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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.