DHARMENDRA KATARIA Vs. GANGANAGAR SUGAR MILLS LTD

JUDGEMENT

(1.) AFOREMENTIONED special appeal and the writ petition have been filed at the instance of one common appellant/petitioner (hereinafter referred to as the appellant) who was removed from service by the respondent Ganganagar Sugar Mills Ltd. , Sri Ganganagar (for short "the respondent")vide order dated 21/26. 09. 1981. The special appeal has been filed against the judgment dated 27th November, 1995 by which the writ petition of the respondent against the order passed by the Prescribed Authority u/s. 28-A of the Rajasthan Shops and Commercial Establishments Act, 1958 (for short "the Act of 1958") declaring removal of the appellant as illegal and directing his reinstatement was allowed. The appellant has also additionally filed the aforesaid writ petition by way of abundant caution challenging the order of his removal dated 21/26. 9. 1981 directly before this Court under Article 226 of the Constitution of India. Though the issues raised in the appeal and the writ petition are different but the questions of law as also the foundational facts giving rise to them are common and therefore both the matters were taken up together for hearing and are being disposed of by this common judgment.

(2.) FACTUAL matrix of the case is that the appellant was appointed with the respondent as a general clerk in their Accounts Section vide order dated 18th August, 1973. He was posted as Incharge, Liquor shop, Station Road, Jaipur. Besides the appellant, two salesmen, two helpers and one Chowkidar and one person from vigilance cell were also posted there. The appellant, two salesmen and their helpers and Chowkidar were responsible for the sales counter. Appellant's duty was confined to checking the liquor bottles received from the distillery and entering details thereof in the records. He used to also supervise the shop and count total money received at the end of the day and deposit the same with the cashier on the following day. In the day time however the sale proceeds would remain in the charge of the salesman on duty. The then Incharge of the Vigilance Department of the respondent Shri S. N. Bhargava checked the shop at Jaipur on various dates including on 10. 12. 1978 when he found the cash short by Rs. 92. 66 paisa. He again checked the shop on 8. 1. 1979 and found the quality strength of the three half bottles and two quarter bottles of liquor reduced from 54. 4 to 54. 8 on account of mixing of the water. The shop was further checked on 7. 2. 1979 and this time again on testing one bottle of "keshar Kisturi" (liquor) its strength was found 35. 2 instead of 5 U. P. Again when the checking was made on 14. 2. 1979, one bottle was found of lesser standard as its strength was 65. 2 instead of 45 U. P. Checking was again made on 21st April, 1979 when three half bottles were found to be adulterated with water and their strength varied between 60. 6 and 60. 9 in stead of 45 U. P. Checking was again made on 26th April, 1979 and this time again shortage of Rs. 458. 58 was detected. According to the appellant, when the shop was checked on 10. 12. 1978, he was not present at the shop because he had gone for lunch. But his signature was obtained on the inspection memo when he returned from lunch. During the checking made on 26th April, 1979, shortage of Rs. 458. 38 paisa was detected. A memorandum to that effect was prepared in which it was recorded that besides the appellant, one Ashok Harjani was also present and that the incharge of the shop informed that the currency notes of Rs. 300/- were sent for being replaced to the bank. The appellant was served with the charge sheet on 1st June, 1979 and was also placed under suspension. He submitted his reply to the charge sheet on 11th June, 1979. He was served with another charge sheet on 2nd June, 1980. One Shri U. N. Mathur was appointed as enquiry officer to conduct the inquiry. While the management examined three witnesses in support of their case namely S/shri K. N. Aswa, M. L. Dabi and Roop Dan, the appellant examined himself and one Shri Ramchandra. The enquiry officer submitted his report sometime in the month of July, 1981. A show cause notice was issued to the appellant on 3/11th August, 1981 proposing penalty of removal and requiring him to submit his defence. The Disciplinary Authority finally vide order dated 26th September, 1981 imposed the penalty of removal upon the appellant.

(3.) WHILE referring to the findings arrived at in para 12 of the impugned judgment, Mr. Marudhar Mridul argued that the learned Single Judge was not correct when he held that the provisions of the Act would not be applicable to the cases where the employees concerned are governed by the Factories Act, 1948 and further that it was undisputed that the respondent mill was covered by the provisions of the Factories Act, 1948. This finding was palpably wrong because the pleadings in the writ petition out of which the present appeal arise would go to show that the main contention of the respondent mill was that it being an undertaking of the Rajasthan Government , it was a State within the meaning of Article 12 of the Constitution of India and therefore was exempt from the operation of the Act. It was nowhere pleaded that the shop at Jaipur was attached to the factory of the respondent mill. All that was pleaded was that the respondent mill was not governed by the Act of 1958 since it was a factory governed by the Factories Act which have all been exempted from the operation of the Act because workers employed there are entitled to get all benefits under the Industrial Laws and further that since there are certified standing orders governing their service conditions, the appellant should have approached the Industrial Tribunal/labour Court for redressal of his grievances and not the Prescribed Authority under the Act. Mr. Mridul, leaned Senior Advocate therefore argued that this plea is far from being a contention that the shop was attached to the factory and therefore the benefits under the Factories Act would be available to the appellant herein. It was argued that last para of Section 2 (17) defining "shop" require two conditions to be fulfilled. Firstly that the shop should be attached to a "commercial establishment" and secondly that the workman should be getting the benefits of the Factories Act. A look at the standing orders which have been placed on record at Annexure 2 makes it manifest that reference to Factories Act is limited to shifts of hours and work for various categories of workmen. The very fact that reference to Factories Act has been made in the standing orders, goes to show that the Factories Act does not ipso facto apply to the appellant herein. Had it been so, there was no reason why standing orders should have at all been made. Moreover, no such objection was raised before the Prescribed Authority under the Act of 1958 and obviously therefore no evidence on that point was adduced.