Judgment B.P. Singh, J. The petitioner, M/s Tata Engineering & Locomotive Co. Ltd. (hereinafter to be referred to as TELCO) has filed the instant writ application for quashing of the order dated 27.12.1978 (Annexure 11) and the final order dated 30.7.1981 (Annexure 13) passed by the Presiding Officer, Labour Court, Jamshedpur (respondent no. 2) in B.S. Case No. 61/74. By Annexure 11, the order dated 27.12.78, respondent no. 2 held that the application under section 26 of the Bihar shops & Establishment Act. 1953 (hereinafter referred to as the Act) filed by respondent no. 3 Sri R.N. Tripathy was maintainable. By the final order passed on 30th July, 1981, Annexure 13, respondent no. 2 has held that the order of discharge passed by the petitioner against the applicant respondent no. 3, had been made in breach of the mandatory provisions of section 26 of the Act, and was therefore invalid. The aforesaid order of discharge was set aside and respondent no. 3 was found entitled to reinstatement with full back wages and other benefits. 2. The petitioner has challenged the aforesaid orders mainly on the ground that the application filed by respondent no. 3 under section 26 of the Act, was not maintainable since respondent no. 3 was not an employee within the meaning of section 2(4) of the Act. According to the petitioner, respondent no. 3 was employed in a factory and hence the Labour Court respondent no. 2 had no jurisdiction in the matter. Having regard to the submissions urged on behalf of the petitioner, only the relevant facts need to be stated. 3. In his complaint before the authority under the Act, respondent no. 2, the concerned employee, namely, respondent no. 3 stated that he was employed under the petitioner and with effect from 1.8.1959 he was working as a Foreman. On the 3rd of September, 1974, he received a latter dated 2nd September, 1974 transferring him from the Crank Shaft Section to the Central Planning Section. According to respondent no. 3, the Central Planning Section was a non-productive and non-manufacturing department. He therefore, apprehended that his transfer may cause serious prejudice to his existing conditions of service. He, therefore, made a representation to the authority concerned seeking clarification in respect of the order of transfer. According to him, he got no reply. According to respondent no. 3, the Central Planning Section was a non-productive and non-manufacturing department. He therefore, apprehended that his transfer may cause serious prejudice to his existing conditions of service. He, therefore, made a representation to the authority concerned seeking clarification in respect of the order of transfer. According to him, he got no reply. Since his wife fell seriously ill he fined an application for grant of casual leave from 5th to 7th of September, 1974. On the 9th of September, 1974 he reported for duty at the Central Planning Section. He did not join on 8th of September, 1974 since that was an off day. He was not allowed to enter the premises of the Central Planning Section since the security guard had been instructed not to allow him to enter the premises. In there circumstances he addressed a letter to the Deputy General Manager (Auto) informing him of the matter and praying for necessary relief. To this also he received no reply. Thereafter on the 10th of September, 1974 he received a latter under registered cover purporting to discharge him from service with effect from 5.9.1974 without assigning any reason whatsoever. He thereafter submitted a representation dated 23.9.1974 to the Director & General Manager paying for his intervention in the matter. He did not receive any reply to his representation but was informed by the Executive Officer by a latter dated 2nd October, 1974 that his representation had been received by the Chairman who had requested the Director and General Manager to look into the matter. Since no action was taken on his representation he was taken on representation, he was compelled to file a complaint U/s. 26 of the Act. The petitioner on the other hand contended before the authority under the Act, that the complaint was not maintainable. It was submitted that TELCO was a company registered under the Indian Companies Act, and was engaged in manufacturing of trucks, excavators and other vehicles. TELCO works is a factory registered under the Factories Act, and hence the Act, did not apply to the TELCO works which was a factory. It was stated that respondent no. 3 was working as a Foreman in the Crank Shaft Section (Auto Division) in the works of the opposite party. On 2nd September 1974 respondent no. TELCO works is a factory registered under the Factories Act, and hence the Act, did not apply to the TELCO works which was a factory. It was stated that respondent no. 3 was working as a Foreman in the Crank Shaft Section (Auto Division) in the works of the opposite party. On 2nd September 1974 respondent no. 3 was transferred to the Central Planning Section which is directly connected with the manufacturing process and the subject matter of manufacture. The aforesaid transfer did not in any manner prejudice the conditions of service of respondent no. 3 and he was duty informed in writing that he should obey the order of transfer which was justified and if he faced any difficulty that could be looked into. In spite of clear instruction, respondent no. 3 referred to report for duty to the Central Planning Section. He was giving instruction by his supervisor on 4.9.1974 but even then he did not obey the order