A club is not an establishment within the meaning of the provisions of the Bihar Shops and Establishments Act, 1953 unless it carries on a commercial activity.

S.B.Sinha, J.

1. In these two writ applications, a common question of law which arises for consideration is as to whether the petitioner club is a shop or establishment within the meaning of the provisions of Bihar Shops and Establishments Act, 1953 (hereinafter referred for the sake of brevity as the Act).

2. In the writ applications, the petitioner has sought for issuance of a writ of certiorari for quashing of the order passed by the respondent No. 1, dated 15-4-1981, whereby and where under the said learned court rejected the application filed on behalf of the petitioner to recall his earlier order dated 9-12-1980 in B. S. and E. Cases Nos. 27 and 30 of 1976 allowing the petition of the concerned workman.

3. The aforementioned cases under the said Act arose out of complaint petitions filed before the respondent No. 1 by the respondent No. 2 of the writ petition against termination of services in terms of Sec. 26 of the said Act and by a judgment dated 9-12-1980 and dated 15-4-1981 their applications were allowed.

4. Before the court below the petitioner took an objection that the petitions under the said Act by the respondent No. 1 were not maintainable as the petitioner club does not come within the purview of the said Act and which matter had been pending in this Court in C.W.J.C. No. 655 of 1978 (R). Despite an application for stay of the aforementioned cases, the respondent No. 1 Proceeded to dispose of the said cases. There after, an application for recall in of the said orders were filed but, as mentioned hereinbefore, the same was dismissed.

5. Before proceeding with the case, further, it may be mentioned that the petitioner hag earlier approached this Court contending inter alias therein that the petitioner-club does not come within the purview of the said Act, but the said petition was dismissed by a judgment of this Court dated 14th May, 1986.

6. In these writ applications, the petitioners have, inter alias, stated as follows:

(a) The petitioner is a club which has been established at Jamshedpur with the following objectives: (i) To form an association of ladies and gentlemen in a Social Club.

(ii) To maintain a Club and reading room, library, swimming pool and to provide facilities foot the members for playing tens billiard, badminton, ping-pong, cards and other outdoors and indoors games in the club.

(iii) To organize social and other entertainments and generally to promote cultural activities and to undertake such activities which are in keeping with the objectives of the club.

(b) It is stated that the club has restricted its use to its members only and subscription rates vary from membership to membership depending upon the nature thereof. It is further stated that there are various activities for the club where for separate rules and byelaws have been Framed such as bye-laws for reading room, card room, lending library biliard etc.

(c) It is further state that the club is exclusively used by those who are admitted to the club as a member and the affairs of the club are to be controlled and managed by a Committee elected at the Annual General Meeting. It is further stated that there is no provision for reception of guests and for member desirous of dweeling and sleeping in the club premises. There is no guest room or even a bed in the club. It is further stated that, however, snacks are provided exclusively to the members and a bar is not meant for use of the General said catering of snacks, refreshment and drinks was to assists the members in carrying out their cultural activities sports etc. It has further been the stated that no sales tax is payable in respect of the supply of food and snacks to its members. It is further alleged that on 30-4-1976, the Joint Commissioner, Labour, Department intimated to the petitioner that in view of the definition of residential hotel under Sec. 2(12) read with Sec. 2(6) of the Bihar Shops and Establishments Act. The provisions thereof apply to the petitioner clu