Full Judgment
R. Rajendra Babu, J.
1. Ext.P1 order passed by the 1st respondent, the Controlling Authority for Gratuity, is under challenge at the instance of the employer.
2. The petitioner's father was the licensee for running a ration shop at Kavalam, Kuttanad. Later the petitioner became the licensee. The 2nd respondent, according to him, was an employee working as a salesman in the rationshop. It was alleged by him that his service was terminated and he preferred a claim for Rs. 33,500/- towards gratuity before the 1st respondent under Section 7(4) of the Payment of Gratuity Act, 1972. The 1st respondent, by Ext. P1 order awarded an amount of Rs. 38,077/- with 10% simple interest from the date on which it fell due to the applicant. The above order is under challenge.
3. The learned counsel for the petitioner submitted that the Payment of Gratuity Act is applicable to establishments if there were 10 or more employees under Section 1(3) of the Act. It was further contended that the 2nd respondent was not a permanent employee, but he used to assist the petitioner during festival seasons when there was rush in the ration shop and at no point of time there were ten or more employees and as such the Payment of Gratuity Act could not have any application. The learned Counsel appearing for the 2nd respondent submitted that this matter was not raised before the controlling authority and that being a question of fact cannot be considered under Article 226 of the Constitution. It appears that the question relates to the jurisdiction of the 1st respondent to consider the claim. That being so I think it just and proper to direct the 1st respondent to consider this aspect afresh and to take a decision on the basis of the evidence instead of directing the petitioner to prefer an appeal and to get a direction from the appellate authority. The learned counsel for the 2nd respondent further submitted that even if the Payment of Gratuity Act, 1972 cannot have any application, the Kerala Industrial Employees Payment of Gratuity Act is applicable in the facts of the present case. Such a claim under the Kerala Industrial Employees Payment of Gratuity Act was not made for the payment of gratuity. Taking into consideration all these aspects, I think it just and proper to set aside the order and to remand the matter to the 1st respondent for fresh consideration in accordance with law with liberty to the 2nd respondent to prefer the claim, if necessary, under the Kerala Industrial Employees Payment of Gratuity Act.
4. In the result this appeal is allowed. Ext. P1 order passed by the 1st respondent is set aside and the matter is remitted back to the 1st respondent for fresh consideration in accordance with law. The parties shall be at liberty to let in further evidence. The 2nd respondent shall be at liberty to make the claim under the Kerala Industrial Employees Payment of Gratuity Act. The matter shall be disposed of as expeditiously as possible.