of transfer and instead inciting other supervisors since respondent no. 3 refused to obey the lawful and reasonable orders of the lawful and reasonable orders of the company, he being a supervisor, the Management lost confidence in him and consequently discharged him from service with effect from 5.9.74. It was stated that since respondent no. 3 stood discharged with effect from 5.9.74 there was no question of granting him any relief after that date, nor was any leave application received from respondent no. 3. It is also stated that since the petitioner stood discharge with effect from 5.9.74, there was no question of his reporting for duty on question of reporting for duty on 9.9.74. The petitioner in its written statement also stated that representation to the Deputy Labour Commissioner under the Industrial Disputes Act, and the Deputy Labour Commissioner had held the Conciliation proceedings Since respondent no. 3 was found to be a member of the Supervisory staff of the works, the Deputy Commissioner did not take any further action under the Industrial Disputes Act. Against that respondent no. 3 had filed writ petition before the High Court being CWJC 31/74 which was dismissed on 3.12.74. It was only as an after thought that the instant complaint under the Act, was filed. It is not necessary to refer to the other statements in the written statements since they relate to the merit of the case. 4. 3 had filed writ petition before the High Court being CWJC 31/74 which was dismissed on 3.12.74. It was only as an after thought that the instant complaint under the Act, was filed. It is not necessary to refer to the other statements in the written statements since they relate to the merit of the case. 4. From Annexure 7 it appears that the petitioner filed as application on 1.7.75 praying before the authority that the preliminary objection regarding maintainability of the application under the Act, may be decided as a preliminary point. The submission was that respondent no. 3 having worked as foreman in the Crank Shaft Section of the Company he was a workman under the Factories Act, and consequently not covered by the provisions of the Act. By order dated 27.12.78 (Annexure 11) the authority held that there was no merit in the preliminary objection and that the complaint was maintainable. Against this order, the petitioner moved this Court by a writ application being CWJC 111/79. By order dated 27.2.79 this Court dismissed the application with the observation that up the jurisdictional point agitated in the writ application at the final orders passed by the Labour Court if at all required. 5. It appears from Annexure 12 that the petitioner filed a petition before respondent no. 2 contending that while disposing of the preliminary objection, respondent no. 2 had taken into account the duties that respondent no. 3 would have performed had he reported to the transferee department. The duties last performed by respondent no. 3 were not considered. It was contended that while deciding the case the Authority may record a finding as to whether respondent no. 3 had reported for duty to the transferee department in obedience to the order dated 2.9.74. The further submission was that if respondent no. 3 had not complied with the transfer order, then duties performed by him in the department from where he was transferred would be the determining factor for deciding whether respondent no. 3 was covered under the provisions of the Act, or not. The submission was that since respondent no. 3 had last performed duties in the Crank Shaft Section, which was a factory, the provisions of the Act, did not apply to his case. 6. Mr. Gobind Das, learned council appearing on behalf of the petitioner submitted that respondent no. 3 was covered under the provisions of the Act, or not. The submission was that since respondent no. 3 had last performed duties in the Crank Shaft Section, which was a factory, the provisions of the Act, did not apply to his case. 6. Mr. Gobind Das, learned council appearing on behalf of the petitioner submitted that respondent no. 3 was working in the Crank Shaft Section of the Auto Division which is a factory. Since the petitioner was working in the Crank Shaft Division of the Company when he was discharged, he must be considered to have been employed in a factory and, therefore, the provisions of the Act, did not apply to his case. He also submitted that even if respondent no. 3 is deemed to have been employed in the Central Planning Section, he must still be considered to be an employee of the factory since work of the manufacturing process of the factory and was certainly incidental to the manufacturing process. He submitted that the work in the Central Planning Section was incidental to the manufacturing process because the work done helped or assisted the manufacturing process and done. He fairly submitted that in determining whether the work in the Central Planning Section was incidental to the manufacturing process, must depend upon how proximate such work was to the manufacturing process. 7. Mr. Ranen Roy, learned council appearing on behalf of respondent no. 3, submitted that generally speaking the process of manufacture ands with the production of the end product. The crucial works are ‘manufacturing process’ and there must be proximate and causal connection between the work and the manufacturing process in order to hold that such work in incidental to the manufacturing process. He also submitted that whether a particular work should be included within the manufacturing process or incidental to manufacturing process must be decided on the basis of the evidence on record. He submitted that in the instant case, the authority having held on the basis of the evidence on record that the central Planning Section of the factory, the aforesaid finding could not be assailed in a petitioner under Articles 226 and 227of the Constitution of India. 