JUDGMENT 1. - This is a writ petition by Kanhaiya Lal Maru under Article 226 of the Constitution of India praying for the quashing the order of the Authority under the Rajasthan Shops & Commercial Establishments Act, 1958 dated 9th November, 1983 and for a declaration that the petitioner was illegally retired and further that he may be reinstated till he attained the age of 58 years with all benefits of pay and allowances. 2. Facts leading to the filing of this writ petition are that the petitioner was in service under the Ganganagar Sugar Mills Ltd. as a Supervisor (Inspection), Central Liquor Warehouse, Kota. Sometime in the month of March, 1978, the petitioner made an application under Section 28-A of the Rajasthan Shops & Commercial Establishments Act, 1958 (for short hereinafter 'the Act') wherein he alleged that the Ganganagar Sugar Mills Ltd. proposed to retire the petitioner from service with effect from 31st March, 1978 on his allegedly attaining the age of superannuation i.e. the age of 55 years. The petitioner challenged this on the ground that he was governed by Sugar Wage Board Recommendations and, therefore, he could not be retired on attaining the age of 55 years and that is because his age of superannuation fall on his attaining of the age of 60 years. In the alternation, it was pleaded that if the recommendations of the Wage Board were not applicable to him, then as per the provisions of the Payment of Gratuity Act, he should be retired only on attaining of the age of 58 years. This application filed by the petitioner before the Authority under the Act was contested by respondent No. 1. The respondent No. 1 in that case pleaded that the recommendations of the Sugar Wage Board award were not applicable to the petitioner or the employees working at distilleries and warehouses of the Company. The Authority under the Act held that the petitioner's case was not that his service were dispensed with for misconduct as defined in the rules framed under the Act and, therefore, his case was not covered under Section 28-A(2)(c) of the Act. He further held that the letter dated 13th February, 1978 issued to the petitioner was a notice as required under Sub-section (1) of Section 28-A (2)(b) of the Act. He further held that the letter dated 13th February, 1978 issued to the petitioner was a notice as required under Sub-section (1) of Section 28-A (2)(b) of the Act. The Authority also said that it was the petitioner's own case that he should be governed by the recommendations of the Sugar Wage Board treating him to be a worker under the Factories Act. The Authority stated that if that was the case of the petitioner the Authority had no jurisdiction to entertain the application filed by the petitioner under Section 28-A of the Act. On the other hand, if the petitioner claimed himself to be a workman under the Act, then his service conditions are governed by the Company Service Rules and the petitioner was rightly retired on March 31, 1978 on reaching the age of superannuation of 55 years. As petitioner's services were dispensed with for reasonable cause i.e. on attaining of the age of superannuation of 55 years as per the Company Service Rules, the petitioner's case was not covered under Section 28-A (2)(a) of the Act. This order of the Authority under the Act has been challenged by the petitioner in this writ petition. 3. It was contended by the learned counsel for the petitioner that there was no specific agreement between the petitioner and his employer that the petitioner will be governed by the Company Service Rules. It is stated that Ganganagar Sugar Mills is a Company under the Companies Act and it is not a statutory body. The Company has no statutory powers to frame any unilateral service conditions. According to the petitioner, in such cases the service conditions could have been laid down only through a mutual agreement or settlement as accepted by the terms of the appointment order, certified standing orders or by settlement or the like. It was urged that the petitioner's service conditions were governed by Sugar Wage Board's recommendations which provided 60 years of age as the age of superannuation. It was urged that the Sugar Wage Board's recommendations not only covered the factory workers but also Supervisors, clerks etc. who were not factory workers. 4. It was urged that the petitioner's service conditions were governed by Sugar Wage Board's recommendations which provided 60 years of age as the age of superannuation. It was urged that the Sugar Wage Board's recommendations not only covered the factory workers but also Supervisors, clerks etc. who were not factory workers. 4. The writ petition has been opposed by the respondent No. 1 and he has stated in his reply that the petitioner was not governed by the Sugar Wage Board Award and that his service conditions are governed by the service rules of the Company which provided the superannuation age as 55 years. He has supported the findings given by the Authority under the Act. It is also said that the petitioner was retired from service and, therefore, there was no termination of the nature to which the provisions of the Act apply. Lastly, it has been pleaded that the petitioner had made the claim as well as he has filed the present writ petition against the Manager of the Company. The petitioner has not filed the writ petition against Ganganagar Sugar Mills Ltd. and his petition as against the Manager was not maintainable. 