed time. Learned advocate Mr. Pandya submits that it is bounden duty of the employer to pay gratuity within the period of 30 days as provided under Section 7. However, in committing the default, the application filed at belated stage cannot be rejected, as the same is a statutory right provided under the Act. Submitting the same, learned advocate Mr. Pandya has requested this Court to dismiss the petition as being devoid of any merits. 7. However, in committing the default, the application filed at belated stage cannot be rejected, as the same is a statutory right provided under the Act. Submitting the same, learned advocate Mr. Pandya has requested this Court to dismiss the petition as being devoid of any merits. 7. Considering the submission made by the learned advocates for the respective parties and considering the reasons assigned by the learned Controlling Authority affirmed by the learned Appellate Authority, moot question arises for consideration is that whether learned Controlling Authority has committed an error in deciding the application for condonation of delay simultaneously with the claim of gratuity and whether the respondent is rendering his honorary service is entitled for gratuity or not. 7.1 It emerges from the record that the application came to be filed by the present respondent under the Act, 1972 on 16.04.2024 along with Form No.I, which was filled up on 25.04.2024. It is claimed, in the said application, that the respondent has served for the 35 years with the petitioner and retired on 08.01.2020 and thereafter, filed an application and though, he is entitled for the gratuity, which is to be paid within the period of 30 days, the same was not paid. As the said application was filed, after the delay of 4 years, the respondent has also preferred an application for condonation of delay. It is undisputed fact that learned Controlling Authority, while passing the order under the application being Gratuity Case No.8 of 2024, has not passed separate order in the application for condonation of delay, however, after allowing the application for condonation of delay adjudicated the claim of employee on merits. Both the parties were heard on merits and the opportunities to adduce the evidence were given to the parties and thereafter, the learned Controlling Authority has passed order directing the present petitioners to pay the gratuity. 7.2 At this stage, the provisions of the Payment of Gratuity Act, 1972 is required to be referred, which is reproduced hereinbelow: Section: 7 Determination of the amount of gratuity. “(1) A person who is eligible for payment of gratuity under this Act or any person authorised, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity. “(1) A person who is eligible for payment of gratuity under this Act or any person authorised, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity. (2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in sub-section (1) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount gratuity so determined. (3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.” 7.3 Along with the main provision, which is referred hereinabove, if one would refer the rules framed under the Payment of Gratuity Act, 1972, which provide for two separate period of time in relation to making of application. The first under Rule 7 is an application to the employer within a 30 days from the date on which the gratuity becomes payable. Rule 7(5), however, provides that an application for payment of gratuity filed after the expiry of period specified shall also be entertained by the employer if the applicant adduces sufficient cause for delay and no claim for gratuity shall be invalid merely because the claimant failed to present his application within a specified period. This must be in a justaposed with Section 7(2) which requires the employer to make a determination of gratuity payable and to furnish a notice to the employee to the learned Controlling Authority as soon as gratuity becomes payable whether or not an application under Section 7(1) has been made. Therefore, employer cannot set up limitation as a defence on the ground that application to him was not presented within 30 days. The clear answer to such defence that the employer is obliged to determine and make arrangement to pay gratuity whether or not an application is made. The second time period that is prescribed is under Rule 10. Rule 10 inter-aila provides a period of 90 days for making an application before the learned Controlling Authority upon the employer failing to issue notice as required under Rule 8 upon the receipt of an application from the employee under Rule 7. The second time period that is prescribed is under Rule 10. Rule 10 inter-aila provides a period of 90 days for making an application before the learned Controlling Authority upon the employer failing to issue notice as required under Rule 8 upon the receipt of an application from the employee under Rule 7. The delay under Rule 10 can be condoned by the learned Controlling Authority on sufficient cause being shown. The provision of Section 7 emphasise that the obligation is that of the employer to determine and make arrangement for the payment of gratuity and upon his failure to do so, to pay interest at the rate which is statutorily prescribed. Even if the