S. K. MAL LODHA, J. - (1.) AGAINST the order dated July 19, 1984, the appellant who was petitioner in a petition under Articles 226 and 227 of the Constitution and whose writ petition was dismissed by the learned Single Judge, has filed this appeal under s. 18 of the Rajasthan High Court Ordinance, 1949.
(2.) THE petitioner- appellant carries on business in cloth in the name & style of M/s Sonraj Gautam Raj at Jodhpur and he is the employer and respondent No. 1, who was non-petitioner No. 1 in the writ petition, was employed by him on August 10, 1973. THE appellant and respondent No. 1 will hereinafter referred to as 'the petitioner and non-petitioner No, 1' respectively. THE case of non petitioner No. 1 in the complaint that was filed under s. 28-A of the Rajasthan Shops & Commercial Establishments Act, 1958 (Act No. XXXI of 1958) for short 'the Act')was that the petitioner had discharged him from employment without any reasonable cause and without notice on June 2, 1974. According to non-petitioner No. 1, it was necessary for the petitioner to serve him with a notice or to pay him one month's wages and as this was not done, the discharge from employment was illegal. It was also stated by non-petitioner No. 1 in the complaint that no misconduct was alleged against him. THE complaint is undated. It was addressed to the Authority appointed under the Rajasthan Shops & Commercial Establishments Act, 1958 at Jodhpur. It was registered as Case No. 3 of 1974. It was prayed that the petitioner may be directed to re-instate him in service together with back wages and costs of the complaint. THE notice was served on the petitioner for filing reply to the complaint. THE reply was filed and it was, inter-alia, contended that non - petitioner No. 1 had left the services of the petitioner of his own accord and calling despite him, he did not turn up to join duty. THE Authority, on the basis of the complaint and the reply, framed five issues inclusive of the relief. THE Authority by its order Annexure-1 dated August 27, 1977 came to the conclusion that non- petitioner No. 1 was discharged from service with effect from June 2, 1974 and that there was non-compliance of the provisions of s. 28-A of the Act and thus, the discharge of non-petitioner No. 1 was illegal. It, therefore, directed that non-petitioner No. 1 should be re-instated with full back wages. Being dissatisfied with the order Annexure-1 dated August 27, 1977, the petitioner filed the writ petition under Arts. 226 and 227 of the Constitution praying that respondent No. 2 Shri K. K. Tiwari, Authority under Shops & Commercial Establishment Act, Jodhpur who was non petitioner No. 2 in the writ petition had no authority to entertain, hear and decide the complaint of non-petitioner No. 1 under s. 28-A of the Act as he was not the Prescribed Authority under the Act. It was also submitted that for making complaint, no manner has been prescribed under the Rules. On these premises, it was contended in the writ petition that the order Annexure-1 dated August 27, 1977 of non- petitioner No. 2 is without jurisdiction and it is void and it should be quashed. THE writ petition was contested by non-petitioner No. 1 by filing a reply. It was, amongst others, averred that the petitioner had not raised the point of jurisdiction at any stage of the enquiry of the complaint before non-petitioner No. 2 and so, it will be deemed to have waived this objection and has acquiesced in the matter. Further that, by his conduct, he has disentitled himself to raise this objection before the Court. Before the learned Single Judge, three contentions were raised by the petitioner: 1. that non-petitioner No. 2 was not an authority prescribed under the Act and, therefore, the order is of no consequence; 2. that as no provisions have been made or procedure laid down, the Authority had no jurisdiction to enquire into the complaint and grant the relief; 3. that there was no retrenchment/discharge from employment at all so as to warrant action under s. 28-A of the Act. After considering the submissions that were advanced by the learned counsel appearing for the parties, the learned Single Judge has recorded the following findings: (1) that the State Government's power to appoint the prescribed authority is derived from the Act itself and so, it cannot be said that the prescribed authority had no jurisdiction to hear the complaint of non-petitioner No. 1, and that admittedly under s. 28-A (2) of the Act, the State Govt. had appointed respondent No. 2 as the Authority under the Act; (2) that it is not correct that no provision has been made or procedure laid down for making and hearing of the complaint; (3) that there was retrenchment within the meaning of the Act by the petitioner inasmuch as he did not allow non-petitioner No. 1 to work at his shop. In view of the aforesaid findings, the learned Single Judge dismissed the writ petition and discharged the rule. Being dissatisfied, the petitioner-appellant has filed this appeal as aforesaid. We have heard Mr. M. M. Vyas, learned counsel for the appellant and Mr. M. R. Singhvi, learned counsel for respondent No. 1. Mr. R. C. Maheshwari, learned Additional Government Advocate has supported the order under appeal and adopted the arguments that were raised by Mr. M. R. Singhvi, learned counsel for the respondent No. 1. Mr. M. M. Vyas, learned counsel for the appellant has pressed for our consideration, in the first instance, that the learned Single Judge went wrong in holding that respondent No. 2 is the Prescribed Authority under the Act so as to entertain, hear and decided the complaint under s. 28-A of the Act filed by non-petitioner No. 1, as according to