5. It is not disputed between the parties that the petitioner was in service of Ganganagar Sugar Mills Ltd. as Supervisor (Inspection) Central Liquor Warehouse, Kota. He was initially appointed in the Sugar Mills at Ganganagar in the year 1953. Subsequently, he was transferred to Ajmer Distillery in 1957 and then again to Ganganagar in the year 1957 and then Jaipur Head Office in the year 1964. Finally he was transferred in the year 1978 to Kota Central Liquor Warehouse. According to respondent No. 1, the petitioner was drawing a salary of Rs. 749/- on the date of the retirement. It is also not in dispute that the date of birth of the petitioner was 3rd March, 1923 and that by an order dated 18th February, 1978 he was made to retire from the company's services in the afternoon of 31st March, 1978 on his completing the age of 55 years which the Company considered as his superannuation age according to the service rules of the Company. 6. Ganganagar Sugar Mills Ltd., Jaipur was previously known as Bikaner Industrial Papers Ltd. It was private limited company and was taken over by the Government on lease in the year 1953. 6. Ganganagar Sugar Mills Ltd., Jaipur was previously known as Bikaner Industrial Papers Ltd. It was private limited company and was taken over by the Government on lease in the year 1953. Thereafter majority of its shares were purchased by the Government in the year 1956 and in July, 1956 it became a Government Company. After the Ganganagar Sugar Mills Ltd. became a Government Company, it framed certain rules which are called 'Service Rules". They came into force with effect from 15th May, 1957. Clause (1) of these rules provide that the Service Rules shall apply to the employees in the Company and their branches including the Sugar Factory and Distilleries except in so far to the extent it is otherwise agreed upon by agreement or letter of appointment in any case, or there are no standing orders under the Industrial Employment (Standing Orders Act, 1946). The Government servant whose services had been lent from the Government of Rajasthan were to be governed by the provisions of the Rajasthan Service Rules. Rule 5 of these Service Rules initially provided that there shall be three categories of employees engaged by the Company, namely; (i) Officers and Supervisory Staff; (ii) Clerical Staff i.e. Stenographers, UDCs, LDCs, Typists etc. and (iii) Subordinate Staff i.e. drivers, cleaners, chowkidars, peons, gardners, sweepers etc. Later on some time in the year 1984, its Rule 5 was amended and instead of 3 categories, 5 categories of employees engaged in the Company were specified. 7. It would appear from the very first clause of the Service Rules of the Company that in case there has been an agreement providing special conditions of service or letter of appointment or standing orders issued under the Industrial Employment (Standing Orders) Act of 1946 providing different terms of employment, then the Service Rules will not apply to the extent there are different provisions. They only apply when there are no special terms in the agreement or letter of appointment or in the standing orders. We are, therefore, immediately to see whether there were any special conditions of service incorporated in any agreement or letter of appointment or in any certified standing orders. In the present case no agreement or letter of appointment has been produced and, therefore, it cannot be said that there are any special terms agreed upon by agreement or by letter of appointment. However, there were certified standings orders. In the present case no agreement or letter of appointment has been produced and, therefore, it cannot be said that there are any special terms agreed upon by agreement or by letter of appointment. However, there were certified standings orders. Ganganagar Sugar Mills Ltd. had certified Standing Orders in force with effect from January 1, 1947 which also prescribe 55 years as the age of superannuation. In Agra Electric Supply Co. Ltd. v. Sri Alladin and others, AIR 1970 SC 512 , their Lordships of the Supreme Court following the earlier decisions in Guest Keen Williams Pvt. Ltd. v. P.P. Sterling, AIR 1959 SC 1279 , and Salem Erode Electricity Distribution Co. Ltd. v. Salem Erode Electricity Distribution Co. Ltd., Employees' Union, AIR 1966 SC 808 , held that the object of the Industrial Employment (Standing Orders) Act, 1946 was to have uniform standing orders providing for the matters enumerated in the Schedule to the Act and that it was not intended that there should be different conditions of service for those who are employed before and those employed after the standing orders came into force, and finally that once the Standing Orders came into force, they bind all those presently in the employment of the concerned establishment as well those who are appointed thereafter. Consequently it was held that the retirement of employees under Standing Order 32 which fixed the age of superannuation at 55 years was valid although the employees were appointed long before the standing orders were certified. The same view was taken in Dunlop India Ltd. v. Their Workmen, AIR 1972 SC 2326 . Thus on 31st March, 1978, the date on which the petitioner was retired, the Standing Orders in force also provided the age of superannuation as 55 years i.e. the same age which was provided by the Service Rules. It is true that the Standing Orders were amended in the year 1984 but on that date the petitioner was not in employment and he not only completed the age of 55 years before the year 1984 but even the age of 60 years before the amendment was made in the Standing Orders. 8. The next question to be examined in the case is as to how far the recommendations of the Second Sugar Wage Board are applicable to the petitioner. 