period that is prescribed in the Rules is taken into consideration, the Rules themselves lay down that the delay on the part of employee, if any, can be condoned if sufficient cause is shown. The Act is a piece of social welfare legislation and the employer cannot be permitted by reasons of his own default in not complying with his obligation to defeat the just entitlement of the employee. The employer has to determine and pay gratuity whether or not an application is filed to him. On receipt of an application under Rule 7, the employer has to issue a notice under Rule 8 either admitting the claim or to specify the reasons why he holds the claim inadmissible. It is thereafter that time is prescribed under Rule 10 for an application to the learned Controlling Authority. The making of an application under Rule 7, therefore, invokes a chain of events in Rule 8 and 10. learned Controlling Authority in the instant case has in the first paragraph recorded that application for condonation of delay is allowed considering that act being a social welfare legislature. The delay would not invalidate the claime of the respondent. In that background, this Court is of the view that when the duty arose on the employer to pay the gratuity within the period of 30 days and the same is not paid then the learned Controlling Authority would be an appropriate authority who can adjudicate the claim. 7.4 The second ground on which the impugned judgment sought to be assailed is that the respondent was receiving the honorarium which cannot be termed as wages. The judgment, which was relied by the learned advocate Mr. 7.4 The second ground on which the impugned judgment sought to be assailed is that the respondent was receiving the honorarium which cannot be termed as wages. The judgment, which was relied by the learned advocate Mr. Pandya for the respondent, if referred then it transpires that the said issue has been decided and the Coordinate Bench of this Court has allowed the application for gratuity filed by the employee, who was receiving the honorarium. The observation made by the learned Coordinate Bench is required to be referred which is reproduced hereinbelow: “22. Likewise, the petitioner's contention that the respondent was paid honorarium and therefore the amount paid to the respondent cannot betermed “wages” and consequently the Board would not be liable to pay gratuity, is also not sustainable. 22.1 The term “wages” is defined under Section 2(s). The said provision explains this position and leads the Court to dismiss the said contention. The said provision reads thus: “Section 2(r):"wages" means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance.”(emphasis supplied) 22.2 The P.G.Act employs the expression “all emoluments”. The said term is very wide and it includes any payment to an “employee” while on duty except those allowances which are expressly excluded. 23. At this stage it would be appropriate to take into account the meaning and scope of the expressionterm “emoluments” and to also study the said term in light of the terms which are, ordinarily, used interchangeably viz. “remuneration” and “salary” in juxtaposition with the term “honorarium”. In Oxford dictionary the said terms are defined thus: “Emolument salary, fee, or profit from employment or office (Middle English from Old French emolument or Latin emolumentum, originally probably 'payment for corn-grinding'. In Webster the said terms are defined as: “Emoluments gain, profit, advance, from emolire, to accomplish, effect; out, and molire, to exert oneself. “Emolument” the profit arising from office or employment; that which is received as a compensation for services; payment received for work; wages; salary; fees. 2. advantage; gain in general. In Webster the said terms are defined as: “Emoluments gain, profit, advance, from emolire, to accomplish, effect; out, and molire, to exert oneself. “Emolument” the profit arising from office or employment; that which is received as a compensation for services; payment received for work; wages; salary; fees. 2. advantage; gain in general. As per Lexicon, the said term is defined as: “Emoluments – means pay, leave salary or subsistence grant if admissible and any remuneration of the nature of pay received in respect of deputation. Any advantage, profit, or gain received as a result of one's holding of office. Whereas the term “Remuneration” is defined thus in oxford dictionary: “Remunerate – reward; pay for services rendered. 2. serve as or provide recompense for (toil etc) or to (a person). In Webster's dictionary, the said term is defined thus: “Remuneration” 1. a remunerating; the act of paying an equivalent for services, loss, or sacrifices. 