IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 WP(C).No. 20020 of 2009(V) -------------------------------------- PETITIONER(S): ----------------------- HOSPITAL DEVELOPMENT COMMITTEE/SOCIETY GOVERNMENT HOSPITAL, THALASSERY, REP. BY ITS SECRETARY,( THE SUPERINTENDENT , GOVERNMENT HOSPITAL,THALASSERY). BY ADV. MR.K.V.SOHAN, SMT.SREEJA SOHAN.K., MR.GEORGE JOSEPH PULIMOOTTIL, MR.VINEETH KURIAKOSE. RESPONDENT(S): ------------------------- 1. P.V. KUNHIRAMAN, PRASANNA NILAYAM, POYPAD, P.O. MAMBRAM, KANNUR DIST. 2. K.K. NARAYANAN, PRAJINAS HOUSE, NEAR SIVA TEMPLE, PARAPURAM ROAD, P.O. PINARAYI, KANNUR DIST. 3. COEMANT BASTAIN, KAARIKKUNNU HOUSE, P.O. PUNNOOL, THALASSERY, KANNUR DISTRICT. 4. RAGHAVAN. C, JEESHMA NIVAS, P.O. MAMBRAM, VIA PINARAYI, THALASSERY,KANNUR DIST. 5. M. RAGHAVAN, SHIJIL NIVAS, P.O. PERUMTHATTIL, THALASSERY-7, ERUVATTY, KANNUR DIST. 6. STANLEY FERNANDES, 'SHALOM', KAPPAKADAVU, NEAR READING ROOM, P.O. AZHIKODE, KANNUR. * 7. M. BALAKRISHNAN NAMBIAR, MADATHUMBHAGAM, P.O. VADAKKUMBAD, THALASSERY,KANNUR DIST. (* DIED) WP(C).No. 20020 of 2009(V) 8. M. PRABHAKARAN, THEJAS HOUSE, P.O. ERUVATTY, KAPPUMMAL, KANNUR DIST. 9. THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, 1972, (DISTRICT LABOUR OFFICER, KANNUR). 10. THE APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUTITY ACT, 1972, (REGIONAL JOINT LABOUR COMMISSIONER, KOZHIKODE). *LEGAL HEIRS OF R7 IMPLEADED AS ADDL. R11 TO R13 ADDL. R11: BHANUMATHY, W/O.LATE M. BALAKRISHNAN NAMBIAR, AGED 58 YEARS, MADATHUMBHAGAM, P.O. VADAKKUMBAD, THALASSERY, KANNUR DISTRICT. ADDL. R12: V. RAJESH, S/O. LATE M. BALAKRISHNAN NAMBIAR, AGED 34 YEARS, -DO-. ADDL. R13: V. RASITHA, S/O. LATE M. BALAKRISHNAN NAMBIAR, AGED 37 YEARS, -DO-. * LEGAL HEIRS OF R7 IMPLEADED AS ADDL. R11 TO R13, VIDE ORDER DATED 09/09/2009 IN I.A.11025/2009. R9 & R10 BY SR.GOVERNMENT PLEADER MR.MOHAMMED HASHIM. R1 TO R6, R8 & R11 TO R13 BY ADV. MR.P.M.PAREETH, MR.MOHAMMED SHAMEEL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20020 of 2009(V) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER PASSED BY THE 9TH RESPONDENT IN G.C. NO.48/2004 DATED 07/02/2007. EXT.P2: COPY OF THE ORDER PASSED BY THE 9TH RESPONDENT IN G.C. NO.49/2004 DATED 07/02/2007. EXT.P3: COPY OF THE ORDER PASSED BY THE 9TH RESPONDENT IN G.C. NO.50/2004 DATED 07/02/2007. EXT.P4: COPY OF THE ORDER PASSED BY THE 9TH RESPONDENT IN G.C. NO.51/2004 DATED 07/02/2007. EXT.P5: COPY OF THE ORDER PASSED BY THE 9TH RESPONDENT IN G.C. NO.52/2004 DATED 07/02/2007. EXT.P6: COPY OF THE ORDER PASSED BY THE 9TH RESPONDENT IN G.C. NO.53/2004 DATED 07/02/2007. EXT.P7: COPY OF THE ORDER PASSED BY THE 9TH RESPONDENT IN G.C. NO.54/2004 DATED 07/02/2007. EXT.P8: COPY OF THE ORDER PASSED BY THE 9TH RESPONDENT IN G.C. NO.135/2004 DATED 07/02/2007. EXT.P9: COPY OF THE COMMON ORDER PASSED BY THE 10TH RESPONDENT IN GAC NOS.5/2007, 6/2007, 7/2007, 8/2007, 9/2007, 10/2007, 11/2007 AND 12/2007, DATED 19/01/2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. P.N. RAVINDRAN, J - - - - - - - - - - - - - - - - - - W.P.(C) No.20020 of 2009 - - - - - - - - - - - - - - - - - - - - - - Dated this the 06th day of January, 2010 J U D G M E N T The petitioner is the hospital development committee of Government Hospital, Thalassery. The respondents herein are ex-servicemen who were employed as Security Guards by the petitioner in Government Hospital, Thalassery, on daily wages at the rate of Rs.75/- per day. Their services were terminated and thereupon they moved the Controlling Authority under the Payment of Gratuity Act 1972 seeking payment of gratuity. By Ext.P1 to P8 orders passed on the same date viz. 7.7.2007, the Controlling Authority directed the petitioner to pay various amounts to the respondents towards gratuity. The petitioner thereupon filed appeals against Ext.P1 to P8 orders before the appellate authority. The appeals were dismissed by Ext.P9 W.P.