Subhash Nagar, Jaipur v. The General Manager

Judgment

1. The Managing Director, Vipul Motors Limited, 27/5 Km. Mathura Road, Faridabad 121002 Haryana

2. The General Manager (Sales and Marketing) Vipul Motor Limited, Vasundhara, Tonk Road, Jaipur 302018

3. The General Manager Works Vipul Motors Limited, F-124 A, Malviya Industrial Area, Jaipur 302017

4. The Prescribed Authority, Rajasthan Shops And Commercial Establishment Act 1958, Jaipur City, Jaipur. ----Respondents For Petitioner(s)

: Mr.Ankit Sethi with Mr.Aman Manju For Respondent(s) : None present JUSTICE ANOOP KUMAR DHAND Order 05/03/2025

1. By way of filing this petition, a challenge has been led to the impugned order dated 06.12.2000 passed by the Authority under Rajasthan Shop and Commercial Establishment Act, 1958 (for short, “the Act of 1958”), Jaipur City, Jaipur in RSC Case No.4/1997 by which the application filed by the petitioner under Section 28(A) of the Act of 1958 has been rejected on a technical count that the provisions of the Act of 1958 are not applicable upon the petitioner. [2025:RJ-JP:9936] (2 of 5) [CW-5134/2001]

2. Learned counsel for the petitioner submits that the petitioner was appointed as Manager, Customer Care in the workshop of the respondent-establishment on 01.05.1996 and his monthly salary was Rs.7,000/-, and his services were terminated on 04.02.1997, without any justified reason, hence aggrieved by the aforesaid action of the respondents, he approached the concerned Authority under the Act of 1958 for redressal of his grievances. Counsel submits that instead of deciding the matter on its merits, the application filed by the petitioner was rejected on a technical count that provisions of the Act of 1958 are not applicable in the present matter, as the petitioner falls within the definition of ‘workman’ and he was entitled to approach before the competent Authority under the Factories Act, 1948 (for short, “the Act of 1948”). Counsel submits that the petitioner is not a ‘workman’ as defined under Section 2(s) of the Industrial Dispute Act, 1947 (for short, “the Act of 1947”) and the said act is not applicable upon those employees who have been working or employed in a managerial or administrative capacity. Counsel submits that under these circumstances, interference of this Court is warranted.

4. None present on behalf of the respondents. Heard and considered the submissions made at Bar and perused the material available on record.

5. Perusal of the record indicates that the petitioner was appointed as Manager, Customer Care by the respondent- Establishment on 01.05.1996. This fact is not in dispute that the services of the petitioner were discontinued by the respondent- Establishment on 04.02.1997. This fact is also not in dispute that for redressal of the grievances, the petitioner approached the [2025:RJ-JP:9936] (3 of 5) [CW-5134/2001] Authority under the Act of 1958, and by way of filing an application under Section 28(A) of the Act of 1958, the said application submitted by the petitioner was rejected on a technical count that the provisions of the Act of 1958 are not applicable in the present matter as the petitioner falls within the definition of ‘workman’ under the Factories Act, 1948.

6. Perusal of the definition clause as defined under Section 2(s) of the Act of 1947 clearly indicates that the aforesaid provisions of the Act of 1947 are not applicable upon the employees mainly working in managerial or administrative capacity for ready reference, the definition clause as defined under Section 2(s) of the Act of 1947 as reproduced as under:- “Section 2(s) “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person— (i) who is subject to the Air Force Act, 1950; or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or [2025:RJ-JP:9936] (4 of 5) [CW-5134/2001] (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.”

7. It appears that before passing the order impugned, the relevant provisions contained under Section 2(s) of the Act of 1947 were not taken into account by the Presiding Officer, who passed the order impugned.

8. This Court in the case of Rajendra Kumar Soni Vs. Appointed Authority reported in 1994 (1) WLC (Raj.) 362 has held that where a person is falling within the definition of ‘worker’ as defined in the Factories Act, provisions of the Rajasthan Shops and Commercial Establishments Act, 1958 are not applicable to him, but the mere fact that the workshop is registered under the Factories Act by itself will not lead to the conclusion that the petitioner is covered by the Factories Act and in the instant case also, mere registration of the respondent-Establishment under the Factories Act does not necessary means that the establishment is a factory as defined under the provisions contained under the Act of 1948. The order passed by the competent Authority is not sustainable in the eye of law and is liable to be quashed and set- aside.

9. In view of the above, the impugned order dated 06.12.2010 stands quashed and set-aside. The matter is remitted back to decide afresh on its merits, after affording due opportunity of hearing to the petitioner and the respondents, expeditiously as [2025:RJ-JP:9936] (5 of 5) [CW-5134/2001] early as possible, preferably within a period of one year from the date of appearance before the Authority.

10. The parties are directed to appear before the Authority on

02.04.2025.

11. Since the respondents have not put in appearance before this Court and they are not aware of passing of this order, it is expected from the competent Authority under the Act of 1958 to issue fresh notice to the respondents for adjudication of the matter.

12. All pending application, if any, also stand disposed of. Aayush Sharma/15 (ANOOP KUMAR DHAND),J