THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No. 10511 of 1998 O R D E R: Heard Sri K.S. Murthy, learned counsel for the writ petitioner and Sri P. Prabhakara Rao, learned counsel for the 2nd respondent. This Writ Petition is directed against the order passed on 29th December 1997 by the 1st respondent - Deputy Commissioner of Labour, Zone-II, Eluru, West Godavari District, rejecting the appeal preferred by the writ petitioner herein. The writ petitioner is said to have been engaged by the 2nd respondent as an Electrician, Fitter and Pump Operator and he had rendered service as such from 10th May 1982 until he was asked not to report to duty on 15th July 1993. The case of the writ petitioner is that the 2nd respondent is a Church and thus a religious institution, but nonetheless, it has constructed a residential complex and also allows the devotees and worshippers as well as the other tourists to utilize this residential accommodation for their stay. They are also charged for this service. This apart, the 2nd respondent Church runs various shops for the purpose of sale of various articles like books and other fancy items and gift articles at a fixed price by the Church authorities. It was considered as a revenue earning enterprise for sustaining the various activities undertaken by the Church. Therefore, the writ petitioner submits that the 2nd respondent answers the definition of ‘establishment’ as is found in Section 2(10) of the Andhra Pradesh Shops & Establishments Act, 1988 (henceforth referred to as ‘the Shop Act’). The petitioner further contends that he also answers the description of the expression ‘employee’ as defined in Section 2(8) of the Shop Act. Therefore, the grievance of the writ petitioner was that the procedure prescribed under Section 47 of the Shop Act which prescribes the conditions precedent for terminating the services of an employee are not followed and hence, the order passed directing the writ petitioner to stop rendering services to the 2nd respondent with effect from 15th July 1993 is an illegal exercise carried out by the 2nd respondent. Hence, the writ petitioner has moved the Assistant Commissioner of Labour, Vijayawada, who is the competent authority to deal with the appeals preferred against improper termination of employees under the Shop Act, in terms of Section 48 of the said Act. By an order passed on 2nd August 1996, the said Appellate Authority/Assistant Commissioner of Labour, Vijayawada has dismissed the appeal preferred by the writ petitioner. It will also be appropriate, at this stage, to notice that the writ petitioner’s wife, Smt. B.V. Kumari, is also said to have been employed as a Sales Girl in the shops run by the 2nd respondent Church and since her services have also been abruptly terminated, she has also preferred an appeal under Section 48 of the Shop Act before the same Assistant Commissioner of Labour, who rejected her appeal also on 2nd August 1996. Incidentally, the Appellate Authority has passed a common order in both the cases referred to supra. The appeal preferred by the present petitioner against the said order of the Assistant Commissioner of Labour before the 1st respondent – Deputy Commissioner of Labour has been rejected by the impugned order. The 1st respondent, after having noticed the definition of the expression ‘establishment’, as defined under Section 2(10) of the Shop Act, has attempted to draw a comparison with the expression ‘commercial establishment’ and concluded that the establishments carrying on the activity, which is spiritual or religious in nature, do not fall within the definition of ‘industry’ and hence, the Shop Act or for that matter, the Industrial Disputes Act, 1947 also does not get attracted. A further finding of fact was recorded that the performance of duties of an Electrician by the writ petitioner is purely an incidental aspect concerning any organization even though it is a religious or spiritual establishment. Therefore, the appeal has been dismissed. It is rather unfortunate that the primary as well as the Appellate Authorities under the Shop Act have not focused their attention on these aspects of the matter perhaps because they were of the view that the 2nd respondent establishment does not get attracted to the provisions of the Shop Act. Sri P. Prabhakara Rao, learned counsel for the 2nd respondent, strenuously contends that religious or charitable institutions cannot be described as establishments with the meaning of Shop Act. The main purpose of the Shop Act is to cover essentially shops which carry on some form of commercial activity or the other and it is not intended to cover religious or charitable institutions like the 2nd respondent Church. He further submits that even though certain residential accommodation is made available to the worshippers and devotees, what is being charged is a nominal amount for the purpose of utilizing the same for the upkeep and maintenance and not for making any profit out of the same on commercial lines. Similarly, the shop where various religious books on Christian Theology and related gift articles, which are sold, are essentially intended to advance the Christian religious faith and philosophy and the same cannot be treated like any other commercial establishment which is run with a profit motto. The Shop Act has been enacted to consolidate the law relating to the regulation of conditions of work and employment in shops, commercial establishments, restaurants, theaters and other establishments and for matters connected therewith. The definition of ‘establishment’ in terms of Section 2(10) means a shop, restaurant, eating-house, residential hotel, lodging house, theater or any place of public amusement or entertainment a n d includes a commercial establishment and such other establishment as the Government may by notification declare to be an establishment for the purpose of this Act. It is, therefore, clear that the expression ‘establishment’ is fairly widely worded. The language employed seeks to admit, within the fold of the expression ‘establishment’, all shops, restaurants, eating- houses, hotels, theatres and places of public amusement and entertainment and also include commercial establishments. The expression ‘commercial establishment’ has been separately defined under Section 2(5), meaning an establishment, which carries on any trade, business, profession or any work in connection with or incidentally or ancillary to any such trade, business or profession. Therefore, all commercial establishments aforesaid fall within the definition of ‘establishment’, in terms of Section 2(10) of the Shop Act. Apart from various commercial establishments, there could be other establishments as well and hence, the Shop Act has made a clear distinction between commercial establishments on one hand and other establishments