8. It was not disputed before me that if respondent no. He submitted that in the instant case, the authority having held on the basis of the evidence on record that the central Planning Section of the factory, the aforesaid finding could not be assailed in a petitioner under Articles 226 and 227of the Constitution of India. 8. It was not disputed before me that if respondent no. 3 was considered to be employed in the Crank Shaft Section of the Auto Division of the petitioner-Company at the time of his petitioner-Company at the time of his discharge, he was certainly an employee of a factory because there is no dispute that the Crank Shaft Section of the petitioner company is a manufacturing department. What is seriously in controversy before me is whether Central Planning Section of the Company can be considered to be a factory. I may also observe that respondent no. 2, the authority under the Act, in its earlier order Annexure 11 dated 27.12.1978 held respondent no. 3 not be employed in a factory on the finding that he was employed in the Central Planning Section of the petitioner company. In its final order dated 29.5.81, Annexure 13, the authority did not go into the question observing that in view of its earlier order dated 27.12.78 Annexure 11 this question could not be agitated over again. It is therefore apparent that the finding that the application under section 26 of the Act, was maintainable, was based on the finding that respondent no. 3 was employed in the Central Planning Section of the petitioner company and not in the Crank Shaft Section of the petitioner company which admittedly is a factory. 9. Learned council for the petitioner relied on several decisions of the Supreme Court and the High Court namely AIR 1964 Supreme Court 737, AIR 1978 Supreme Court 849, 1976 Labour Industrial Cases 1708 and 1976 Labour Industrial Cases 335. Learned council for the respondent no. 3 also referred to the same decisions and submitted that so far as the legal position was concerned, there was no difficulty and the matter appear to be well settled. Section 2(4) of the Act, defines ‘an employee’ as follows :- “employee means a person wholly or partially employed for hire, wages including salary, reward, or commission in, and in connection with any establishment and includes ‘apprentice’ but does not include member of the employees family. Section 2(4) of the Act, defines ‘an employee’ as follows :- “employee means a person wholly or partially employed for hire, wages including salary, reward, or commission in, and in connection with any establishment and includes ‘apprentice’ but does not include member of the employees family. It also includes person employed in a factory who are not workers within the meaning of the Factories Act, 1948 (63 of 1948), and for the purpose of proceeding under this Act, include an employee who has been dismissed discharged or retrenched for any reason whatsoever.” Clause (1) of ‘section 2 of the Factories Act, at the relevant time ‘worker as follows :- “Worker means a person employed, directly or through any agency, whether for wages 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 consented with the manufacturing process” 10. It is well settled that a person to be worker within the meaning of the Factories Act, must be a person employed in the premises or the precincts of the factory. It is also equally well settled that first part of the definition of ‘worker’ under the Factories Act, namely, ‘or the subject of the manufacturing process’ will include the raw material since such raw material is subjected to the manufacturing process. It was held in 1976 Labour Industrial Cases 1708 that a practical test for determining whether the relationship between a particular kind of work and the manufacturing process is proximate or remote is to see if the work be not done, what is the effect on the manufacturing process if the result be a tangible adverse effect on the result be a tangible adverse effect on the manufacturing process, the work under consideration is not too remote. Otherwise it is. 11. In the instant case, evidence was led before the authority under the Act, as to the work done in the Central Planning Section of the petitioner company respondent no. 2 has referred to the evidence of O.P.W.2 who stated that the work of the Central Planning Section was to look after the production capacity of the machineries of the production shop and to devide ways and means for increasing production capacity of the machines. 2 has referred to the evidence of O.P.W.2 who stated that the work of the Central Planning Section was to look after the production capacity of the machineries of the production shop and to devide ways and means for increasing production capacity of the machines. It appears from testimony of OPW 2 that the Central Planning Section was concerned with finding ways and means for optimum utilization of the machinery employed in the factory. Applying the well known test, it cannot be said that the work done in the Central Planning Section of the petitioner company was in any manner connected with the manufacturing process. It may be that with the date that may be supplied by the Central Planning Section machineries may be utilized batter and it may result in better Production, but that is not to say that such work would from part of the manufacturing process or could be considered to be incidental to the manufacturing process. In my view, the connection is not at all proximate but remote. 