JUDGMENT 1. - In this writ petition filed under Articles 226 and 227 of the Constitution, the petitioner M/s Tourist Guide Service is challenging the order dated 31st October, 1977 passed by the Authority appointed under Section 28-A of the Rajasthan Shops and Commercial Establishments Act. 1958 (hereinafter referred to 'as the Authority') allowing the application submitted by M.M. Sharma, Respondent No. 2 under Section 28-A of the Rajasthan Shops and Commercial Establishments Act, 1958 (hereinafter referred to as the Act'). 2. The case of respondent No. 2, as set out in the said application filed under Section 28-A of the Act, on 28th December, 1975, was that he was employed with the petitioner since 1954 and on 3rd December, 1975 he came to know that his services have been terminated. In the said application respondent No.2 stated that no notice was given to him before his services were terminated and that no reason was disclosed with regard to the termination of his services and, therefore, the termination of his services was illegal and he should be reinstated with back wages. The petitioner opposed the said application of respondent No. 2. Certain preliminary objections were raised by the petitioner with regard to the maintainability of the said application. It was urged by the petitioner that respondent No. 2 does not fall within the definition of the term 'employee' as contained in the Act in as much as respondent No. 2 was employed as Manager and was exercising administrative and managerial powers and falls within the definition of 'employer' as contained in Section 2 of the Act and was, not entitled to file the application before the Authority. It was also urged by the petitioner that the establishment of the petitioner is covered by the exemption granted under Section 3 (d) of the Act. The Authority rejected the objection with regard to the establishment of the petitioner being covered by the provisions of the Act and held that the petitioner had not adduced any evidence to show that the establishment of the petitioner is not covered by the said provisions and that the petitioner had also not adduced any evidence that its establishment is exempted under Section 3(d) of the Act. The Authority also found that respondent No. 2 falls within the ambit of the definition of 'employee' as contained in Section 2 (5) of the Act and the mere fact that respondent No. 2 also falls within the ambit of the definition of 'employer' contained in Section 2 (6) of the Act does not mean that he is excluded from the definition of' employee. With regard to the application of respondent No. 2 being filed within limitation the Authority found that Smt. Sumitra Pandit, the proprietor of the establishment of the petitioner by her letter dated 17th April, 1971 (which was Ex. W-7 before the Authority) had directed respondent No. 2 to remain at his house and not to come to the office and that he would be informed about the work to be performed by him and that after the said letter respondent No. 2 did not attend the office and he used to do the work which he was directed to do from time to time and he was looking after the cases which were pending in the various Courts against the petitioner and was meeting the lawyers in connection with those cases and was also looking after the income-tax work of the petitioner and that in February, 1975, he had handled the American Express Group. The Authority also referred to the statement of Shri S.K. Saxena, Advocate, who was examined as a witness by respondent No. 2, who has stated that he was a counsel for the petitioner in a case and respondent No. 2 was coming to him in connection with that case upto July, 1975 and that in July, August, 1975 the said case was compromised. The Authority also observed that Smt. Pandit in her statement has admitted that she had written the letter (Ex. W-7) to respondent No. 2 and has also admitted that respondent No. 2 used to go to a lawyer upto April, 1974 in connection with the case but she has not admitted that he was going in connection with that case after April, 1974. W-7) to respondent No. 2 and has also admitted that respondent No. 2 used to go to a lawyer upto April, 1974 in connection with the case but she has not admitted that he was going in connection with that case after April, 1974. The Authority has also observed that while Smt. Pandit has stated that respondent was removed from service in July, 1974 she had subsequently stated that she had talked to respondent No. 2 in July, 1974 and it was agreed that respondent No. 2 would not remain in service of the petitioner and that he would be paid the salary upto December, 1974. As regards handling of the American Express Group in February, 1975, the Authority pointed out that respondent No. 2 in his statement has asserted that he had handled the American Express Group in February, 1975 and his name is entered in the Action Book and that the said Action Book was got summoned by respondent No. 2 but was not produced by the petitioner and Smt. Pandit and her other witness, Shri Srivastava, who is an executive in the establishment of the petitioner, were asked about the same during the course of cross-examination and Smt. Pandit expressed lack of knowledge in this regard and Shri Srivastava had admitted that the said Group had come but has stated that he does not remember as to whether the name of respondent No. 2 is entered in the Action Book. The Authority has also observes that according to respondent No. 2 he came to know about termination of his services on 3rd December, 1975 when the reply was filed on behalf of the petitioner in the proceedings under the Payment of Wages Act, and thereafter the application under Section 28 A was filed on 15th December, 1975 and it was within limitation. The Authority has also found that from the evidence adduced by the petitioner it is not established that respondent No. 2 had voluntarily left the service and that the said evidence shows that respondent No. 2 was in the service of the petitioner till 3rd December, 1975 and that the petitioner has removed respondent No 2 from service and he did not voluntarily leave the service. The Authority also found the it there was no evidence on the record to show that before the termination of the services of respondent No. 2 a notice was given or pay in lieu of notice was paid or any charge-sheet was served or any inquiry was conducted on the basis of arty charge- sheet and, therefore, the termination of the services of respondent No 2 was illegal and improper being in violation of the provisions of Sections 28 A of the Act. The Authority, therefore directed that respondent No. 2 be reinstated in service and he should be paid his wages from 3rd December, 1975. Feeling aggrieved by the said order of the Authority, the petitioner has filed this writ petition. 