SBCWP5452/1997 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.5452/1997 Daljeet Singh Dawas Vs. Prescribed Authority under Section 28-A of Rajasthan Shops and Commercial Establishment Act, 1958 and Another Date of Order ::: 10.03.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Prem Krishan Sharma, Counsel for petitioner Shri Ajeet Kumar Sharma, Counsel for respondent No.2 #### //Reportable// By the Court:- Heard learned counsel for parties. This writ petition has been filed by petitioner Daljeet Singh Dawas feeling aggrieved by order passed by the Prescribed Authority under the Rajasthan Shops and Commercial Establishment Act, 1958 (for short, 'the Prescribed Authority'), by which the Prescribed Authority rejected application of petitioner filed under Section 28-A of Rajasthan Act on the premise that since it had by its earlier order dated 22.01.1997 (Annexure-10) held the domestic enquiry to be fair and proper, the matter needs not be examined any further on merit. Shri Prem Krishan Sharma, learned counsel SBCWP5452/1997 // 2 // for petitioner, has assailed the aforesaid order of the Prescribed Authority by citing a decision of the Supreme Court in Chairman, M/s. Brooke Bond India Private Ltd. And Another Vs. Chandranath Choudhary – 1969 (19) F.L.R. 180. Learned counsel argued that provisions of Section 28-A of the Rajasthan Act are in peri- materia with Section 26 of the Bihar Shops and Establishment Act, 1953 and Rule 24-A of the Rules framed under the Rajasthan Act is peri- materia with Rule 20 of the Bihar Shops and Establishment Rules, 1955, which were under consideration before the Supreme Court in the cited case. In the State of Bihar the Labour Court was notified as the Prescribed Authority under Section 26 of the Bihar Act. It was held by the Supreme Court that Labour Court did not have limited jurisdiction under Section 26 as in the cases falling under Section 33-A of the Industrial Disputes Act, 1947. The Prescribed Authority can arrive at its own finding on the evidence adduced by the parties and independently record its findings even after the domestic enquiry has been held to be fair and proper. Upon hearing learned counsel for the parties, I find that the Prescribed Authority in the present case has fallen into the same error SBCWP5452/1997 // 3 // as was committed by the Labour Court in the cited Brooke Bond India's case by confusing the scope available to it under Section 28-A of the Rajasthan Act with that of the proceedings under Section 33(2)(b) and/or 33-A of the Act of 1947. The Supreme Court in Brooke Bond India's case (Supra) held that sub-section 2 of Section 26 of the Bihar Act, which is in peri-materia with Section 28-A of the Rajasthan Act, confers right on an employee to file a complaint before the Labour Court on any of the three grounds set out therein. An employee so dismissed or discharged has a right under Section 26(2) and (5) to file a complaint on any one of the three grounds, namely, that there was no reasonable cause or that no notice was given to him or that he was not guilty of any misconduct. It was held that no comparison can be made between Section 26 of the Bihar Act and Section 33-A of the ID Act because the proceedings under Section 26 are not by way of appeal against order passed on or as a result of domestic enquiry, they are independent and original proceedings where the competent authority has to arrive at its own finding on appreciation of evidence led before it and not on evidence adduced in the domestic enquiry. In view of the authoritative pronouncement of law by the Supreme Court in SBCWP5452/1997 // 4 // Brooke Bond India's case (Supra), it cannot be held that the competent authority under Section 28-A of the Rajasthan Act has limited jurisdiction as in cases falling under Section 33(2)(b) or 33-A of the ID Act. Despite its earlier order holding enquiry to be fair and proper, it can nevertheless examine the matter on its own merit so as to arrive at an independent conclusion on examination of material and evidence on record. In the result, this writ petition deserves to succeed and is accordingly allowed. The impugned order is set-aside. The matter is remanded back to the Prescribed Authority to render its decision on merits preferably within a period of one year from the date a copy of this order is produced before it. The parties are expected to cooperate in early decision of the proceedings and not to seek unnecessary adjournments. The parties are directed to appear before the Prescribed Authority on 30.04.2010. (Mohammad Rafiq) J. //Jaiman//