Rajasthan High Court - Jaipur
Mohanlal Chauhan vs The Prescribed Authority Under The Raj S on 17 September, 2013
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR S.B. Civil Writ Petition No.3994/1991 Shri Mohanlal Chauhan Versus The Prescribed Authority under the Rajasthan Shops and Commercial Establishment Act & Anr. DATE OF ORDER : 17/09/2013 HON'BLE MR. JUSTICE M.N. BHANDARI Mr. Sunil Samdaria, for petitioner Mr. M.D. Agrawal, for respondent
*** By this writ petition, a challenge is made to the order dated 05.09.1983 at Annexure-2.
Learned counsel submits that service of the petitioner was terminated in violation of Section 28-A of the Rajasthan Shops and Commercial Establishments Act, 1958 (in short Act 1958). The petitioner made application before the Shops and Commercial Authority on the receipt of said order on 21st December, 1983. The application was filed within 30 days of the communication of the said order thus it was well within limitation. As per Section 28-A of the Act, 1958, termination can be effected only if there is a reasonable cause and that too after giving at least one month's prior notice or pay in lieu thereof. The notice aforesaid is not required, if services are dispensed with for misconduct but after inquiry as given under proviso to Section 28-A(1) of the Act, 1958.
In the instant case, no reasonable cause was existing to terminate service of the petitioner. Learned Authority misdirected itself by adjudicating the application in reference to order dated 05.09.1983 alone, though it was in continuation to the order dated 04.08.1983 and in any case, the final order of termination was 05.09.1983. The application was dismissed mainly on the ground that order of termination dated 04.08.1983 has not been challenged and on the ground of limitation. It was in ignorance of the fact that challenge to the order dated 05.09.1983 was within limitation as the order aforesaid was received by petitioner on 21.12.1983 and application was filed in the month of January, 1984 within a period of 30 days. The other reason of dismissal was also erroneous inasmuch as what can be challenged by an employee is final order of termination and not the notice. Thus the authority concerned should have adjudicated the matter in reference to the final order dated 05.09.1983. In absence of aforesaid, the issue as to whether termination was for reasonable cause or not has not been adjudicated by the authority. Thus while setting aside the order, the matter may be remanded back or this court itself decided as to whether reasonable cause exists for termination of service of petitioner or not.
It is also stated that initially this writ petition was dismissed by this court vide its judgment dated 18th September, 1995 but appeal before Division Bench was allowed with a remand of matter. It was held that dismissal of the petition was on technical grounds inasmuch as the petition was dismissed by learned Single Judge holding that a challenge to the order passed by Shops and Commercial Authority does not exist so as order dated 4th August, 1983. The Division Bench found that even if challenge to the order of Shops and Commercial Authority does not exist, learned Single Judge should have decided the matter on its merit.
Learned counsel for respondent, on the other hand, submits that authority under Shops and Commercial Establishment had decided the matter after considering all the issues relevant and involved herein. The termination was effected vide order dated 04.08.1983. The subsequent order dated 05.08.1983 was not an order of termination but to reflect consequence of the order of termination dated 04.08.1983. In view of the above and in absence of challenge to the order of termination dated 04.08.1983, the authority concerned rightly dismissed the application and at the same time denied to condone delay as application for condonation of delay was filed in reference to the order dated 05.09.1983 and order dated 04.08.1983 otherwise give reasonable cause for termination inasmuch service of the petitioner was no longer required. In the background aforesaid, when order of termination dated 04.08.1983 so as order of Shops and Commercial Establishment authority have not been challenged, the writ petition should be dismissed.
I have considered the rival submissions of the parties and perused the record.
