Shri Sanjay K. Agrawal, J.

Heard.

The petitioner-SECL seeks to challenge the legality, validity and correctness of the order dated 9th December, 2003 by which learned Appellate Authority, respondent No. 2 herein while setting aside the order of Controlling Authority has held that attendance bonus is component of the wage for the calculation of gratuity within the meaning of Section 2(s) of the Payment of Gratuity Act, 1972 (hereinafter called as PG Act, 1972) and directed accordingly for recalculating the gratuity of respondent No. 1-Employee considering the attendance as a part of wages.

2. Respondent No.1 retired from the services of the Respondents SECL on 31.07.2000; on 20.12.2000 gratuity amount was voluntarily deposited before the Assistant Labour Commissioner (Central) Bilaspur to the extent of Rs.2,37,742/-. Thereafter, respondent No. 1 moved an application before the Controlling Authority under the PG Act, 1972 for recalculation of gratuity stating that attendance bonus is a part of wage and, therefore, should be included for calculating the gratuity.

3. The Controlling Authority, by its order dated 20.09.2002, has held that the attendance bonus is not a part of wages within the meaning of Section 2(s) of the PG Act, 1972, however, did not enhance the amount and awarded interest Rs. 7,263/- to respondent No.1-employee.

4. Feeling aggrieved against the part of order granting interest of Rs.7,263/-to respondent No.1, the petitioner herein filed an appeal before the Appellate Authority under the PG Act, 1972.

5. The Appellate Authority, by its impugned order dated 9th December, 2003, has held that respondent No.1-employee is entitled for interest; and also held that attendance bonus is included in the wages of respondent No.1 and, therefore, attendance bonus be taken into account for calculating the gratuity of respondent No.1 and remanded the matter to the Controlling Authority for recalculating the gratuity of respondent No.1-employee.

6. Calling in question the legality and validity of the order of the Appellate Authority, instant writ petition has been filed challenging the same, in which, return has been filed by respondent No. 1 opposing the averments made in the writ petition.

7. I have heard learned counsel for the parties and perused the order impugned with utmost circumspection.

8. Shri Abhishek Sinha, learned counsel appearing for the petitioner would submit as under :-

(i) That, the bonus including the attendance bonus is expressly excluded for calculating the gratuity within the definition of Section 2(s) of the PG Act, 1972 and, therefore, attendance bonus by no stretch of imagination can be said to be the part of wages of respondent No.1.

(ii) The Controlling Authority, in its order dated 20.09.2002 has clearly held that attendance bonus is not the part of wages and as the same was not challenged by respondent No.1, the said finding has attained finality and, therefore, it was not open for the Appellate Authority to disturb the finding so recorded by the Controlling Authority.

(iii) Respondent No.1-employee still has not vacated the accommodation, which was allotted to him by the resondents SECL, till the impugned order was passed. He would further submit that the respondent No.1-employee is not entitled for interest in view of the judgment of the Supreme Court in the matter of Union of India and another v. K. Balakrishna Nambiar, (1998) 2 SCC 706 in which their Lordships have held that interest was not payable in respect of the period of such unauthorized occupation of the government accommodation.

9. Per contra, Shri Gary Mukhopadhyaya, learned counsel appearing for respondent No.1 would submit that attendance bonus is given quarterly @ 10% of the basic wage by virtue of National Coal Wage Agreement and, therefore, it will be a part of wages and it has rightly been included as part of wages for payment of gratuity under Section 2(s) of the PG Act, 1972.

10. I have heard learned counsel appearing for the parties