IMPORTANT POINT
The central legal point established in the judgment is the interpretation and applicability of the definitions of 'employee' and 'wages' under different acts to determine entitlement to gratuity.

JUDGMENT :

C.S. Sudha, J.

This intra court appeal filed by the first respondent in W.P. (C)No.27110/2013 challenges the judgment dated 16/10/2017 allowing the writ petition. The respondents herein are the petitioner and respondents 2 and 3 respectively in the writ petition. The parties and the documents will be referred to as described in the writ petition.

2. The petitioner is a bank constituted under the Regional Rural Banks Act, 1976. The first respondent was employed on commission basis by the petitioner bank as 'Nithya Nidhi Deposit' agent for the purpose of mobilising deposits under the 'Nithya Nidhi Deposit Scheme'. The first respondent worked for the petitioner bank as per the agreements/contracts entered into from time to time for a period of about 30 years from 01/02/1979 to 24/03/2009. The first respondent was drawing a commission of Rs.8,000/-when he left the services of the petitioner bank. Pursuant there to, he preferred a claim for gratuity under the Payment of Gratuity Act, 1972 (the Gratuity Act). The controlling authority as per Ext.P1 order dated 14/11/2012 taking note of the long years of service rendered by the first respondent and relying on the dictum in Indian Banks Association v. Workmen of Syndicate Bank, (2001)3 SCC 36, found employer-employee relationship between the parties and held that he was in fact an employee for the purpose of payment of gratuity. An amount of Rs.1,38,462/-was thus determined as the gratuity payable to the first respondent with interest @10% per annum from the date of order till actual payment. An appeal preferred by the petitioner bank before the appellate authority, resulted in Ext.P5 order dated 02/09/2013 by which Ext.P1 order was affirmed. Hence, the writ petition challenging Ext.P1 and Ext.P5 orders.

3. The learned Single Judge disagreed with the findings in Exts.P1 and P5 orders and so quashed the same. Aggrieved, the first respondent has come up in appeal.

4. It was argued by the learned counsel for the first respondent that the learned Single Judge erred in holding that the former is not an employee under the Gratuity Act. In the dictum in Indian Banks Association (Supra), it has been held that deposit agents like the first respondent are workmen coming under the definition of Section 2(s) of the Industrial Disputes Act, 1947 (the ID Act). The first respondent was working under agreements executed with the petitioner Bank and was receiving remuneration for performance of his works in the form of commission. Commission, which was determined from time to time, is nothing but emoluments earned by him in accordance with the terms and conditions of his employment. As it was emolument, the same cannot be treated as commission which is usually paid in addition to the emoluments to an employee. The commission paid to him was nothing but remuneration as contemplated under Section 2(s) of the Gratuity Act. Reference was also made to a Single Bench decision of this Court in South Malabar Gramin Bank v. Regional Provident Fund Commissioner, 2013(1) KHC 739. Per contra it was submitted by the petitioner Bank that the definition of 'employee' and 'wages' as contemplated under the aforesaid statutes differ and hence the definitions contained thereunder cannot be relied on to hold that 'commission' also would come within the definition of 'wages' so as to entitle the petitioner to the payment of gratuity.

5. Section 2(s) of the ID Act reads

“"workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not includ