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5. Heard learned Senior advocate Mr.Sudhir Nanavati with learned advocate Mr.Vandan Baxi for the petitioner and learned advocate Mr.Bhuvnesh Gahlot with learned advocate Mr.AM Bhatasara for the respondent No.4. Learned AGP Ms.Surbhi Bhati for respondent No.1, 2 and 3.

6. Learned Senior Advocate Mr. Nanavati submits that both the Authorities have erred in not considering the fact that the petitioner, being a newspaper establishment, is governed by the provisions of the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955 and the wage Board namely Majithia Wage Board was constituted under the Working Journalist Act, 1955. The recommendations of the Majithia Wage Board, constituted under the 1955 Act, were approved by the Hon'ble Apex Court and as per the recommendation of the Majithia Wage Board, the variable pay was introduced by the Board. According to the Board's NEUTRAL CITATION C/SCA/17409/2022 JUDGMENT DATED: 12/06/2025 undefined report, 'basic wages' as defined under Section 1, Chapter XIX, refers to wages drawn in the prescribed scale of pay, including stagnation increments, if any, but excludes any other type of pay such as special pay, personal pay, etc. As per the definition of basic wages, the inclusion of variable pay was not contemplated, as variable pay can be regarded as incentive wages or bonus, therefore, the question of including variable pay while calculating gratuity under the Act of 1972 does not arise. It is further submitted by the learned senior advocate Mr.Nanavati that the variable pay recommended by the Wage Board as provided under section 52 of Chapter XIX of the Majithia Wage Board report, management would be free to pay more than recommended variable pay subject to performance of the workers as well as profitability and viability of the news paper establishment. The Board has recommended minimum maintainability for all employees including the contractual employees. The said variable pay would be in nature of the incentive pay and therefore, the same cannot be included under the Act, 1972. 6.1. Learned senior advocate Mr.Nanavati submits that NEUTRAL CITATION C/SCA/17409/2022 JUDGMENT DATED: 12/06/2025 undefined both the Authorities have relied on the report submitted by the Majithia Wage Board, however, as per the said report, there was no suggestion to include the variable pay in the basic wages for the payment of gratuity. Learned senior advocate Mr.Nanavati submits that both the Authority has relied on the judgment rendered by the Apex Court, however, in those cases also there were no directions or discussions to club the variable pay in the basic wages for the purpose of calculation of gratuity. It is further submitted by the learned senior advocate Mr.Nanavati that the learned Controlling Authority has relied upon the letter of Press Trust of India Limited suggesting that the variable pay is required to be included in the basic wages while calculating the gratuity under the Act, 1972. It is submitted by the learned senior advocate Mr.Nanavati that the said letter is not legally binding upon the petitioner and as one agency has paid, therefore, petitioner is also required to be paid even if the respondent is not entitled and therefore, the conclusion on the basis of the said recommendation is erroneous. It is further submitted by the learned senior advocate NEUTRAL CITATION C/SCA/17409/2022 JUDGMENT DATED: 12/06/2025 undefined Mr.Nanavati that both the Authorities have also misinterpreted the judgment of the Apex Court delivered in the case of A.B.P. Pvt. Ltd. and Another versus Union of India and Others, as in the above case the challenge was with regard to the validity and genuineness of the recommendation of the Majithia Wage Board and not the inclusion of the variable pay into the basic wages for calculating the last drawn wages for the purpose of payment of gratuity. 6.2. It is further submitted by the learned Senior Advocate Mr. Nanavati that the learned Authority has also erred in relying upon the judgment of Bridge & Roof Co. (India) Ltd. v. Union of India, reported in AIR 1963 SC 1474 wherein, the issue before the Apex Court in the contempt proceedings was with regard to the entitlement of the variable pay of the contractual employees. It is contended by the learned senior advocate Mr.Nanavati that neither the Board has recommended the calculation of variable pay while payment of gratuity, nor the judgment rendered by the Apex Court suggesting that inclusion of variable pay is required in the basic wages while calculating the NEUTRAL CITATION C/SCA/17409/2022 JUDGMENT DATED: 12/06/2025 undefined gratuity. However, learned Authorities have passed impugned order relying on the decision of the Apex Court as well as the Majithia Wage Board and relied on the recommendation addressed by the Press Trust of India and therefore, same is required to be interfered with by setting aside the impugned order.