him, respondent No. 2 was not appointed as the Authority under the Act by the Rules or contemplated by s. 28-A of the Act. According to him, the Authority envisaged under s. 28-A (2) of the Act means the Authority which has been prescribed by the Rules to be framed under the Act. The crux of the argument of the learned counsel for the appellant is that the Authority which has passed the order Annexure-1 dated August 27, 1977 lacked inherent jurisdiction to entertain, hear and decide the complaint under s. 28-A of the Act. This submission of the learned counsel for the appellant is strongly resisted by Mr. M. R. Singhvi, learned counsel for respondent No. 1 on two counts; (i) that the State Govt. has appointed respondent No. 2 as the Prescribed Authority by means of the notification issued by it which will be referred herein at the appropriate place. According to him, the Authority appointed by the notification was the Prescribed Authority under s. 28-A (2) of the Act; and (ii) that in the reply which was filed by the petitioner objection regarding want of jurisdiction of respondent No. 2 was not taken and not only that, at any stage during the enquiry of the complaint, this objection until the decision by respondent No. 2 was not raised and, therefore, it will be deemed to have been waived and abandoned and so, in these circumstances, this objection could not be taken by him in the writ petition. In this view of the matter, according to the learned counsel for non-petitioner No. 1, the plea of want of jurisdiction is not available to the petitioner. In support of his submissions, Mr. M. R. Singhvi, learned counsel for non-petitioner No. I has invited our attention to Jhunjhunu Kendriya Sahakari Bank Ltd. vs. The State of Rajasthan (I), Shivlal Vs. State of Rajasthan (2), Municipal Board, Merta v. The Labour Commissioner (3) M/s. Nehru Motor T. Co. S. Ltd. V. Dy. Reg. Co. S. (4) Gandharb vs. Addl. Dist. Development Officer (5) and Sohansingh V. G. M. Ordinance Factory, Khamaria (6 ).
(3.) WE have given most anxious and thoughtful consideration to the rival contentions of the learned counsel appearing for the parties. It may be stated that s. 28 A occurs in Chapter VI-A and the whole of the section was inserted by (Raj. Act, II of 1972) Vide notification No. F. 7 (25) Vidhi 70 dated March 17,1972 published in Rajasthan Gazette Extra Ordinary Part IV-A dated March 17, 1972. it will profitable here to consider the definition of 'prescribed Authority' in the Act. S. 2 (14) of the Act defines the 'prescribed authority' to mean the authority prescribed by rules made under the Act. S. 40 deals with power to make rules. The material portion of s. 40 for the present purpose reads as under: "40. Power to make rules; (1) The State Govt. may, by notification in the Official Gazette, make rules for the purpose of carrying into effect the provisions of this Act. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4) The power to make rules conferred by this section is subject to the condition of the rules being made after previous publication. " Now, we advert to s. 28-A of the Act under which, the complaint was filed by non-petitioner No. 1 against the petitioner. The material part of s. 28-A of the Act is as under: "s. 28-A. Notice of dismissal or discharge by employer; (1 ). . . . . . . . . (2) Every employee so dismissed or discharged may make a complaint in writing in the prescribed manner to a prescribed authority within 30 days of the receipt of the order of dismissal or discharge on one or more of the following grounds, namely: - (a) that there was no reasonable cause for disposing with the service; or (b) that no notice was served upon him as required by sub-section (1); or (c) that he had not been guilty of any misconduct; provided that the prescribed authority may condone delay in filing such a complaint if it is satisfied that there was sufficient cause for not making the complaint within the prescribed time. " A complaint under s. 28-A of the Act by an employee who has been dismissed or discharged has to be filed before a prescribed authority. That complaint has to be in writing in the prescribed manner. According to s. 2 (14) of the Act, the Prescribed Authority as envisaged by s. 28-A (2) of the Act is the authority to be prescribed by the Rules which are to be framed under s. 40 of the Act. S. 40 (4) of the Act makes abundantly clear that power to make rules conferred by s. 40 has been made subject to the condition of the rules being made after the previous publication. Here, it is necessary to examine two notifications which have been relied on by Mr. M. R. Singhvi, learned counsel for non-petitioner No. 1. The first notification No. F. 1 (11) (4) Lab. /70 dated May 1, 1972 recites that in exercise of the powers conferred by sub-s. (2) of S. 28-A of the Act, the State Govt. appoints the Officers mentioned therein to be the Authority before whom complaint can be made by the employee regarding his dismissal or discharge, for the local areas specified against each. At item No. 3, there is a mention of the Regional Assistant Labour Commissioner, Jodhpur for the local areas Jodhpur. Jaisalmer, Pali, Barmer, Sirohi, Jalore and Nagaur Districts. The aforesaid notification was published in Rajasthan Gazette Part I-A dated July 13, 1972 at page 52. According to Mr. M. R. Singhvi, learned counsel for non-petitioner No. 1, the State Government had appointed the prescribed authority by means of the aforesaid notification and this too, in exercise of the powers under sub-s. (2) of s. 28-A of the Act. He has also referred to notification No. F. 1 (1) L & E dated January 11, 1974 by which the State Government in exercise of the powers