M. B. SHARMA, J. - (1.) THIS is an appeal by an Ex-Accountant of M/s Jaipur Spinning and Weaving Mills Ltd. (in liquidation) against the order dated Sept. 28, 1989 (Annr. 4) which was received by the petitioner on October 12,1989. Under the aforesaid order the Official Liquidator allowed claim of the appellant to the tune of Rs. 40,110/- as preferential claim. The present appeal is only confined to two items of the claim petition filed by the appellant before the Official Liquidator. The first is in respect of Salary for the period from June, 1983 to November, 1983 i. e. for five months and for grantuity amounting to Rs. 7,917. 75 P. Learned counsel for the appellant has not claimed any other relief in this appeal.
(2.) SO far as the claim for five months as aforesaid i. e. June 1983 to November, 1983 is concerned, it may be stated that the appellant could not furnish any satisfactory proof before the Official Liquidator that during the aforesaid period of five months he was working in the company in liquidation. There being no material available with the Official Liquidator to come to the conclusion whether the appellant was in fact employed in the company in liquidation, no case for interference is made out on this court. Coming to the claim of Rs. 7,917. 75 the amount of grantuity is concerned, it may be stated that item No. 3 of the a calculation of indebtedness/claim amount specifies the said amount. Item No. 3 of calculation of indebtness claim amount reads as under :- Gratuity claim for 9 years service from May 1972 to April 1981 at 15 days per years on 1525/- per month salary being salary upto & below 1600/- drawn on April 1981 for 15 days each year. Rs. 7915. 75. The contention of the learned counsel for the appellant is that even if the appellant was drawn the salary for more than Rs. 1600/- when the Jaipur Spinning and Weaving Mills Ltd went in Liquidation, he was entitled to gratuity for the said period because during the aforesaid period he was drawing salary loss than Rs. 1500/- Learned counsel for the appellant has based has claim on the definition of word 'employee' as given in Section 2 (e) of the Payment of Grantuity Act, (for short, Gratuity Act. ). The definition of 'employee' as given in Section 2 (e) of the Gratuity Act reads as under : 2 (e) Employee means any person (other than apprentice) employed on wages, not exceeding rupees one thousand six hundred per mensum, in any Establishment Factory, Mine, Oilfield, Plantation, Railway, Company, or shop to do any skilled, semi- skilled manual, supervisory, technical or clerical worker, whether the terms of such employment are express or implied but does not include any such person who is employed in a Managerial or Administrative capacity or who holds a civil post under the Central Government or State Government or who is subject to Air Force Act, 1950 (45 of 1950), Army Act, 1950 (46 of 1950) or Navy Act, 1957. Explanation- In the case of an employee, who having been employed for a period of not less than five years on wages not exceeding rupees one thousand six hundred per mensum is employed at any time, thereafter on the wages exceeding rupees one thousand six hundred per mensum, gratuity, in respect of the period during which such employee was employed on wages not exceeding of rupees one thousand six hundred per mensum, shall be determined on the basis of wages received by him during the period. " A look at the explanation as aforesaid will show that if the employee has been employed for a period of not lose than five years on wages on such amount which may be specified by or under clause (e), the employee is entitled to gratuity for the aforesaid period notwithstanding the fact that when he su perannuated or left the service he is not drawing the salary more than Rs. 1600/- Though, the Official Liquidator has not disallowed the claim on the ground that the appellant was drawing salary upto Rs. 1600/-, but no reason has been assigned why the amount of gratuity was disallowed. It appears that the claim was disallowed because the Official Liquidator was of the opinion that the appellant was drawing the salary for more than Rs. 1600/ -. That approach of the Official Liquidator does not appear to be in accordance with Law and in view of the explanation as above it can be said that the appellant was entitled to gratuity. The appellant while making the claim has divided 1575 by 26 days, but it should have been divided by 30 days and thus the amount comes to Rs. 6,750/ -. Consequently, I partly allow the appeal. So far as the claim of the appellant of salary from June 1983 to November 1983 is concerned, the appeal is dismissed, but the claim of the appellant for a sum of Rs. 6,750/- of the gratuity is allowed. The Official Liquidator is directed to modify the order allowing the claim as aforesaid immediately but in no case later than two weeks. .;