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Appeal No. 3 of 1975, decided on 11th June 1975.

‑‑ Ss. 2(vi) & 17‑Pay‑Includes special pay‑Decision of Authority for payment of gratuity calculated on basis of all remuneration i.e. pay plus special pay upheld by Labour Court.

An appeal has been filed on behalf of the General Manager, Natural Gas Fertilizer Factory, Multan, against the order of the Authority under the Payment of Wages Act, 1936, whereby. Ehsan Mahmood respondent, Ex- Superintendent (Mech.) of the appellant establishment was awarded Rs. 60 as wages for unpaid period of his service from 1st October 1970 to 20th October 1970 at Rs. 900 p. m., as pay plus Rs. 3,000 as compensation, i.e., five times the original amount of the deducted wages in addition to Rs. 900 as outstand ing amount of gratuity in all Rs. 4,500.

It is maintained in the memorandum of appeal that the respondent retired from the service of the appellant Management as Superintendent (Mech.) on 30^th September 1970,‑‑vide Once Letter No. M. F. P. Estt/PF/4142, dated 17th September 1970 that despite notice he did not relinquish the charge as he was after the extension of his service and that he relinquished the charge after he was disappointed in this behalf on 20th October 1970. That the gratuity was paid to the respondent according to his basic pay excluding his special pay under the Service Rules of the establishment laying down the conditions of his service. It was therefore prayed that the award given by the "Authority" may be set aside.

The case of the respondent is that though he was directed to be retired from service with effect from 1st October 1970 he was not relieved of his job till 20th October 1970 and therefore entitled to his usual pay for extra ten days and that the amount of gratuity given to him was wrongly calculated on his basic pay whereas it should have hen calculated at the pay drawn by him inclusive of the special pay.

The parties have been thoroughly heard and the relevant record perused by him. It is to be noted that the respondent was issued retirement order on 17th September 1970 copy Exh. R‑I on behalf of the General Manager of the establishment which made it clear that two years extension granted to the respondent would expire on 30th September 1970 which would be the elate of his retirement. It was further made clear that he should hand over his charge completely to Ass1stant Chief Engineer (Maintenance) and that he would be paid 221‑3/11 days leave salary for the earned leave due to hum on producing clearance certificate from all concerned to the Accounts Branch for final settlement of his dues.

There is no dispute between the pasties that leave salary was duly account ed for in the payment of wages to the respondent on producing the clearance certificate maintained in the retirement order. No further order is traceable on the record to show that the respondent was detained at his job by the appellant Management nor any such inference can be drawn from the con duct of the parties after the retirement order was issued. The next document that could be referred to in this connection is the Charge Relinquishment Report (Copy Exh. P‑2) under which the respondent handed over the charge to Mr. Qadeer Muhammad Khan in compliance with the order of the General Manager passed on 17th September 1970. In this report nothing is mentioned as to the detention of the respondent at his work by the Manage ment till 200 October 1970 when he relinquished the charge. In such situa tion there is no justification to assume that the delay caused in handing over the charge by the respondent was attributable to something done by the Management. There is also no evidence to show that the nature of charge was such that could not be completely, handed over during the period between 17th September 1970 and 30th September 1910 nor any difficulty in this behalf could be pleaded on behalf of tire respondent. Consequently the latter could not be awarded by the wages for this period nor could these be said to have been illegally deducted by the appellant Management on any score.

As for the amount of gratuity the respondent,‑vide inter department note, dated 15th March, 19‑I3 copy Exh. R‑2, was paid on his basic pay excluding the special pay of Rs. 100. This was done by the Management on the basis of its Head Office Circular No. JDC‑1 (1)/E, dated 19th February 1966 which could not have the force of Rules and could be regarded only as on Official instruction. The definition of pay otherwise includes special pay under section 2(vi) of the Payment of Wages Act by which the wages means all remuneration, capable of being expressed in terms of money. So the gratuity was to be calculated at the rate of Rs. 900 instead of Rs. 800. The award given by the authority in this behalf is upheld to the extent that the respondent would be paid the difference of the amount of gratuity calculated at the rate of Rs. 900 as pay in place of Rs. 800. The award given by the Authority in respect of wages for the period between 1st October 1970 to 20th October, 1970 in the amount of Rs. 3,600 is set aside. No cross appeal was filed by the respondent in regard to finding given against him in the impugned order which will be deemed to have remained intact. The appeal being partly accepted is disposed of accordingly.

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