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2011 DIGILAW 57 (CAL)

Bharat Chamber of Commerce v. Ram Jiban Ram

2011-01-17

PRASENJIT MANDAL

body2011
JUDGMENT PRASENJIT MANDAL, J. 1. THIS application is at the instance of the appellant and is directed against the order dated April 21, 2009 passed by the learned Judge, Presidency Small Causes Court, Calcutta in W.B.S.E. Appeal No.6 of 2005 thereby dismissing the appeal. 2. THE short fact is that the opposite party herein is an employee under the petitioner and he absented himself from March 9, 1998 to March 20, 2009 without intimation. Since he did not file any application for regularisation of the unauthorised absence and he did not perform any service for the said period, no wage was paid to him for the said period and an amount of Rs.1,206/- was deduced from his salary. Being aggrieved, the opposite party moved the Referee, Shops and Establishments, Government of West Bengal and by an order dated October 24, 2005, the petitioner was directed to pay the said amount to the opposite party. Being aggrieved by that order, the petitioner preferred the said appeal and the learned lower appellate court dismissed that appeal by the impugned order. Being aggrieved, this application has been preferred. Now, the point for consideration is whether the impugned order should be set aside. Upon hearing the learned counsel for the petitioner and on going through the materials on record, I find that it is an admitted position that the opposite party is an employee under the plaintiff and that for his unauthorised absence from March 9, 1998 to March 20, 2009 an amount of Rs.1,206/- was deduced from his wages. 3. Mr. Ghosh, learned Advocate appearing on behalf of the petitioner, submits that the learned lower appellate court as well as the Referee holding the view that before deduction of any amount, a show cause notice was to be issued and for non-issuance of any show cause notice deduction of wages was improper, has not taken a correct approach of the matter. He contends that there is no such provision for issuance of a show cause notice. He also submits that the Rule 20(1) of the West Bengal Shops and Establishments Rules, 1964 lays down for issuance of show cause notice when a disciplinary proceeding is to be lodged against the opposite party. So, he submits that the order impugned should be sustained. 4. He also submits that the Rule 20(1) of the West Bengal Shops and Establishments Rules, 1964 lays down for issuance of show cause notice when a disciplinary proceeding is to be lodged against the opposite party. So, he submits that the order impugned should be sustained. 4. IN the instance case, I find that no proper application for regularisation of the absence was filed by the opposite party herein. The opposite party herein was required to file an application for regularisation of the leave and since no proper application was filed, his leave was not regularised and payment of wages was withheld. Rule 20(1) of the West Bengal Shops and Establishments Rules, 1964 refers to issuance of a show cause notice before staring disciplinary proceeding. When the payment is withheld, it does not mean that disciplinary proceeding has been started. There is no indication or contention on the part of the opposite party that any disciplinary proceeding has been started against the opposite party. So, the question of issuance of notice under Rule 20(1) of the said Rules of 1964 does not arise at all. Therefore, the Referee and the learned lower appellate court have committed errors of law in arriving at a conclusion that before deduction of wages, a show cause notice was to be issued. The impugned order cannot be sustained. The referee and the learned lower appellate court have failed to exercise the jurisdiction vested in them. For that reason, the interference with the impugned order is necessary. So, the application succeeds. It is, therefore, allowed. The impugned order is hereby set aside. Consequently, the order of the Referee dated October 24, 2005 in application No.3-P/21 is also hereby set aside. Considering the circumstances, there will be no order as to costs.