B.S.CHAUHAN,J. - (1.) THE instant writ petition has been filed against the judgment and order of the Prescribed Authority under the Rajasthan Shops and Commercial Establishments Act, 1958 (hereinafter called 'the Act') dated 27.2.1987 passed in Case No. 1/86 (Shops Act).
(2.) THE facts and circumstances giving rise to this case are that respondent No. 2 Man Singh was in the employment of the petitioner at Chittorgarh as Chowkidar and a theft took place between 1.12.1984 and 3.12.1984, in which silver coins worth Rs. 42,229.32 were stolen. An F.I.R. was lodged. Initially the brother -in -law of respondent No. 2 was arrested in connection with the theft and on further investigation it was found that respondent No. 2 and his wife were also involved and they were also arrested. After investigating the case, the police file challan under Section 457/380 of the Indian Penal Code against all the three accused and the trial is still pending before the Chief Judicial Magistrate, Chittorgarh. Some of the stolen property was recovered on the information given by respondent No. 2 and the other stolen properties were recovered on the informations given by other co -accused. One Man Mohan Bansal, Advocate, was appointed as the Enquiry Officer as respondent NQ. 2 had worked for more than six months with the petitioners and after holding the inquiry, he submitted the report by recording the finding that respondent No. 2 had committed the misconduct. A show cause notice was issued to the workman alongiwth the copy of inquiry report. He submitted his reply to the said show cause notice and after considering the same petitioner held that he was guilty of grave misconduct and his services were terminated vide order dated 21.7.1986 (Annx. 13). Being aggrieved and dissatisfied, workman filed a complaint before the Prescribed Authority, respondent No. 1. Petitioners filed reply thereto. Before the Authority, the workman examined himself as PW 1 and one more witness Subarti Khan as PW -2. Present petitioners examined Babu Lal, Hanuman Prasad and Mool Chand, S.H.O. and filed large number of documents relating to the criminal case before the said Authority, including the documents revealing information given by the workman leading to the recovery of the stolen property. The learned Authority held that one Hanuman Prasad the power of attorney holder had issued the charge sheet to the workman and he himself deposed before the Enquiry Officer and issued the order of termination therfore, the entire inquiry stood vitiated as the Disciplinary Authority cannot examine himself as a witness. It further held that as per the provisions of Section 28 -A of the Act, if a workman had complete six months' service, he could not be removed without holding a proper inquiry and as the inquiry stood vitiated being violative of the principles of natural justice, the termination was bad and pendency of criminal case would not come to the rescue of the employer. The Prescribed Authority further directed the reinstatement of the workman on some other post with all the back wages. Hence this writ petition. Basically two question have been raised by the learned Counsel for the parties: firstly, whether in a case of loss of confidence, it is necessary to hold the inquiry for removal of the workman; and secondly, whether the Prescribed Authority could have adjudicated on the issue of misconduct?
(3.) IT has fairly been conceded by Mr. Shishodia, learned Counsel for the petitioners that so far as the domestic inquiry was concerned, it stood vitiated as it was in violation of the principles of natural justice.;