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Learned Advocate Mr. Hardik C. Raval appearing for petitioner corporation has submitted that Controlling Authority has committed gross error in granting amount of gratuity in favour of respondent who was serving as honourary panel doctor on part time basis one hour per day on contract basis which was being renewed from time to time. On attaining age of superannuation, contract was not extended and, therefore, respondent is not entitled for any amount of gratuity and yet claim was made before Controlling Authority which has been wrongly granted by Controlling Authority and appellate authority has also wrongly rejected appeal while not condoning delay beyond period of 120 days. He submitted that specific contention was raised before controlling authority that respondent being Doctor,is not covered by definition of employee given under section 2(e) of the Payment of Gratuity Act. He submitted that this contention has not been properly examined by controlling authority and, therefore, present petition is filed by petitioner before this Court.

Before controlling authority, there is no dispute in respect to facts of date of joining, date of superannuation and last salary which was received by respondent. Only dispute or contention raised by petitioner is that respondent is not covered by definition of employee given under sec. 2(e) of Payment of Gratuity Act. As per section 2(e) of the Payment of Gratuity Act, 1972, 'employee' means any person other than an apprentice employed on wages in any establishment to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied and whether or not such person is employed in a managerial or administrative capacity but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity. Considering aforesaid definition of employee, it squarely covers respondent who was an employee on wages in petitioner corporation for doing skilled/semi-skilled managerial work which is considered to be technical as well as clerical work and, therefore, controlling authority has relied upon decision of this Court given in Special Civil Application No. 16329 of 2003 and 17606 of 2003 to 17612 of 2003 decided on 25.2.2004. Controlling Authority has pointed out difference between two definitions, one is under the provisions of Industrial Disputes Act, 1947, section 2(s) where definition of 'workman' has been given and another section 2(e), definition of employee given under the provisions of Payment of Gratuity Act. The only difference which has been found is that in Industrial Disputes Act, 1947, apprentice is covered and in Payment of Gratuity Act, 1972, apprentice is not covered and workman who is working in supervisory capacity is not covered under the definition of workman under section 2(s) of ID Act, 1947 but this aspect is not necessary to be considered while considering definition of employee given under section 2(e) of the Payment of Gratuity Act. Honorary wages are covered by definition given under the provisions of the Payment of Gratuity Act. As per section 2(s) of the Payment of Gratuity Act, 1972, 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, over time wages and any other allowance. Therefore, even incentives are also included in the definition of wages given under section 2(s) of the Payment of Gratuity Act, 1972 as per decision of Madras High Court in case of Anglo French Textiles Ltd. v. Labour Court, reported in 1981-58-FJR page 258 (Madras). Considering definition of wages given under section 2(s) of the Payment of Gratuity Act, 1972, honorarium wages received by respondent is also covered by definition of wages and looking to definition as it is, honorary wages are also included, therefore, controlling authority has rightly considered definition of employee under section 2(e) relying upon decision of controlling authority, Ahmedabad and appellate authority, Ahmedabad in Application No. 50 of 2004 and appeal no.15 of 2005 where it has been held that Medical Officers are performing technical work and has rightly held that respondent medical officer is covered by definition of employee given under section 2(e) of the Payment of Gratuity Act, 1972 and wages received by him are also satisfying ingredients of section 2(s) of Payment of Gratuity Act and Controlling Authority has rightly granted amount of gratuity in favour of respondent. Dispute was raised by honorary part time medical officer working in ST Corporation in respect of challenging age of superannuation where this Court has held that medical officer working as honorary part time in ST Corporation is covered by definition given under section 2(s) of Industrial Disputes Act, 1947 where arguments advanced by advocate for ST Corporation in para 7 in case of GSRTC versus Dr. Pravinchandra C. Nayak, reported in 2004 (3) GLH page 291 is relevant and, therefore, para 7 of said judgment is quoted as under: