1 S.B. Civil Writ Petition No.5680/2009 M/s. Vishal Megha Mart. vs. The Prescribed Authority & Ors. Date : 8.2.2010 HON'BLE MR. PRAKASH TATIA, J. Mr.BK Vyas, for the petitioner. - - - - - Heard learned counsel for the petitioner. The petitioner is aggrieved against the orders passed by the competent authority under the provisions of Rajasthan Shop and Commercial Establishment Act, 1958 dated 15.1.2009 and 11.5.2009. The competent authority vide its order dated 15.1.2009 allowed the claim petition of the respondents/employees and held that their removal from service from 30.6.2008 by the petitioner was illegal and, therefore, the respondents are entitled to reinstatement with all consequential benefits and the petitioner's application for setting aside the said order dated 15.1.2009 was rejected vide order dated 11.5.2009 on the ground of non-maintainability of the application. 2 The respondents/employees submitted their claim that they were duly appointed in service by the petitioner and by giving threat of transfer on 30.6.2008, they were sent out from the premises of the petitioner and that amounts to unfair labour practice. Therefore, the petitioner may be directed to take them back in service. The petitioner filed a reply before the competent authority stating that the respondents were not removed from service but they were transferred to the other branch of the petitioner where they did not join the duties. The respondents submitted documentary evidence and sought production of some documents from the petitioner but those documents were not produced by the petitioner. The statements of the respondents were recorded and ex-parte order referred above was passed on 15.1.2009 allowing the respondents' claim petition. The petitioner submitted application for setting aside of the said order dated 15.1.2009 under Order 9 Rule 13 CPC which was dismissed by the competent authority on 11.5.2009 after holding that the provision of Order 9 Rule 13 CPC are not applicable. Hence, this writ petition. This Court directed the petitioner on 4.9.2009 to submit the affidavit of the learned advocate 3 who appeared in the proceedings before the competent authority, who can explain why he did not appear before the competent authority. It is clear from the affidavit of the learned advocate that the learned advocate tried to contact the petitioner's officers and for that purpose, he even went to the office of the petitioner and requested them personally to provide the documents and remain present to contest the claim of the respondents. He also gave the mobile number of the officer of the petitioner on which he contacted but inspite of that, no assistance was provided to the learned advocate by the officers of the petitioner. In view of this admitted fact, the petitioner was guilty of remaining absent before the competent authority and failed to produce the documents and evidence and no case was made out for setting aside or recalling the order dated 15.1.2009 and, therefore, though the petitioner's application for recalling of the order dated 15.1.2009 was dismissed on different ground but from the facts referred above, there was no merit in the application and, therefore, there is no illegality in the order dated 11.5.2009. The contention of learned counsel for the petitioner is that in fact, the respondents were transferred and they did not join the duty. If the 4 petitioner's said contention is accepted, then according to the petitioner itself, the respondents have not been removed from service and admittedly, no order has been passed against the petitioner, then how the petitioner can challenge the order dated 15.1.2009 by which the authority has only directed the petitioner to continue the respondents in service and the petitioner is stating that the petitioner has not removed the respondents from service. In view of the above, this writ petition, having no merits, is hereby dismissed. (PRAKASH TATIA), J. S.Phophaliya