conferred by sub-s. (2) of s. 28-A of the Act in supersession of all previous notifications issued in this respect, appointed the officers mentioned therein to be the authority before whom the complaint can be made by the employee regarding dismissal or discharge. At item No. 4, Regional Deputy Labour Commissioner, Jodhpur has been specified as the Authority for the local areas Jodhpur, Jaisalmer, Pali, Barmer, Sirohi, Jalore and Nagaur Districts. On the basis of this notification, he submitted that there was a Prescribed Authority before him and non-petitioner No. 1 submitted his complaint under s. 28-A of the Act. In these circumstances, the most important and pertinent question that arises is whether the Authority that has been appointed by the notifications of 1972 or 1974 can be considered as the prescribed authority' under the Act for the purpose of sub-s. (2) of s. 28-A of the Act and further whether that meets with the requirements of s. 40 (4) of the Act. We may pause here to notice s. 26 of the Rajasthan General Clauses Act, 1955 (Raj. Act No. VIII of 1955) ('the Act of 1955' herein) which corresponds to s. 23 of the General Clauses Act, 1897 (No. X of 1897 ). It reads as under: "s. 26. Provisions applicable to making of rules, etc. , after previous publication.-where by any Rajasthan law, a power to make rules, regulation or bye-laws is expressed to be given subject to the condition of the rules, regulations or bye-laws being made after previous publication, then unless such law otherwise provides, the following provisions shall apply, namely:- (1) the authority having power to make the rules, regulations or bye-laws, shall, before making them, publish a draft of the proposed rules, regulations or bye-laws for the information of persons likely to be affected thereby: (2) the publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with respect to previous publication so requires, in such manner as the Government prescribes; (3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration; (4) the authority having power to make the rules, regulations or bye-laws, and, where the rules, regulations or bye-laws are to be made with the sanction, approval or concurrence of another authority, that authority also shall consider any objection or suggestion which may be received by the authority having power to make the rules, regulations or bye-laws from any person with respect to the draft before the date so specified; (5) the publication in the Rajasthan Gazette of a rule, regulation or bye-laws purporting to have been made in exercise of a power to make rules, regulations or bye-laws after previous publication shall be conclusive proof that the rule, regulation or bye-law has been duly made. " S. 32 of the Act of 1955 deals with definitions and according to s. 32 (58), 'prescribed' means prescribed by rules made under any enactment. The two notifications relied on by the learned counsel for non-petitioner No. 1, of course, purport to have been issued under s. 28-A (2) of the Act. S. 22 of the Act of 1955 which occurs under the head "provisions as to Notifications, Orders, Rules etc. " made under enactments is as under : "s. 22. Construction of notifications, orders, etc. issued or made under enactments:- Where by any Rajasthan Law, a power to issue or make any notification, order, scheme, rule regulation, form or bye-law is conferred, then the expressions used in the notification, order, scheme, rule regulation form or bye-law shall unless there is anything repugnant in the subject or context have the same retrospective meanings as in the Rajasthan Law conferring the power. " S. 32 (63) defines 'rajasthan Law' to mean and include as follows: " (i) as respects any period on and after the seventh day of April, 1949:- (a) an Ordinance made and promulgated by the Rajpramukh of Rajasthan in pursuance of the Covenant; or (b) an Act made by him in exercise of the power conferred by Art. 385 of the Constitution; or (c) an Act so made with the assent of the President; or (d) an Ordinance promulgated by the Rajpramukh of Rajasthan under Art. 213 of the Constitution; or (e) an Act passed by the State Legislative Assembly which has received the assent of Rajpramukh or the President, as the case may require, and (ii) as respects the period, to the said day:- (a) an Ordinance made and promulgated by the Rajpramukh of the former Rajasthan State or of the former Mataya State in pursuance of the Covenant, or (b) so far as may be any law made by the Ruler or a competent Legislature or other competent authority or Officer of a Covenanting State. " Under s. 2 (14)of the Act, the Authority has to be prescribed by the Rules made under the Act S. 40 (4) of the Act lays down that the power of making rules is subject to the condition of the rules being made after previous publication. Admittedly, the authority has not been prescribed by the Rules framed under the Act. As such, there was no authority prescribed by the Rules which could entertain, hear and decide the complaint. The notifications relied on by Mr. M. R. Singhvi cannot be said to have been issued in exercise of the power conferred by the Act itself. The two notifications cannot be availed of in this connection. This matter can be viewed from another angle also. If the contention of Mr. M. R. Singhvi, is accepted for argument's sake that the notifications have been issued under sub-section (2) of s. 28-A of the Act, still the question is whether by virtue of these, the authority has been prescribed by the Rules under the Act in accordance with s. 40 (4) of the Act. In other words, we have to see whether there was compliance of s. 40 (4) of the Act before issuing the notifications. ;