- (1.) THIS Special Appeal arises out of the order passed by the learned Single Judge of this Court in S. B. Civil Writ Petition No. 3611 of 1988 on 25. 01. 1991.
(2.) BRIEF facts giving rise to this appeal are that Lake Palace Hotel and Motel (Pvt.) Ltd. , Udaipur owns the Lake Palace Hotel situated at Udaipur. Respondent Ranjit Singh was employed as Steward-cum-Dining Supervisor in the services of the above named Hotel drawing a monthly salary of Rs. 926. 85 when his services were terminated by order dated 15. 08. 1983. Aggrieved with the termination order, the respondent approached Prescribed Authority under the Rajasthan Shops and Commercial Establishment Act, Udaipur by making a complaint in writing in the prescribed manner under section 28a of the Rajasthan Shops and Commercial Establishment Act, 1958, hereinafter called as 'the Shop Act. ' A preliminary objection was raised before the Prescribed Authority about its jurisdiction to entertain the complaint on behalf of respondent Ranjit Singh on the ground that the term "employee" under section 2 (5) of the Shop Act has the same meaning as the term"workman" as defined under section 2 (s) of the Industrial Disputes Act, 1947, hereinafter referred to as 'the Central Act' and any employee who does not fall within the definition of workman under the Central Act is not entitled to invoke provisions of the Shop Act also. It was contended that since respondent Ranjit Singh working in supervisory post and drawing salary exceeding Rs. 500/-, he was not a workman within the meaning of Central Act, he does not come within the purview of the term "employee" also under the Shop Act. Therefore, the Prescribed Authority under the Shop Act has no jurisdiction to entertain the complaint. This objection found favour with the Prescribed Authority and the complaint was dismissed by the Prescribed Authority on 30. 3. 1988. The order of the Prescribed' Authority was challenged by way of above mentioned writ petition. The learned Single Judge of this Court vide his order under appeal set aside the order of the Prescribed Authority and directed the Authority to proceed with the matter and decide the complaint in accordance with law. Hence this appeal. It is contended by Mr. C. N. Sharma, learned counsel appearing for the appellants that the definition of employee under section 2 (5) of the Shop Act does not include any employee who does not fall within the definition of workman as defined in section 2 (s) of the Central Act. If for any reason, the term 'employee' under the Shop Act is interpreted to include even those employees who do not fall within the definition of the workman under the Central Act then to that extent, the provisions of the Shop Act, which is an Act of State Legislation, are repugnant to the provisions of the Central Act an Act of Parliament, therefore, the provisions of State Legislation must give way to the Central Legislation in view of the provisions of Article 254 of the Constitution of India. Firstly, it was contended by Mr. C. N. Sharma, learned counsel for the appellants that the Shop Act is only supplemental to the Central Act and does not override the provisions of the aforesaid Central Act. According to him, the Shop Act provides merely another forum as an alternative to one provided under the Central Act for settling the industrial disputes relating to dismissal or discharge from employment of any employee. As the Central as well as the Shop Act occupy the same field of the legislation, the subject over which the two Acts operate must necessarily be identical. Therefore, it is submitted that only those persons who can properly come within the definition of workman under the Central Act can be made subject of operation of the Shop Act providing forum for redressal of grievances against dismissal or discharge. Viewed from this point of view the term 'employee' used in the Shop Act should be read as being limited to the scope of the term 'workman' as defined under section 2 (s) of the Central Act. In order to appreciate the contention raised by the learned counsel for the appellants, it would be profitable to reproduce the relevant provisions of the two Acts. The Central Act which has been enacted to make the provisions for investigation and settlement of industrial disputes and for certain other purposes, defines terms 'industry' 'industrial disputes' and 'workman' as under: - "section 2 (j) defines 'industry' as under : - "industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workman. " Section 2 (k) defines industrial disputes as under : - "industrial dispute' means any dispute or difference between employers and employers, or between employers and workman or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. " Section 2 (s) defines 'workman' as under : - "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 to 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 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 (45 of 1950) or the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) 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 manageral or administrative capacity; or (iv) who being employed in a supervisory capacity, drawn wages exceeding one thousand six hundred rupees per mensem or exercise, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a manageral nature. "
