IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.04.2011 CORAM THE HONOURABLE MR. JUSTICE K. CHANDRU W.P. No. 1333 of 2011 & M.P. No. 1 of 2011 Management, M/s. Almech Enterprises, C-15, Industrial Estate, Coimbatore – 641 021. ..Petitioner Vs. 1. The Controlling Authority, Under the Payment of Gratuity Act 1972 (Assistant Commissioner of Labour), Office of the Deputy Commissioner of Labour, Coimbatore – 641 018. 2. T. Chandran ..Respondents Prayer: Petition under Article 226 of the Constitution of India praying for issue of a Writ of Certiorari to call for the records pertaining to the impugned order dated 29.09.2010 of the 1st respondent herein passed in Gratuity Case I.A. No. 257 of 2010 in G.A. No. 181 of 2009 and quash the said order. For Petitioner :: Mr.A.R. Gokulnath O R D E R Heard the arguments of Mr.A.R. Gokulnath, learned counsel for the petitioner. 2. The contesting respondent is yet to be served. The writ petition is filed challenging the order passed by the 1st respondent – Controlling Authority under the Payment of Gratuity Act, 1972 (hereinafter referred to as 'the Act') made in I.A. No. 257 of 2010 in G.A. No. 181 of 2009. By the aforesaid order, the 1st respondent declined to frame any preliminary issue with reference to the applicability of the Act to the petitioner establishment and he has also stated that the issue whether the petitioner establishment is covered by the Act will be tried along https://hcservices.ecourts.gov.in/hcservices/ with the petition filed by the 2nd respondent and that alone can render full justice. Therefore, the matter was adjourned for enquiry on 21.10.2010. It is at this stage that the petitioner has filed the present writ petition challenging the order refusing to decide separately the preliminary issue. 3. When the matter came up on 22.01.2011, this Court directed notice to be served. Pending notice, interim stay of further proceedings was granted by this Court. Though the petitioner had taken out batta for serving the 2nd respondent, it has come back unserved as in the said address, th 2nd respondent is not residing. However, this Court is not inclined to wait for the service to be completed. It is suffice to state as the only question that arises for consideration is whether this Court can give a direction to the 1st respondent, who is a quasi judicial authority to decide the preliminary issue first and thereafter go into the merits of the case. It is needless to state that an authority empowered to decide a particular matter, is also entitled to decide either the jurisdiction or want of jurisdiction bestowed upon him by the statute. In the present case, though the petitioner has filed an interim application to decide that, since the petitioner was employing less than 10 workers the provisions of the Act will not apply. The petitioner also draws support from the counter statement filed by the 2nd respondent. In paragraph 6 of the counter statement, the 2nd respondent has stated that in the same premises, the petitioner is running, apart from M/s. Almech Enterprises, set out in the cause title, another establishment by name M/s. Asian Engineering Enterprises and if the total strength of these two establishments are covered, it becomes 12 and then the Act will apply. Whether the two institutions referred by the 2nd respondent have got any functional integrality and are deemed to be a single establishment is a matter which can be decided only by letting in evidence. 4. According to Mr.A.R. Gokulnath, learned counsel for the petitioner, there was no pleading that these two establishments are having functional integrality and if they are deemed to be one and the same, that stage is yet to arrive as it will be entirely a matter for evidence to be recorded by the 1st respondent. Learned counsel places reliance upon the judgment of the Supreme Court reported in 2007 I SCC 705 (Srinivasa Rice Mills V. ESI Corpn.) for contending that the statutory authority, if a dispute is raised, must determine the jurisdictional aspect and the employer, in such circumstances, is entitled to raise such issue. In the present case, it is not the 1st respondent, who has refused to to decide the said issue. The only question was whether the issue regarding applicability of the Act could be tried separately as a preliminary issue or it could be tried along with other issues. In this context, the learned counsel also referred to the judgment of the Kerala High Court reported in 2004 I LLJ 83 https://hcservices.ecourts.gov.in/hcservices/ ( Mohanan B. V. Controlling Authority). In that case, the petitioner therein never raised the issue of the applicability of the Act. Therefore, a direction was given to decide the issue on the basis of the evidence, instead of directing the aggrieved party to file an appeal under Section 7(7) of the Act. It is not cleaqr as to how the said decision would apply to the case of the petitioner herein. On the other hand, a Division Bench of this Court, in S. Pattaraiswamy V. Management of Sundaram Industries Limited and another reported in 2000 W.L.R. 284 has held that it is not proper for this Court to give a direction to the authority to decide a particular matter as a preliminary issue and ultimately, it is for the authority to decide whether the issue has to be tried as a preliminary issue or has to be tried along with other issues. Considering the fact that the jurisdiction of the authority vested under the Act by adopting the summary procedure, it is not proper for this Court to direct the authority to decide on a piecemeal basis. In the present case, the authority has posted the case for enquiry on 21.10.2010 and the petitioner, by stalling the proceedings, has nearly wasted more than 6 months by not allowing the authority to proceed with the enquiry. This Court does not find any case made out for giving a direction sought for and the order passed by the authority, impugned in the writ petition, does not call for any interference. Hence, the writ petition is dismissed. No costs. Connected M.P. is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. nv To The Controlling Authority, Under the Payment of Gratuity Act 1972 (Assistant Commissioner of Labour), Office of the Deputy Commissioner of Labour, Coimbatore – 641 018. 1 cc to Mr.A.R. Gokulnath, Advocate, Sr. 24235 W.P. No. 1333 of 2011 RSY (CO) kk 13/5 https://hcservices.ecourts.gov.in/hcservices/