The termination in the present matter is in reference to Section 28-A(1) of the Act, 1958. For ready reference, Section 28-A(1) is quoted hereunder:
28A. Notice of dismissal or discharge by employer (1) No employer shall dismiss or discharge from his employment any employee who has been in such employment continuously for a period of not less than 6 months except for a reasonable cause and after giving such employee at least one month's prior notice or on paying him one month's wages in lieu of such notice:
Provided that such notice shall not be necessary where the services of such employee are dispensed with for such misconduct, as may be defined in the rules made by the State Government in this behalf, and supported by satisfactory evidence recorded at an enquiry held for the purpose in the prescribed manner.
Perusal of sub-section (1) reveals that service of the employee can be terminated if he has worked for more than six months by giving notice of one month or pay in lieu thereof on a reasonable cause.
The question for my consideration is as to whether termination of the petitioner was effected vide order dated 04.08.1983 or 05.09.1983 inasmuch as the petitioner has relied on the order dated 05.09.1983 and said to be an order of termination and thus challenged before the authority without challenge to the order dated 04.08.1983. The perusal of language of the provision quoted above reveals not only reasonable cause for termination but one month's notice or pay in lieu thereof. If order dated 05.09.1983 is looked into, it does not give reference to the provision of Section 28-A(1) of the Act, 1958 or give notice of one month thus if order dated 05.09.1983 simplicitor is looked into, it is not in compliance of Section 28-A(1) of the Act, 1958. The fact further remains that aforesaid is not the order of termination as termination was effected vide order dated 04.08.1983 by giving reason and one month's notice. The said order is quoted for ready reference:
As the Bhandar does no long requires your services. Please take notice that your services will be terminated on the expiry of one month from the date of issue of this notice in terms of Sec.28(1) of the Shops & Commercial Establishment Act.
The aforesaid order was not challenged by petitioner before the authority concerned and that was the precise reason to dismiss the application.
The question comes as to whether order dated 05.09.1983 can be said to be order of termination and for ready reference, that order is also quoted hereunder:
In continuation of the Notice No.434-39 dated 4.8.83, the services of Shri Mohan Lal, Class IV cum Gas Boy are hereby terminated on the expiry of one month's notice period today the 3rd September, 1983.
As reported by the Supervisor Gas Shri Mohan Lal remained absent for the full month of August, 83 and as such he is not entitled to any salary and allowances for the month of August, 83.
Perusal of two orders quoted above reveals that so far as order dated 04.08.1983 is concerned, it is as per Section 28-A(1) where reason for termination apart from one month's notice has been given.
So far as order dated 05.09.1983 is concerned, it is nothing but consequence of earlier notice for termination. The opening words of letter dated 05.09.1983 shows it to be in continuation of the order dated 04.08.1983. Thus basic order of termination remains to be 04.08.1983 and cannot be ignored or required to challenge because the main thrust of challenge was that termination has been effected without reasonable cause. To see whether cause exists or not, one is required to refer order dated 04.08.1983. It was not challenged before the authority. In absence of the aforesaid, it could not be clarified by learned counsel as to how issue of reasonable cause would have been decided inasmuch as the order dated 04.08.1983 only shows cause for termination and not challenged. Whether cause was reasonable or not could have been adjudicated by the authority if order aforesaid would have been challenged.
The fact further remains that order of termination has to be challenged within 30 days from the date of its receipt. The petitioner had challenged the order dated 05.09.1983 by making application for condonation of delay, though order aforesaid was received by the petitioner on 21.12.1983 and challenge thereupon was within a period of 30 days.
In my opinion, the issue of condonation of delay has been decided in reference to the order dated 04.08.1983, whereas if challenge to the order dated 05.09.1983 is looked into, the application was filed within the period of limitation but even if it is treated to be within limitation, it can be in reference to the order dated 05.09.1983 without challenge to the order dated 04.08.1983.
In view of the discussion made above, I find no illegality or error in the impugned order of the authority concerned, though interference can be caused on the issue of condonation of delay.
In view of the above, I do not find any merit in the writ petition. It is accordingly dismissed.
[M.N.BHANDARI], J.
FRBOHRA/3994CWP1991.doc Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
FATEH RAJ BOHRA, P.A.