2. the equivalent given for services, loss, or sufferings; that which remunerates; reward; pay; recompense; compensation. Law Lexicon explains the term “Remuneration” thus: “Remuneration” is only a mere formal version of payment, Bala Subrahmanya Rajaram v. B.C.Patil, AIR 1958 SC 518 : (1958) SCR 1504 . Payment; compensation, Black's Law Dictionary, 7 th Edn., p.1298. Whereas the term “salary” is defined thus in Oxford dictionary: “Salary fixed regular payment, usu. Monthly or quarterly, made by an employer to an employee, esp. a professional or white collar worker, pay a salary to. In Webster said term is defined thus: “Salary [originally salt money, money given to buy salt, as part of the pay of Roman soldiers, hence, stipend, pay from sal, salt] a fixed payment at regular intervals for services, usually other than manual or mechanical: distinguished from wages. Syn. recompense, compensation, pay, remuneration, stipend. Lexicon explains the term “Salary” thus: “Salary , a recompense or consideration generally periodically made to aperson for his service in another person's for his service in another person's business; also wages, stipend, or annual allowance. “Salary”, An agreed compensation for services esp. professional or some professional services usu. Paid at regular intervals on yearly basis, as distinguished from an hourly basis, Black's Law Dictionary, 7th Exn., p.1337. “Salary” means payment received by any person on regular basis for each month. Salary does not include arrears of salary. “Salary”, An agreed compensation for services esp. professional or some professional services usu. Paid at regular intervals on yearly basis, as distinguished from an hourly basis, Black's Law Dictionary, 7th Exn., p.1337. “Salary” means payment received by any person on regular basis for each month. Salary does not include arrears of salary. 23.1 A comparative study shows that usually said terms are used interchangeably and take in the fold any and all payment for work done/ service rendered. 23.2 There is slight or inconsequential distinction between the term “wages” and the term “Salary”, more particularly in their usage rather than the meaning, however practically the said terms are used interchangeably. Actually the scope and purview of the term “emolument” are slightly wide and it take in its fold more modes and types of payments including “profit from employment”. The definition and meaning of the said terms gives out that fixed payments at regular intervals for service rendered fall within purview of “salary” or “wages” or “remuneration” and even “emolument”. Therefore, when it is shown and established that payments were/are made at fixed/ agreed rate and at regular intervals and that such payments were/ are made for service rendered, then such payment would fall within purview of the term“emolument”. It would, therefore, be appropriateat this stage, to consider the features and characteristics of the payments to the claimant and service rendered by her. 23.3 So far as the claimant is concerned, she received the payment for the service which respondent rendered to the Board (a) regularly (b) in accordance with the terms, conditions and instruction and directions of the Board. (c) during the timeschedule fixed by the Board. (d) under the supervision and control of the Board. (e) she was subject to the Rules of discipline fixed-framed by the Board. (f) she did not render service at her will and according to her convenience. (g) for her service she was paid (she was entitled for) fixed/agreed amount periodically and at regular interval i.e. every month. The payment to the claimant fulfill the characteristics and criteria of “emoluments” or “salary” (or ”remuneration” or 'wages” ). 23.4 Now so far as Honorarium is concerned, the said expression is defined – explained in Oxford dictionary, thus: “Honorarium a fee, esp. a voluntary payment for professional services rendered without the normal fee. The payment to the claimant fulfill the characteristics and criteria of “emoluments” or “salary” (or ”remuneration” or 'wages” ). 23.4 Now so far as Honorarium is concerned, the said expression is defined – explained in Oxford dictionary, thus: “Honorarium a fee, esp. a voluntary payment for professional services rendered without the normal fee. In Webster's Dictionary the said term is explained thus: “Honorarium a payment to a professional man for services on which no fee is set or legally obtainable. “Honorarium a recompense for service rendered; a voluntary fee to one exercising a liberal profession e.g. a barrister's fee. Lexicon explains the said term thus: A payment of money or anything of value made to a person for services rendered for which fee cannot legally be or are not traditionally paid, Black's Law Dictionary, 7th Edn. 23.5 The service rendered by the respondent was not and cannot be termed “honorary service” and the payment to the respondent does not have the characteristics of “honorarium”. 23.6 From the said definitions it comes out that distinguishing feature or special characteristic of “honorarium” is that it is paid for service which is, usually rendered voluntarily and for which any fee or remuneration or consideration is not legally or traditionally paid or required to be paid. In present case both features are absent. It is not the claim of the respondent that she rendered honorary and voluntary service. Above mentioned features of her service make it clear that she was “employed” by and she rendered service to the petitioner in Board as an employee. 23.7 When the remuneration paid to the respondent is taken into account and above mentioned characteristic and features attached to the service rendered by the claimant and the characteristic attached to the payment made to the claimant are accordingly examined, then it becomes clear that the amount paid to the claimant is, undisputedly, in the nature of and it has character of wages or salary i.e. “emolument” and it is not honorarium in its pure and/ or legal form and nature. 