Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1985 Supreme(Raj) 727

RAJASTHAN HIGH COURT
S.C.Agrawal, J.
B.N.K. Sahakari Wholesale Upbokta Bhandar Ltd. - Appellant
Versus
Prescribed Authority under Raj. Shop & Commercial Establishment Act - Respondent
S.B.C.W.P. No. 1321 of 1982.
Decided On : 8-10-1985

Advocates:
For the Petitioner:Mr. N.K. Maloo, Advocate.
For the Non-petitioner No. 3.:Mr. H.D. Saxena, Advocate.

The provisions of the Rajasthan Shops and Commercial Establishment Act, 1958 are not applicable to a Co-operative Society, and the age of superannuation for employees of a Co-operative Society can be fixed by the Registrar, Co-operative Societies under Rule 41 of the Rajasthan Co-operative Societies Rules, 1966. The provisions of Section 28A of the Rajasthan Shops and Commercial Establishment Act, 1958 are not applicable to the retirement of an employee of a Co-operative Society on attaining the age of superannuation.

Headnote:
RETIREMENT AGE - CO-OPERATIVE SOCIETY - AGE OF SUPERANNUATION - CONDITIONS OF SERVICE - RAJASTHAN SHOPS AND COMMERCIAL ESTABLISHMENT ACT, 1958 - SECTION 28A - PAYMENT OF GRATUITY ACT, 1972 - SECTION 2(R) - RAJASTHAN CO-OPERATIVE SOCIETIES ACT, 1965 - SECTION 148(2)(XXX) - RAJASTHAN CO-OPERATIVE SOCIETIES RULES, 1966 - RULE 41 - Whether the provisions of the Rajasthan Shops and Commercial Establishment Act, 1958 are applicable to a Co-operative Society? Whether the age of superannuation for employees of a Co-operative Society can be fixed by the Registrar, Co-operative Societies under Rule 41 of the Rajasthan Co-operative Societies Rules, 1966? Whether the provisions of Section 28A of the Rajasthan Shops and Commercial Establishment Act, 1958 are applicable to the retirement of an employee of a Co-operative Society on attaining the age of superannuation?
Fact of the Case:

The petitioner, a Co-operative Society, retired its employee, respondent No. 2, on attaining the age of 55 years, as per the conditions of service prescribed by the Registrar, Co-operative Societies. Respondent No. 2 challenged the retirement order under Section 28A of the Rajasthan Shops and Commercial Establishment Act, 1958, claiming that he was not given one month's notice or wages in lieu thereof. The Prescribed Authority allowed the application and directed the petitioner to reinstate respondent No. 2.
Finding of the Court:

The court held that the provisions of the Rajasthan Shops and Commercial Establishment Act, 1958 were not applicable to the petitioner, a Co-operative Society, as it was governed by the Rajasthan Co-operative Societies Act, 1965 and the directions of the State Government and the Registrar, Co-operative Societies. The court further held that the Registrar, Co-operative Societies had the power to specify the conditions of service of the employees of the Co-operative Societies under Rule 41 of the Rajasthan Co-operative Societies Rules, 1966, and that the age of superannuation for the employees of the petitioner had been fixed at 55 years by the Registrar through circulars. The court also held that the provisions of Section 28A of the Rajasthan Shops and Commercial Establishment Act, 1958 were not applicable to the retirement of an employee of a Co-operative Society on attaining the age of superannuation, as retirement on attaining the age of superannuation did not amount to discharge from service.
Issues: 1. Whether the provisions of the Rajasthan Shops and Commercial Establishment Act, 1958 are applicable to a Co-operative Society? 2. Whether the age of superannuation for employees of a Co-operative Society can be fixed by the Registrar, Co-operative Societies under Rule 41 of the Rajasthan Co-operative Societies Rules, 1966? 3. Whether the provisions of Section 28A of the Rajasthan Shops and Commercial Establishment Act, 1958 are applicable to the retirement of an employee of a Co-operative Society on attaining the age of superannuation?
Ratio Decidendi: 1. The Rajasthan Shops and Commercial Establishment Act, 1958 is not applicable to a Co-operative Society, as it is governed by the Rajasthan Co-operative Societies Act, 1965 and the directions of the State Government and the Registrar, Co-operative Societies. 2. The Registrar, Co-operative Societies has the power to specify the conditions of service of the employees of the Co-operative Societies under Rule 41 of the Rajasthan Co-operative Societies Rules, 1966. 3. The provisions of Section 28A of the Rajasthan Shops and Commercial Establishment Act, 1958 are not applicable to the retirement of an employee of a Co-operative Society on attaining the age of superannuation, as retirement on attaining the age of superannuation does not amount to discharge from service.
Final Decision: The court allowed the writ petition, set aside the order of the Prescribed Authority allowing the application of respondent No. 2 under Section 28A of the Rajasthan Shops and Commercial Establishment Act, 1958, and dismissed the said application.

