1988 Supreme(Raj) 811
RAJASTHAN HIGH COURT AT JAIPUR BENCH
S.N.Bhargava, P.C.Jain, JJ.
Jweller Association - Appellant
Versus
Presiding Officer Appointed under Section 28 A of the Raj. Shops and Commercial Establishment Act, 1958 - Respondent
D.B. Civil Writ Petition No. 292 of 1988.
Decided On : 7-10-1988
Advocates:
For the Petitioner:R.K. Kala, Advocate.
For the State :Ashok Parihar, Advocate.
The proviso to Section 28A of the Rajasthan Shops & Commercial Establishments Act, 1958 is applicable when the services of an employee are dispensed with for misconduct as defined in the rules made by the State Government.
Headnote:
INDUSTRIAL DISPUTE - RAJASTHAN SHOPS & COMMERCIAL ESTABLISHMENTS ACT, 1958 - SECTION 28A - DOMESTIC ENQUIRY - FAIRNESS - AUTHORITY'S JURISDICTION TO ALLOW EMPLOYER TO SUBSTANTIATE CHARGES - INTERPRETATION.
Fact of the Case:
Petitioner Association dismissed respondent No. 2 from service after a domestic enquiry found him guilty of misconduct. Respondent No. 2 filed a complaint under Section 28A of the Rajasthan Shops & Commercial Establishments Act, 1958 (the Act), challenging the dismissal. The Authority quashed the dismissal order, holding that the enquiry was not fair. The Association challenged this order in a writ petition.
Finding of the Court:
The Court held that the Authority had jurisdiction to allow the employer to substantiate the charges against the employee, even if the domestic enquiry was found to be defective. However, in the present case, the misconduct alleged against the employee fell under the definition of misconduct prescribed under Rule 24A of the Rajasthan Shops & Commercial Establishments Rules, and therefore, the proviso to Section 28A of the Act was attracted. As a result, the Authority was not empowered to examine whether the dispensation of services was reasonable and justified.
Issues: 1. Whether the Authority had jurisdiction to allow the employer to substantiate the charges against the employee, even if the domestic enquiry was found to be defective? 2. Whether the proviso to Section 28A of the Act was applicable in the present case.
Ratio Decidendi: 1. The Court held that the Authority had jurisdiction to allow the employer to substantiate the charges against the employee, even if the domestic enquiry was found to be defective. This was because Sub-section (1) of Section 28A of the Act is applicable when the services are terminated on the ground of 'reasonable' cause, which may be a misconduct other than the misconducts defined under the Rules, and the Authority is to examine whether such a misconduct would give a reasonable cause to the employer to terminate his services. 2. The Court held that the proviso to Section 28A of the Act was applicable in the present case because the misconduct alleged against the employee fell under the definition of misconduct prescribed under Rule 24A of the Rajasthan Shops & Commercial Establishments Rules. As a result, the Authority was not empowered to examine whether the dispensation of services was reasonable and justified.
Final Decision: The Court dismissed the writ petition, holding that the Authority had not committed any error of law in quashing the dismissal order.
JUDGMENT
1. - In this writ petition, the petitioner has prayed for issuance of a writ, order or direction for quashing the order of respondent No. 1, dated 17th November, 1987, where by he reinstated respondent No. 2 and quashed the order of dismissal, dated 11th October, 1973 of respondent No. 2 Devi Singh from the services of Jwellers Association, Jaipur.
2. Briefly stated, the facts of the case are that the petitioner is association and was established for the welfare of the members dealing in genuine jewellery to guide them for import and export business of jewellery. The petitioner association is registered under the Rajasthan Non-trading Companies Act. Respondent No. 2 Devi Singh was employed in the petitioner association as Class IV employee on 27th June, 1975. A charge-sheet was given to him on 23rd July, 1982. After receiving the charge-sheet, Devi Singh respondent No. 2, filed his reply. As the reply was found to be not satisfactory, the management of the petitioner association decided to hold a domestic enquiry. The enquiry was commenced and it was concluded on 15th September, 1983. As per the report of the Enquiry Officer, Charge No. 5 was held to be not proved and the remaining charges were held to be proved and respondent No. 2 was found guilty. The management of the Association dismissed the services of respondent No. 2 vide letter dated 11th October, 1983. Petitioner's case is that, though it was not obliged to give one month's wages still looking to the provisions of Section 29A of the Rajasthan Shops & Commercial Establishments Act, 1958 (for short the Act), the Association paid one month's notice pay to respondent No. 2. The services of the employee, respondent No. 2, were dispensed with from the afternoon of October, 1983. Aggrieved by the order of dismissal, respondent No. 2 filed a complaint under Section 28A of the Act. The Association contested the case before respondent No. 1. On 17 September. 1984, an issue was framed to enquire as to whether the enquiry conducted by the petitioner association is fair and proper. Both the parties were allowed to lead evidence on this issue. On this issue, the Authority, respondent No. 1, gave its finding that the enquiry was not fair, though the Authority held the order of dismissal to be bad in law and. consequently vide its order dated 17th November, 1987, quashed the order of dismissal of respondent No. 2 and directed the Association to reinstate him.
3. The petitioner Association in this writ petition has assailed the order dated 17th November, 1987, passed by respondent No. 1 on various grounds inter alia that the Authority, respondent No. 1, did not afford an opportunity to the petitioner to prove the charges levelled against respondent No. 2 before the Authority, inspite of the fact that petitioner moved an application to adduce evidence before the authority to substantiate the charges. In case, the enquiry is found defective and further that the order of dismissal was in accordance with the provisions of Section 28A of the Act.
4. Shri Ashok Parihar, learned Counsel appearing for respondent No. 2, contested the case without filing any reply, at the admission stage. The learned Counsel for the parties agreed that the case may be decided at the admission on stage.
5. Shri R.K. Kala, learned Counsel for the petitioner association, has submitted that the order dated 17th NOV.,1987, passed by respondent No. 1 is without jurisdiction and illegal. The submission of Shri Kala is that even if the domestic enquiry was not fair, the petitioner Association had the right to adduce evidence before the Authority and to substantiate the charges on the basis of which the dismissal order was passed against respondent No. 2 His submission is that as per Sub-section (1) of Section 28 A of the Act, an employer is entitled to terminate the services of his employee, on reasonable cause, who has served for more than six months by grieving one month's notice or paying the employee one mon
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