3. The writ petition has been opposed by respondent No. 2. who has filed a reply. 4. I have heard Shri R.K. Kala, the learned counsel for the petitioner, and Shri G.S. Singhvi, the learned counsel for respondent No. 2. 5. The first contention that has been urged by Shri Kala is that the impugned order has been passed by a person who was not the Prescribed Authority under Section 2(14) of the Act. The submission of Shri Kala is that in clause (14) of Section 2 of the Act, the expression "Prescribed Authority" is defined to mean the Authority prescribed by the Rules made under the Act and that no rules have been framed prescribing the Authority as contemplated by the aforesaid submission Shri Kala has also urged that the Authority which passed the impugned order was appointed by the State Government by notification dated 1st May, 1972 and the such an appointment. in the absence of the Rules, is not envisaged by Section 2(14) of the Act. In support of his aforesaid submission Shri Kala has placed reliance on the decision of a Division Bench of this Court in Som Raj v. Ram Kishore, 1986 Lab I.C. 1535, wherein it has been laid down that where there is no Authority prescinded by the Rules which could entertain, hear and decide complaints under Section 28-A of the Act and there was only a notification of the State Govt. issued in exercise of the powers under Section 28-A (2) of the Act, by which the Government has appointed the Authority under the Act and there was no prior publication of the notification then that Authority could not be said to be a prescribed Authority under the Act entitled to hear and decide complaints under Section 28 A of the Act. 6. Shri Singhvi, the learned counsel for the respondent No. 2, has however. submitted that the defect in the matter of appointment of the Authority to deal with the application under Section 28 A of the Act no longer subsists anti has been rectified by the Legislature by enacting the Rajasthan Shops & Commercial Establishment (Amendment & Validation) Act, 1983 (hereinafter referred to as 'the Validation Act') and that in view of the said Act it is not open to the petitioner to challenge the impugned order passed by the Authority on the ground that it has not been passed by the competent person. In my view the said contention of Shri Singhvi must be accepted. Originally clause (14) of Section 2 of the Act provided as under: ' 2(14).-'Prescribed Authority' means the authority prescribed by rules made under this Act. 7. Sub-section (2) of Section 28-A of the Act provides as under: "28-A (2).- Every employee so dismissed or discharged may make a complaint in writing in the prescribed many or 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; (b) that no notice was served upon him as required by sub-section (1); (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." 8. By notification dated 1st May, 1972 published in the Rajasthan Gazette dated 12th July, 1972, the State Government, in exercise of the powers conferred by sub-section (2) of Section 28-A of the Act, appointed certain officers to be Authority before whom the complaints could be made by the employee regarding his dismissal or discharge for the local area specified against each Officer Regional Deputy Labour Commissioner, Jaipur was appointed as the Authority in respect of the local area of Jaipur and Tonk Districts. By another notification dated 11th January, 1974 published in the Rajasthan Gazette dated 21st January, 1974, which was issued in supersession of all previous notifications, the officers mentioned therein were appointed to be the Authority before whom complaints could be made by the employee regarding his dismissal or discharge for the local area specified against each. By the said notification Regional Deputy Labour Commissioner, Jaipur was appointed as the Authority for the local area of Jaipur and Tonk Districts. The Validation Act, which received the assent of the President on 23rd of March. 1983, and was published in the Rajasthan Gazette dated April 12, 1983, seeks to amend the provisions of the Act and to validate the Constitution and appointment of the Prescribed Authorities and the proceedings, judgments and orders taken before or made by the Authorities under the Act. Sections 2 and 3 of Validation Act provide as under: "2. Amendment of section 2, Rajasthan Act 31 of 1958.-Clause (14) of section 2 of the Rajasthan Shops and Commercial Establishments Act, 1958 (Rajasthan Act 31 of 1958). hereinafter referred as to the said Act, shall be, and shall be deemed always to have been substituted by the following, namely: "(14) - Prescribed authority" means the authority as may be notified by the State Government in the Official Gazette from time to time.". 3. hereinafter referred as to the said Act, shall be, and shall be deemed always to have been substituted by the following, namely: "(14) - Prescribed authority" means the authority as may be notified by the State Government in the Official Gazette from time to time.". 