Kumaravelu Pillai vs The Madurai District Co-operative Supply and Marketing Society Ltd. and Another

K. Veeraswami, C.J.—The appellant on his retirement was paid among other things gratuity computed on the basic salary without including

the dearness allowance. He claimed that he was entitled to gratuity computed on the basic salary including dearness allowance. This issue was

settled in his favour by an award of the Presiding Officer, Labour Court, Madurai u/s 33C(2) of the Industrial Disputes Act. Kailasam, J., set aside

that order and allowed the petition of the co-operative society. The appeal is preferred against the order of the learned Judge.

In our opinion, no interference with the award was called for. A by-law of a society is not a rule having the force of law and an error in its

interpretation by the Labour Court cannot normally, therefore, be removed by This Court on a petition under Article 226 of the Constitution. Apart

from it, as held in The Madras State Electricity Board Vs. S.A. Nathan and Another, , salary, pay and wages should normally be regarded as

including dearness allowance, for those expressions mean remuneration which the employee gets for his services. It is true that in the society there

are provident fund scheme and also gratuity scheme provided by laws. But we cannot say that on the ground that the appellant will be getting a

double benefit if dearness allowance was included in the salary for the purpose of computing gratuity, that would be unreasonable. If the Tribunal

while framing a scheme of gratuity provided for a double benefit by directing that the salary should be inclusive of the dearness allowance for the

purpose of computing gratuity, the reasonableness of such inclusion in the list of the double benefit may be gone into where the propriety of such a

scheme is in question. British Paints (India) Ltd. Vs. Its Workmen, , was such a case. The Supreme Court in the circumstances considered that the

Tribunal could not reasonably have provided for such a double benefit. But it does not fellow from it that where a, double benefit results, it is

always unreasonable. There is also a third reason why a rule should have been refused. The by-law itself in the context of computing gratuity

defined pay as the salary drawn. The Labour Court construed it as inclusive of dearness allowance. It cannot be said that such a construction was

not possible or unreasonable. Merely because This Court was inclined to take a different view, it did not mean that a rule should issue.

The order under appeal is set aside, the appeal is allowed. No costs.