1. The petitioner is a hospital in whose employment the 1st respondent remained from 3.7.1968 to 31.12.2005. Admittedly the petitioner was superannuated on 31.12.2005 and he was paid gratuity of Rupees Two Lakhs. Alleging that the quantum of gratuity was far lesser than that prescribed under the Payment of Gratuity Act, 1972 (hereinafter referred to as “Gratuity Act”), the 1st respondent was before the Controlling Authority, which passed Exhibit P3 order, computing the gratuity payable as per the Gratuity Act at Rs.3,50,000/- and directing payment of the balance amount of Rs.1,50,000/- with 10% interest from 22.03.2006; being the date of filing of the claim.

2. The proceedings thereafter are not very relevant. Suffice it to say that the said order was affirmed, evidenced by Exhibit P8 appellate order. The factum of employment in the hospital is not disputed. The dispute is only with respect to whether the petitioner is an establishment covered under the Gratuity Act.

3. The contention urged by the learned counsel for the petitioner is that the Gratuity Act makes it applicable to 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, by Section 1(3) (b). Hence, necessarily there being an enactment with respect to the shops and establishments for the State of Kerala, being the Kerala Shops and Commercial Establishments Act, 1960 (hereinafter referred to as “the Shops Act”), one has to look at the definition of “commercial establishment” in the said enactment to understand as to which establishments are covered under the Gratuity Act. The first contention raised by the petitioner is that the petitioner admittedly being a charitable institution, would not come under the definition of “commercial establishment”. In any event, looking at the words employed in the definition of “commercial establishment”, or more specifically the categories of establishments referred to therein and the class of employment, definitely a “hospital” was not intended to be covered under the said enactment. That being so, it is the contention that the definition in the Gratuity Act being by way of “reference” as distinguished from “incorporation”; only those establishments covered under the Shops Act could be brought under the establishments to which the Gratuity Act applies.

4. To advance his contention with respect to legislation by reference, the learned counsel places reliance on Bajaya v. Gopikabai [(1978) 2 SCC 542], U.P.Avas Evam Vikas Parishad v. Jainul Islam [(1998) 2 SCC 467] and Nagpur Improvement Trust v. Vasantrao [(2002) 7 SCC 657]. The learned counsel relies on the decision of the Supreme Court in Dr.D.M.Surti v. State of Gujarat [AIR 1969 SC 63] and V.Sasidharan v. Peter and Karunakar [AIR 1984 SC 1700] to contend that “hospital” is not covered under the definition of “commercial establishment” in the Shops Act. The learned counsel also relies on the decision in Sasidharan v. Peter & Karunakaran [1978 KT 613], from which arose the decision of the Supreme Court in V.Sasidharan (supra). The learned counsel placed before me a notification of the State Government issued under Section 5 of the Shops Act, bearing No.S.R.O.978/2005 dated 19.10.2005, published in the Gazette dated 29.10.2005, which reads as under:

“S.R.O.No.978/2005.- In exercise of the powers conferred by Section 5 of the Kerala Shops and Commercial Establishments Act, 1960 (Act 34 of 1960) the Government of Kerala being satisfied that public interest so requires, hereby exempt the following establishments, from the provisions of the said Act for a period of two years from the date of publication of this notification in the Gazette namely:-

1. Doctors consulting rooms.

2. Dispensaries attached to Doctor's consulting rooms.

3. Nursing Homes, Hospitals and other allies institutions for the treatment or care of the sick, the infirm the destitute or the mentally unfit”.

It is the contention of