2005 Supreme(Raj) 851
Rajasthan High Court, Jaipur Bench
Honble MRS. GYAN SUDHA MISRA, J. Honble J.R. GOYAL, J.
Rajendra Kumar Soni - Appellant
Versus
Authority Appointed & Ors. - Respondents
D.B. Civil Special Appeal No.814 of 1993
Decided On : April 04, 2005
Neeraj Bhatt, for Appellant G.K. Rana, for Respondents
Headnote:Rajasthan Shops and Commercial Establishment Act, 1958, Sec. 2(5) and (7); Factories Act, 1948, Sec. 2(1); Industrial Disputes Act, 1947 – Termination – Appellant was Assistant Foreman in M/s. Anil Steel and Industries Ltd. – Challenged under the provisions of 1958 Act – Refused to entertain on the ground that the employer was registered under Factories Act – Held – Appellant was engaged in the industry which was governed by the provisions of Factories Act, whose workman would be governed by the provisions of Industrial Disputes Act – Only those persons can be governed under Sec. 2(5) of 1958 Act who are outside the purview of Factories Act – Warrant no interference. (Paras 6 to 10)
(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,