The Payment of Gratuity Act, 1972 applies to both commercial and non-commercial establishments, and the definition of 'establishment' under various laws determines its applicability.

Ashwani Kumar Singh, J.

1. Heard Mr. Naresh Malhotra, learned Senior Counsel for the petitioner, Mr. Alok Kumar Sinha, learned counsel for respondent No. 4 and Mr. Raghwendra Kumar, learned Standing Counsel-22 for the State. The petitioner is aggrieved by the order dated 29.9.2016 passed by the Labour Commissioner-cum-Appellate Authority in Appeal No. 1 of 2015 whereby the appellate authority has confirmed the order dated 14.11.2014 passed by the Deputy Labour Commissioner-cum-Controlling Authority in G.A. No. 6 of 2011 whereby the petitioner has been directed to pay gratuity to respondent No. 4.

2. The petitioner State Bank of India Supervising Staff Co-operative Credit Society Limited is a Society registered under Bihar Co-operative Societies Act, 1935.

3. From the pleading of the parties, it would be evident that respondent No. 4 Ravindra Kumar Sinha was working as an employee under the petitioner Society since 1.8.1983 and he superannuated on 30.4.2009. On 30.5.2011, he filed claim for payment of his gratuity amounting to Rs. 2,65,514/- with due interest before the Deputy Labour Commissioner-cum-Controlling Authority under the Payment of Gratuity Act, 1972 vide G.A. Case No. 6 of 2011. After considering the legal and factual aspects, the Deputy Labour Commissioner-cum-Controlling Authority vide order dated 14.11.2014 directed the petitioner to pay the gratuity amounting to Rs. 2,29,125/- to the respondent No. 4 for his 25 years of service with 8.5 per cent interest thereon within 30 days from the order. Against the order dated 14.11.2014 of the Deputy Labour Commissioner, the petitioner preferred an appeal before the Labour Commissioner-cum-Appellate Authority vide Appeal No. 1 of 2015. After hearing the parties, the Appellate Authority came to the conclusion that the Society is an establishment and the Payment of Gratuity Act, 1972 is applicable in the case. It held that respondent No. 4 is entitled to get gratuity claimed under Section 4(1) of the Payment of Gratuity Act and, hence, it confirmed the order of the Deputy Labour Commissioner and the appeal was dismissed vide order dated 29.9.2016.

4. While challenging the aforestated order dated 29.9.2016 passed by the Labour Commissioner-cum-Appellate Authority, the petitioner contended that the Society in question is not a profit making Society rather it has been formed to help its members in case of their needs and exigencies. It was registered under the Shops and Establishments Act, 1953 for one year but thereafter the co-operative store was closed and the Licence under the Bihar Shops and Establishments Act was never renewed, therefore, it cannot be said that till date the Society is registered under Bihar Shops and Establishment Act, 1953. The petitioner would contend that since the Society is not working for profit, it does not come under the definition of establishment, hence, the Payment of Gratuity Act does not attract against it.

5. Per contra, the contention of the respondent No. 4 is that the law does not mandate that an establishment should be covered under the Bihar Shops and Establishments Act, 1953 for the provisions of Payment of Gratuity Act, 1972 to apply on it. Learned counsel for the respondent No. 4 would submit that neither Section 1(3)(b) nor any other provision under the Payment of Gratuity Act, 1972 prescribes a bar to the application of the said Act to non-commercial establishment. He would contend that the petitioner Society is in fact registered under the Bihar Shops and Establishments Act and in the said registration total strength has been indicated as twenty one persons. He would further contend that mere non-renewal of registration certificate would not mean that the Society is not covered under the Bihar Shops and Establishments Act. He would further contend that the petitioner's Bye Laws clearly shows that it is generating profit. Lastly, he would contend that even otherwise the petitioner cannot deny gratuity to its employees whom i