Prasad, J.
1. The petitioner is a partnership firm engaged in exhibiting films in Theatre known as Vishwajyoti Theatre. It is alleged that respondent No. 2 Virendra Kumar stopped coming to the establishment on and from 29.1.1987 without giving notice or information. The petitioner's claim is that respondent No. 2 left the services of the petitioner at his own accord. His explanation was called by sending letter at his registered address but the same was returned with the endorsement that addressee is not found. An enquiry was contemplated to be held against the respondent No. 2. In the meanwhile, petitioner raised a dispute before the Conciliation Officer alleging that his services have been terminated w.e.f. 29.1.1987. In other dispute redressal forum, the case of the petitioner was also examined.
2. The petitioner alleges that without exhausting the other remedy initiated byhim, the respondent No. 2 switched on for redressal of his grievance to the remedyunder Rajasthan Shops and Commercial Establishment Act, 1958 (hereinafter referredto as 'the Act of 1958'). An application under Section 28-A was preferred by the petitioner.The application being barred by time, a condonation application was also moved. Thisapplication was contested by the petitioner.
3. While trial was going on before the Prescribed Authority, on 28.7.1988, the petitioner was present before the Prescribed Authority but respondent No. 2 was not present. On being called, nobody put in appearance. The evidence of respondent No. 2 was closed and the case was posted for evidence of the petitioner. On 7.11.1989, petitioner's witness Prakash sharma and Raghunath Prasad were present and respondent No. 2 was not present. In absence of respondent No. 2, the matter was required to be dismissed but the matter was adjourned imposing costs of Rs. 50/-. On subsequent date, witnesses were present but the respondent No. 2 was not present. Under these circumstances, the application was dismissed on 4.12.1989. An application was moved on behalf of respondent No. 2 for restoration. A reply to the restoration application was submitted by the petitioner. After contest, the restoration application was allowed and the case was posted for evidence of non-applicant and the next date was fixed on 21.7.1990. The case was adjourned and posted for 11.9.1990.
4. The petitioner alleges that on 11.9.1990, the case was posted for evidence of the petitioner but the words 'that the matter may be fixed for 11.9.1990 for the evidence of the petitioner' were scored out and the evidence of the petitioner was closed. In this background, the petitioner was deprived of leading his evidence.
5. The original post of respondent No. 2 was Gate Keeper and he was only entitled to be reinstated as Gate Keeper but respondent No. 2 insisted for being reinstated as Booking Clerk. The petitioner was prepared to take respondent No. 2 as Gate keeper but respondent No. 2 did no resume his duty as such. The petitioner filed order-sheet of case No. 253/89 to show that respondent No. was gainfully employed.
6. Further, case of the petitioner is that in a taxation case, respondent No. 2 has appeared against him as witness and therefore, he was not one who was entitled to be retained in service.
7. Ultimately, after trial, the application of respondent No. 2 was allowed. While allowing the application, the prescribed Authority has found that respondent No. 2 worked with the non-applicants during the period from 20.10.1982 to 29.1.1987 as a Booking Clerk and that services of the applicant were terminated on 29.1.1987 without any reasonable cause and without giving any orders in writing, It was also observed by the Authority that neither notice nor one month's pay in lieu of notice in compliance of provisions of Section 28-A of the Act of 1958 were given. Thus, it was observed that termination was in violation of provisions of Section 28-A Of the Act of 1958.
8. The contention of the petitioner that services of respondent No. 2 were not terminated but he had himself remained absent from duty since 29.1.1987 was not believed as the same was not supported by any evidence in its support. The Prescribed Authority has found that before the Conciliation Officer and also during the proceeding of present case, the non-applicant No. 2 promised to take back the applicant on service but when he reported on duty, he was refused. This kind of drama was played by the petitioner many a times. The Prescribed Authority further found that the non-applicant even refused to produce the attendance register, wages register, the duty charts, the wages slips, the cash slips, the leave with wages register which records are required to be maintained under the provisions of Minimum Wages Act, 1948, the Payment of Wages Act, 1936 and the Rajasthan Shops and Commercial Establishments Act, 1958 and the rules framed thereunder. Hence, adverse inference was drawn against the petitioner. The conduct of the petitioner was also noticed regarding its stand that they agreed to produce attendance register for the period 20.10.1982 to 29.1.1987 but in order to misguide the Court, they produced the attendance register for the period 1.1.1987 to 31.1.1988. The authority has further found that from the produced record from 1.1.1987 to 31.1.1987 was only relevant record and other produced record was irrelevant. It has further been found that though registered letters were sent to respondent No. 2 but the same were not produced. On over-all appreciation of evidence, the Prescribed Authority came to the conclusion that petitioner is entitled to be reinstated.
9. Apart from oral arguments, the petitioner has also submitted, written submissions in support of his case. The petitioner has contended mat under Section 28-A of the Act of 1958, the application was required to be preferred within 30 days which was not moved. An application was filed for condonation of delay but curiously, no orders were passed by the Authority for condoning the delay and application was processed without there being formal order of condonation of delay. This results into factual position that no condonation was made and without condonation, processing of application was Without jurisdiction.
