Honble MISRA, J.–This appeal has been preferred against the judgment and order of the learned Single Judge passed on 17.9.1993 in S.B.C. Writ Petition No.2031/1993 whereby the learned Single Judge has been pleased to dismiss the writ petition upholding the order of the competent authority under the provisions of the Rajasthan Shops & Commercial Establishments Act, 1958 (shortly referred to as the `Act of 1958). The competent authority under the Act of 1958 had refused to entertain the application filed by the appellant challenging the order of this termination on the ground that the employer of the appellant M/s. Anil Steel and Industries Ltd. was registered under the Factories Act, 1948 and, therefore, the provisions of the Rajasthan Shops and Commercial Establishments Act 1958 are not applicable. The competent authority further observed that the petitioner may raise an industrial dispute under the Industrial Disputes Act, 1947. This order was confirmed by the competent authority since a review filed by the appellant against the same was also rejected. As already stated, the appellant/petitioner had filed a writ petition before the learned Single Judge challenging the order of the competent authority but the same was also dismissed, hence, this appeal before us in the Division Bench.

(2). The substantial facts of the case in so far as it is relevant for the purpose of deciding this appeal falls within a short compass. The petitioner/appellant had initially been appointed as a Lab Assistant with M/s. Anil Steel and Industries Ltd., Kanakpura, Jaipur who after confirmation was promoted on the post of Assistant Foreman. While discharging his duties as Assistant Foreman, the appellant was dismissed from service on 20.07.1991. The delinquent employee/appellant herein feeling aggrieved with the order of his termination filed an application before the competent authority under the Provisions of Rajasthan Shops and Commercial Establishments Act, 1958 (hereinafter shortly preferred to as the Act of 1958) but the competent authority was pleased to hold that the appellants services could not be governed by the Act of 1958 and hence, he had moved the wrong forum for redressal of his grievance.

(3). The appellant, therefore, preferred a writ petition before the Single Judge and the learned Single Judge while examining the controversy examined the definition of `worker under Section 2(1) of the Factories Act, 1948 and was pleased to examine as to who are the persons who would be treated as `worker and thereafter also examined the provisions of the Shops and Commercial Establishments under the Rajasthan Shops and Commercial Establishments Act, 1958 and after examining several case laws on this point was finally pleased to hold that the appellant/petitioner was an employee of M/s. Anil Steel and Industries Ltd., which would not be governed by the definition of Clause 2(7) of the Act of 1958 which defines as to what constitutes `Commercial Establishments attached to a factory where the persons are employed in shops and the learned Single Judge was pleased to record that such workmen who are employed in a shop attached to the factory are allowed the benefit provided under the Act 1958 as they have been excluded under the Factories Act of 1948. The definition under the Factories Act 1948 clearly lays down that the shop attached to a factory is excluded, which makes it clear that the person who are employed in a factory which falls within the purview of the Factories Act 1948 are also excluded there from and hence they can take recourse to the Shops and Commercial Establishments Act 1958. The learned Single Judge further held that the petitioner holding the post of an Assistant Foreman the respondent-Anil Steel and Industries Ltd. would be a workman under the Factories Act and therefore, he cannot move the competent authority under the Shops and Commercial Establishments Act of 1958.

(4). The moot question, therefore, which falls for consideration,

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