23.8 It is necessary to note that when the petitioner board appoints Kendra Sanchalaks/ Jilla Sanchalaks, it calls for the names from Employment Exchange and it also verifies the educational qualification. Experience of the candidates are scrutinized and the selection procedure as per Rules and practice of the Board is followed. 23.8 It is necessary to note that when the petitioner board appoints Kendra Sanchalaks/ Jilla Sanchalaks, it calls for the names from Employment Exchange and it also verifies the educational qualification. Experience of the candidates are scrutinized and the selection procedure as per Rules and practice of the Board is followed. The Kendra Sanchalaks/ Jilla Sanchalaks are paid emoluments at fixed rate and at fixed duration (every month). It, therefore, follows that the amounts paid to the persons employed by the Board i.e. Kendra and Jilla Sanchalaks would fall within purview of the term “Wages” under Section 2(s) of P.G.Act and the Board is not justified in wishing away the claim on the premise that what is paid to the Kendra Sanchalaks/ Jilla Sanchalaks is an Honorarium. When all factors and relevant features and characteristics are conjointly considered it becomes clear that the claimant is “employee” within the meaning of the term defined u/s. 2(e) and the amount which the Board paid/ claimant received would fall within the purview of the term “wages” defined u/s. 2(s) of P.G.Act. 24. Merely because the emolument paid to the petitioner was styled as “honorarium” it does not take away the basic, inherrent and natural and realactual characteristic and nature and form of the payments made to the claimant. It reamined “wages” or “salary”. Therefore it is not possible to hold that the monthly payments to the respondents are not “emolument” or “salary” or “wages”. Therefore the said contention should also fail. 25. In light of foregoing discussion it has emerged that the contentions and objections raised by the petitioner against the Controlling Authority's order (so also against Appellate Authority's Order) are not sustainable and cannot be accepted. They deserve to be rejected and are accordingly rejected. 26. Therefore the said contention should also fail. 25. In light of foregoing discussion it has emerged that the contentions and objections raised by the petitioner against the Controlling Authority's order (so also against Appellate Authority's Order) are not sustainable and cannot be accepted. They deserve to be rejected and are accordingly rejected. 26. So far as common CAV judgment dated 15.1.2018 in LPA No.1262/17 and LPA No.1253/17 and other connected Appeals is concerned, it is relevant to note that the said Appeals arose from common judgment in SCA No.6568/2006 and other connected petitions which were filed by Kendra Sanchalaks and Jilla Sanchalaks serving with Gujarat Rural Welfare Board ( present petitioner Board) wherein the said Kendra Sanchalaks and Jilla Sanchalaks prayed, inter alia, for direction to the respondents to absorb them in service as regular and permanent employees on the posts occupied by them and to grant payscale, increments, Dearness Allowances and other benefits on par with Government employees with effect from the date of entry. The Court disposed said petitions with direction to the State of Gujarat and the Board to pay wages @ Rs.6000/ and Rs.7000/ respectively and to continue to pay the daily allowance/bhattha. In light of the subject matter of cited case and final decision the said judgment will not and does not render assistance to the petitioner Board more particularly because in the said decision the Court did not address the issue as to whether the Board is an “establishment” within purview of Section 2(e) of P.G.Act or not. The Court did not address even the issue as to whether the Board would fall within purview of the term “industry” under Section 2(j) of the I.D.Act or not. In the said decision the Court also did not address the issue as to whether P.G. Act would apply to the petitioner Board or not and/ or whether the payments to the claimants are “wages” or “Salary' and “emolument” or not. Thus, for determining the issue as to whether the P.G.Act applies to the petitioner Board or not and whether the claimant is entitled for gratuity or not, the said decision does not render any help to thepetitioner and for determining respondents' entitlement and eligibility for Gratuity the status of the claimant i.e. whether the claimant is permanent employee or daily wager or temporary employee, is not relevant. 27. 27. The definition of the term “employee” under Section 2(e) of the P.G.Act does not contemplate and does not even recognize such distinction. 28. Any person employed in establishment, who fulfills and meets with the criteria prescribed under Section 2(e) of the P.G.Act, be that in capacity as temporary employee or daily wager, would be an “employee” and he/ she would be eligible for gratuity, provided the condition prescribed under Section 4(1) of the P.G.Act are fulfilled. 29. In this view of the matter, the said common CAV judgment in LPA No.1262/17 and LPA No.1253/17 and other connected Appeals wherein the above mentioned issues did not arise and have not been decided, is of no assistance to the petitioner. 