Amitava Roy, C.J. - (1.) BEING aggrieved by the judgment and order dated 17.8.2012 rejecting its challenge to the order dated 28.3.2011 passed by the Prescribed Authority, Rajasthan Shops and Commercial Establishment, Jaipur City, Jaipur qua the respondent No. 1 herein, the appellant/writ petition, who is the employer within the meaning of the Rajasthan Shops and Commercial Establishments Act, 1958 (for short, hereafter referred to as 'the Act'), is in appeal for redress. We have heard Mr. Virendra Agarwal, learned counsel for the appellant and Mr. N.K. Singhal, learned counsel for the respondent No. 1.
(2.) THE pleaded facts, at the outset, would be necessary to outline the rival orientations. The appellant invoked the writ jurisdiction of this Court contending that it is a public limited company registered under the Companies Act, 1956. The respondent No. 1 was provided appointment by it as a probationer on 1.5.1996, whereafter on 1.1.1997, he was recruited as Junior Executive Accountant. According to it, with time, he became wayward, and eventually, stopped coming to the office on and from 7.7.2009, and thereafter on 25.8.2009 vide a letter of the even date to that effect, his services were terminated with effect from the date of his absence i.e. 7.7.2009. Three months' salary in lieu of the notice period alongwith outstanding dues towards full and final settlement were offered to him by two cheques. The respondent No. 1 however prior thereto in July 2009, filed a petition under Section 28 -A of the Act, in which he concealed his default in coming to the office on and from 7.7.2009 and also the terms and conditions of the letter of his appointment dated 10.7.2002, which inter alia contained a clause permitting termination of his appointment by a three months' advance notice or salary in lieu thereof, and that, he had accepted the same without any reservation. While repudiating the allegations made in the petition submitted by the respondent No. 1 before the Prescribed Authority to be unfounded and frivolous, the appellant/writ petitioner contended that before it could file its reply, the respondent No. 1 sought an amendment of his petition seeking to challenge the letter of termination dated 25.8.2009, which was allowed. The learned Prescribed Authority eventually, at the conclusion of the proceedings in which the parties had adduced oral evidence, rendered its decision on 28.3.2011 with a direction to the appellant/writ petitioner to regularize the service/absence period, reinstate him and release all outstanding dues. Contending that Section 28 -A of the Act and Rule 24 -B of the Rajasthan Shops & Commercial Establishment Rules, 1959 (for short, hereafter referred to as 'the Rules'), had been wrongly interpreted and applied in the facts and circumstances of the case, the challenge was laid.
(3.) THE respondent No. 1, in his reply while claiming that he was appointed as Junior Executive Accountant with the appellant/writ petitioner on 1.5.1996, and that, thereafter, he was confirmed in that post on 1.1.1997, stoutly denied the allegation that he gradually became wayward. He asserted that he discharged his duty sincerely, honestly and diligently and denied the allegation that he stopped coming to the office from 7.7.2009. On the other hand, he imputed that on 4.7.2009, the charge of his office was taken away from him and on 7.7.2009, he was verbally terminated from service without citing any reason therefor. According to him, it was thereafter that on 20.7.2009, he filed the petition before the Prescribed Authority under the Act seeking its remedial intervention, whereupon notices were issued to the appellant/writ petitioner. The respondent No. 1 averred that on receipt of such notice, the appellant/writ petitioner arranged for its representation before the Prescribed Authority on 27.8.2009. Prior thereto however, by order dated 25.8.2009 his services were terminated with effect from 7.7.2009. While contending that no such decision could have been taken terminating his service in the manner done without holding any enquiry or affording any opportunity to him, the answering respondent further asserted that his ouster as devised with retrospective effect, was clearly invalid in law. Further, the decision dated 25.8.2009 during the pendency of proceedings before the Prescribed Authority was also non est.;