RAVEENDRAN NAMBIAR Vs. PRABHAKARAN

JUDGEMENT

(1.) Exts. P5 and P6 orders are under challenge in this Writ Petition. Ext. P5 is an order passed under Section 85(1) of the Factories Act making all sections of the Factories Act, 1948 except Section 6(i)(a), (aa)(b) and (c) applicable to manufacturing process in crushing of animal bone including bone meals and other manure industries as a result of which, irrespective of the number of persons working, places engaged in those manufacturing processes shall be deemed to be a factory for the purposes of the Factories Act and the owner shall be deemed to be the occupier and any person working therein a worker. Ext. P6 is the order passed by the appellate authority under the Payment of Gratuity Act, 1972 by which the appellate authority reversed Ext. P1 order of the District Labour Officer, Kannur and directing the petitioner herein, who is the employer to the 1st respondent-employee to pay gratuity under the Payment of Gratuity Act by virtue of Ext.P5 despite the fact that petitioner employed only less than ten persons in his establishment. The facts are not in dispute in this Writ Petition.

(2.) The petitioner-employer does not employ sufficient employees to come within the purview of Payment of Gratuity Act or the Factories Act. However, by virtue of the deeming provision contained in Section 85(2) of the Factories Act, the petitioner was held to be a factory and therefore liable to pay gratuity to its workmen. The contention of the petitioner is that since the definition of 'factory' in the Factories Act is a definition by incorporation in Section 2(g) of the Payment of Gratuity Act, 1972, the Payment of Gratuity Act can be made applicable to only those factories, which come within the definition of 'factory' in the Factories Act as on the date of coming into force of Payment of Gratuity Act in 1972 and not thereafter The petitioner submits that at the time of coming into force of the Payment of Gratuity Act, 1972, petitioner's establishment was not a factory and, therefore, the Payment of Gratuity Act cannot be made applicable to the petitioner's establishment. Petitioner points out that Ext. P5 notification was issued only on 18-10-1993. As such, on the date of coming into force of the Payment of Gratuity Act in 1972, the petitioner's establishment was not a factory or a deemed factory as defined under the Factories Act, and, therefore, the said Act cannot be held to be applicable to the petitioner's establishment. Petitioner also specifically refers to Section 14 of the Payment of Gratuity Act by which Payment of Gratuity Act overrides all other enactments, instrument or contract having effect by virtue of any enactment other than the Payment of Gratuity Act meaning thereby that unless the Payment of Gratuity Act is suitably amended to rope in the petitioner's establishment, despite Ext. P5 that Act cannot be held to be applicable to the petitioner's establishment. Petitioner, therefore, contends that Ext. P6 order by which the petitioner was directed to pay gratuity to the 1st respondent is illegal and unsustainable.

(3.) I have heard the learned Counsel for the petitioner, and the learned Counsel for the 1st respondent as also the learned Government Pleader appearing for the 3rd respondent-appellate authority under the Payment of Gratuity Act.