29.1 It is necessary to note that payment of gratuity (in accordance with the provision under the Act to “employee”) is a statutory obligation and that therefore the decisions by Apex Court wherein Hon'ble Apex Court considered the issues arising from and related to claim for pay revision i.e. AIR 2003 SC 2870 and/ or (2015) 2 SCC 535 cannot assist the petitioner in disputing its obligation to pay gratuity. Likewise in light of facts of present case, which are materially different from the facts involved in the decision wherein the Court observed that during pendency of petition in High Court the proceedings before subordinate Court other authority shall be deferred, the decisions [ (2012) 8 SCC 575 ] and [ (2015) 2 SCC 535 ] are not of assistance to the petitioner. As observed earlier in present case the petitioner waived/never raised such submission before Controlling Authority. 30. At this stage it is necessary to note that the petitioner never disputed quantum last drawn emolument of the respondent and / or date of appointment and/ or date when the petitioner retired from service and/ or total length of service rendered by the respondent. Therefore, it follows that so far as computation of the amount payable towards gratuity is concerned, there is no dispute. Even learned advocate for the petitioner has not disputed/ has not claimed that there is error in, computation of amount payable towards gratuity. 31. In light of foregoing discussion, it has emerged and therefore it is held and declared that: (c) and the monthly payments to the respondent are “emoluments” and “wages” or “salary”. Even learned advocate for the petitioner has not disputed/ has not claimed that there is error in, computation of amount payable towards gratuity. 31. In light of foregoing discussion, it has emerged and therefore it is held and declared that: (c) and the monthly payments to the respondent are “emoluments” and “wages” or “salary”. As the above judgment is confirmed upto Apex Court, this Court is of the view that the said issue is not more res-integra. 7.5 It is contended by the learned advocate Mr. Pandya for the respondent that the said judgment would not be applicable, as the respondent was not engaged for the work of the petitioner – employer. To test the said argument, if the consultancy agreement, which is executed, is referred then it emerges that the respondent was engaged in the Medical Center Department related to the activities of the company carried out at Porbandar and has rendered the service continuously from 1985 to 2020. The retirement certificate issued dated 08.01.2020 also suggests that as per the policy of the company and employee, upon completion of 60 yeas age, retirement is due and therefore, the respondent was retired on attaining the age of superannuation. From the above evidence, it transpires that the respondent No.1 was engaged by the petitioner and was serving in the Medical Center Department, which is situated in the premises of the company and providing the service to the workers with their family members for their well being. In that background, he can term as employee and he is entitled for the amount of gratuity on attaining the age of the superannuation. 7.6 So far as the last argument with regard to the evidence to show the continuous service is concerned, the respondent has placed on record the appointment order dated 21.05.1985, the certificate dated 07.06.2010 issued by the Factory Manager certifying the service of the respondent since 23.05.1985, the identity card, wherein the date of joining is mentioned 10.03.1985 as well as salary slip reflecting the date of joining as 23.05.1985, which is stated to be error on employer along with the retirement certificate dated 08.01.2020 permitting the present respondent to retire on attaining the age of 60 years. This Court is of the view that all this evidence suggests that the respondent has fulfilled the criteria of continuous service required under the Payment of Gratuity Act and therefore, also he is entitled for the gratuity as claimed. 7.7 The reliance on the decision rendered by the Madras High Court in case of M. Devarajulu V/s. Asst. Commissioner of Labour and Others, which was made by petitioners if referred to, where there was a case that no opportunity to file the counter affidavit in the main application, was given. In that background the, concerned High Court has held that application, under the condonation of delay, required to be entertained first before adjudicating the claim on merit. The second decision on which the reliance was placed of the Calcutta High Court, wherein no evidence was adduced to show the continuous service / qualified service required under the Payment of Gratuity Act. However, in the instant case, the learned Controlling Authority, after providing the sufficient opportunity, considered the case on merits. As the period of service, and date of retirement are not disputed by the petitioner, learned Controlling Authority as well as learned Appellate Authority are justifying in directing the present petitioner to pay the amount of the gratuity, which is claimed by the respondent. 8. In that background, this petition deserves to be dismissed. 9. Resultantly, this petition is dismissed. Rule is discharged.