Amendment status not verified — confirm the current text below against the official source.
Notice of removal (1) No employee shall be removed from service unless and until one month’s previous notice or pay in lieu thereof has been given to him: Provided that - (a) no employee shall be entitled to the notice or pay in lieu thereof if he is removed on account of misconduct established on record. (b) no employee shall be entitled to one month's notice or notice pay unless and until he has been in the service of the employer continuously for a period of three months (2) In any case instituted for a contravention of the provisions of 26 THE PUNJAB SHOPS AND COMMERCIAL ESTABLISHMENT ACT, 1958 sub-section (1), if a Magistrate is satisfied that an employee has been removed without reasonable cause, the Magistrate shall, for reason to be recorded in writing award compensation to the employee equivalent to two month's salary. Provided that no such claim such be entertained unless it is preferred by the employee with six months from the date of his removal. (3) The amount payable as compensation under this section shall be in addition to, and recovered as, fine payable under section 26. (4) No person who has been awarded compensation under Section shall lbe entitled to bring a civil suit in respect of the same claim. COMMENTARY Discretion of Employer regarding suitability of employee: The opinion of the employer about the suitability of his employee for the job assigned to him, is no doubt, final provided it is Bonafide although it is erroneous. Such should be not be melafide or arbitrary. It must have been based on an objective satisfaction which can be tested by the appellate tribunals as well as the courts of law [1972- Lab. IC 668 (S.C.]. Dispute regarding termination of service & its remedy: The Shops & Establishment Act do not render Section 2A of the Industrial Disputes Act inoperative in so far as it relates to the State in respect of the matters covered by these Sections of the Shops Act and to a disputes arising out of the termination of the services of a shop employee, the provisions of that section could be invoked even when his cause is not espoused by a union or a number of workmen, in the absence of union. Where, therefore, the State Govt. made reference under section 10 (1) (c) of the Indus- trial Disputes Act, of the disputes arising out of the termination of certain employees by the employer (Management of certain establishment and/or shops govern by Shops Act) and the Labour Court passed awards granting reliefs to the said employees. The option is left with the shop employee who is aggrieved by the termination of his service. He may, at his choice and convenience, either pursue the remedy involving section 2A of the Industrial Disputes Act or approach the appellate authority. The apprehension that the availability of two forms for the employee to seek redressal of his grievance would lead to conflict of decisions is quite unwarranted. It is needless to say that the principles of constructive resjudicata would operate in the field also. Face on the culmination of the proceedings of one of the channels of the decision becomes final under either of the enactment that depends on both the parties and the issue could not be allowed to be reagitated in the proceeding of the other channel. [Andhra Pradesh Steel Wool Industries Co-operative Society Vs. Labour Court Hyderabad and another 1987 Lab IC 642 (AP) (F.B.)]. Section 10 (1) of Industrial Disputes Act, cannot taken as having been impliedly repealed and reference under Section 10 (1) of the Industrial Disputes Act is valid. [Bata India Ltd. Vs. State of Kerala 1985-Lab IC 687 (Kerala)] 27 THE PUNJAB SHOPS AND COMMERCIAL ESTABLISHMENT ACT, 1958 If the employees are "workmen" and the management governed by the Shops and Establishment Act is an "Industry" as defined in the Industrial Disputes Act (Central Act and the action taken by the management amounts to "Retrenchment" then the rights and liabilities of the parties are governed by the provisions of chapter V-A of the Indus- trial Disputes Act and the said rights and liabilities may be adjudicated upon and enforced in the proceedings before the authorities under the Shops and Establishment Act. Sub Section (1) of Section 25-J of the Industrial Disputes Act lays down that chapter V- A shall have effect no withstanding anything inconsistence there with contained in any other law. The proviso to that sub-section however saves any higher benefits available to the workmen under any law agreement or settlement or award. Sub-section (2) of Section 25 J, however, makes a distinction between any machinery provided by any State of Law. For settlement of industrial disputes and the substantive rights and liabilities arising under chapter V-A of Industrial Disputes Act where a lay off or retrenchment takes place. It provides that while Section 25-J would not affect the provisions in the State Law relating to settlement of industrial disputes, the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be determined in accordance with the chapter V-A of the Industrial Disputes Act and Shops and Establishment Act. Provision of Shops and Establishment Act prescribe alternative authority to settle a dispute arising out of a retrenchment. Those authorities may exercise jurisdiction under the State Act, but they have to decide such dispute in accordance with the provisions of chapter V-A of Central Act i.e. Industrial Disputes Act. The said rights can be enforced by a workman personally, by himself filing an appeal under the State Act. It is not necessary that a reference should be sought under the Central Act by collective action of the workers. It is true that the State Act is a later Act and it has received the assent of the President of India, but since there is no to repugnancy between the two laws the State Law cannot prevail so as to make the provisions of the Central Act relating to retrenchment ineffective in the State. The State Act does not contain an express provision making the provision relating to retrenchment in the Central Act ineffective. Chapter V-A of Central Act which is the earlier law deals with the cases arising out of lay off and retrenchment. Section 25J of the Central Act deals with the effect of provisions of chapter V-A on other law inconsistence with that chapter. Sub-Section 2 of Section 25J in quite emphatic about the supremacy of the provisions relating to rights and liabilities arising lay off and retrenchment. There are special provisions and they do not apply to all kind of termination of services. Provisions of State Act deals generally with the termination of service which may be result of misconduct, closure, transfer of establishment. If there is conflict between the special provisions contained in an earlier law dealing with retrenchment and the general provisions contained in a latter law generally dealing with the termination of service, the existence of repugnancy between the two laws cannot easily presumed. There is therefore, not even any implied repugnancy between the Central Law and the State Law. [Krishna Distt. Co-operative Marketing Society Ltd. Vijayawada Vs. N.V.P. Rao 1987 Lab IC 1651(S.C.)]. Termination sans notice and its affect: Employer's orders terminating employee's service without giving him notice or wages in lieu thereof as specifically provided under the Shops and Establishment Act is not 28 THE PUNJAB SHOPS AND COMMERCIAL ESTABLISHMENT ACT, 1958 only illegal but also null and void [(1975 Lab IC 727)].