JUDGMENT

1. - In this writ Petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for a writ of certio-rari to quash the order (Annexure 6) dated 15th May, 1982 passed the Prescribed Authority under the Rajasthan Shops and Commercial Establish-ment Act, 1958 (here in after referred to as 'the Prescribed Authority') where by the Prescribed Authority has allowed the application submitted by Shri Jeth Mal Lodha, respondent No. 2 under Section 28A of the Rajasthan Shops and Commercial Establishment Act, 1958 (here in after referred to as 'the Act').

2. The petitioner is a Co-operative Society registered under the provisions of the Rajasthan Co-operative Societies Act, 1965(here in after referred to as 'the Co-operative Societies Act). Respondent No. 2 was employed as a Cashier with the petitioner. By order dated 1st July, 1980, passed by the Executive Officer of the petitioner the respondent No. 2 was retired from service on the ground that he had attained 55 years of age. Feeling aggrieved by the aforesaid order the respondent No. 2 filed a petition Under Section 28A of the Act before the Prescribed Authority. In the said application respondent No. 2 submitted that he had been removed from service without any prior notice & without assigning any reason and that the said order should be set aside and he should be ordered to be reinstated in service. The petitioner filed a reply to the said petition wherein it was submitted that according to law an employee of the petitioner can he retired from service when he attains the age of 55 years and that the date of birth, as recorded by respondent No. 2 himself, was 2nd Dec, 1924 and, therefore, the respondent No. 2 could not continue in service. In the said reply an objection was also taken that the provisions of the Act were not applicable to the petitioner. The petitioner in its reply aforesaid, further stated that after passing of the order dated 1st May, 1980, the respondent No. 2 submitted an application wherein he prayed that two months wages may be given to him by way of financial assistance so that he may be able to set up some other business and that the said application was accepted by the petitioner and respondent No. 2 was paid two months wages by way of financial assistance. The Prescribed Authority by its order dated 15th May, 1982, rejected the contention of the petitioner that the provisions of the Act were not applicable to the petitioner and that the Prescribed Authority had no jurisdiction to entertain the petition. The Prescribed Authority also found that there was no service rule prescribing the age of retirement for the employees of the petitioner. Relying on the provisions contained in Section 2(r) of the Payment of Gratuity Act, 1972 the Prescribed Authority held that in cases where there is no contract of condition of service prescribing the age of superannuation, the age of superannuation would be 58 years and that the retirement of respondent No. 2 at the age of 55 years was illegal. The Prescribed Authority was further of the view that the order dated 1st July, 1980 was passed in violation of the provisions of Section 28A of the Act because the respondent No. 2 had not been given one month's notice. In view of the aforesaid findings, the Prescribed Authority set aside the order dated 1st July, 1980 as being illegal and directed reinstatement of respondent No. 2 in service with effect from 1st July, 1980 and to pay full wages to him. Feeling aggrieved by the aforesaid order passed by the Prescribed Authority, the petitioner has filed this writ petition.

3. In the writ petition, the petitioner has submitted that the petitioner being a Co-operative Society, is governed by the provisions of the Co-operative Societies Act and the directions of the State Government and the Registrar, Co-operative Societies (here in after referred to as 'the Registrar'). It has also been submitted that the Registrar, by circular letters dated

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1985 Supreme(Raj) 727

RAJASTHAN HIGH COURTS.C.Agrawal, J.B.N.K. Sahakari Wholesale Upbokta Bhandar Ltd. - AppellantVersusPrescribed Authority under Raj. Shop & Commercial Establishment Act - RespondentS.B.C.W.P. No. 1321 of 1982.Decided On : 8-10-1985

Cases Referred (3)

RAJASTHAN HIGH COURT
S.C.Agrawal, J.
B.N.K. Sahakari Wholesale Upbokta Bhandar Ltd. - Appellant
Versus
Prescribed Authority under Raj. Shop & Commercial Establishment Act - Respondent
S.B.C.W.P. No. 1321 of 1982.
Decided On : 8-10-1985