PRASAD, J. - (1.) THE petitioner is a partnership firm engaged in exhibiting films in THEatre known as Vishwajyoti THEatre. It is alleged that respondent No. 2 Virendra Kumar stopped coming to the establishment on and from 29. 1. 1987 without giving notice or information. THE petitioner's claim is that respondent No. 2 left the services of the petitioner at his own accord. His explanation was called by sending letter at his registered address but the same was returned with the endorsement that addressee is not found. An enquiry was contemplated to be held against the respondent No. 2. In the meanwhile, petitioner raised a dispute before the Conciliation Officer alleging that his services have been terminated w. e. f. 29. 1. 1987. In other dispute redressal forum, the case of the petitioner was also examined.
(2.) THE petitioner alleges that without exhausting the other remedy initiated by him, the respondent No. 2 switched on for redressal of his grievance to the remedy under Rajasthan Shops and Commercial Establishment Act, 1958 (hereinafter referred to as `the Act of 1958' ). An application under Sec. 28-A was preferred by the petitioner. THE application being barred by time, a condonation application was also moved. This application was contested by the petitioner. While trial was going on before the Prescribed Authority, on 28. 7. 1988, the petitioner was present before the Prescribed Authority but respondent No. 2 was not present. On being called, nobody put in appearance. The evidence of respondent No. 2 was closed and the case was posted for evidence of the petitioner. On 7. 11. 1989, petitioner's witness Prakash sharma and Raghunath Prasad were present and respondent No. 2 was not present. In absence of respondent No. 2, the matter was required to be dismissed but the matter was adjourned imposing costs of Rs. 50/ -. On subsequent date,witnesses were present but the respondent No. 2 was not present. Under these circumstances, the application was dismissed on 4. 12. 1989. An application was moved on behalf of respondent no. 2 for restoration. A reply to the restoration application was submitted by the petitioner. After contest, the restoration application was allowed and the case was posted for evidence of non-applicant and the next date was fixed on 21. 7. 1990. The case was adjourned and posted for 11. 9. 1990. The petitioner alleges that on 11. 9. 1990, the case was posted for evidence of the petitioner but the words "that the matter may be fixed for 11. 9. 1990 for the evidence of the petitioner" were scored out and the evidence of the petitioner was closed. In this background, the petitioner was deprived of leading his evidence. The original post of respondent No. 2 was Gate Keeper and he was only entitled to be reinstated as Gate Keeper but respondent No. 2 insisted for being reinstated as Booking Clerk. The petitioner was prepared to take respondent No. 2 as Gate keeper but respondent No. 2 did no resume his duty as such. The petitioner filed order-sheet of case NO. 253/89 to show that respondent No. was gainfully employed. Further, case of the petitioner is that in a taxation case, respondent No. 2 has appeared against him as witness and therefore, he was not one who was entitled to be retained in service.
(3.) ULTIMATELY, after trial, the application of respondent No. 2 was allowed. While allowing the application, the prescribed Authority has found that respondent No. 2 worked with the non- applicants during the period from 20. 10. 1982 to 29. 1. 1987 as a Booking Clerk and that services of the applicant were terminated on 29. 1. 1987 without any reasonable cause and without giving any orders in writing. It was also observed by the Authority that neither notice nor one month's pay in lieu of notice in compliance of provisions of Sec. 28-A of the Act of 1958 were given. Thus, it was observed that termination was in violation of provisions of Sec. 28-A of the Act of 1958. The contention of the petitioner that services of respondent No. 2 were not terminated but he had himself remained absent from duty since 29. 1. 1987 was not believed as the same was not supported by any evidence in its support. The Prescribed Authority has found that before the Conciliation Officer and also during the proceeding of present case, the non-applicant No. 2 promised to take back the applicant on service but when he reported on duty, he was refused. This kind of drama was played by the petitioner many a times. The Prescribed Authority further found that the non-applicant even refused to produce the attendance register, wages register, the duty charts, the wages slips, the cash slips, the leave with wages register which records are required to be maintained under the provisions of Minimum Wages Act, 1948, the Payment of Wages Act, 1936 and the Rajasthan Shops and Commercial Establishments Act, 1958 and the rules framed thereunder. Hence, adverse inference was drawn against the petitioner. The conduct of the petitioner was also noticed regarding its stand that they agreed to produce attendance register for the period 20. 10. 1982 to 29. 1. 1987 but in order to misguide the Court, they produced the attendance register for the period 1. 1. 1987 to 31. 1. 1988. The authority has further found that from the produced record from 1. 1. 1987 to 31. 1. 1987 was only relevant record and other produced record was irrelevant. It has further been found that though registered letters were sent to respondent No. 2 but the same were not produced. On over-all appreciation of evidence, the Prescribed Authority came to the conclusion that petitioner is entitled to be reinstated. Apart from oral arguments, the petitioner has also submitted written submissions in support of his case. The petitioner has contended that under Sec. 28-A of the Act of 1958, the application was required to be preferred within 30 days which was not moved. An application was filed for condonation of delay but curiously, no orders were passed by the Authority for condoning the delay and application was processed without there being formal order of condonation of delay. This results into factual position that no condonation was made and without condonation, processing of application was without jurisdiction. ;