IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20020 of 2009(V)
1. HOSPITAL DEVELOPMENT COMMITTEE/SOCIETY
... Petitioner
Vs
1. P.V. KUNHIRAMAN,
... Respondent
2. K.K. NARAYANAN, PRAJINAS HOUSE,
3. COEMANT BASTAIN,KAARIKKUNNU HOUSE,
4. RAGAHVAN C,JEESHMA NIVAS,
5. M. RAGHAVAN, SHIJIL NIVAS,
6. STANELY FERNANDES,
7. M.BALAKRISHNAN NAMBIAR,
8. M. PRABHAKARAN, THEJAS HOUSE,
9. THE CONTROLLING AUTHORITY UNDER THE
10. THE APPELLATE AUTHORITY
For Petitioner :SRI.K.V.SOHAN
For Respondent :SRI.P.M.PAREETH
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :06/01/2010
O R D E R
P.N. RAVINDRAN, J
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W.P.(C) No.20020 of 2009
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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
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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,
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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
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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
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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)
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