SONRAJ Vs. RAMKISHORE

JUDGEMENT

(1.) AGAINST the order dated July 19, 1984, the appellant who was petitioner in a petition under Articles 226 and 227 of the Constitution and whose writ petition was dismissed by the learned Single Judge, has filed this appeal under s. 18 of the Rajasthan High Court Ordinance, 1949.

(2.) THE petitioner- appellant carries on business in cloth in the name & style of M/s Sonraj Gautam Raj at Jodhpur and he is the employer and respondent No. 1, who was non-petitioner No. 1 in the writ petition, was employed by him on August 10, 1973. THE appellant and respondent No. 1 will hereinafter referred to as 'the petitioner and non-petitioner No, 1' respectively. THE case of non petitioner No. 1 in the complaint that was filed under s. 28-A of the Rajasthan Shops & Commercial Establishments Act, 1958 (Act No. XXXI of 1958) for short 'the Act')was that the petitioner had discharged him from employment without any reasonable cause and without notice on June 2, 1974. According to non-petitioner No. 1, it was necessary for the petitioner to serve him with a notice or to pay him one month's wages and as this was not done, the discharge from employment was illegal. It was also stated by non-petitioner No. 1 in the complaint that no misconduct was alleged against him. THE complaint is undated. It was addressed to the Authority appointed under the Rajasthan Shops & Commercial Establishments Act, 1958 at Jodhpur. It was registered as Case No. 3 of 1974. It was prayed that the petitioner may be directed to re-instate him in service together with back wages and costs of the complaint. THE notice was served on the petitioner for filing reply to the complaint. THE reply was filed and it was, inter-alia, contended that non - petitioner No. 1 had left the services of the petitioner of his own accord and calling despite him, he did not turn up to join duty. THE Authority, on the basis of the complaint and the reply, framed five issues inclusive of the relief. THE Authority by its order Annexure-1 dated August 27, 1977 came to the conclusion that non- petitioner No. 1 was discharged from service with effect from June 2, 1974 and that there was non-compliance of the provisions of s. 28-A of the Act and thus, the discharge of non-petitioner No. 1 was illegal. It, therefore, directed that non-petitioner No. 1 should be re-instated with full back wages. Being dissatisfied with the order Annexure-1 dated August 27, 1977, the petitioner filed the writ petition under Arts. 226 and 227 of the Constitution praying that respondent No. 2 Shri K. K. Tiwari, Authority under Shops & Commercial Establishment Act, Jodhpur who was non petitioner No. 2 in the writ petition had no authority to entertain, hear and decide the complaint of non-petitioner No. 1 under s. 28-A of the Act as he was not the Prescribed Authority under the Act. It was also submitted that for making complaint, no manner has been prescribed under the Rules. On these premises, it was contended in the writ petition that the order Annexure-1 dated August 27, 1977 of non- petitioner No. 2 is without jurisdiction and it is void and it should be quashed. THE writ petition was contested by non-petitioner No. 1 by filing a reply. It was, amongst others, averred that the petitioner had not raised the point of jurisdiction at any stage of the enquiry of the complaint before non-petitioner No. 2 and so, it will be deemed to have waived this objection and has acquiesced in the matter. Further that, by his conduct, he has disentitled himself to raise this objection before the Court.

(3.) WE have given most anxious and thoughtful consideration to the rival contentions of the learned counsel appearing for the parties.