(C) No.20020 of 2009 -2- order delivered on 19.1.2009. Hence this writ petition challenging Ext.P1 to P9. The petitioner contends that their establishment is not the one coming within the purview of the Payment of Gratuity Act,1972. It is also contended that the petitioner is doing an act of charity and therefore they are not bound to pay gratuity to the respondents. 2. Section 1(3) of the Payment of Gratuity Act, 1972, states that it shall apply to “every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State in which ten or more persons are employed or were employee on any day of the preceding 12 months”. Section 2(15) of the Kerala Shops and Commercial Establishments Act defines the term 'shop' to mean “any premises where any trade or business is carried on or where services are rendered to customers”. The petitioner does not dispute the fact that it provides services to customers namely patients/visitors to Government Hospital, Thalassery by providing inter-alia, W.P.(C) No.20020 of 2009 -3- the service of security guards. Therefore, going by Section 2(15) of Kerala Shops and Commercial Establishments Act, 1960, the petitioner's establishment is an establishment to which the Payment of Gratuity Act 1972 applies. I therefore, overrule the petitioner's contention that the Payment of Gratuity Act, 1972 does not apply to them. 3. The next contention of the petitioner is that as they are doing an act of charity, they cannot be burdened with liability to pay gratuity. It is also contended that the petitioners are drawing pension and that they had received gratuity at the time of their discharge from the armed forces. The appellate authority had considered these aspects, overruled the said contentions and held that, as the respondents were employed in Government Hospital, Thalassery as security guards by the petitioner, the petitioner is bound to pay gratuity. 4. Under Section 4 of the Payment of Gratuity Act, 1972, gratuity is payable to an employee on the termination W.P.(C) No.20020 of 2009 -4- of his employment after he has rendered services for not less than five years. The petitioner does not dispute the fact that the respondents have rendered more than 5 years of service, or the fact that their services were dispensed with. Section 4 of the Payment of Gratuity Act, 1972 does not stipulate that, where an establishment is a charitable institution, gratuity need not be paid to employees, otherwise eligible for the same. It also does not stipulate that ex-service men who are receiving pension and have received terminal benefits at the time of their discharge are not eligible for gratuity. In such circumstances, I am not persuaded to agree with the learned counsel appearing for the petitioner that they are not bound to pay gratuity to the respondents. For the reasons stated above, I hold that there is no merit in the writ petition. The writ petition fails and is accordingly dismissed. The petitioner shall pay the amount ordered to be paid towards the gratuity in Ext.P1 to P8 W.P.(C) No.20020 of 2009 -5- orders together with interest at the applicable rates within six weeks from today, failing which the competent authority shall initiate steps for recovery, in accordance with the provisions of Section 8 of the Payment of Gratuity Act 1972. P.N. RAVINDRAN (JUDGE) nl