JUDGMENT
1. The appellants Hotel Malwa, Jaipur Road, Ajmer seeks to quash the order dated of February 26, 1999 of the learned single Judge whereby, the writ petition of the appellant was dismissed and the order dated December 31, 1998 of the Prescribed Authority under the Rajasthan Shops and Commercial Establishments Act, 1958 (hereinafter to be referred as ‘the Act’ 1958) was confirmed.
2. Contextual facts depict that the respondent No. 2 (hereinafter referred to as ‘Concerned Workman’), submitted an application under Section 28-A of the Act of 1958 before the Prescribed Authority with the averments that he had been working with the appellant for continuous period of last 17-18 years as Manager and Clerk and was gettirig Rs. 1465/- per month as salary. On April 30, 1998 when the respondent went to attend Hotel Malwa, he was prevented by the Guard from entering into the premises and his services were terminated by an order dated April 30, 1998. It was, therefore, prayed to set aside the said order and reinstate him back in the service.
3. Notice was issued to the appellant by the Prescribed Authority. The appellant appeared before the Prescribed Authority and filed written statement, stating therein that the services of the respondents were never terminated on April 30, 1998 by an oral order. An enquiry was initiated by serving a charge-sheet on him and, thereafter, his services were terminated on August 7, 1998.
4. On the basis of the pleadings of the parties as many as two issues were framed, which have been incorporated in the order dated December 31, 1998 of the Prescribed Authority, Ajmer. The appellant examined Mr. Shabbir Sagarwala, whereas, the respondent appeared himself in the witness box. The Prescribed Authority vide its order dated December 31, 1998 decided both the issues in favour of the respondent workman and reinstated the services of the respondent w.e.f. April 30, 1998.
5. The appellant assailed the aforequoted order of the Prescribed Authority by filing a writ petition. The learned single Judge vide order dated February 26, 1999 dismissed the writ petition. The aforesaid findings have been assailed by the appellant in the instant special appeal.
6. We have heard Shri Punit Mehra, learned counsel appearing for the petitioner and carefully scanned the material on record.
7. It appears that the respondent on May 26, 1998 served a notice on the appellant intimating that the services of the respondent were illegally terminated on April 30, 1998. It was also stated that the action of the appellant in not allowing the workman to enter in the Hotel premises on April 30, 1998 was illegal and if his services were not reinstated within three days he would initiate legal action. Admittedly no reply to the notice was given by the respondent.
8. Shri Punit Mehra, learned counsel appearing for the appellant canvassed that the appellant had given reply to the notice by issuing charge sheet on June 15, 1998 and it was not necessary to send separate reply to the notice. Learned counsel further contended that during the pendency of enquiry no order could have been passed under Section 28-A of the 1958 Act.
9. A close look at the statement of Mr. Shabbir Sagarwala demonstrates that in his cross-examination he has admitted to have received notice dated May 26, 1998. He has further admitted that the facts incorporated in the said notice (Annexure-1) were correct. Thus in view of the statement of Mr. Shabbir Sagarwala, we are inclined to hold that the findings of Prescribed Authority as well as learned single Judge do not require any interference by us.
10. Section 28-A of the Rajasthan Shops and Commercial Establishments Act, 1958 5 provides thus : –
“No employer shall dismiss or discharge from his employment any employee who has been in such employment continuously for a period of not less tharr6 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 where the services 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”.
11. We are of the view that services of the respondent could not have been terminated without serving a prior notice. The case of the appellant is not covered by the aforesaid proviso and in view of the admission made by Shabbir Sagarwala. In our considered opinion, the appellant has not complied with the provisions of Section 28-A of the 1958 Act.
12. In view of what we have discussed hereinabove, we do not find any merit in the appeal. It is accordingly dismissed.