- (1.) By this writ petition, a challenge is made to the order dated 28th March, 2011 passed by Prescribed Authority, Rajasthan Shops and Commercial Establishment, Jaipur City, Jaipur. It is a case where an application was moved before the prescribed authority to challenge termination w.e.f. 6.7.2009. The notice was issued and served upon the petitioner company. A reply was filed showing that termination has been effected vide order dated 25th August, 2009. The respondent employee sought amendment to challenge the order dated 25th August, 2009. It was allowed, accordingly. Certain prayers were added over and above the original prayers.
(2.) The learned counsel for petitioner submits that respondent employee was engaged on agreed terms, which comes out from the order of appointment. A clause exists regarding termination of service by giving three months notice or salary in lieu thereof. Pursuant to the terms and conditions of the appointment, the order of termination dated 25th August, 2009 was issued. The respondent employee approached the authority at a premature stage, when even order of termination was not passed. The Authority can be approached only when a written order of termination is passed. Thus, initial application was not even competent, hence, if should have been dismissed on the aforesaid ground alone.
(3.) It is further urged that at the time of issuance of order on 25th August, 2009, three month's salary was offered and accepted by respondent employee, thus it takes care of Section 28-A of the Rajasthan Shops and Commercial Establishment Act, 1958 (for short 'the Act of 1958') which require one month's notice pay or salary in lieu thereof. The respondent employee accepted the notice pay and even Provident Fund, which is a token of acceptance of the order of termination dated 25th August, 2009. The order clarifies that respondent employee will withdraw the application filed before the Authority as the notice pay and other benefits were offered to amicably settle the matter. It was also provided that if respondent employee is not in agreement, then not to accept the amount. Since respondent accepted the amount, it should be taken in full settlement. The aforesaid aspect has been ignored by Authority. In fact, validity of the order dated 25th August, 2009 has not even been adjudicated. The order under challenge does specify as to how order dated 25th August, 2009 is illegal.;