Decided on September 12,1984

Chittorgarh Prathmik Sahkari Appellant


S.K.MAL LODHA, J. - (1.)THE petitioner has filed this writ this writ petition under Arts. 226 and 227 of the constitution for quashing the order Anx -19 dated October 24 1983 of the prescribed Authority, Bhilwara and Under the Rajasthan shops and commercial Establishments Act (for short the prescribed authority ') and for dismissing the claim of non petitioner No. 2 filed vide application Anx. 1 dated January 17, 1982
(2.)NON petitioner No. 2 Amarsingh led an application under Section 28A of the Rajasthan shops and commercial Establishment Act 1958 (Article No. xxxi of 1958) (for short 'the Act ') before the prescribed Authority (non -petitioner No. 1) on august 27, 1982. It was amongst other alleged that the petitioner cooperative bank in a shop and commercial establishment covered and governed by the Act. It was stated that non -petitioner No. 1 was first a pointed as a lower division clerk vide letter dated April 11 1981, along with other persons. His employment was terminated on December 22, 1981. He was further re -employed on January 1, 1982 and claims that he continued in the employment until July 28, 1982. In this way the petitioner alleged that he has been in continuous employment of the petitioner alleged that he has been in continuous employment of the petitioner for a period not less than six months. According to him the termination of the employment after July 28, 1982 was without cause and also not proper without payment of one month's salary. It was also stated that on reasons for terminating his employment were mentioned to him. He Submitted an application Anx. 1 supported by his affidavit to the prescribed authority. The petitioner contested the application alleging inter alia there there provisions of the Article ere not applicable to it and that initial appointment of the petitioner was not proper. It was alleged that he was in reviewed for regular selection in February, 1982 but his result was received in July 1982 and he was found amongst rejected candidates. It was contended that non petitioner No. 2 had not been in continuous employment since April 12, 1981. It was proved in the application that the termination of his employment with effect from July 28, 1952 is void and he is entitled to be reinstated with back wages, with effect from July 28, 1982. The petitioner contested the application by filing reply Anx. 2. The principal objection taken was that the initial appointment of non -petitioner No. 2 is null and void and that he was interviewed for normal selection on February 1982 and when his result was received in July 1982 he was found initially rejected. Non -petitioner No. 2's appointment was challenged on the ground that on the post of lower division clerk the regular appointment could be made by a Selection Committee constituted by the Registrar, Cooperative Societies, Rajasthan Jaipur. The invalid appointment cannot be validated and non -petitioner No. 2 is not entitled to any relief under Section 28 A of the Act. It has been stated that non -petitioner No. 2 was only temporary for a fixed period and, therefore, he is not entitled to file the application under Section 28 A of the Act. The parties led evidence and placed on record documentary evidence. The Prescribed Authority non -petitioner No. 1) held vide order Anx. 9 dated October 24, 1983 that the petitioner had been in continuous employment for a period of more than six months and as such Section 28A of the Act was attracted and as there was non -compliance of Section 28A of the Act, the termination of the employee's (non -petitioner No. 2) services was illegal and, therefore, he should be reinstated with back wages from the date of his termination. The petitioner has filed writ petition for quashing the order Anx. 19 as aforesaid.
Show cause notice was issued to the non -petitioners. On behalf of non -petitioner No. 2 reply has been filed praying that writ petition filed by the petitioner be dismissed. It was stated in the reply that in this case this Court should not interfere with the order of he Prescribed Authority, for, the writ jurisdiction should not be allowed to be used by the employer for the purpose of canvassing questions of fact when the judgment rests on the question of fact. It was also submitted that in the reply Anx. 2 it was not stated that employee's claim relating to continuous employment is wholly faked and based on concocted evidence. On account of the conduct, the petitioner has disentitled himself to the relief and the writ petition merited dismissal.

(3.)I have heard Mr. D.S. Shishodia for the petitioner and Mr. M. Mridul for non -petitioner No. 2 and considered the pleadings and the documents filed by the parties.

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