1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.2307/1993 Rajasthan Rajya Sahakari Upbhokta Sangh Ltd. vs. Authority under Rajasthan Shops and Commercial Establishments Act & Anr. Date of order : 13/8/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Puneet Gupta on behalf of Shri M.D. Agarwal for the petitioner. Shri Nishant Vyas on behalf of Shri P.K. Sharma for the respondent no.2. ****** This writ petition has been filed by Rajasthan Rajya Sahakari Upbhokta Sangh Ltd. challenging the orders dated 27.12.1991, 7.11.1992 and 16.1.1993 passed by Prescribed Authority under the Rajasthan Shops and Commercial Establishments Act, 1958. Factual matrix of the case is that the respondent no.2 Smt. Manorma Saxena was appointed on 8.11.1979 as Salesman in the petitioner Sangh and her services were terminated on 20.9.1986 in a disciplinary enquiry. She filed an application before the Prescribed Authority under Section 28-A on 18.10.1986. When the petitioner failed to appear before the authority, Authority proceeded against them ex-parte and 2 subsequently on 27.12.1991, an order was passed directing reinstatement of respondent in service with back wages at the rate of 50%. Petitioner Sangh then filed an application before the said authority on 7.8.1991 for setting aside the ex-parte order and allowing her to participate in the proceeding. The said application was allowed on payment of cost of Rs.500/- by order dated 28.4.1992 and the matter was fixed for further proceedings. The petitioner Sangh then submitted an application for permitting them to cross-examine the witnesses of respondent no.2. The matter was then posted on consideration of the question of the enquiry. In the meantime, the petitioner Sangh submitted an application on 18.9.1992 for amending the written statement that was done after the arguments for final hearing were completed on 3.9.1992 and the matter was fixed for necessary orders on 25.9.1992. Not only this, the petitioner Sangh then filed another application on 23.9.1992 with the prayer that they be allowed to lead evidence. In those facts, the learned Prescribed Authority having noted that the final 3 arguments have already been heard and subsequent applications could not be accepted, allowed the application of the respondent by impugned order dated 7.11.1992. Shri Puneet Gupta, learned counsel for the petitioner has argued that when the two applications filed by the petitioner was pending for being decided, the learned Prescribed Authority could not have finally allowed the application with direction of reinstatement of respondent no.2 with 50% of back wages. It is contended that the services of respondent no.2 were terminated on various charges i.e. for not opening the shop of the Sangh on time, making less sales, frequently remaining on leave, for insubordination, sometimes willfully absenting from duties, for not depositing the amount of shortage etc. She was therefore not entitled to reinstatement and back wages. Learned Prescribed Authority ought to have first decided the application of the petitioner, rather than deciding the main case itself. It is therefore prayed that the writ petition be allowed and the impugned orders be quashed and set aside and the matter be remanded back 4 to the learned Prescribed Authority for hearing it afresh. Per contra, Shri Nishant Vyas, learned counsel for the respondent no.2 opposed the writ petition and submitted that during the pendency of the present writ petition, respondent no.2. Smt. Manorma Saxena has unfortunately expired on 11.3.2007 and now the present petition is being contested by her legal heirs. It is contended that the enquiry was not held according to the procedure prescribed under the relevant rules and that the respondent was not given full opportunity to defend herself and the principles of natural justice were violated in a wholesome manner. Learned counsel referred to the earlier order passed by the Prescribed Authority allowing the application of the respondent as also the subsequent order passed on 7.11.1992 to bring home the point. It is contended that when already matter was heard and it was fixed for decision, the petitioner Sangh deliberately with a view to delaying the proceedings made two consecutive applications, one for amendment of the written statement and other 5 for leading evidence which opportunity should have been availed of earlier then final arguments. Learned counsel submitted that in any case the respondent no.2 having expired and that the post held by him was not a pensionable post, her legal heirs were entitled to be get salary for the period till she became due for superannuation, payment of leave encashment, provident fund and gratuity amount and other benefits etc. Although the Prescribed Authority has already reduced such amount to 50%, but the legal heirs are agreeable to a further reduction to 50%, thus it would ultimately remain only 25% of the total amount which she would have received, but the direction of the Prescribed Authority was to reduce it just to half. Having regard to the submissions above and keeping in view the fact that there are many many lacunaes in the disciplinary proceeding that was held, I do not find either desirable or necessary to remand the matter to the Prescribed Authority which even otherwise would be a difficult for the legal heirs of the respondent no.2 to defend because it would not be possible for them to 6 procure the evidence at this distance of time. However, I find that the judgement of learned Prescribed Authority does not warrant any interference because the applications to which reference has been made by the petitioner, were moved by the petitioner after the final arguments were heard and the matter was referred for final arguments. In order to however maintain balance the equities, it is directed that the legal heirs of respondent no.2 would be entitled to only 25% of the dues payable to the respondent no.2 together with interest @ 6%, which amount shall be paid by them within a period of three months from the date copy of this order is produced before them. The writ petition is accordingly disposed of. (MOHAMMAD RAFIQ), J. RS/