8. The next question to be examined in the case is as to how far the recommendations of the Second Sugar Wage Board are applicable to the petitioner. The First Wage Board had unanimously decided that all employees in the Sugar Industries falling within the definition of "Workman" as contained in the provisions of the Industrial Disputes Act, 1947 should be governed by its recommendations. Besides it, it shall also consider the cases of Medical and Educational Staff, Labour & Welfare Officers and certain other categories of employees. In Chapter-II of the report of the Second Sugar Wage Board, while mentioning the scope of inquiry, it was observed in para 20 that the First Wage Board had elaborately considered the question before taking the aforesaid unanimous decision. The Second Board, therefore, did not find it necessary to go into the matter again in any detail and recommended that as decided by the First Wage Board all employees falling within the term 'workman' contained in the provisions of the Industrial Disputes Act, 1947 should be covered by its recommendations as the First Wage Board had also included the cases of Medical & Educational Staff, Labour Welfare Officers and a few other categories and several representations have been made on their behalf, the Second Wage Board unanimously was of the opinion that these employees should be brought within the scope of inquiry and recommendations. A nomenclature Standardisation Committee was appointed by the Board to review and to bring the standard nomenclatures of the different categories of employees, their grades, their principal duties, etc. up to-date. The Board generally agreed with the recommendations made by the Sub-committee. The revised scheme containing the standard nomenclatures, their grades, their principal duties and their qualifications was furnished in Appendix-V-A and V-B. It was mentioned in the recommendations that at present there were 4 grades for Supervisors viz., D, C, B and A. The Wage Board recommended abolition of the Supervisory grade-D and also recommended two different wage scales for the Supervisory A-Grade. All categories of supervisory employees were to be fitted in these grades. It was further provided that the age of superannuation has been raised from 58 years to 60 years. In clauses 7, 8 and 9 of para 364 of the recommendations provided that all the employees who may be at present at the clerical Gr. All categories of supervisory employees were to be fitted in these grades. It was further provided that the age of superannuation has been raised from 58 years to 60 years. In clauses 7, 8 and 9 of para 364 of the recommendations provided that all the employees who may be at present at the clerical Gr. I shall be placed in the Supervisory B Grade. The existing Supervisory B Grade was to be abolished and all employees who may be then working on that grade were to be placed in the Supervisory C-Grade. Instead of the existing Supervisory A-Grade there were to be two grades; (i) Supervisory A-(1) and (ii) Supervisory A-2. The employees who may be existing in the Supervisory A-Grade were to be placed in one of these grades according to their qualification and experience. It would thus appear that Supervisors were included in the recommendations of the Second Wage Board and its recommendations were applicable to the petitioner as well who was holding the post of Supervisor (Inspection). 9. One of the questions that arises is whether the petitioner is an employee within the meaning assigned to the expression by Section 2(5) of the Act. Section 2(5) of the Act defines "employees" as meaning a person wholly or principally employed in, or in connection with any establishment and includes an apprentice but does not include a member of the employer's family; it also includes any clerical or other staff of a factory or industrial establishment who falls outside the purview of the Factories Act, 1948. The word "establishment" has been defined by Section 2(17) as a shop or commercial establishment. 'Shop" means any premises where any trade or business is carried on or where services are rendered to customers, and includes offices, store-rooms, godowns or warehouses, whether in the same premises or otherwise, used in connection with such trade or business but does not include 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. The expression "commercial establishment" as defined in Section 2(3) means a commercial or trading or banking or insurance establishment, an establishment or administrative service in which the persons employed are mainly engaged in office work, a hotel, a restaurant, boarding or eating house, cafe or any other refreshment house, a theatre or any other place of public amusement or entertainment and includes every such establishment as the State Government may, by notification in the Official Gazette, declare to be a Commercial establishment for the purposes of this Act. In the instant case, there was no assertion by the petitioner at any stage before the Authority or even in this writ petition that the warehouse was not attached to a factory where persons employed in the warehouse were allowed the benefits provided for workers under the Factories Act and in the absence of that assertion and proof there is no material to hold whether the Kota Central Liquor Warehouse was a shop within the meaning assigned to that expression by Section 2(17) of the Act. There was also no assertion that the Kota Central Liquor Warehouse was a commercial or trading or Banking or Insurance establishment or administrative service in which the persons employed were mainly engaged in office work. Whether the petitioner was a person wholly or principally employed in connection with a commercial or trading or banking or insurance establishment or an establishment or administrative service in which persons employed were mainly engaged for office work is a question of fact and without any averments in the writ petition, this question of fact cannot be decided, in this extraordinary jurisdiction. The Authority in its order has stated that in case the applicant claims himself to be governed by the recommendations of the Sugar Wage Board treating him to be a worker under Factories Act, he had no hesitation to say that the Authority had no jurisdiction to