1. The question for adjudication in this petition is as to whether the office of an advocate is an establishment within the meaning of Section 1(3)(b) of the Payment of Gratuity Act, 1972 so as to attract the applicability of the said Act. The Controlling Authority and the Appellate Authority under the Gratuity Act, whose orders are impugned in this writ petition have held the Act applicable to the office of an advocate.

2. The respondent No.2 who was employed in the office of the petitioner advocate as a clerk for about 23 years, submitted his resignation on 2nd March, 2002. He claimed to be entitled to gratuity and made an application under Section 4 of the Act to the Controlling Authority under the Act. The petitioner controverted the applicability of the Act. The Controlling Authority held the provisions of the Act applicable to the office of the petitioner advocate and directed the payment of Rs.61,879.20p by way of gratuity to the respondent No.2.

The petitioner preferred an appeal before the Appellate Authority. The Appellate Authority held that though the enforcement of the Delhi Shops & Establishments Act 1954 (hereinafter referred to as Delhi Shops Act) is exempted for the establishment of a legal practitioner, nevertheless, business/profession of the legal practitioner is an establishment/commercial establishment under the provisions of the Delhi Shops Act. It was further held that exemption of establishment of a legal practitioner under the Delhi Shops Act did not amount to an exemption of the said establishment from the Gratuity Act also. The appeal was accordingly dismissed. Aggrieved therefrom the present petition was filed. This Court vide ex parte order dated 19th May, 2004 while issuing notice of the petition stayed the operation of the orders aforesaid. The counsel for the respondent No.2 appeared before this Court on 9th September, 2009 and thereafter but has failed to appear today and address arguments. The senior counsel for the petitioner has also informed that the petitioner has already settled the dispute with the respondent No.2 and the present petition is being pursued to have an adjudication on the applicability of the Gratuity Act to the office of an advocate, for the sake of future guidance. 3. The Gratuity Act, as per Section 1(3) thereof applies to:- (a) every factory, mine, oilfield, plantation, port and railway company; (b) 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 employed, on any day of the preceding twelve months; (c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on, any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf. The orders impugned in this petition have held the office of the petitioner to be covered by Clause “(b)” supra. It was not in dispute that the office of the petitioner was employing more than 10 persons.

4. It would be seen that Clause “(b)” supra makes the Gratuity Act applicable to a shop or establishment within the meaning of the law in relation to shops & establishments in a state. In the City of Delhi with which we are concerned, the said law is contained in the Delhi Shops & Establishments Act, 1954. The same defines an establishment in Section 2(9) thereof as including a shop, a commercial establishment, residential hotel, restaurant, eating house, theatre or other places of public amusement or entertainment. Section 2(5) of the Delhi Shops Act defines a commercial establishment as - "Commercial Establishment" means any premises wherein any trade, business or profession or any work in connection with, or incidental or ancillary thereto is carried on and includes a society registered under the Societies Registration Act, 1860 (XXI of 1860), and charitable or other trust, wheth