JUDGMENT : A. Muhamed Mustaque, J. The Postal Department, questioning the orders passed under the Payment of Gratuity 'Act, 1972 filed these batch of Writ Petitions. Since the common issue relating to the applicability of the Payment of Gratuity Act to the Postal Department is a common question, all these Writ Petitions are considered together for disposal. The short issue is whether under the payment of Gratuity Act, 1972 would apply to the Postal Department or not. The Postal Department urges two contentions before this court. One is based on the Payment of Gratuity Act, 1972. The other contention is based on Gramin Dak Sevak (Conduct and Engagement) Rules 2011. I shall deal these contentions separately. 2. In all these cases, Gratuity Controller and Appellate Authority found that Postal Department, in so far as their engagement of Gramin Dak Sevaks are concerned is an establishment covered by the Payment of Gratuity Act, 1972. 3. Insofar as the first question, the applicability of the Payment of Gratuity Act, the learned counsel for the Postal Department rely upon Section 1(3) of Payment of Gratuity Act, which reads as follows: "(3). It shall apply to- (a) Every factory, mine, oilfield, plantation, port and railway company. (b) 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, in which ten or more persons are employed or were employed on any day of the preceding twelve months. (c) Such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf." 4. Admittedly. Section 1(3)(c) does not apply as there is no notification issued by the Central Government. Therefore, the only provision that could be considered for application is Section 1(3)(b). According to the petitioners, service of the Postal Department cannot be considered as a service rendered by a shop or any other establishment within the meaning of State Law. It is contended that the shop and establishment as referred in Section 1 (3)(b) has to be understood as a commercial establishment and not one like service, being rendered by the Postal Department. 5. It is contended that the shop and establishment as referred in Section 1 (3)(b) has to be understood as a commercial establishment and not one like service, being rendered by the Postal Department. 5. The learned counsel for the applicant before the Gratuity Controller would submit that the establishment referred under Section 1(3)(b) would apply to the Postal Department as well and the meaning of the establishment has to be given based on the law applicable in the State. Learned counsel for the petitioners also refers to the meaning of establishment under the Kerala Shops and Commercial Establishments Act, 1960 to substantiate his contention. Learned counsel also referred to the judgment of the Hon'ble Supreme Court in General Manager, Telecom v. A. Srinivasa Rao & Ors., ( (1997) 8 SCC 767 ). to substantiate that the argument that the Postal Department is also an industry engaged in commercial activities. 6. The establishment in fact has not been defined under the Payment of Gratuity Act. As seen from Section 1(3)(b) establishment has to be understood within the meaning of State law applicable. In the State of Kerala, the Kerala Shops and Commercial Establishments Act, 1960 would apply in relation to service and conditions of the employees in shops and commercial establishments in the State. Section 2(4) defines commercial establishment. This definition would also mean an establishment wherein persons are engaged mainly for office work. Section 2(4) defines the Kerala Shops and Commercial Establishments Act, 1960 as follows: "(4) 'Commercial establishment' means a commercial or industrial or trading or banking or insurance establishment, an establishment or administrative service In which the persons employed are mainly engaged in office work, hotel, restaurant, boarding or eating house, cafe or any other refreshment house, a theatre or any other place of public amusement or entertainment and includes such other establishment as the Government may, by notification in the Gazette, declare to be a commercial establishment for the purposes of this Act, but does not include a factory to which all or any of the provisions of the Factories Act, 1948 (Central Act 63 of 1948) apply". 7. The Postal Department is engaged in certain services, which are in the nature of commercial activity. The functional activities discharged by the Postal Department cannot be taken out of the context of commercial activity in the sense of normal business activities of any other establishment. 7. The Postal Department is engaged in certain services, which are in the nature of commercial activity. The functional activities discharged by the Postal Department cannot be taken out of the context of commercial activity in the sense of normal business activities of any other establishment. Going by the textual interpretation in Banglore Water Supplies case (1978) 2 SCC 213 ). the normal activities of such business has to be considered to decide whether an establishment is industry or not. In fact the Hon'ble Supreme Court after adverting to the importance of activities of the Telecom in Srinivasa Rao's case (supra) held that activity of the Telecom Department is also of an industry. It is obvious for these reasons Section 3 of the Kerala Shops and Commercial Establishments Act provides an exemption to the establishments under the Central Government or State Government or Local Authority as against the operation of the above Act. This would go to show that such establishment under the Central Government or State Government, would also have trappings of a commercial establishment in the State but for exemption given under Section 3 of the Kerala Shops and Commercial Establishments Act. Thus, as within the meaning of the Kerala Shops and Commercial Establishments Act it has to be held that the Postal Department is also covered as an establishment as referred in Section 1(3)(b) of the Payment of Gratuity Act. Therefore, this argument f&tS0d by the Postal Department has to be repelled. 8. The learned counsel for the Postal Department also would contend that CDS cannot be termed as employee within the meaning of the Payment of Gratuity Act. It is true as contended by the learned counsel for the Postal Department, GDS cannot be treated as employees, if they hold post under the Central Government or State Government. The Postal Department has no case that they are holding civil posts under the Central Government. On the other hand, the case of the Postal Department is that GDS are engaged as an extra departmental agent and therefore, they are distinct from regular employers of the post of the Postal Department, who are governed by CCS (Pension) Rules, 1972 and other statutory provisions. 9. The second question is whether terms and conditions of the appointment would take away the right of the applicant to claim gratuity in terms of Payment of Gratuity Act. 9. The second question is whether terms and conditions of the appointment would take away the right of the applicant to claim gratuity in terms of Payment of Gratuity Act. Learned Counsel for the Postal Department relied upon the Gramin Dak Sevak (Conduct and Engagement Rules, 2011) wherein, it is provided that GDS working in the Postal Department would be entitled for ex-gratia gratuity on their retirement. Therefore, it is argued, when their service conditions are regulated in terms of Rules, it is not open for the GDS agents to approach the Gratuity Controller, to claim gratuity. This contention has no merit according to me. Once it is found that Payment of Gratuity Act would apply, any other service condition or regarding payment gratuity or any other terminal benefits in the mode of gratuity can be availed by such employee at his option. In terms of Section 4(5) of the Payment of Gratuity Act, it is for the employee to decide for exercise of option of claiming gratuity. If the better terms of gratuities are provided under service rules, certainly it is for the employee to opt such terms. Section 4(5) of the Gratuity Act reads as follows : "4(5). Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer." The Rules relied by the Postal Department as above are not statutory, it cannot override the legislative mandate in terms of the Payment of Gratuity Act. If at all any provision is made in the service of the GDS agents, it can be only considered as an enabling provisions to GDS agents to exercise the option if it provide better terms of gratuity. It can no way affect the right of GDS raising a claim under the Payment of Gratuity Act, if otherwise it would apply. In that view of the matter, the Writ Petitions are dismissed. No costs.