7. As against the same, learned advocate Mr.Gahlot appearing for the respondent has submitted that Majithia Wage Board has recommended the variable pay as a part of basic pay and the recommendation was upheld by the Supreme Court in the petition filed by the A.B.P. Pvt. Ltd. and Another versus Union of India and Others being a WRIT petition (Civil 246 of 2011) and other allied matters. Learned advocate Mr.Gahlot submits that initially the Manisana Wage Board which is predecessor to the Majithia Wage Board recommended certain percentage of basic pay however, the same was not recommended as a variable pay and the Majithia Wage Board has categorized the basic and variable pay separately and accordingly, the concept of variable pay was recommended. The explanation to section 2(eee) which defines the wages, includes the new allowances NEUTRAL CITATION C/SCA/17409/2022 JUDGMENT DATED: 12/06/2025 undefined also. It is submitted by the learned advocate Mr.Gahlot that as per the interpretation of the Apex Court, the variable pay is part of the wages under section 2(s) of the Gratuity Act, 1972. Learned advocate Mr.Gahlot, relying on the definition of the wages provided under the Payment of Gratuity Act, 1972 has submitted that the wages include basic wages plus Dearness Allowance and restricting the meaning of wages only to the basic pay and Dearness Allowance would result in causing prejudice to the interest of the working class. The payment of the gratuity act is a social beneficial legislation and therefore, same is required to be interpreted liberally. The second part of the definition specifically excludes bonus, commission, house rent allowances, overtime wages and any other allowances. Accepting the HRA and other payment specified therein are not paid on regular basis and in fixed sums. Relying on the observation made by the learned Authority, it is submitted that bonus is paid normally on annual basis on the performance of the company or the employees, commission is paid on quantum of the sales made by an employee, overtime is paid on the extra hours of the NEUTRAL CITATION C/SCA/17409/2022 JUDGMENT DATED: 12/06/2025 undefined work put and similarly HRA is a kind of reimbursement/compensatory allowance for the house. 7.1. It is submitted by the learned Advocate Mr.Gahlot that the exclusionary clause ('any other allowances') cannot be interpreted to mean that all allowances, except Dearness Allowance, are to be excluded from the definition of wages. The clause has to be read in the context that any other allowance falling in the category of bonus, commission and overtime wages to be excluded and not otherwise. It is further submitted by the learned advocate Mr.Gahlot that learned Appellate Authority is justifying in holding that if this clause is understood to mean that all other allowance are to be excluded, it has the effect of nullifying the exclusive part of the definition appearing in the first part. It is submitted by the learned advocate Mr.Gahlot that petitioner, by not including the variable pay for calculating the gratuity has committed an error and has defying the directions issued by the Apex Court in the case of A.B.P. Pvt. Ltd. and Another versus Union of India and Others (Supra) and therefore, learned Authority was justified in directing the present petitioner NEUTRAL CITATION C/SCA/17409/2022 JUDGMENT DATED: 12/06/2025 undefined to pay the difference amount of the gratuity. It is submitted by learned advocate Mr.Gahlot that as per the recommendation of the Majithia Wage Board, the variable pay is integral part of the basic pay and after its inclusion it reaches the recommendation hike of approximately 2.9 to 3.2 times. It is submitted by the learned advocate Mr.Gahlot that both the Authorities have considered the report submitted by the Majithia Wage Board as well as orders of the Apex Court directing to include the amount of variable pay, therefore, no interference is required and the petition is required to be dismissed.

10. The moot question arising for consideration before this Court is whether, after the MWB report, while calculating gratuity under the Payment of Gratuity Act, 1972, and taking into account the definition of 'wages' under Section 2(s), the respondents are entitled to the inclusion of variable pay as part of basic wages/basic pay?

13.2. Even if one would consider the definition of basic wages provided by the Board which is referred herein above, it also suggests that basic wages including the stagnation increment if any, but does not include any NEUTRAL CITATION C/SCA/17409/2022 JUDGMENT DATED: 12/06/2025 undefined other type of wages or pay like special pay, personal pay etc. The basic wages as well as the variable allowances both were defined separately by the Board in its report. If the intention of the board was to include variable pay in the basic wages, then the Board might have included variable pay alongwith the stagnation increment. However, as the variable pay is on the basis of the performance of the workers, the Board has not clarified with regard to the inclusion of the variable pay in the basic wages for the purpose of consideration of the gratuity 13.3. Reliance which was placed on the communication addressed by the Press Trust of India would also not come to the rescue of the present respondent as the said Press Trust of India is not a Judicial Authority and is only the news agency who opined according to their understanding and therefore, the said letter would not bind the petitioner in the event when the respondents are not entitled under the Act.