( 1 ) IN the present writ petition, the order dated 23-12-1999 passed by the Controlling Authority under the Payment of Gratuity Act, 1972, Bhavnagar in Gratuity Application No. 17 of 1999 is under challenge.

( 2 ) THE respondent-workman had filed application claiming the benefit of gratuity under the provisions of Payment of Gratuity Act, 1972 [hereinafter referred to as, `the Act] against the petitioner-Abhinav Siksan Sikshak Samaj [hereinafter referred to as, `the Society]. Before the Controlling Authority, the petitioner-Society has raised a preliminary contention that the provisions of Gratuity Act are not applicable, and therefore, the Controlling Authority has no jurisdiction to entertain and try such application filed by the respondent-workman. The said preliminary contention has been examined by the Controlling Authority and came to the conclusion that considering the notification issued by the Central Government dated 3rd April, 1997, the educational institutions are covered within the purview of the Payment of Gratuity Act, 1972, and therefore, he held that the Controlling Authority has jurisdiction to entertain such application filed by the respondent workman. Mr. Gandhi, learned advocate appearing for the petitioner-Society has raised a contention that though there is a notification issued by the Central Government covering the Educational Institutions within the purview of the Payment of Gratuity Act but it is necessary to consider the provisions of Sec. 1 (3) of the said Act. Said Section 1 (3) of the Act reads as under :-`1 (3) xx xx xx (a) every factory, mine oil-field, 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 shop, and establishments in State, in which ten or more persons are employed, or were employed on any day of the preceding twelve months. learned advocate for the petitioner-Society submitted that for Section 1 (3) (a), the petitioner is not naturally falling within the provisions but in respect to Sec. 1 (3) (b), the question is required to be examined as to whether the petitioner is an `establishment within the meaning of `state Act or not. He, therefore, placed reliance upon Sec. 2 (8) of the Bombay Shops and Establishments Act, 1948. Said Section 2 (8) defines `establishments as under :-`establishment means a shop, commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment to which this Act applies and includes such other establishment as the State Government may, by notification in the official Gazette declare, to be an establishment for the purpose of this Act. thus, according to the submission of the learned advocate, the petitioner-Society is not an `establishment or `commercial Establishment, and therefore, the provisions of Bombay Shops and Establishments Act, 1948 are not applicable. He further submitted that `commercial Establishment is defined under Sec. 2 (4) to mean, `an establishment which carries on any business, trade or profession or any work in connection or incidental or ancillary to any business, trade or profession and includes the Society registered under the Societies Registration Act and a Charitable or other Trust; whether registered or not, which carries on, whether for the purpose of gain or not, any business, trade or profession or work in connection with or incidental or ancillary thereto but does not include (a) factory, shop, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment. He also placed reliance upon item no. 6-F of third Column of Schedule-II of the said Act. Section 4 of the Bombay Shops and Establishments Act, 1948 grants exemption in favour of certain shops or institutions to whom the said Act is not made applicable. Section 4 exemption depicts that, `notwithstanding any thing contained in this regard, the provisions of thi