The authority empowered to decide a particular matter is entitled to decide the jurisdictional aspect and whether the issue has to be tried as a preliminary issue or along with other issues.

1. Heard the arguments of Mr.A.R. Gokulnath, learned counsel for the petitioner.

2. The contesting respondent is yet to be served. The writ petition is filed challenging the order passed by the 1st respondent - Controlling Authority under the Payment of Gratuity Act, 1972 (hereinafter referred to as 'the Act') made in I.A. No. 257 of 2010 in G.A. No. 181 of 2009. By the aforesaid order, the 1st respondent declined to frame any preliminary issue with reference to the applicability of the Act to the petitioner establishment and he has also stated that the issue whether the petitioner establishment is covered by the Act will be tried along with the petition filed by the 2nd respondent and that alone can render full justice. Therefore, the matter was adjourned for enquiry on 21.10.2010. It is at this stage that the petitioner has filed the present writ petition challenging the order refusing to decide separately the preliminary issue.

3. When the matter came up on 22.01.2011, this Court directed notice to be served. Pending notice, interim stay of further proceedings was granted by this Court. Though the petitioner had taken out batta for serving the 2nd respondent, it has come back unserved as in the said address, th 2nd respondent is not residing. However, this Court is not inclined to wait for the service to be completed. It is suffice to state as the only question that arises for consideration is whether this Court can give a direction to the 1st respondent, who is a quasi judicial authority to decide the preliminary issue first and thereafter go into the merits of the case. It is needless to state that an authority empowered to decide a particular matter, is also entitled to decide either the jurisdiction or want of jurisdiction bestowed upon him by the statute. In the present case, though the petitioner has filed an interim application to decide that, since the petitioner was employing less than 10 workers the provisions of the Act will not apply. The petitioner also draws support from the counter statement filed by the 2nd respondent. In paragraph 6 of the counter statement, the 2nd respondent has stated that in the same premises, the petitioner is running, apart from M/s. Almech Enterprises, set out in the cause title, another establishment by name M/s. Asian Engineering Enterprises and if the total strength of these two establishments are covered, it becomes 12 and then the Act will apply. Whether the two institutions referred by the 2nd respondent have got any functional integrality and are deemed to be a single establishment is a matter which can be decided only by letting in evidence.

4. According to Mr.A.R. Gokulnath, learned counsel for the petitioner, there was no pleading that these two establishments are having functional integrality and if they are deemed to be one and the same, that stage is yet to arrive as it will be entirely a matter for evidence to be recorded by the 1st respondent. Learned counsel places reliance upon the judgment of the Supreme Court reported in 2007 I SCC 705 (Srinivasa Rice Mills V. ESI Corpn.) for contending that the statutory authority, if a dispute is raised, must determine the jurisdictional aspect and the employer, in such circumstances, is entitled to raise such issue. In the present case, it is not the 1st respondent, who has refused to decide the said issue. The only question was whether the issue regarding applicability of the Act could be tried separately as a preliminary issue or it could be tried along with other issues. In this context, the learned counsel also referred to the judgment of the Kerala High Court reported in 2004 I LLJ 83 (Mohanan B. V. Controlling Authority). In that case, the petitioner therein never raised the issue of the applicability of the Act. Therefore, a direction was given to decide the issue on the basis of the evidence, instead of directing the aggrieved party to file an appeal under Section 7(7) of the Act. It is not clear as