JUDGMENT

Y.K. Sabharwal, J.-The appellants are the employees. The first respondent is the employer. The termination of services of the appellants was held to be illegal and the first respondent was directed to reinstate them in service with all consequential reliefs in terms of the order made by the prescribed authority constituted under the Rajasthan Shops and Commercial Establishments Act, 1958 (Act No. 31 of 1958) (for short, the Act ).

2. Writ petitions filed by the first respondent were dismissed by a learned Single Judge of the High Court, inter alia, holding that the prescribed authority after elaborate consideration of evidence has rightly come to the conclusion that the employees had been working continuously for six months.

3. The Division Bench of the High Court by the impugned judgment has allowed the appeals and set aside the judgment of the Single Judge as also the order made by the prescribed authority on the ground that pre-condition for invoking Section 28-A of the Act has not been established and, therefore, appellants could not make a complaint before the prescribed authority challenging the termination of their services. The employees are in appeal on grant of leave.

4. The only point for consideration is whether the appellants were in continuous employment for a period of not less than six months before termination of their services.

5. Section 28-A of the Act, inter alia, provides that 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 six 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. The case of the employer/ first respondent before the prescribed authority was that the employees had not been in employment for a continuous period of six months as there was a break of about two months in their service, their services having been terminated on 20th August, 1992 and they were again re-employed in October, 1992. This case set up by the first respondent has not been accepted even by the Division Bench while coming to the conclusion that the employees have not been in continuous employment for a period of not less than six months. The Division Bench has reached the said conclusion by holding that there was a break of service for four days, namely from 16th July, 1992 to 19th July, 1992. The Division Bench held that their was hiatus of four days between employment under letter dated 16th June, 1992 and new appointment by letter dated 19th July, 1992. The impugned judgment concludes that:

"In the absence of any material and objection to term of employment dated 16.6.1992 and to the automatic end of service stipulated under the letter of appointment dated 16.6.1992 on 15.7.1992, and fresh employment, which only continued upto the alleged date of termination came, into effect only on 20.7.1992, there was no continuity of service between 15.7.1992 to 20.7.1992 or to wit the applicants were not in the employment of society on any view of the matter on 16.7.92, 17.7.92, 18.7.92, 19.7.92. Thus, the order of the Authority under the Act suffered from an error of law as well as of fact on the question of `continuous employment for not less than six months which is apparent from record."

6. The case of the appellants before the prescribed authority was that they had been getting regular salary from June 1992 and worked continuously upto 31st December, 1992 on the post of Peon in the office of the first respondent; they marked their attendance upto 7th December, 1992 but thereafter though they worked upto 31st December but were not allowed to mark the attendance and on 1st January, 1993, the employer refused to take them on duty and terminated their services by an oral order without giving one month s notice and compensation for retrenchment and that they worked for a period of more than six months from the date of thei