A person employed in a factory registered under the Factories Act, 1948, and covered by the definition of 'worker' under the Act, is excluded from the purview of the Rajasthan Shops and Commercial Establishments Act, 1958.

V.K. Singhal, J.-This writ petition has been filed against the award dated June 20, 1992 and the order dated January 20, 1993.

2. The brief facts of the case are that the petitioner was initially appointed as Lab Assistant with M/s. Anil Steel and Industries Ltd, Kanakpura, Jaipur and was confirmed on October 31, 1984. He was promoted on the post of Assistant Foreman and was dismissed from service on July 20, 1991. An application was filed before the Competent Authority under the provision of Rajasthan Shops and Commercial Establishments Act, 1958 (hereinafter to be referred as the Act of 1958). The Competent Authority refused to entertain the said application vide order dated June 20, 1992 on the ground that the employer is registered under the Factories Act, 1948 and, therefore, the provisions of the Act of 1958 are not applicable. It was observed by the said authority that the petitioner may raise the industrial dispute under the Industrial Disputes Act. A review application was submitted which was also dismissed on January 20, 1993.

3. The submission of the learned Counsel for the petitioner is that simply because of registration under the Factories Act, the provisions of the Act of the 1958 are not excluded. It is submitted that the petitioner being the Assistant Foreman is not covered under the definition of Factory worker and he was supervising the work of other employees and is drawing salary more than 1,6007- per month.

4. In the application submitted under Section 28-A of the Act of 1958 it was submitted that the termination of the services of the petitioner is inviolation of the provisions of Section 25-F of the Industrial Disputes Act and Section 28-A of the Act of 1958.

5. Under Section 2-1 of the Factories Act, 1948 the “worker” has been defined as under-”Worker” means a person (employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employers, whether for remuneration or not), in any manufacturing process,, or in clearing any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process (but does not include any member of the armed forces of the Union).

6. The petitioner is employed in the manufacturing process as even the work of Assistant Foreman is in connection with the manufacturing process. The definition of worker includes even any work incidental or connected with the manufacturing process and, therefore, all the ingredients of the definition have been fulfilled. There is no limitation with regard to the salary to exclude a person from the definition of worker as it exists under the Industrial Disputes Act.

7. Section 28 of the Act 1958 prohibits the dismissal on account of absence from work by a woman owing to confinement. Section 28-A prohibits the procedure for issue of notice of dismissal or discharge by the employer. The definition of employee in Section 2(5) of the Act of 1958 is as under: “employee” means a person wholly or principally employed in, or in connection with any establishment and includes an apprentice but does not include a member of the employer’s family; it also includes any clerical or other staff of a factory or industrial establishment who falls outside the purview of the Factories Act, 1948.

8. From the above definition it would be evident that if a person falls within the purview of the Factories Act, 1948 then the provisions of the Act of 1958 are not applicable. The word ‘establishment’ has been defined in the Act of 1958 which means a shop or a commercial establishment. In the Act of 1958 Shop and Commercial Establishment have been defined as under “Shop” means any premises where any trade or business is carried on or where services are rendered to customers, and includes offices, store-rooms, godowns or ware-houses, whether in the same premises or otherwise, used in