JUDGMENT

Dr. B.R. SARANGI, J. - The writ petitioner, being the appellant, has filed the instant appeal challenging the judgment dated 15.03.2013 passed by the learned Single Judge dismissing the writ petition and confirming the order passed under Section 4 of the Payment of Gratuity Act, 1972 (hereinafter referred to as “1972 Act”) by the Controlling Authority under Payment of Gratuity Act-cum-Asst. Labour Commissioner, Cuttack (in short “the Controlling Authority”) in P.G. Case No.23 of 2009 allowing the claim of the respondent-opposite party in part directing to deposit of Rs.3.00.000 (Rupees Three Lakhs) in the said Court along with interest @ 10% per annum within 30 days from the date of receipt of the order for onward disbursement as per Section 7(3) of the 1972 Act.

2.The pleaded facts on the record are the appellant-petitioner is a Society constituted by an Act of Parliament, 1920 and the respondent-opposite party was a Doctor employed in Blood Bank, who entered into service on 31.10.1997 and subsequently, appointed as Director, Central Red Cross, Blood Bank, Cuttack on 31.05.2006. On attaining the age of superannuation, he retired from service on 31.05.2006, but he was paid Rs.50,000/- towards retirement benefit, gratuity and others as per Clause 28(a) of the Indian Red Cross Society, Orissa State Branch (Recruitment and Conditions of Service) Rules, 2001 (in short, “2001 Rules”). The respondent-opposite party had claimed that his last drawn salary was Rs.21,545/- per month and considering his length of service of 28 years, he was entitled to get a sum of Rs.3,48,034/- towards gratuity. Though he submitted representation for higher gratuity, the same was not considered for which he moved the Controlling Authority in P.G. Case No.23 of 2009 under Section 4 of the 1972 Act. After the case was registered, the Controlling Authority issued notice to the appellant-petitioner calling upon it to file show cause and on considering the materials available on record, passed the order on 29.11.2010 allowing the claim of the respondent-opposite party by granting Rs.3,48,034/- towards gratuity. Challenging the aforesaid order dated 29.11.2010 passed by the Controlling Authority in P.G. Case No.23 of 2009, the appellant-petitioner preferred the writ petition before this Court. Learned Single Judge after hearing the learned counsel for the parties, dismissed the same vide its judgment dated 15.03.2013 and confirmed the order passed by the Controlling Authority in P.G. Case No.23 of 2009. Hence, this writ appeal.

3.Amongst other grounds, the judgment of the learned Single Judge has been assailed on the ground that the respondent-opposite party does not come within the purview of 1972 Act since it is neither a factory, mine, oilfield, plantation, port and railway company as provided under Section 1(3)(a) of the 1972 Act nor it is a shop or establishment as defined under Section 1(3)(b) of the Act nor an establishments as notified by the Central Government under Section 1(3)(c) of the 1972 Act. Referring to Section 2(8) and 2(19) of the Orissa Shops and Commercial Establishment Act, 1956 (hereinafter referred as “1956 Act”), it was submitted that ‘establishment’ means “a shop or a commercial establishment” and ‘shop’ means any premises where any trade or business is carried on or where services are rendered to customers respectively. ‘Employee’ has been defined under Section 2(e) of the 1972 Act and “employer” has been defined in Section 2(f). The respondent-opposite party was the Director (Chief Executive under Class-1 Officer) of Central Red-Cross Society Blood Bank and does not come within the ambit of “employee” under the 1972 Act. The appellant-petitioner has already paid a sum of Rs.50,000/- towards full and final settlement of gratuity as per Rule 28(a) of the Rules, 2001. Therefore, the Controlling Authority is not justified in directing to pay a sum of Rs.3,50,000/- towards gratuity under the said Act.

4.Mr. S.K. Sarangi, learned co