B. K. SOMSEKHARA, J.

( 1 ) THE appellant herein, Sri V. Venkateswara Rao, who is the fifth respondent in W. P. No. 10449 / 87 has challenged the order of a learned single Judge of this court dated 14-4-1988. He was the Physical Director of S. M. V. M. Polytechnic, tanuku of whose Chairman filed the writ petition challenging the impugned order dated 2-6-1987 made by the Respondent No. 4, the Controlling Authority under the Payment of Gratuity Act, 1972 in P. G. Application 2/1986 filed by the 5th respondent wherein he directed payment of gratuity to him. The first respondent is the Government of Andhra Pradesh, the second respondent is the Commissioner of Labour and the third respondent is the Director of technical Education. Reference to them for the status in the writ proceedings is conveniently made in this Appeal.

( 2 ) THE undisputed factual graphic is being stated. The 5th respondent although was a Physical Director, was a member of the teaching staff in the polytechnic. He was superannuated and retired on 30-9-1984. His salary by then was Rs. 1,640/ -. The Polytechnic is an aided institution. There was no gratuity scheme for the employees of the Polytechnic. The petitioner (sic. R-5) did not lay any claim for gratuity till 15-3-1986 when he addressed a letter to the Polytechnic for payment of gratuity under the Payment of gratuity Act, 1972 (in short, the Act ). The claim was declined. He made an application to the fourth respondent seeking an order for payment of gratuity which came to be registered as P. G. Application No. 2/86. After notifying the 5th respondent and also the petitioner and hearing them, the fourth respondent passed the impugned order in favour of the fifth respondent. That came to be assailed in the Writ Petition which was allowed holding that the provisions of the Act had no application to the Polytechnic and consequently the impugned order of the fourth respondent was set aside by the learned single Judge.

( 3 ) NOTWITHSTANDING the approach of the matter relating to the claim of the fifth respondent for gratuity based on several factors considered by the fourth respondent and the learned single Judge to hold against the fifth respondent, the result of the case on such questions depends mainly on the legal effect of the provisions of the Act in regard to the Polytechnic and the fifth respondent. The learned single Judge held that the writ petitioner s Polytechnic is not an establishment within the meaning of Section 2 (10) of the Shops and establishments Act and therefore by virtue of Section l (3) (b) of the Act, such an Act was not applicable to such an institution and also its employee, the fifth respondent. Reliance was placed on the two pronouncements of the supreme Court in Sasidharan vs. M/s. Peter and Karunakar1 and Bangalore Water supply and Sewerage Board vs. Rajappa* by the learned single Judge to examine whether the writ petitioner is an establishment or not to bring within section 1 (3) of the Act. Sasidharan s case (supra) dealt with the question whether the office of a lawyer or solicitor is a commercial establishment to decide the status of the clerks working in such an office and Bangalore Water supply Sewerage Board case 2 dealt with the question whether a particular organisation is an industry. The Water Supply Sewerage Board s case2 is referred to in Sasidharan s case to distinguish that the considerations in the two cases were different. The learned single Judge has come to the conclusion that the question of a management being a commercial establishment like the office of a lawyer or solicitor has been rejected by the Supreme Court in Sasidharan s casev Furthermore, it is the view of the learned single Judge that an educational institution like the writ petitioner is not a commercial establishment within the meaning of Section 2 (10) of the Shops and Establishments Act not covered by Section 1 (3) of the Act and therefore the fifth respondent was not entitled to the benefit of

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