3. Validation of proceedings taken and decision, made by the prescribed authorities-Notwithstanding anything contained in the said Act or in any other enactment or any rule or Notification made or issued thereunder or in any judgment, decree, order or decisions of any court or tribunal, (a) all prescribed authorities constituted or appointed under the said Act by the State Government from time to time before the commencement of this Act, shall be, and shall be deemed always to have been validly constituted and duly appointed under the said Act; (b) all decisions given by such prescribed authorities in any proceedings before the commencement of this Act shall be deemed always to have been validly given by them as the prescribed authorities of competent jurisdiction under the said Act; (c) all proceedings taken before the commencement of this Act in the cases before such prescribed authorities, whether finally disposed of or pending, shall be deemed always to have been validly taken before the prescribed authorities of competent jurisdiction; (d) no proceedings, whether finally disposed of by, or pending before such prescribed authorities shall be called in question on the ground that such authorities were not validly constituted or duly appointed under the said Act or the rules or notifications made or issued thereunder; (e) all prescribed authorities appointed under the said Act, or the rules or notifications made or issued thereunder and functioning as such at the commencement of this Act, shall be deemed to have been validly constituted and duly appointed and shall continue to function as prescribed authorities of competent jurisdiction till any re-constitution or re-appointment is duly made under the law for the time being in force." 9. A perusal of the said provisions would show that by Section 2 of the Validation Act, clause (14) of Section 2 of the Act was substituted with retrospective effect i.e. from the date of the enactment of the original Act and under the amended clause (14) of Section 2 prescribed Authority means the Authority as may be notified by the State Government in the official gazette from time to time. In view of the said amendment that has been introduced by the Validation Act it was permissible for the State Government to appoint the prescribed authority by notification published in the official gazette. The Authority which passed the impugned order was the Regional Deputy Labour Commissioner, Jaipur who had been appointed as the Prescribed Authority for the purpose of Section 28-A of the Act under Notification dated 11th January, 1974 which was published in the Rajasthan Gazette dated 21st January, 1974. There was, therefore, no infirmity in the appointment of the Authority and the impugned order passed by the Authority cannot be assailed on the ground that it was passed by a person who was not competent to pass the same. Moreover by Section 3 of the Validation Act it has been expressly provided that all prescribed authorities constituted or appointed under the Act by the State Government from time to time before the commencement of the Validation Act shall be deemed always to have been validly constituted and duly appointed under the Act and all decisions given by such prescribed authorities in any proceedings before the commencement of the Validation Act shall be deemed always to have been validly given by them as the prescribed authorities of competent jurisdiction under the said Act. In view of the said provisions is is not open to the petitioner to assail the validity of the order dated 31st October, 1977 passed by the Authority on the ground that it was not passed by the competent person. 10. As regards the decision of the Division Bench of this Court in Som Raj v. Ram Kishore, 1986 Lab. I.C. 1535 , it may be mentioned that the attention of the learned Judges who decided the said case was not invited to the provisions of the Validation Act and the said decision has been given without taking into consideration the said provisions. In Mamleshwar Prasad and another v. Kanhaiyalal (died) through L. Rs 1975 (2) S.C.C. 232 , the Supreme Court was considering the question as to in what circumstances a judgment can be said to have been reached per incuriam and may not be binding as a precedent. The Supreme Court has referred to the decision in Morelle v. Wakeling (1955)2 Q. B. 372. The Supreme Court has referred to the decision in Morelle v. Wakeling (1955)2 Q. B. 372. wherein it has been observed that such instances in which decisions have subsequently been regarded as having been reached per incuriam should be limited to decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned. Similarly, in A. R. Antulay v. R.S. Nayak, l988 (2) S.C C 602, it has been observed as under-. "Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provisions or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morelle v. Wakeling." 11. In view of the fact that in Som Raj v. Ram Kishore the provisions of the Validation Act of 1983 have not been considered by this Court. and the decision was given in ignorance of the said provisions, the said judgment must be held to be a decision given per incuriam. It cannot, therefore, be held to be binding in view of the amendments introduced in the Act by the Validation Act. In my view, therefore, Shri Kala cannot derive any assistance from the said decision. The contention urged by Shri Kala is, therefore, rejected. 