RAFIQ, J. - (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. The appellant initially approached the Prescribed Authority u/s 28-A of the Act. A preliminary objection was taken by the respondent with regard to the maintainability of the said application before the Prescribed Authority. When this was not accepted, the respondent filed a writ petition before this Court being S. B. Civil Writ Petition No. 1411/82 which was allowed on 6th August, 1982 and a direction was issued to the authority to decide the question of jurisdiction first soon after taking evidence of both the parties. However, the respondent did not adduce any evidence even after remand and the Prescribed Authority rejected its preliminary objection vide its order dated 2nd May, 1983. The Prescribed Authority allowed the application vide its order dated 30. 6. 1984 and directed reinstatement of the appellant with full back wages. The respondent then challenged the aforesaid order of the Prescribed Authority in S. B. Civil Writ Petition No. 2066/84 on the ground that no opportunity to lead evidence was granted to them. The writ petition was allowed on that premise and the matter was remanded back to the Presiding Authority with opportunity being granted to the respondent to lead evidence. The respondent thereafter examined as many as 5 witnesses and the evidence of the respondent was then closed. Against this order, the respondent filed S. B. Civil Writ Petition No. 2933/87 before this Court complaining that the evidence was wrongly closed. This time however their writ petition was dismissed by judgment dated 10. 12. 1987. The Authority by its order dated 17. 2. 1988 allowed the application of the appellant which order was challenged in S. B. Civil Writ Petition No. 1709/88. It was this writ petition which was eventually allowed vide judgment dated 27. 11. 1995 against which the present special appeal has been filed. The writ petition of the appellant was allowed by the learned Single Judge on the premise that the respondent being a government company was exempt from the purview of the said enactment by virtue of Section 3 of the Act of 1958. In taking such a view, the learned Single Judge based his judgment on the pronouncement made by the Hon'ble Supreme Court in C. V. Raman etc. vs. Management of Bank of India, 1988 S. C. 1369 wherein their Lordships while interpreting analogous provisions from another State held that a government company would be exempt from the purview of the Act. Additionally however the learned Single Judge also held that the provisions of the Act of 1958 are not applicable to the cases where the employees concerned are governed by the provisions of the Factories Act, 1948 and since the respondent was covered by the Factories Act, the provisions of the Act of 1958 would not apply to it. It is in this background that the appeal and the writ petition have been filed. We have heard Mr. M. Mridul, learned Senior Advocate for the appellant and Mr. Manish Shishodia and Mr. Vijay Agarwal learned counsel for the respondents and perused the record. Mr. M. Mridul, learned Senior Advocate for the appellant argued that the learned Single Judge has erred in law in holding that the retail shop of the Ganganagar Sugar Mills Ltd. where appellant was working would be exempt from the purview of the Act of 1958. In holding so, the learned Single Judge has misconstrued the provisions of Section 3 as also Sections 2 (3) and 2 (17) of the Act of 1958 defining the "commercial establishment" and the "shop" respectively. According to him, the learned Single Judge has wrongly applied the ratio of the judgment of the Hon'ble Supreme Court in C. V. Raman (supra ). He submit that basic question was whether "shop"as defined u/s 2 (17) of the Act of 1958 stands exempted from the Act whereas the entire question has been examined by the learned Single Judge from the point of view whether a "commercial establishment" would be exempt from the purview of the said Act. The fact however is that "commercial establishment" is separately defined in Section 2 (3) of the Act which carries a different meaning than the definition of "shop" as given in Section 2 (17) of the Act. Moreover the provisions of the Tamilnadu Shop and Establishment Act which were under consideration before their Lordships in C. V. Raman supra were entirely different than the aforesaid provisions under the Act of 1958. So far as Section 2 (7) is concerned, it only defines "establishment" and all that it provides is that establishment includes "commercial establishment". However the word "shop" stands separately defined in Section 2 (17) of the Act which stands independently by itself. A perusal of the definition of "shop" would reveal that later part of it also speaks of 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". Mr. M. Mridul, learned Senior Advocate argued that the very fact that before the word "commercial establishment", word "a" has been used, makes it abundantly clear that not all the commercial establishments stand excluded from the purview of Section 2 (17) of the Act. If that extended meaning were to be given to the definition of "shop", the Act and the provisions contained therein would become totally nonoperative altogether. Exclusion has been made only of such "commercial establishment" or a "shop" which is attached to a factory and where the persons employed in the shop are allowed benefits provided for the workers under the Factories Act. In further developing his argument, Mr. Mridul referred to Section 3 of the Act which contains the provisions relating to exemption. According to him, clause (a) and (b) of sub-section (1) of Section 3 of the Act refers to establishment or administrative service in which persons employed are mainly engaged in office work and offices of the government and of Reserve Bank of India. Clause (c ) of subsection ( 1) of Section 3 refers to only those establishments which are in respect of 'the "treatment or the care of the infirm, or the mentally unfit". Exemption is therefore not available to all the government ventures of commercial establishment but only to limited one. He argued that Section 3 supra is the only provision relating to exemption. In the case of administrative services however persons engaged are mostly required to work in office of the Central Government or any State Government or local authorities referred to in clauses (a) and (b) of Section 3 (1) of the Act. Clause ( c ) of Section 3 (1) refers to word "establishment". The learned Single Judge therefore committed an error in holding that the order passed by the Prescribed Authority under the Act of 1958 was without jurisdiction.
(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. Mr. M. Mridul, learned Senior Advocate has made reference to the affidavit filed by the appellant wherein it was asserted that the appellant was not being extended benefits available to a worker u/ss. 42, 43, 45, 46 , 47, 49, 52, 54, 55, 59, 75, 78 and 79 of the Factories Act. While relying on Annexure R/2 filed alongwith the reply to the writ petition no. 610/89, the learned counsel argued that the appellant was made to work from 9 to 12 hours which was against the provisions of the Factories Act. On the question of implication of the word "attachment" used in Section 2 (17) which defines "shop", the learned counsel argued that the word "attachment" might have many meanings but it has to be read in the context of the law under examination. What is physically hundred miles away cannot be considered to be attached to the factory. Besides, nature of activities carried out in the shop are entirely different than what was being done in the factories. Mr. Mridul has referred to the Corpus Secondum Vol. VII p. 168 as to the meaning of the word "attachment" which is reproduced as under:- " Attachment: In a popular sense, it has been defined as meaning close adherence or affection; fidelity; regard; and passion or affection that binds a person. It has been said that it it a stronger word than "well disposed", and, in particular connection, implies depth of conviction. Used in a mechanical sense, it has been defined as meaning something attached; some adjunct attached to an instrument, machine, or other object. As technically used, signifying a seizure of property and bringing it into the custody of the Court, the word is defined and the subject matter fully treated in the title Attachment, and in Garnishment. Attachment of privilege. In English Law, a process by which a man, by virtue of his privilege, calls another to litigate in that court to which he himself belongs, and who has the privilege to answer there. Attachment of the forest. One of the three courts formerly held in forests. The highest court was called "justice in eyre's seat;" the middle, "the swainmote:' and the lowest, the "attachment. " He therefore argued that the judgment of the learned Single Judge having been passed on the basis of misconstruction of the provisions of the Act and misapplication of the ratio of the Supreme Court judgment in C. V. Raman supra is liable to be set aside and the appellant is entitled to reinstatement. ;