Important points
If the activity is frequent, continuous and relating to business, whether it earns profit or not is irrelevant-The above ingredients were present in respect of the activities of the hospital, it was held as an establishment under Section 2(6) of the above Act.

P.R.RAMACHANDRA MENON, J.

1. Petitioners are the same in both the appeals, whereas the Crl.M.C. has been filed by a different person. The common link is applicability of the provisions of the Kerala Shops and Commercial Establishments Act (referred to as Shops Act). The contention raised is that the 'hospital' of the petitioners, stated as a charitable establishment, does not come within the purview of the Shops Act.

2. Payment of Gratuity ordered by the controlling authority in terms of the Payment of Gratuity Act, 1972(referred to as Gratuity Act) as confirmed by the appellate authority and affirmed by the learned single Judge (repelling the contentions raised by referring to Section 1(3)(b) of the Gratuity act) is under challenge in W.A.No.1737 of 2013. The challenge in WA No.1548 of 2016 is against the order passed by the District Labour Officer (declaring that the appellants' hospital as coming within the purview of the Shops Act) which came to be affirmed, when interference was declined in the writ petition by the very same learned Single Judge, who held that the issue was covered by the judgment in the former case (reported in 2013 (4)KLT 402 - Lourdes Hospital v. Dr. Abraham Mathew). In Crl.M.C.No.1545 of 2015, the prosecution proceedings launched by the departmental authorities for violation of the provisions of the Shops Act are sought to be interdicted, contending that the hospital is not a 'shop' or 'commercial establishment' under the Shops Act. The said matter came to be tagged along with the appeals, based on the order dated 03.06.2015 passed by a learned Judge of this Court.

3. Heard Mr. Paul Jacob, the learned counsel appearing for the appellants, Mr. Jayaram, the learned counsel appearing for the petitioner in Crl.M.C., Mr. C.S.Ajith Prakash, the learned counsel for the first respondent in W.A. 1737 of 2013 and Shri P.N. Santhosh, the learned Sr.Government Pleader appearing for the State, at length.

4. Coming to the first case, i.e., W.A.No.1737 of 2013, the first respondent was serving the appellant hospital from 1968, till his retirement on attaining the age of superannuation in the year 2005. Only a sum of Rs.2 lakhs was paid by the appellant towards Gratuity, which made the first respondent/Doctor who was appointed as a Dentist and retired from the service as the Head of the Department to move the Controlling Authority under the Gratuity Act, claiming a balance sum of Rs.1.5 lakhs in terms of the Payment of Gratuity Act, 1972. The claim was resisted by the appellant/hospital raising several grounds, including that the Gratuity Act was not applicable to the hospital; that the hospital was a charitable institution making no profit, nor doing any Trade or business; that it was not a 'shop' or 'commercial establishment' under the Shops Act to satisfy gratuity in terms of the Gratuity Act and further that hospitals were exempted from the purview of the 'Shops Act' by virtue of various Government orders issued from time to time and in so far as the Shops Act was not having any application, no liability would arise under the Payment of Gratuity Act, as well. The above contentions raised by the appellant/hospital were repelled and the controlling authority held that gratuity was payable in terms of the Gratuity Act, 1972 and accordingly awarded the balance sum of Rs.1.5 lakhs with interest at the rate of 10% per annum from 22.03.2006. Though an appeal was filed, it came to be dismissed by the appellate authority/Regional Joint Labour Commissioner as per Ext.P8, which was subjected to challenge in W.P.(C)No.4300 of 2010. It was found to be devoid of any merit and the writ petition came to be dismissed, which in turn is under challenge in W.A. 1737 of 2013.

5. In the meanwhile, the Government had issued a Notification bearing No. G.O(Rt)No.2966/2007/LDR dated 04.10.2007 whereby the exemption already granted to 'hospitals' from the provisions of the Shops Act came to be withdrawn. In the said circumstance, the