MOHAMMAD RAFIQ, J. - (1.) HEARD learned counsel for parties.
(2.) THIS writ petition has been filed by petitioner Daljeet Singh Dawas feeling aggrieved by order passed by the Prescribed Authority under the Rajasthan Shops and Commercial Establishment Act, 1958 (for short, 'the Prescribed Authority'), by which the Prescribed Authority rejected application of petitioner filed under Section 28 -A of Rajasthan Act on the premise that since it had by its earlier order dated 22.1.1997 (Annexure -10) held the domestic enquiry to be fair and proper, the matter needs not be examined any further on merit. Shri Prem Krishan Sharma, learned counsel for petitioner, has assailed the aforesaid order of the Prescribed Authority by citing a decision of the Supreme Court in Chairman, M/s. Brooke Bond India Private Ltd. & Another . v. Chandranath Choudhary 1969 (19) FLR 180. Learned counsel argued that provisions of Section 28 -A of the Rajasthan Act are in pari materia with Section 26 of the Bihar Shops and Establishment Act, 1953 and Rule 24 -A of the Rules framed under the Rajasthan Act is pari materia with Rule 20 of the Bihar Shops and Establishment Rules, 1955, which were under consideration before the Supreme Court in the cited case. In the State of Bihar the Labour Court was notified as the Prescribed Authority under Section 26 of the Bihar Act. It was held by the Supreme Court that Labour Court did not have limited jurisdiction under Section 26 as in the cases falling under Section 33 -A of the Industrial Disputes Act, 1947. The Prescribed Authority can arrive at its own finding on the evidence adduced by the parties and independently record its findings even after the domestic enquiry has been held to be fair and proper.
(3.) UPON hearing learned counsel for the parties, I find that the Prescribed Authority in the present case has fallen into the same error as was committed by the Labour Court in the cited Brooke Bond India's case by confusing the scope available to it under Section 28 -A of the Rajasthan Act with that of the proceedings under Section 33(2)(b) and/or 33 -A of the Act of 1947. The Supreme Court in Brooke Bond India's case (Supra) held that sub -section 2 of Section 26 of the Bihar Act, which is in peri -materia with Section 28 -A of the Rajasthan Act, confers right on an employee to file a complaint before the Labour Court on any of the three grounds set out therein. An employee so dismissed or discharged has a right under Section 26(2) and (5) to file a complaint on any one of the three grounds, namely, that there was no reasonable cause or that no notice was given to him or that he was not guilty of any misconduct. It was held that no comparison can be made between Section 26 of the Bihar Act and Section 33 -A of the I.D. Act because the proceedings under Section 26 are not by way of appeal against order passed on or as a result of domestic enquiry, they are independent and original proceedings where the competent authority has to arrive at its own finding on appreciation of evidence led before it and not on evidence adduced in the domestic enquiry.;