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M. Ramgopal Vs. State of A.P. and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberCr. M.P. No. 179 of 1985
Judge
Reported in(1994)IIILLJ787AP
ActsAndhra Pradesh Shops and Establishments Act, 1966 - Sections 2(5) and 3(1); Factories Act
AppellantM. Ramgopal
RespondentState of A.P. and anr.
Appellant AdvocateY. Sivarama Sastry and ;Y. Venkata Sastry, Advs.
Respondent AdvocateAdditional Public Prosecutor
DispositionPetition dismissed
Excerpt:
.....anything not mentioned is excluded. - 11. establishment' as defined under section 2(10) of the andhra pradesh shops and establishments act is an inclusive definition and includes a commercial establishment as well and 'commercial establishment' in turn has been defined under section 2(5) of the andhra pradesh shops and establishments act as meaning an establishment which carries on any trade, business, profession or any work in connection with or incidental or ancillary to any such trade, business or profession. even otherwise there is an overlapping inasmuch as an employee who is an employee in an establishment within the meaning of section 2(5) of the andhra pradesh shops and establishments act could as well be an employee in an establishment which could be reckoned, as a factory...........as automotive manufacturers, maddipalem, visakhapatnam, has once again to be registered under the andhra pradesh shops and establishments act mainly relying upon the definition of 'employee' under section 2(8) of the andhra pradesh shops and establishments act and on, the definition of 'worker' under section 2(1) of the factories act it has been argued by the learned counsel for the petitioners that inasmuch as the personnel who are working in its establishment come under the definition of 'worker' as defined under the factories act and since such of the employees have been excluded any the definition under section 2(8) of the shops and establishments act and the establishment has already been registered under the factories act, the insistence upon registration of the establishment.....
Judgment:

A. Seetharam Reddy, J.

1. The short but important question which has been debated in this criminal miscellaneous petition is whether the establishment in which the petitioner is working as branch manager, which is already registered under the Factories Act as Automotive Manufacturers, Maddipalem, Visakhapatnam, has once again to be registered under the Andhra Pradesh Shops and Establishments Act Mainly relying upon the definition of 'employee' under Section 2(8) of the Andhra Pradesh Shops and Establishments Act and on, the definition of 'worker' under Section 2(1) of the Factories Act it has been argued by the learned counsel for the petitioners that inasmuch as the personnel who are working in its establishment come under the definition of 'worker' as defined under the Factories Act and since such of the employees have been excluded any the definition under Section 2(8) of the Shops and Establishments Act and the establishment has already been registered under the Factories Act, the insistence upon registration of the establishment under the Andhra Pradesh Shops and Establishments Act is without foundation as it is excluded by the provisions enacted under the Andhra Pradesh Shops and Establishments Act.

2. Before analysis the relevant report under exhibit I made by the Assistant Labour Officer under the Shops and Establishments Act and also the relevant statutory provisions be noticed. According to the inspection order, dated 22 January 1983, the position of the personnel in the establishment is as under: workshop-13, administrative staff-51. It also shows the workshop trainees and sales trainees. Then it reads:

'Sir, Upon a recent inspection of your establishment by the Labour Officer, Visakhapatnam, on 18th Nov. 1982, it was found to the extent indicated below that certain provisions of the Act and rules were not being carried out. Show cause in writing within 7 days, as to why penal action under this Act should not be taken against you.'

3. Then on 9th May 1983, the establishment replied stating in substance that inasmuch as the establishment has already been registered under the Factories Act, the question of compliance with the provisions under the Andhra Pradesh Shops and Establishments Act and the rules framed therein does not arise. Thereafter proceedings were initiated before the Special Munsif Magistrate, Visakhapatnam, in S.T.C. No. 1885 of 1883, for non-compliance with the provisions enacted under Sections 3(1) and 3A read with Rule 3 of the Andhra Pradesh Shops and Establishments Act. The learned Special Munsif Magistrate held against the establishment stating that the establishment falls within the meaning of Section 2(5) of the Andhra Pradesh Shops and Establishments Act and, therefore, it has to be registered under the said Act. Consequently, the learned Magistrate found the petitioner guilty of the said offence and convicted the petitioner, who is the branch manager of the said establishment and sentenced him to pay a fine of Rs. 25 on each count, total Rs. 50 and in default to undergo simple imprisonment for four days. Against the said conviction, the matter was carried in revision before the Second Additional Sessions Judge, Visakhapatnam, who confirmed the conviction and sentence passed against the petitioner.

4. Now, the statutory provisions may be noticed. Section 2(5) of the Andhra Pradesh Shops and Establishments Act reads:

''Commercial establishment' means an establishment which carries on any trade, business, profession or any work in connection with or incidental or ancillary to any such trade, business or profession or which is a clerical department of a factory or an industrial undertaking, or which is a commercial or trading or banking or insurance establishment and includes an establishment under the management and control of a co-operative society, and establishment of a factory or an industrial undertaking which falls outside the scope of the Factories Act, 1948, and such other establishment as the Government may, by notification, declare to be a commercial establishment for the purposes of this Act, but does not include a shop.'

5. Section 2(8) reads:

''Employee' means a person wholly or principally employed in, and in connection with, any establishment and includes an apprentice and any clerical or other staff of a factory or industrial establishment who falls outside the scope of the Factories Act, 1948, but does not include the husband, wife, son, daughter, father, mother, brother or sister of an employer or his partner, who is living with and depending upon such employer or partner and is not in receipt of any wages.'

