- (1.) This appeal arises out of a judgment of Amiya Kumar Mookerji, J. delivered on the 26th November, 1975. The appellant is Guest Keen Williams Ltd. The appellant has factories at 97, Andul Road and at 124, Currie Road, Howrah. The head office o the appellant prior to 1969 wa3 situated at 1, Middleton Street. Calcutta. It is the case of the appellant that before March 1969, the appellant's industrial undertaking was completely reorganised for rationalisation, reduction of expenditure and restructuring. The factories were divided into four operating divisions, namely (l) GKW Steel Division (2) GKW Fasteners' Division, (3) GKW Engineering and Forging Division, and (4) Precision Pressings Division. The appellant had decided to abolish its head office at No. 1, Middleton Street, Calcutta. According to the appellant, such abolition would have resulted in retrenchment of a large number of head office employees and, therefore, the Head Office Employees' Union demanded that no one should be retrenched. On the 4th February, 1969 a tri-partite settlement after several discussions was arrived at. The settlement decided that the place of work of all persons who used to work at head office would be any establishment of the appellant in West Bengal from 1st of March, 1969. Employees doing works relating to exports, imports and overseas agencies would work at No. 3A, Shakespeare Sarani, Calcutta. Other persons sported in, 1976 1 CTC 55 . who used to work at No. 1, Middleton Street' Calcutta would work at 97, Andul Road' Howrah. It was, further, provided by the settlement that persons who would work at Andul Road factory would be governed by the terms and conditions of service mentioned in Para. II of the settlement in supersession of and to the exclusion of t e terms and conditions of service applicable to them hitherto. In consideration of the changes in the conditions of service which ware applicable to them while working at No. 1, Middleton Street, Calcutta, the Company, it was agreed, would pay compensation on the basis stated in Para. II (13) of the settlement. It is stated that a total sum of Rs. 12,00,000/- was paid by way of compensation to the head office employees for changing their conditions of service and it was also settled that no indus trial dispute would be raised in future for changes of the conditions of service or for change of the pace of work. The settlement, further, provided that services of those who would not agree to work at 97, Andul Road, Howrah would be terminated on and from 23th February, 1969. Thereafter, from 1st of March, 1969, each of the 213 employees who used to work at No. 1 Middleton Street and had agreed to work at the factory premises at No. 97, Andul Road, Howrah, came to be governed by the Factories Act, 1948 and the Industrial Employment (Standing Orders) Act, 1946. The clerical employees previously: working at the head office came to be attached to the different shop floors of the factories and were assigned works closely connected, according to the appellant, with the manufacturing processes in different manufacturing units. On 27th/29th May, 1971. there was an order by the Government of West Bengal under S. 4 of the Factories Act, 1943 directing that the three departments of the previous factories of the appellant company should be treated as three different factories. Three separate factory licences and three separate registration numbers were given. In September 1972, Supervising Inspector, Shops & Establishments, Howrah visited the three factories of the appellant company. Thereafter, on 21st September, 1972, three separate letters to the three General Managers of the three factories were written on behalf of the State Government asking for certain particulars. It is not necessary to set out the said particulars. Replies were thereafter received from the three General Managers. Supervising Inspector, Shops & Establishments and some other Inspectors came to the factories to discuss the question of the applicability of the West Bengal Shops & Establishments Act 1963 to some persons working in the factories that is, those who used to work in the abolished head office. Thereafter, on the 2nd November, 1973, respondent no. 2 being the Officer on Special Duty, Government of West Bengal, wrote a letter to the Chief Inspector, Shops & Establishments. On the 20th December, 1973, two Inspectors of Shops & Establishments intimated to the three General Managers that there should be registration under the West Bengal Shops & Establishments Act, 1963. Finally, after certain correspondence, on 27th June, 1974 Officer on Special Duty of the State Government wrote to the Company's Divisional Director (Personnel) that the Government had been advised that the West Bengal Shops & Establishments Act, 1963 would be applicable to the clerical staff employed in the factory premises of the appellant company and the benefits would be available to those clerical staff. Therefore, the appellant was asked to implement the West Bengal Shops & Establishments Act, 1963 in respect of those employees who had been working as clerical staff in the bead office and who had been transferred pursuant to the settlement referred to hereinbefore. The validity of the said decision or the direction of the State Government became the subject matter of challenge in an application under Art. 226 of the Constitution. A rule nisi was issued. Ultimately, by the order dated 26th Novem. ber, 1975,* Amiya Kumar Mookerji, J. has discharged the rule and dismissed the application. This appeal arises out of the said order as mentioned hereinbefore.