(3.) IT may be stated for the present purposes that Chapter V-A of the Central Act deal with the lay off and retrenchment. Under Sec. 25 J. of the Central Act which reads as under : gives an overriding effect over other laws provided the provisions of other laws in respect of any matter provided under this chapter are not more favourable to workman: - "sec. 25 J. Effect of laws inconsistent with Chapter : (1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other lay (including Standing Orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946); Provided that where under the provisions of any other Act or Rules, Orders or Notifications issued thereunder or under any Standing Orders or under any award, contract of service or otherwise, a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more, favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act. (2) For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be determined in accordance with the provisions of this Chapter. " A reading of the aforesaid provisions leaves no room of doubt that the provisions of the Central Act for settling the industrial disputes are confined to settle disputes or differences between the employers and employers, or between the employers and workmen or between workmen and workmen. The definition of workman makes it abundantly clear that class of persons to which the Central Act apply does not include the whole host of employees under an employer but is confined only to such class of employees who conform to the term 'workman' defined under section 2 (s) of the Central Act. Chapter V A with its overriding effect under section 25 J is also confined to these class of persons who conform to the definition of the workman under the Central Act and the provisions of the Act do not enure for the benefit of whole host of employees working under an employer in an industry. It may also be notified that the Central Act does not define the term 'establishment' but defines only 'industry which has been given widest possible interpretation by the Apex Court of our land to include every form of activity where relations of master and servant exist except activities in exercise of sovereign power. Thus, notwithstanding the wide meaning given to the term 'industry' its application is not made operative on the entire class of employees in an industry/industrial establishment but is confined only to those class of employees who conform to the definition of term 'workman' under the Central Act. Against the aforesaid backdrop of the Central Act, the relevant provisions of the Shops Act are reproduced hereinbelow: - "section 2 (3) defines 'commercial Establishment' as under : - "commercial establishment" means a commercial or trading or banking or insurance establishment, an establishment or administrative service in which the persons employed are mainly engaged in office work; a hotel, a restaurant, boarding or eating house, cafe or any other refreshment house, a theatre or any other place of public amusement or entertainment and includes every such establishment as the State Government may, by notification in the Official Gazette, declare to be a commercial establishment for the purposes of this Act. " Section 2 (5) defines 'employee' as under : "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 (Central Act LXIII of 1948 ). " Section 2 (7) defines "establishment" as under : - "establishment" means a shop or a commercial establishment. " Section 2 (17) defines 'shop' as under : - "shop" means any premises where any trade or business is carried on or where services are rendered to customers and includes offices, store-rooms, godowns or warehouses, whether in the same premises or otherwise, used in connection with such trade or business but does not include a commercial establishment or a shop attached to a factory where the persons employed in the shop are allowed the benefits provided for workers under the Factories Act, 1948 (Central Act LXIII of 1948 ). " Section 28a which puts restriction on uninhibited dismissal or discharge by the employer & provide machinery for redressal reads as under: - 28-A Notice of dismissal or discharge by employer : - (1) No employer shall dismiss or discharge from his employment any employee who has been in such employment continuously for a period of not less than 6 months except for a reasonable cause and after giving such employee atleast one month's prior notice or on paying him one month's wages in lieu of such notice : Provided that such notice shall not be necessary where the services of such employee are dispensed with for such misconduct, as may be defined in the rules made by the State Government in this behalf, and supported by satisfactory evidence recorded at an enquiry held for the purpose in the prescribed manner. 2. Every employee so dismissed or discharged may make a complaint in writing in the prescribed manner to a Prescribed Authority within 30 days of the receipt of the order of dismissal or discharge on one or more of the following grounds, namely - (a) that there was no reasonable cause for dispensing with his services; or (b) that no notice was served upon him as required by sub- section (l); or (c) that he had not been guilty of any misconduct : Provided that the Prescribed Authority may condone delay in filing such a complaint, if it is satisfied that there was sufficient cause for not making the complaint within the prescribed time. (3) The Prescribed Authority shall cause a notice to be served on the employer relating to the said complaint, record briefly the evidence produced by the parties, hear them and make such enquiry as it may consider necessary and thereafter pass orders in writing giving reasons therefore. (4) While passing an order under sub-section (3), the Prescribed Authority shall have power to give relief to the employee by way of re-instatement or by awarding money compensation or by both. (5) The decision of the Prescribed Authority under this section shall be final and binding both on the employer and the employee. " Section 37 of the Shops Act saves rights and privileges which an employee in any establishment is entitled to under any other law, if such rights or privileges are more favourable to him than those to which he will be entitled under this Act. ;