12. Shri Kala has next contended that under clause (14) of Section 2 of the Act, as amended by the Validation Act, it is necessary for the State Government to appoint a prescribed authority and that the officer who has passed the impugned order dated 31st October, 1977 was not appointed as the prescribed authority by the State Government. In support of his aforesaid submission Shri Kala has pointed out that in the notifications dated 1st May, 1972 and 1st January, 1974 the word 'prescribed authority' has not been used and the officers mentioned in the said notifications have been appointed as authority before whom complaints could be made by the employee regarding his dismissal or discharge. In support of his aforesaid submission Shri Kala has pointed out that in the notifications dated 1st May, 1972 and 1st January, 1974 the word 'prescribed authority' has not been used and the officers mentioned in the said notifications have been appointed as authority before whom complaints could be made by the employee regarding his dismissal or discharge. In my view, there is no substance in this contention because both these notifications expressly refer to sub-section (2) of the Section 28-A of the Act which uses the expression 'proscribed authority' and, therefore, the officers who have been appointed as Authorities under these notifications have been appointed as prescribed authority as contemplated by Section 2(14) as well as Section 28-A(2) of the Act. 13. Shri Kala has next submitted that in sub-section (2) of Sect on 28-A of the Act it is proved that the complaints must be made in the prescribed manner and that on 15th December, 1975, when the respondent No. 2 submitted the application under Section 28-A of the Act, no Rules had been framed prescribing the manner in which the complaint should be submitted and that in the absence of the Rules prescribing the manner in which the applications could be submitted, no application could be submitted. In my view, there is no substance in the said contention. The failure on the part of the State Government to frame the Rules prescribing the manner in which the complaint under sub-section (2) of Section 28-A of the Act may be made to the prescribed authority would not mean that the power under Section 28-A (2) cannot be invoked by a person aggrieved. The said provision only means that if the manner of making such complaint is prescribed then the complaint should be made in accordance with the said prescribed manner but if no manner is prescribed then the same can be submitted in the ordinary manner and it can be entertained by the prescribed authority. 14. Shri Kala has also urged that since respondent No. 2 was exercising managerial functions he was covered by the definition of the expression 'employer' under sub-section (6) of Section 2 of the Act and since respondent No. 2 was an employer, he could not be an employee at the same time and he could net invoke the jurisdiction under Section 28-A of the Act. In my view there is no substance in this contention. Respondent No. 2, by virtue of his exercising managerial functions might be an employer under sub-section (6) of Section 2 of the Act in relation to the persons working under him, but that does not mean that he could not be treated as an employee vis-a-vis the management of the establishment of the petitioner under clause (5) of Section 2 of the Act. The said clause (5) of Section 2 of the Act provides as under : (5) -employee" means a person wholly or principally employed in, or in connection with any establishment and includes an, apprentice but does not include a member of the employers' family; it also includes any clerical or other staff or a factory or industrial establishment who falls outside the purview of the Factories Act, 1948 (Central Act LXIII of 1948). It does not exclude persons exercising managerial functions which means that if the services of a person who is exercising managerial functions are terminated he can invoke the protection of Section 28-A of the Act. 15. Shri Kala has also urged that the Authority has erred in holding that the application submitted by respondent No. 2 was not barred by limitation. In this connection Shri Kala sought to challenge the finding recorded by the Authority that respondent No. 2 was not aware about his services having been terminated till 3rd December, 1975, and he has urged that the said finding recorded by the Authority is perverse. In my view, there is no merit in this connection. The Authority has considered the evidence adduced by respondent No. 2 in support of his case as well as the evidence of the petitioner in that regard. The authority has placed reliance on the testimony of respondent Na. 2 as well as the evidence of Shri S.K. Saxena Advocate, that respondent No. 2 had been coming to him in connection with the case of the petitioner till July, August, 1975. The authority has placed reliance on the testimony of respondent Na. 2 as well as the evidence of Shri S.K. Saxena Advocate, that respondent No. 2 had been coming to him in connection with the case of the petitioner till July, August, 1975. The Authority has also referred to the admissions made by Smt. Pandit, the proprietor of the petitioner's establishment, during the course of her statement as well as by Shri Srivastava the Executive in the establishment of the petitioner and after considering the entire evidence on record the Authority has recorded the finding that respondent No. 2 did not voluntarily leave the job and that his services had been terminated and he came to know about the termination of his services for the first time on 3rd December, 1975 from the reply that was filed on behalf of the petitioner in the proceeding, under the Payment of Wages Act. In that view of the matter it cannot be said that the finding recorded by the Authority is based on no evidence or is perverse. 16. Shri Kala has lastly urged that respondent No. 2 has attained the age of 60 years which is normally the age of superannuation and that it must be held that respondent No. 2 is no longer entitled to continue in the service of the petitioner after his having attained the age of 60 years. In this regard Shri Kala has placed reliance on the decision of this Court in M/s Mewar Taxtile Mills v. Central Tribunal, 1985 R.L.R. 171. I find that no such plea with regard to the age of superannuation in the establishment of the petitioner was raised before the Authority. Nor has it been raised in the writ petition. On the basis of the existing record it is not possible to give a finding on the question as to what is the age of superannuation in the establishment of the petitioner. The said question cannot, therefore, be entertained. 17. No other contention has been urged by Shri Kala. 18. In the result, I find no substance in this writ petition and it is accordingly dismissed with no order as to costs.Petition dismissed. *******