10. The petitioner had not been able to produce his evidence and this was on account of the order sheet dt.10th September, 1990 being altered at its back and therefore reasonable opportunity was denied to the petitioner to support its case. The premises on which the evidence was closed is totally misconceived, This is totally misconceived notion of the Presiding Officer because on earlier occasion, evidence of the petitioner was present and it was on account of act of respondent No. 2, the case was adjourned.
11. The petitioner has further stated that it has wrongly been recorded that documents have not been produced. In fact, no specific orders were passed by the authority to produce the documents. Thus, there is a total misreading of the proceedings. In any case, the relevant record of attendance from 1.1.1988 to 31.1.1988 was produced and that was the only relevant record. It has further been alleged that Authority is not supposed to go into the question as to designation and status of respondent No. 2. In the present proceedings, there was a serious doubt about his status and in view of the dispute, the Authority should have refrained from deciding the case as this kind of dispute is not in its domain while exercising the powers conferred by Section 28-A of the Act of 1958. It has also wrongly been observed by the Authority that petitioner was in habit of delaying tactics. The respondent No. 2 had abandoned the service and the case of abandonment of service has wrongly been held to be a case of termination. The proceedings were initiated by the petitioner under the Industrial Disputes Act, 1947 and therefore, it was not open to respondent No. 2 to leave those proceedings in between and switch on to remedy under the Act of 1958.
12. Learned counsel for the petitioner has relied on the observations of the Hon'ble Supreme Court in the judgment reported in 1977 SC Page 898 wherein it has been held that appellant cannot prosecute two parallel remedies in respect of the same matter at the same time. The petitioner has also placed reliance on this decision of this Court in the case of Maggar'am v. State (1), and stressed that as an when there is a civil suit filed by the petitioner, he cannot be permitted to switch over to the proceedings under Article 226 of the Constitution of India.
13. I have considered the arguments of learned counsel and has perused the record.
14. The Prescribed Authority has found that the petitioner has offered to reinstate the respondent No. 2 on duty. Subsequently, such offer was not honoured. If this fact is taken into consideration, then can it be said that petitioner is entitled to maintain the present petition in exercise of extra-ordinary jurisdiction? Once if the petitioner itself has chosen to reconcile, then obviously, some merit was seen by the petition in the case of respondent No. 2.
15. The petitioner has raised a grievance about the delayed filed of the petition before the Prescribed Authority. If the whole trial has taken place with the participation of the petitioner, then it will be deemed that the power available to the Prescribed Authority for condonation of delay will be deemed to have been exercised. The condonation of delay being a question of fact cannot form basis for an order under Article 226 of the Constitution of India, more particularly when the trial was after a contest and the Authority had a right of condonation of delay.
16. The petitioner has been found to have been negligent in producing evidence. This position has been contested. This effort is confusing. The case on the alleged date was fixed for 11.9.1990. On this date, it was not alleged by the petitioner that on 10.9.1990 wrong proceedings have been recorded. On the contrary, it was represented by an application that the petitioner is prepared to reinstate the respondent No. 2 in service. Terms of compromise were recorded in the order-sheet. The parties agreed that no payment will be made to the respondent No. 2 for interim period. The case was adjourned for 22.9.1990.
17. These proceedings show a curious attempt on the part of the petitioner. If he has any grievance against closure of evidence, he would have definitely objected to the closure of evidence at me same time after closure. The above referred compromise did not fructify. The parties remained dormant and did not report the result of the compromise. On 23.11.1990, a fresh notice was issued to the parties. Therefore, the case was adjourned for number of times to be precise on 16.11.1990, 5.12.1990, 4.1.1991, 7.2.1991, 13.3:1991, 16.4.1991 and 8.5.1991. On none of these occasions, the petitioner raised a demand that he wants to produce evidence. If he has failed to request the Prescribed Authority on all these dates, then he cannot be heard to say that he was precluded from producing the evidence wrongly. Even one he did not request the Authority for permitting him to produce evidence. This case was argued finally. This shows that the finding of the Authority is correct when it records that petitioner was neglectful in producing evidence.
18. As regards, the documentary evidence, the remedy of the petitioner lay before the Authority. If a finding has been given that the petitioner was asked to give documents and he has not produced documents, then the fact was required to be brought to the notice of the Authority and in this regard, a reference may be made to the decision of Hon'ble Supreme Court in the case of State of Maharashtra v. Ramdas Shrinivas Nayak (2).
19. The petitioner cannot be heard to say that the respondent No. 2 has shifted to another remedy before exhausting his remedy initiated earlier. If law permits many forums, then the litigant has a right to litigate in a forum best suited to him. The precedents relied have no application, as the case of pursuing a writ petition after filing of a civil suit stands on a different footing, then the present case. No formal petition was moved in Industrial Tribunal. Going to conciliation officer is not sufficient to enforce the law relied by the petitioner.
20. On the offer of reinstatement, when respondent No. 2 gave up past emoluments, it was a good settlement. When petitioner has not chosen to g ahead with the same and chose to raise technical pleas, this Court feels that the demand of the petitioner is not good enough to be entertained. He has an unstable stance to back him up. Petitioner was terminated without notice. The infringement of Section 28(A) has been found by the Authority after discussing complete evidence.
21. In view of the aforesaid, no case for interference is made out. The writ petition having no force is dismissed.