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Judgment
Petitioner seeks to quash the order of the second respondent in T.A.E. Case No. 84 of 1982 dated 20th July 1983. Petitioner states as follows
: First respondent was employed as Fireman in the petitioner''s mill at Perambur which is covered by the provisions of the Factories Act and had
been registered as a factory under the said Act. Being a Fireman, his work was part of the work in the factory and, therefore, on first respondent
moving the second respondent u/s 41 of Tamil Nadu Shops and Establishments Act, 1947, Questioning the validity of the termination order passed
by the petitioner on 12th October 1982, the petitioner filed a preliminary counter statement without going into the merits and claimed that the
second respondent had no jurisdiction to entertain the appeal preferred by first respondent in view of G.O.Ms. No. 545, Development, dated 10th
February 1950. The second respondent, in spite of the preliminary objection raised, having held that he has the necessary jurisdiction to consider
the appeal preferred by first respondent, this writ petition is filed.
On behalf of first respondent, it is submitted that when admittedly, petitioner is a commercial establishment within the definition of Section 2(3)
of the Shops Act, in the light of the decision of this Court in S. Ramanathan Vs. Saroja Mills Ltd. and Others, , even though it may be a factory,
the provisions of the Shops Act would continue to apply to the workman involved in such establishments and hence the second respondent had the
jurisdiction to entertain the appeal.
The second respondent, by relying upon the aforesaid decision, held that he had the jurisdiction to entertain the appeal filed u/s 41(2) of Shops
Act in spite of the petitioner relying upon G.O.Ms. No. 545, Development, dated 10th February 1950.
Mr. Sanjay Mohan, learned counsel for petitioner, would submit that the second respondent has proceeded on the basis that the first respondent
was working as Fire Brigade with Token No. 7 in its Madras Mills and, therefore, the fact that the Establishment in which he was working is a
factory covered by the provisions of the Factories Act, cannot be any longer in dispute. He refers to the definitions of ''worker'' u/s 2(1), ''factory''
u/s 2(m) and ''manufacturing process'' u/s 2(k) of the Factories Act, to contend that when the nature of work carried out by the first respondent, is
a kind of work involved in the factory, which is registered under the Factories Act, he is a workman who would come within the provisions of the
Factories Act. It being so, in the light of G.O.Ms. No. 545 passed u/s 6 of the Shops Act granting exemption from all the provisions of the Act in
respect of any establishment or class of establishments covered by the Factories Act 1948, applies, first respondent had no right to move the
second respondent, by invoking Section 41(2) of the Act. To this claim, learned counsel for the first respondent would state that u/s 2(3) when the
petitioner is a commercial establishment and it being a joint stock company, and when the nature of work done by the first respondent is not
connected with any manufacturing process which would fall u/s 2(1) of the Factories Act, the notification issued u/s 6 of the Shops Act cannot be
put as against the first respondent.
That the Madras Mills of the petitioner is registered under the Factories Act could not be disputed even before the second respondent and that
was why he had proceeded on the basis that first respondent was a Fire Brigade with Token No. 7 working in the Madras Mills. Even though he
was a Fire Brigade, under the provisions of the Factories Act, there being a compulsive need to have an establishment consisting of firemen, he
cannot claim that his nature of job would not come within the ambit of Section 2(k) of the Factories Act. Being a workman within the meaning of
Section 2(1) of the Factories Act, and employed in a factory which is registered under the Factories Act, the exemption granted u/s 6 of the Shops
Act, relating to Establishments registered under the Factories Act would automatically apply. The decision in S. Ramanathan v. Saroja Mills Ltd.
Madurai (supra) had not taken into account the existence of the said G.O. and, therefore, it cannot be an authority for the facts and circumstances
of this case.
u/s 6 of the Shops Act, the State Government having issued G.O.Ms. No. 545, Development, dated 10th February 1950 and since it continues
to be in force, first respondent had no right to prefer an appeal u/s 41(2) of the Act relating to the dispute which had arisen between him and the
petitioner.
It is not as if he is left without any remedy and what is held herein is only to prevent him from invoking the provisions of the Shops Act. It is for
him to take appropriate legal advice and seek for such remedies as are available to him under law and such right in him is not in any manner
curtailed by the order passed in this writ petition. It is in this view, the writ petition is allowed. No costs.