RAJENDRA KUMAR SONI Vs. AUTHORITY APPOINTED

JUDGEMENT

(1.) 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 appellant's services could not be governed by the Act of 1958 and hence, he had moved the wrong forum for redressal of his grievance.

(3.) LEARNED counsel for the appellant and the respondents have not agreed with each other as to whether M/s. Anil Steel and Industries Ltd. is registered under the Shops and Commercial Establishments Act or not but even assuming that it has been so registered that alone will not permit their workmen to move under the Shops and Commercial Establishments Act, if such workmen are not those employees who are clearly excluded under the definition of employee under Section 2 (5) of the Shops and Commercial Establishments Act, 1958. The definition of employee given out in the Shops and Commercial Establishment Act, 1958 for facility of reference is quoted herein as follows:- (5) "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.