and hence, the Shop Act has defined the expression ‘establishment’ separately from ‘commercial establishment’. Therefore, a distinction has got to be borne in mind between ‘establishments’ and ‘commercial establishments’. It is not always necessary that one need to be employed in ‘commercial establishment’, to derive the benefit of coverage of the Shop Act. Obviously, the Legislature intended to broaden and widen the coverage of the Act and hence, it has intended to include all shops and restaurants, eating-houses and incidentally included all commercial establishments as well. Therefore, even if an establishment does not amount to be a commercial establishment and if it is a shop or a restaurant or a eating-house, or a hotel or a lodging house or a theater or any place of public amusement or entertainment, it automatically gets covered by the sweep of the Shop Act. The expression ‘shop’ in common parlance is understood in the following manner: “ Shop - `Shop’ means a place where any kind of commercial activity is pursued and where services are rendered to the customers. According to the Shorter Oxford Dictionary, the expression “shop” means “a house or building where goods are made or prepared for sale and sold.” It also means a “place of ordinary occupation is carried on”. In ordinary parlance a “shop” is a place where the activities connected with the buying and selling of goods are carried on. The Collins English Dictionary defined the word ‘shop’ thus : (i) a place esp. a small building for the retail sale of goods and services; and (ii) a place for the performance of a specified type of work; workshop”. A place where services are sold on retail basis is also a shop.” Therefore, every shop need not be a commercial establishment, while all commercial establishments are shops. Hence, even a non- commercial establishment is liable to be treated and construed to be a shop. When once a shop becomes an establishment, in terms of Section 2(10), the provisions of the Shop Act automatically are attracted to it. Similarly, where lodging facilities are offered, even though at a heavily subsidized rate, for the visitors of the 2nd respondent church, it falls within the four corners of the definition of establishment. The next question that calls for consideration is whether the writ petitioner, who has been engaged to perform the duties of an Electrician, Fitter and Pump Operator, falls within the expression ‘employee’ or not. Once again, the expression ‘employee’ has been couched in very broad terms by the Shop Act, as is found in Section 2(8). Employee means any person employed in and in connection with any establishment. Only persons, who have been kept out of the purview of this expression ‘employee’ are the husband, wife, son, daughter, father, mother, brother and sister of an employer or his partner, who is living with and dependant upon such employer or partner and is not in receipt of any wages. In other words, if an employee does not fall within the aforementioned relationships, with the employer, or his partner, and he is also in receipt of any wages, he automatically becomes an employee of an establishment. It is not the case of the 2nd respondent in the instant case that the writ petitioner was related to any one concerning the 2nd respondent establishment within the forbidden degrees noted supra. Further, it is the assertion of the petitioner that he was in receipt of wages. Therefore, the writ petitioner squarely answers the description of an ‘employee’ as well. This takes us to the sweep of Section 47 of the Shop Act. Section 47 has prescribed a procedure mandatorily required to be complied with. Sub-section (1) of Section 47 made it abundantly clear that no employer shall, without a reasonable cause, terminate the service of an employee who has been in his employment continuously for a period of not less than six months, without giving such employee at least one month’s notice in writing or wages in lieu thereof and in respect of an employee who has been in his employment continuously for a period of not less than one year, a service compensation amounting to 15 days’ average wages for each year of continuous employment. It was also further made clear that every termination should be made by the employer in writing and a copy of such termination order shall be furnished to the Inspector having jurisdiction over the area within three days of such termination. Sub-section (4) of Section 47 further made it clear that where a service compensation is payable to an employee, he shall be entitled to receive his wages from the date of termination of his service until the date on which the service compensation so payable is actually paid. It is, therefore, very clear that Section 47 of the Shop Act mandated every employer not to terminate the service of any of its employees without a reasonable cause and also without putting such an employee on notice for a period of not less than one month in writing or by paying wages in lieu thereof. Apart from these two requirements, it was also thrust upon every employer to pay service compensation at the rate of 15 days’ average wages for each year of continuous employment. In the instant case, the writ petitioner has been asserting that he was in continuous employment in the 2nd respondent establishment from 10th May 1982. According to him, he has completed more than 11 years of service. He has neither been offered any prior notice nor wages in lieu thereof nor was he offered the service compensation, apart from his termination itself lacking any justifiable or reasonable cause warranting such termination. I am also fortified in my view by the judgment rendered by my Lord Brother Justice Sri C.V. Ramulu who decided Writ Petition No. 9888 of 1998 instituted by Smt. B. Vasanta Kumari, the wife of the present petitioner herein whose appeals, as was already noted supra, were dealt along with the appeal preferred by the writ petitioner herein by the Assistant Commissioner of Labour as well as by the Deputy Commissioner of Labour. In view of my finding that the 2nd respondent establishment, by virtue of its running private residential accommodation, for the convenience of the visitors, worshippers, or devotees and the said accommodation being provided for a price, and the fact that the 2nd respondent establishment runs a shop where apart from religious books, various other fancy articles and gift items are also offered for sale, it amounts to an establishment and the provisions of the Shop Act get attracted, I allow this Writ Petition and set aside the order passed by the 1st respondent herein. No costs. The writ petitioner is also entitled to the benefits of sub-section (4) of Section 47 of the Shop Act till such time he gets reinstated. ---------------------------------- (NOOTY RAMAMOHANA RAO, J) 12th November 2009 ksld