SURESH CHANDRA AGRAWAL, J. - (1.) IN this writ Petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for a writ of certio -rari to quash the order (Annexure 6) dated 15th May, 1982 passed the Prescribed Authority under the Rajasthan Shops and Commercial Establish -ment Act, 1958 (here in after referred to as 'the Prescribed Authority') where by the Prescribed Authority has allowed the application submitted by Shri Jeth Mal Lodha, respondent No. 2 under Section 28A of the Rajasthan Shops and Commercial Establishment Act, 1958 (here in after referred to as 'the Act').
(2.) THE petitioner is a Co -operative Society registered under the provisions of the Rajasthan Co -operative Societies Act, 1965(here in after referred to as 'the Co -operative Societies Act). Respondent No. 2 was employed as a Cashier with the petitioner. By order dated 1st July, 1980, passed by the Executive Officer of the petitioner the respondent No. 2 was retired from service on the ground that he had attained 55 years of age. Feeling aggrieved by the aforesaid order the respondent No. 2 filed a petition Under Section 28A of the Act before the Prescribed Authority. In the said application respondent No. 2 submitted that he had been removed from service without any prior notice and without assigning any reason and that the said order should be set aside and he should be ordered to be reinstated in service. The petitioner filed a reply to the said petition wherein it was submitted that according to law an employee of the petitioner can he retired from service when he attains the age of 55 years and that the date of birth, as recorded by respondent No. 2 himself, was 2nd Dec, 1924 and, therefore, the respondent No. 2 could not continue in service. In the said reply an objection was also taken that the provisions of the Act were not applicable to the petitioner. The petitioner in its reply aforesaid, further stated that after passing of the order dated 1st May, 1980, the respondent No. 2 submitted an application wherein he prayed that two months wages may be given to him by way of financial assistance so that he may be able to set up some other business and that the said application was accepted by the petitioner and respondent No. 2 was paid two months wages by way of financial assistance. The Prescribed Authority by its order dated 15th May, 1982, rejected the contention of the petitioner that the provisions of the Act were not applicable to the petitioner and that the Prescribed Authority had no jurisdiction to entertain the petition. The Prescribed Authority also found that there was no service rule prescribing the age of retirement for the employees of the petitioner. Relying on the provisions contained in Section 2(r) of the Payment of Gratuity Act, 1972 the Prescribed Authority held that in cases where there is no contract of condition of service prescribing the age of superannuation, the age of superannuation would be 58 years and that the retirement of respondent No. 2 at the age of 55 years was illegal. The Prescribed Authority was further of the view that the order dated 1st July, 1980 was passed in violation of the provisions of Section 28A of the Act because the respondent No. 2 had not been given one month's notice. In view of the aforesaid findings, the Prescribed Authority set aside the order dated 1st July, 1980 as being illegal and directed reinstatement of respondent No. 2 in service with effect from 1st July, 1980 and to pay full wages to him. Feeling aggrieved by the aforesaid order passed by the Prescribed Authority, the petitioner has filed this writ petition. In the writ petition, the petitioner has submitted that the petitioner being a Co -operative Society, is governed by the provisions of the Co -operative Societies Act and the directions of the State Government and the Registrar, Co -operative Societies (here in after referred to as 'the Registrar'). It has also been submitted that the Registrar, by circular letters dated 29th June, 1967, issued in exercise of the powers conferred under the Co -operative Societies Act, has directed that no employee who has completed the age of 55 years should be kept in service any more and that the age of retirement of the employees of the co -operative societies would be 55 years and no person above the age of 55 years should be appointed. According to the petitioner the aforesaid direction was repeated in the letter dated 2nd December, 1968 sent by the Registrar. The case of the petitioner is that the aforesaid letters of the Registrar have got statutory force when they prescribed the age of retirement of employees of the petitioner and that in view of the said letters the age of retirement of the petitioner has been fixed as 55 years and that the Prescribed Authority was, therefore, not right in holding that no age of superannuation has been fixed for the employees of the petitioner. In the writ petition it has also been stated that the Prescribed Authority had erred in relying upon the provisions of the Payment of Gratuity Act, 1972 for the purpose of fixing the age of superannuation of the employees of the petitioner.
(3.) NO reply to the writ petition has been filed on behalf of respondent No. 2. Shri Maloo, the learned Counsel for the petitioner has invited my attention to the provisions contained in Clause (xxx) of Sub -section (2) of Section 148 of the Co -operative Societies Act as well as Rule 41 of the Rajasthan Co -operative Societies Rules, 1966 (here in after referred to as 'the Cooperative Societies Rules'). Shri Maloo has also invited my attention to the Setter dated 11th July, 1967 addressed by the Assistant Registrar, Co -operative Societies, Ajmer to the Executive Officer of the petitioner which has been annexed as Annexure 2 to the writ petition and the circular dated 2nd Sept., 1968 addressed by the Registrar, Co -operative Societies to the petitioner, which has been annexed as Annexure 3 to the writ petition. On the basis of the aforesaid documents, Shri Maloo has submitted that one of the conditions of service of the employees of the petitioner was that they would retire at the age of 55 years.;