Full Judgment Text
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PETITIONER:
SRI GANGANAGAR URBAN COOPERATIVEBANK LTD.
Vs.
RESPONDENT:
PRESCRIBED AUTHORITY & ORS.
DATE OF JUDGMENT: 02/05/1997
BENCH:
K. RAMASWAMY, D.P. WADHWA
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
This appeal by special leave arise from the judgment of
the Division Bench of the High Court of Rajasthan at
Jodhpur, made on November 27, 1995 in D.B. Civil Special
Appeal No.863/95.
The admitted position is that the workmen, ten in
number, were appointed in 1992. As a sample case, services
of Mr. Ashok Kumar, respondent 7, 1990, were dispensed with
on June 5, 1992. They filed an application under Section
33(c-2) of the Industrial Disputes Act (for short, the ‘ID
Act’) before the Industrial Tribunal for direction of
reinstatement with full back wages. No such power under
Section 33(c-2) is available but the Tribunal has the power
under Section 11-A of the ID Act to give such a direction as
a consequence of the findings. Section 28-A of the Rajasthan
Shops and Commercial Establishment Act, 1958 (for short, he
‘Act’) under Chapter VI-A deals with dismissal, discharge
and termination of the service which reads as under:
"28-A Notice of dismissal or
discharge by employer - (1) No
employer shall dismiss or discharge
from his employment and employment
continuously for a period of not
less than six months except for a
reasonable cause and after giving
such employee at least one month’s
prior notice or on paying him one
month’s wages in lieu of such
notice;
Provided that such notice
shall not be necessary were the
service of such employee are
dispensed with for such misconduct,
as may be defined in the rules made
by the State Government in this
behalf, and supported by
satisfactory evidence recorded at
an enquiry held for the purpose in
the prescribed manner."
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The finding given by the Industrial Tribunal is that it
is a commercial establishment. Rule 20(d) of the Rajasthan
Cooperative Societies Rules, (for short, the ‘Rules’) made
under the Rajasthan Cooperative Societies Act, 1965 provides
thus :
"Rule 20(d) : Service of an
employee whose appointment has been
made or extended upto a specified
period or date only shall
automatically terminate on the
expiry of that period or date and
no notice for termination of
services of such employee will be
necessary."
A conjoint reading of te above provisions does indicate
that Section 28-A of the Act and Rule 20 of the Rules
mutually run in opposite streams. Section 28-A envisages
that no employer shall dismiss or discharge an employee from
his employment who has been in such employment continuously
for a period of not less than six months except for a
reasonable cause and that too after giving such employee at
least one month’s prior notice or on paying him one month’s
wages in lieu of such notice. The proviso postulates that
the employer also shall have the power to dispense with the
services of the employee for misconduct and such misconduct
shall be enquired into in accordance with the Rules made in
that behalf and supported by satisfactory evidence recorded
at an enquiry held for the purpose in the prescribed manner.
Thus, two courses are open to the employer to put an
end to the services of an employee - workman. One is to
dispense with the service by issuance of one month’s prior
notice or on paying one month’s wages in lieu of such
notice. What is more, the services can be dispensed with for
a reasonable cause. The other option is that the service of
an employee can be dispensed with on proof of misconduct
after due enquiry envisages adduction of evidence and
recording of a finding based thereon, enquiry in the
prescribed manner is conducted and the decision is taken in
that behalf. In this case, no such course was adopted.
Though Rule 20 of the Rules postulates automatic termination
service of an employee after expiry of the specified period,
the Act interposes and curtails that power of the employer
to terminate the service of the employee except in the
manner indicated in Section 28-A. Admittedly, no such action
has been taken by the appellant. Consequently, the action of
the appellant dispensing with the service without notice or
without paying one month’s wages in lieu thereof is clearly
illegal. The direction of reinstatement is correct however,
no back wages need to be paid.
The appeal is accordingly disposed of. No costs.