(2.) The main point is, whether those who were working in the clerical department of the head office and who had been shifted and attached to the different shop floors of the factories could be treated as clerical department of a factory under the West Bengal Shops & Establishments Act, 1963. The West Bengal Shops & Establishments Act, 1963 is an Act to Regulare holidays, hours of work payment of wages and leave of persons employed in shops and establishments. Our attention was drawn to the definitions provided in Ss. 2 (2), 2 (5), 2 (10) and 2 (1) as well as Ss. 5, 6, 7, 16 and 17. On behalf of the appellant it was contended that in order to be a department, it was necessary that there should be a physical location or certain part should be set apart for doing clerical work. It was emphasized that in view of the different provisions of the Act, it was not possible to implement the Act unless it could be considered that there was a physical place or location where the department functioned or operated. Our attention was also drawn to *Reperted in 1, 1976 1 CTC 55. the several provisions of the Factories Act 1948 and it was contended that in the fact and circumstances of this ease as the person; who were doing clerical work had been attach ed to the faetories and these persons were undoubtedly connected with the manufacturing proces ses carried on by these factories and were governed by the provisions of the Factories Act, 1948 it was not possible to implement the provisions of both these Acts in respect of the same group of persons. We are, however, unable to accept these contentions. The West Bengal Shops and Establishments Act, 1963 was passed by the State Legislature by virtue of the powers under Item 24 of the Concurrent List of the seventh schedule of the Constitution. Under clause (ii) of Art. 254 of the Constitution it has received the assent of the President. If there is any conflict in respect of any provision between the provisions of this Act and the Factories Act, 1948 then the provisions of the West Bengal Shops and Establishments Act, 1933 would prevail. We are, however, in this appeal not concerned with the question whether there is any conflict between the provisions of this Act and the provisions of the Factories Act, 1948. We are only concerned with short question whether the 213 employees could be considered to constitute "clerical department" of a factory. In order to be a department, it is not necessary that there should be a physical location. The functional division of work might constitute a department. In the commercial establishment, the idea of a definite place or location was not implicit. In the case of Dr.Devendra M. Surti V/s. State of Gujarat, 1969 2 LLJ 116 . the Supreme Court was concerned with the meaning of the expression "commercial establishment" under Section 2 (4) of the Bombay Shops and Establishments Act. There the "commercial establishment" was defined in a slightly different manner which was to the following effect : " 'commercial establishment' means an establishment which carries on any business trade or profession or any work in connexion with, or incidental or ancillary to any business, trade or profession and includes a society registered under the Societies Registration Act, 1860, and a charitable or other trust, whether registered or not, which carries on whether for purposes of gain or not, any business, trade or profession or work in connexion with or incidental or ancillary there to but does not include a factory, shop, residential hotel, restaurant, eating house, tneatre or other place of public amusement or entertainment."
(3.) The Supreme Court observed that in the definition the emphasis was on the business activity of the organisation which carried on the trade and profession and not on the physical identity or location of a place. In the case of Srnt. Khatija Abdulla Ibrahim Tai v. National Tobacco Company of India Ltd., Calcutta, 1973 1 LLJ 447 (Guj). The Gujarat High Court was concerned with the same question, namely, S. 2 (4) of the Bombay Shops and Establish. ments Act, 1943 and held that there was nothing in the definition in S. 2 (4) of "com. mercial establishment" which indicated that before an establishment could become a com. mercial establishment, it should have a certain fixed place or abode, premises or location from where it operated. It was, further, observed that the idea of premises was not implicit in the definition of "commercial establishment". If it was not necessary in order to be a "commercial establishment" to have a definite location or abode, then in order to be a department of a "commercial establishment", in our opinion, it is not necessary that the department must function at a separate identifiable place. It has to be borne in mind ithat the Act is for "persons employed" in shops and establishments. In the aforesaid view of the matter, we are unab'e to accept the contention that without a separate physical location or a demarcated place where the 'department functions, the 213 employees Could not constitute the clerical department of the factory. There was a clerical department before the head office was shifted. The work that was done from the head office the self same work is now being done from the factory premises by the said employees. They do net cease to constitute a department simply because their place of work has been shifted. In the aforesaid view of the matter, the contentions urged in support of this appeal fail and the (appeal is, accordingly, dismissed.;