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Judgment
M.N. Bhandari, J—By this writ petition, a challenge is made to the order dated 1.3.2013, passed by the Prescribed Authority under the Rajasthan Shops and Commercial Establishments Act, Jaipur.
Learned counsel for petitioners submits that order of termination was passed against the respondent employee with payment of one month''s wages. The respondent employee challenged the order of termination and the Prescribed Authority has set aside the order with a direction to reinstate the respondent employee with consequential benefits and a cost of Rs. 2000/-.
Learned counsel submits that a sum of Rs. 3700/- was paid towards wages along with 7 months LTA, however, learned authority ignored the aforesaid while quashing the order of termination. The wages of the respondent was taken to be Rs. 5733/- ignoring his basic wages.
Learned counsel for respondent has contested the petition.
I have considered rival submissions of the parties and perused the record.
The order of termination was assailed by the respondent employee on the ground that section 28A of the Rajasthan Shops and Commercial Establishments Act, 1958 has not been complied. The workman was not paid one month''s wages as provided under the said provision. The learned authority found it to be a case of short remittance thus violation of section 28A of the Act and, accordingly, quashed the order of termination. For ready reference, section 28A is reproduced hereunder -
"28A. Notice of dismissal or discharge by employer (1) No employer shall dismiss or discharge from his employment any employee who has been in such employment continuously for a period of not less than 6 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.
(2) Every employee so dismissed or discharged may make a complaint in writing in the prescribed manner to a prescribed authority within 30 days of the receipt of the order of dismissal or discharge on one or more of the following grounds, namely-
(a) that there was no reasonable cause for dispensing with his services; or
(b) that no notice was served upon him as required by sub-section (1); or
(c) that he had not been guilty of any misconduct:
Provided that the prescribed authority may condone delay in filing such a complaint, if it is satisfied that there was sufficient cause for not making the complaint within the prescribed time.
(3) The prescribed authority shall cause a notice to be served on the employer relating to the said complaint, record briefly the evidence produced by the parties, hear them land make such enquiry as it may consider necessary and thereafter pass orders in writing giving reasons therefore.
(4) While passing an order under Sub-section (3), the prescribed authority shall have power to give relief to the employee by way of re-instatement or by awarding money compensation or by both.
(5) The decision of the prescribed authority under this section shall be final and binding both on the employer and the employee."
The above referred provision requires that no order of dismissal or discharge would be effected unless reasonable cause is given apart from one month''s prior notice or one month''s wages in lieu thereof. The exemption is when some one is dismissed on the ground of misconduct. In the instant case, termination does not show it to be on the ground of misconduct.
In view of above, it was necessary for the employer to pay wages of one month in lieu of notice. A sum of Rs. 3700/- was paid to the respondent employee in lieu of notice of one month but the aforesaid was only basic wages of the employee, whereas, after adding all statutory benefits in the wages namely DA etc, it comes out to be Rs. 5733/-. The definition of wages has not been given under the Act of 1958, however, Chapter V of the said Act provides for application and amendment of the Payment of Wages Act. Section 20 of the Act of 1958 is quoted hereunder for ready reference -
"CHAPTER V Wages
Application and amendment of the Payment of Wages Act:--
(1) Notwithstanding anything contained in the Payment of Wages Act, 1936 (Central Act IV of 1936), herein referred to as "the said Act", the State Govt. may by notification in the Official Gazette, direct that, subject to the provisions of Sub-section (2) of the said Act or any of the provisions thereof shall apply to all or any class of employees an establishment to which this Act applies.
(2) On the application of the provisions of the said Act to any establishment under Sub-section (1), the Inspector appointed under, this Act shall be deemed to be the Inspector for the purpose of the enforcement of the provisions of the said Act within the local limits of his jurisdiction."
In exercise of the powers conferred under section 20 of the Act of 1958, Government of Rajasthan issued an Notification on 31.8.1965 to apply provisions of the Payment of Wages Act, 1936 to all the classes of employees in the establishment to which said Act applies and in place specified in the Schedule thereto where population is more than 25000 and more. The name of Jaipur district has been given therein. In view of aforesaid, Chapter-V of the Act of 1958 pertaining to wages has to be considered in reference to the provisions of the Payment of Wages Act. The word ''wages'' has been defined under section 2(vi) of the Payment of Wages Act, 1936, which is also reproduced hereasunder -
"2. Definitions.--In this Act, unless there is anything repugnant in the subject or context, -
"(i) to (v)......
(vi) "wages" means all remuneration (whether by way of salary, allowances or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes-
(a) any remuneration payable under any award or settlement between the parties or order of a Court;
(b) any remuneration to which the person employed is entitled in respect of overtime work or holidays or any leave period;
(c) any additional remuneration payable under the terms of employment (whether called a bonus or by any other name);
(d) any sum which by reason of the termination of employment of the person employed is payable under any law, contract or instrument which provides for the payment of such sum, whether with or without deductions, but does not provide for the time within which the payment is to be made;
(e) any sum to which the person employed is entitled under any scheme framed under any law for the time being in force;
but does not include-
(1) any bonus (whether under a scheme of profit sharing or otherwise) which does not form part of the remuneration payable under the terms of employment or which is not payable under any award or settlement between the parties or order of a Court;
(2) the value of any house-accommodation, or of the supply of light, water, medical attendance or other amenity or of any service excluded from the computation of wages by a general or special order of the State Government;
(3) any contribution paid by the employer to any pension or provident fund, and the interest which may have accrued thereon;
(4) any travelling allowance or the value of any travelling concession;
(5) any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment; or
(6) any gratuity payable on the termination of employment in cases other than those specified in sub-clause (d).]"
The definition of ''wages'' includes not only basic salary but allowances or any remuneration expressed in terms of money etc. In the light of the definition referred to above, payment of basic salary of one month cannot be said to be in satisfaction to the requirement of section 28A of the Act of 1958.
In view of above, I do not find any illegality in the impugned order. Hence, writ petition so as the stay application are dismissed.