12. This, however, dose not answer the first submission urged on behalf of the petitioner. As observed earlier, the petitioner submitted that respondent no. 3 had been transferred to the Central Planning Section. Before that he was working in the Crank Shaft Section of the Auto Division which certainly is a factory. The submission urged was that for determining whether the petitioner was employed at the time of his discharge, the determining factor will be the place where he last performed his duties. Learned council relied upon a judgment reported in (Ram Kishan Vs. Shambhu Nath Vaid and others). Their Lordship of the Punjab High Court in that case were concerned with a workman who was transferred by the employer from Amtitsar to Mussoorie. Thereafter the service of the workman were dispensed with on the ground that he disobeyed the order of Transfer. The Punjab Government referred the dispute for adjudication under the Industrial Disputes Act. It was contended on behalf of the employee that Punjab Government was not the appropriate Government for making a reference since the employee had been transferred to Mussourie in the State of Uttar Pradesh and therefore Punjab was not appropriate Government. Negativing the contention, it was held that the employee was working at Amritsor and although he had been ordered to go to Mussourie, he had never gone there. Negativing the contention, it was held that the employee was working at Amritsor and although he had been ordered to go to Mussourie, he had never gone there. Therefore, the dispute having arisen within the territory of Punjab State the Punjab Government was the appropriate Government to refer the dispute foe adjudication. No doubt, the Punjab High Court was concerned with a reference made under the Industrial Disputes Act, and the question was as to which was the appropriate Government to refer the dispute foe adjudication. But in my view, in the instant case the same logic will apply. The question is as to whether the respondent no. 3 was employee in the Crank Shaft Section or in the Central Planning Section of the company when he was discharge. The petitioner had been transferred from the Crank Shaft Section to the Central Planning Section. This order was passed on the 2nd September, 1974. The order of discharge was passed on the 5th September, 1974 for refusal to obey the order of September, 1974 for refusal to obey the order of transfer. In his complaint under section 26 of the Act, respondent no. 3 has admitted that before receiving the latter dated 2nd September, 1974 he did not join the Central Planning Section and instead he made a representation. He also admits that he applied for leave from 5th to 7th September, 1974 a fact disputed by the petitioner. Even according to respondent no. 3 hr did not join the Central Planning Section before the 5th of September, 1974 the date on which the order of discharge was passed. Admittedly he reported for duty on the 9th of September, 1974 at the Central Planning Section. Even on hat day he was not permitted to enter the premises of the Central Planning Section respondent no. 3, therefore admits that he never obeyed the order of transfer and admittedly the order of discharge was passed on the 5th of September, 1974 though a copy of the same was received by him on 10.9.1974. Before that date admittedly he had not joined duty at the Central Planning Section. 13. From the facts stated in the complaint of respondent no. 3, it is apparent that he never joined the Central Planning Section to which he was transferred. Before that date admittedly he had not joined duty at the Central Planning Section. 13. From the facts stated in the complaint of respondent no. 3, it is apparent that he never joined the Central Planning Section to which he was transferred. On these facts it must be held that the petitioner was not working in the Central Planning Section if the petitioner company since he never joined that section and did not work in that section even for a single day. He lass performed his duties as Foreman in the Crank Shaft Section of the Auto Division of the petitioner company. That admittedly is a factor. On the facts stated by respondent no. 3 himself in his complaint, it must be held that the order of transfer never took effect since respondent no, 3 never joined the transferee department in obedience to the order. He lest performed his duties in the Crank Shaft Section which is a Factory and accordingly he must be considered to be an employee working in the Crank Shaft Section. In this view of the matter he was a worker within the meaning so the Factories Act, and therefore not covered by the provisions of the Bihar Shops & Establishment Act, The complaint was therefore not maintainable under section 26 of the Act, respondent no. 2 consequently had no jurisdiction in the matter. Accordingly Annexure 13, the final order dated 30. 7.1981 is set aside as being without jurisdiction since the application of respondent no. 3 was not maintainable under section 26 of the Act. It is not necessary to quash Annexure 11 since that merged with the final order Annexure 13. This application is allowed. There will be no order as to costs. Application allowed.