entertain the claim application. Alternatively, it has been said by the Authority that if the applicant claims himself to be a workman under the Act, then the applicant's service conditions are governed by the Service Rules. The Act nowhere uses the word "workman". It uses the word "employee". There is no finding of the Authority whether the petitioner was an employee or not within the meaning assigned to that expression by Section 2(5) of the Act. The Act nowhere uses the word "workman". It uses the word "employee". There is no finding of the Authority whether the petitioner was an employee or not within the meaning assigned to that expression by Section 2(5) of the Act. As has already been stated that the Act as well as Section 28-A thereof applied where an employee has been dismissed or discharged. No relief in this writ petition can be granted to the petitioner unless there was a finding of fact that the petitioner was an employee within the meaning assigned to that expression by Section 2(5) of the Act. It has already been observed that in this writ petition, the petitioner has not even alleged that he was an employee of a shop or commercial establishment. 10. The Authority has also observed that the services of the petitioner had been dispensed with for reasonable cause that is on attaining of the age of superannuation of 55 years as per Company Rules and his case is not coverned by Section 28-A(2)(c) of the Act. In this regard it may be mentioned that if the recommendations of the Second Central Wage Board for Sugar Industries applies to the case of the petitioner, then his age of superannuation is 60 years and since he was discharged from his employment before he attained the age of 60 years, there could be no reasonable cause for dispensing with his services prior to his attainment of the age of 60 years, and the case would fall within Section 28-A(2) (c) of the Act as there was no reasonable cause for dispensing with his services before he attained the age of 60 years. I am of the view that the only course available to the petitioner was either to raise an industrial dispute claiming himself to be a workman as defined in the Industrial Disputes Act or if he thought that he was an employee within the meaning assigned to that term by the Act, then he could pursue his remedy under the Act as well. The learned counsel for the petitioner has referred before me the decision of a learned Single Judge of this Court in Jaishanker Bhargava v. Ganganagar Sugar Mills Ltd. Jaipur, S.B.C.W.P.No. 1162/68 , decided by the Principal Seat of Jodhpur on July 29,1983. In that case, the petitioner was holding the post of Asstt. The learned counsel for the petitioner has referred before me the decision of a learned Single Judge of this Court in Jaishanker Bhargava v. Ganganagar Sugar Mills Ltd. Jaipur, S.B.C.W.P.No. 1162/68 , decided by the Principal Seat of Jodhpur on July 29,1983. In that case, the petitioner was holding the post of Asstt. Cane Superintendent in Ganganagar Sugar Mills Ltd. There was material before the Court that the recommendations with regard to the pay-scales had been made applicable by the Company to the petitioner in that case and his salary had also been fixed as per recommendations of the Wage Board. The petitioner in that case had been retrenched previously and he had raised an industrial dispute and it was found that he was a workman. He had also moved an application under Section 33(c)(2) of the Industrial Disputes Act which was also partly allowed holding him as workman under the Industrial Disputes Act. Thus there were pieces of evidence in that case to support the claim of the petitioner therein that he was a workman. 11. In this case there is neither any averment of this nature in the writ petition much less the proof. The question whether the petitioner was a workman and was not employed in a managerial or administrative capacity or that he was not employed in a supervisory capacity are all questions of fact. In the absence of even pleadings of those facts, much less proving them, it is not possible for this Court even to arrive independently, to a finding of fact that the petitioner was a workman, under the Industrial Disputes Act. The petitioner has also not invoked in the writ petition the provisions of the Industrial Disputes Act. He has only challenged the order of the Authority under Section 28-A of the Act. The petitioner has also not invoked in the writ petition the provisions of the Industrial Disputes Act. He has only challenged the order of the Authority under Section 28-A of the Act. Since there is a lack of finding of fact by the Authority, whether the petitioner was an employee within the meaning of the Act or not, the only relief, at the most, which can be granted to the petitioner is to remand the matter to the Authority to give a finding whether the petitioner was an employee within the meaning assigned to that term by the aforesaid provisions of the Act and then to decide the petitioner's application under Section 28-A of the Act afresh in accordance with law and in the light of the findings on legal aspect of the matter given in this order. 12. I, therefore, partly allow this writ petition, set aside the order of the Authority under the Rajasthan Shops & Commercial Establishments Act, 1958, Kota dated 9th November, 1983 (Annex. 7) and remand Case No. 2/78 of his office with the directions that he will decide the question of fact as to whether the petitioner was an employee within the meaning of the term as defined in Sub-section 2(5) of the Act entitling him to make an application and to re-decide the matter in accordance with law and in the light of the observations made in this order on the legal aspects of the matter. In the circumstances of the case, I shall leave the parties to bear their own costs.Petition partly allowed. *******