6. Section 2(10) reads:

''Establishment' means a shop, restaurant, eating-house, residential hotel, lodging house, theatre or any place of public amusement or entertainment and includes a commercial establishment and such other establishment as the Government may, by notification, declare to be an establishment for the purposes of this Act.'

7. Section 3(1) reads as under:

'3 (1) Every employer of an establishment shall-

(i) in the case of an establishment existing on the date of commencement of this Act, within thirty days from that date; and

(ii) in the case of a new establishment, within thirty days from the date on which the establishment commences its work, send to the Inspector concerned a 'statement containing such particulars, together with such fees as may be prescribed.'

8. Section 2(1) of the Factories Act reads:

''Worker' means a person employed, directly or by or through any agency including a contractor with or without the knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to or connected with, the manufacturing process or the subject of the manufacturing process but does not include any member of the armed forces of the Union'.

9. Section 2(m) reads:

''Factories' means any premises including the precincts thereof-

(i) whereon ten or more working are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on; or

(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on but does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1952), or a mobile unit belonging to the armed forces of the Union, a railway running shed or a hotel, restaurant or eating place.

Explanation :- For computing the number of workers for the purposes of the clause all the workers in different relays in a day shall be taken into account.'

10. It is needless in this case to go into the aspect on which certain arguments for a while were advanced by the learned counsel for the petitioner, as to whether the activity of selling scooters on the one hand and servicing them on the other is an integrated one or not, inasmuch as it was very rightly later realised by the learned counsel that it makes very little difference whether it is an integrated one or not because the question principally raised by the learned counsel for the petitioner was whether the establishment of the petitioner which has already been registered under the Factories Act should once again be registered under the Andhra Pradesh Shops and Establishments Act. No provision has been brought to my notice which in explicit terms says that any establishment which has already been registered under the Factories Act must be excluded from the provisions of the Andhra Pradesh Shops and Establishments Act even if there is any common element in the establishment. But the main thrust of the learned counsel for the petitioner appears to be on the basis of the definition in Section 2(8) of the Andhra Pradesh Shops and Establishments Act which defines an employee' and in particular on the words 'and includes an apprentice and any clerical or other staff of a factory or industrial establishment who fall outside the scope of the Factories Act, 1948', and the definition of 'worker' in Section 2(1) of the Factories Act. The learned counsel for the petitioner argued that since the establishment has already been registered under the Factories Act as personnel fall within the meaning of 'worker' as defined under the Factories Act and they being excluded by the definition under Section 2(8) of the Andhra Pradesh Shops and Establishments Act, the registration under the Andhra Pradesh Shops and Establishments Act is not postulated. I apprehend that the entire edifice on which the argument of the learned counsel for the petitioner is sought to be structured is misplaced and misconceived.

11. 'Establishment' as defined under Section 2(10) of the Andhra Pradesh Shops and Establishments Act is an inclusive definition and includes a commercial establishment as well and 'commercial establishment' in turn has been defined under Section 2(5) of the Andhra Pradesh Shops and Establishments Act as meaning an establishment which carries on any trade, business, profession or any work in connection with or incidental or ancillary to any such trade, business or profession.

12. True it also further defines as meaning any establishment which is a clerical department of a factory or an industrial undertaking or which is a commercial or trade or banking or insurance establishment, etc. But the fact remains that the establishment, in question, in my view, falls within the very first clause of the definition of 'commercial establishment'. It is not in dispute that this establishment is not carrying on an activity which cannot be reckoned as business. It is not also equally in dispute that the incidental or ancillary activity of rendering service is part of its business and if that be so the entire activity of the establishment in question falls within the very first clause of the definition of 'commercial establishment'. If that be so, it must get itself registered under Section 3(1) of the Andhra Pradesh Shops and Establishments Act. The exclusion is sought to be based upon the definition of 'employee' which has little or no nexus with the main engagement of a commercial establishment. Even otherwise there is an overlapping inasmuch as an employee who is an employee in an establishment within the meaning of Section 2(5) of the Andhra Pradesh Shops and Establishments Act could as well be an employee in an establishment which could be reckoned, as a factory. But that does not in any way assist or help in advancing the argument that such of those employees might fall outside the scope of the Factories Act. That cannot by itself indicate the exclusion of such an establishment from being registered under the Andhra Pradesh Shops and Establishment Act. In the absence of any express provisions or any other authoritative pronouncement it is indeed very difficult for this Court to accede to the submission made by the learned counsel for the petitioner that an establishment which has already been registered under the Factories Act need not be registered under the Andhra Pradesh Shops and Establishments Act.

13. These two pieces of legislation do fall within the ambit of welfare legislation arid such legislations which are beneficial in nature must not only receive liberal interpretation from the Courts of Judicature but also must receive purposeful interpretation as otherwise it would defeat the very object behind those legislations. Each piece of legislation postulates variegated benefits of welfare measure and the beneficiaries in the establishments which are covered by both the legislations must receive those benefits. To that extent they will stand deprived of, if the theory sought to be advanced by the learned counsel for the petitioner is accepted. More so, when there is absolutely no provision whatsoever in either of the legislations excluding or restricting the ambit of application of each piece of legislation.

14. In the result, I have no hesitation in holding that in view of the provisions enacted in Section 3(1) read with the definitions in Sections 2(5), 2(8) and 2(10) of the Andhra Pradesh Shops and Establishments Act the petitioner is under an obligation to register his establishment under the aforesaid provisions and since he has failed to do sit the provisions of Section 54 come into play. The conviction and the sentence of fine which have been passed by the lower Court are, therefore, confirmed. This criminal miscellaneous petition is, therefore, dismissed.


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