JUDGMENT

N. L. UNTWALIA, J. :— This is an appeal by special leave. Shri Ramlakhan Singh, respondent no. 1 (for brevity, hereinafter called the respondent) was an employee of M/s. Rohtas Industries Ltd., the appellant. The appellant runs a Paper Factory at Dalmianagar in the State in Bihar, wherein paper is manufactured for sale from raw-materials such as bamboo, cotton rags and waste paper etc. The respondent was appointed and employed in the Waste Paper Department of the Paper Factory and had been working as Sectional Officer in the said Department since 1964. The management received information from one of its dealers, M/s. G. D. Bansal of Gwalior, that the respondent was acting against the interest of the company and was divulging its secrets and confidential matters to outsiders for monetary considerations. Thereupon the management terminated the services of the respondent by a notice dated the 10th of June, 1970 with immediate effect, and according to its case, it had offered one months wages in lieu of notice. The respondent assailed the order of his termination by making a complaint in writing to the Labour Court, Patna under S. 26 (2) of the Bihar Shops and Establishments Act, 1953 - hereinafter called the Bihar Act. His case was that he was discharged from service without any rhyme and reason, no domestic enquiry was held to prove any charge against him, nor was he offered any wages in lieu of one months notice. The appellant contested the respondents petition of complaint on merits as well as on the technical ground that it was not maintainable under the Bihar Act inasmuch as the respondent was not an employee within the meaning of S. 2 (4) of the said Act.

2. The Labour Court tried the issue of maintainability of the petition of complaint as a preliminary issue and by its order dated the 29th May, 1972 held that the respondent was not a factory worker within the meaning of S. 2 (1) of the Factories Act, 1948 and hence was an employee within the meaning of the Bihar Act. The appellant moved the High Court by a writ petition against the said order of the Labour Court but was asked to agitate this point after the final decision was made by that court. The Labour Court, on merits, decided the matter on the 28th of February, 1973 and allowed the petition of the respondent and ordered his reinstatement with full back wages. The appellant challenged the orders of the Labour Court by a fresh writ petition but the Patna High Court dismissed it. Hence this appeal.

3. We need not discuss or decide the merits of the respective cases of the parties, as in our opinion, the application filed by the respondent under S. 26 (2) of the Bihar Act was not maintainable.

4. Only a person who is an employee under S.2 (4) of the Bihar Act could file an application under S. 26 (2). If he was not such an employee, he had no right to file the complaint. S. 2 (4) reads as follows:

" "Employee" means a person wholly or partially employed for hire, wages including salary, reward, or commission in,and in connection with, any establishment and includes apprentice, but does not include a member of the employers family. It also includes persons employed in a factory who are not workers within the meaning of the Factories Act, 1948 (LXIII of 1948) and who are not working in managerial capacity, and for the purposes of any proceeding under this act, include an employee who has been dismissed, discharged or retrenched for any reason whatsoever."

On a plain reading of the definition aforesaid, it follows that even persons employed in a factory by the inclusive clause in the second sentence of the definition are employees within the meaning of the Bihar Act. But two exceptions have been carved out from the category of such persons, namely, (1) "who are not workers within the meaning of the Factories Act"; such a worker does not come within the inclusive definition of the term employee; (2) who are not working in managerial capacity. In other words, even a pers