R GANAPATHY SUBRAMANIAM Vs. ENFIELD INDIA LTD

JUDGEMENT

(1.) THE appellant was an employee of the respondent herein as Godown Keeper in its premises located at No. 216, Thiruvottiyur High Road, Madras 81, which was covered by a Factory licence relating to the 'spare parts division. ' In May 1973, it was found that in the godown there had been tampering with the seals of some boxes and that some others were kept open and this led to the preparation of an inventory which revealed that goods worth about Rs. 20,013. 26 were found missing. A show cause notice was issued to the appellant on 12th June, 1973 why disciplinary action should not be taken against him for gross negligence resulting in the loss of goods. After conducting an enquiry on 7th September, 1983, the services of the appellant were terminated. Against the order of termination, the appellant preferred an appeal before the Appellate Authority, the second respondent herein, under S. 41 (2) of the Tamil Nadu Shops and Establishment Act, 1947 (for short, Shops Act ). Even at the preliminary stage, the first respondent raised the objection that the appellate forum was not the appropriate forum for the appellant to ventilate his grievances, as the premises where the godown of the first respondent was located, namely No. 216, Thiruvottiyur High Road, Madras 81, had been covered by licence under the Factories Act as its spare parts division where manufacturing process was carried on by the use of power and therefore, by reason of the exemption granted under G. O. Ms. No. 545, dated 10th February, 1950, the appellant would be outside the purview of the provisions of the Shops Act. This Objection was not countenanced by the second respondent herein, as, according to him, the licence issued for the premises bearing door No. 216, Thiruvottiyur High Road, Madras-81, was confined to the spare parts department and did not include the godown department, and the godown department was separated by a wooden partition and the first respondent had not filed the attendance register for the godown department. Thereupon the first respondent filed W. P. 3858 of 1977, praying for the issue of a writ of certiorari to quash the order of the second respondent on the ground that the spare parts division as well as the godown did not constitute distinct and separate departments; but they had all been covered by one licence under the Factories Act in respect of the entire premises attracting the provisions of the Factories Act and G. O. Ms. No. 545, dated 10th February, 1940 would therefore render the provisions of the Shops Act inapplicable to the establishment of the first respondent. In his counter, the appellant maintained that there were two separate entities, viz, the spare parts department and the godown with two separate managers and therefore, the licence covering only the spare parts department would not enable the first respondent to claim that the entire premises fell within the purview of the Factories Act and G. O. Ms. No. 545, dated 10th February, 1950, can therefore have no application. It was also the further case of the appellant that the manufacturing process was done at the factory situated about 3-1/2 miles away from the premises in question and finished goods alone were received at the department located in door No. 216, Thiruvottiyur High Road, Madras-81 and the supervision by the appellant of the packing of finished goods there, would not alter the position and therefore, the appeal was properly laid under the Shops Act before second respondent.

(2.) THE learned Judge after referring to the definitions of 'manufacturing process', 'worker' and 'factory' under the Factories Act, and the evidence of the appellant, found that the appellant was supervising packing, which is a manufacturing process under S. 2 (k) of the Factories Act and since, the premises bearing door No. 216, Thiruvottiyur High Road, Madras 81, had been licensed under the Factories Act, it was unnecessary to include therein the godown within the precincts of the premises so licensed and therefore, the premises would be a 'factory' within the meaning of the Factories Act, and the appellant would be a worker under S. 2 (1) of the Factories Act. The learned Judge therefore, upheld the applicability of the exemption under G. O. Ms. No. 545, dated 10th February, 1950 and quashed the order of the second respondent. The correctness of that view is challenged in this appeal.

(3.) THE learned counsel for the appellant placing reliance upon the licence issued in respect of the premises No. 216, Thiruvottiyur High Road, Madras-81, contended that it covered only the 'spare parts division' and did not take in the godown and therefore, it can be assumed that the godown portion of the factory was also premises governed by the provisions of the Factories Act. Per contra, the learned counsel for the first respondent submitted that the licence obtained was one and indivisible with reference to the entire premises bearing door No. 216, Thiruvottiyur High Road, Madras-81, and therefore, the circumstances that spare parts division alone had been mentioned in it, would not make the rest of the premises anything other than a factory or the activities carried on in the premises so licensed any the less processes or activities carried on in a factory as defined under the Factories Act.