MANAGING DIRECTOR, ENERGETIC LIGHTING (INDIA) PVT. LTD. Vs. PRESIDING OFFICER, SHOPS & COMMERCIAL ESTABLISHMENT

JUDGEMENT

(1.) Petitioner, the Managing Director, Energetic Lighting (India) Pvt. Ltd., Gurgaon, has approached this court in the writ of certiorari, challenging interim order dated 29.09.2009 passed by respondent Presiding Officer, Shops and Commercial Establishment, Jaipur City, Jaipur, and its final order dated 16.04.2010 passed in Case No.RSC 8/2008.

(2.) Although in writ petition, petitioner seeks to also challenge validity of order dated 29.09.2009 by which preliminary objection of petitioners about maintainability of application before Prescribed Authority was rejected but validity of that order need not be examined because ultimately the main application itself was decided by order dated 16.04.2010 which order is assailed in present writ petition, therefore, the matter is being considered to adjudge validity or otherwise of the said order.

(3.) Factual matrix of the case is that petitioner Company is engaged in manufacturing of energy saving lamps in its factory premise at Gurgaon in the State of Haryana. Petitioner engaged respondent no.2 Shri Santosh Bharti as Regional Sales Manager for Rajasthan initially on probation for a period of six months, which was extendable for a further period, by order dated 05.04.2008. Petitioner company did not find the performance of respondent no.2 to be satisfactory and therefore terminated his services vide order dated 04.11.2008 with effect from 05.11.2008 by invoking probation clause. Respondent no.2 therefore filed a complaint before the Prescribed Authority under Section 28-A of the Rajasthan Shops and Commercial Establishment Act, 1958 (for short, 'the Act of 1958'). Petitioner company contested the matter and filed reply thereto. A preliminary objection was raised in the reply that neither respondent no.2 Santosh Bharti is a 'workman' under Section 2(s) of the Industrial Disputes Act, 1947 (for short, 'the Act of 1947') nor can he be termed an 'employee' under Section 2(5) of the Act of 1958. In fact, respondent no.2 was himself an employer under Section 2(6) of the Act of 1958 as such the complaint filed by him was not maintainable and was liable to be dismissed. Alternatively, it was submitted that even if respondent no.2 is accepted to be an employee, then also petitioner was competent to terminate his services by giving him one day notice, considering that he was on probation. It was also contended that since factory premise where respondent no.2 was engaged was situated in Gurgaon of the State of Haryana, therefore, if Factory Act was applicable to the petitioner establishment, the Act of 1958 was not applicable.