The protection of the provisions of the section is available to all persons who fall within the definition of the term “employee” as given in section 2(7) of the Act and who have put in three months’ continuous services. In the absence of any standing orders or any contract between the employer and the contesting respondent containing any particular terms or conditions, the conditions of service of the employee relating to his employment in an establishment at Delhi are covered by section 30(1) of Delhi Shops and Establishments Act, 1954;Goodlass Nerolac Paints (P) Ltd. v. Commissioner, Delhi, 1967 (14) FJR 115: 1967 I LLJ 545: 30 FJR 442.

The payment of wages in lieu of notice is one of the modes by which the service of an employee can be terminated, the other mode being the giving of at least one month’s notice in writing. Under the mandatory provision of section 30 of the Delhi Shops and Establishments Act, 1954, the service of an employee who has put in more than three months’ continuous service cannot be terminated without giving him at least one month’s notice in writing or one month’s wages in lieu of such notice except where the termination of service is for misconduct. Therefore, where an employee has worked for one day more than the three months stipulated in the section, he will be entitled to one month’s notice or one month’s salary in lieu thereof; Ram Prakash Sablok v. Mahesh Chander, 1973 (43) FJR 239 (Del HC).

A plain reading of section 30 of the Act would make it clear that whereas the notice of one month under sub-section (1) is for the benefit of the employee, the notice under sub- section (2) is for the benefit of the employer. If an employer gives the notice under sub- section (1), it is open to the employee to quit the service even before the expiry of the period of one month. Similarly, where the notice is given under sub-section (2), it is open to the employer to dispense with the services of the employee even before the expiry of the period of one month. It is not necessary for the employer to wait for the full period of one month before dispensing with services, just as it is not necessary for an employee who has received notice under sub-section (1) to wait for the full period of one month before quitting the services of the employer.

For example, when the employee served a notice of one month on the employer on 17-7 1968 tendering his resignation to be effective from 16th August, 1968 and the employer accepted the same on 23-7-1968 with immediate effect, then the employee cannot insist on continuing in service till the expiry of the notice of one month on 16th August, 1968; Dass Studios v. R.K. Baweja, Labour Court, Delhi, 1972 (1) ILR 856 (Del HC).

One month’s notice or wages in lieu thereof is necessary in case the employees is having more than three months’ service under section 30 of the Delhi Shops and Establishments Act. This will be applicable even if an employee has completed only one day more than three months; Ramprakash Sablok v. Mahesh Chandra, (1973) 43 FJR 239: 1973 1 LLN 339 (Del. HC) (A case under section 39 of the Delhi Shops and Establishments Act decided by the Delhi High Court).When the services of an employee are terminated by payment of one month’s wages in lieu of notice, his services come to an end on the date on which he is terminated. On the other hand, if he had been given one month’s notice and on the expiry of the one month his services are terminated, his services would come to an end only after the notice period;May and Baker (India) Ltd. v. Their Workmen, 1961 (2) FLR 594: (1961) 1LLJ 94 (SC): AIR 1967 SC 678: 20 FJR 147.

It may also be pointed out that if the employer has preferred to dismiss or discharge an employee on giving one month’s notice or one month’s wages in lieu of such notice, it matters little whether the services are dispensed with for a minor misconduct or a major misconduct. If, however, the employer does not give one month’s notice or one month’s wages in lieu thereof, it is incumbent upon him to hold an enquiry and then to find the employee guilty of any of the acts of misconduct as have been prescribed by the Government under Rule 13 of Delhi Shops and Establishments Rules. If, however, the termination of service is bona fide and in compliance with the provisions of section 30(1) of the Act, the Industrial Tribunal cannot interfere with the same; Goodlass Narolac Paints Pvt. Ltd. v. Chief Commissioner, 30 FJR 442 of Circuit Bench of Punjab High Court at Delhi.

For the purpose of section 30, for the term, “misconduct” reference be made to Rule 13 of the Delhi Shops and Establishments Rules but the list is not exhaustive in view of the word ‘includes’.

A plain reading of section 30 would go to show that its scope is very narrow and limited. Sub section (1) of this section only speaks of giving of a notice to an employee before dispensing with his services and on payment of wages in lieu of such notice. It also says that a notice of dismissal shall not be necessary where the services of an employee are dispensed with for misconduct. Sub-section (2) of section 30 deals with the obligation of an employee to give a notice to the employer when he wishes to leave the services. By sub-section (3) of section 30, any employee who complains that his services have been terminated in contravention of section 30(1), can apply to a Magistrate for payment to him of one month’s wages as compensation. Section 30 nowhere deals with the granting of relief or reinstatement to a discharged or dismissed employee or with the payment of retrenchment compensation to any employee. That being so, it is difficult to see how the Delhi Shops and Establishments Act, 1954 is a complete Code in itself, giving to an employee, all the reliefs which he can get as a result of an award given on a reference made under section 10 of the Industrial Disputes Act and how section 30 of the Delhi Shops and Establishments Act, 1954 takes away the power of the Government to make the reference to a Labour Court or Industrial Tribunal and the jurisdiction of the Labour Court or Tribunal is in no way affected even by sub-section (3) which deals with the grant of compensation. Further the expression, “under any other law” occurring in section 24 of the Delhi Shops and Establishments Act, 1954, clearly means not “under a law replaced by the Delhi Shops and Establishments Act, 1954” but under any law which is operative and in force at the time of the coming into force of the Delhi Shops and Establishments Act, 1954 and which continues to be in force thereafter. So judged from any angle, the Delhi Shops and Establishments Act, 1954 does not exclude the application of the Industrial Disputes Act, 1947, provided the person concerned is a workman and the shop or establishment is an industry as defined in the Act; Chalchitra Karamchari Sangh v. Regal Talkies, 1964 I LLJ 684 (MP HC): 1963 Lab. LJ 728: (1963) 7 Fac. IR 328: (1965-66) 90 FJR 56: ILR (1965) Madh Pra 56: AIR 1964 Mad. Pra 20. (The above was decided under similar provision of the Madhya Pradesh Shops and Establishments Act, 1954 and it was held that the said Act does not exclude the application of ID Act).

The object of the provisions of Delhi Shops and Establishments Act is entirely different from that of the Industrial Disputes Act. No doubt on the basis that the petitioner’s business is a shop or establishment and the respondent is an employee within the meaning of Delhi Shops and Establishments Act, the said Act would be applicable to them, and on the basis that respondent is a “workman” and the petitioner’s business is an “industry” within the meaning of the Industrial Disputes Act, the said Act also would be applicable to them. But the question of the provisions of one Act excluding the provisions of the other Act will arise only if the subject-matter of the claim is one which has been provided for in both the Acts. When the claim was for retrenchment compensation under section 25F of the Industrial Disputes Act and there was no corresponding provision in the Delhi Shops and Establishments Act which provided for such retrenchment compensation, the question of the latter Act excluding the former does not arise at all; Adishwar v. Labour Court Delhi, 1970 Lab. IC 936 (Del. HC). See also Delhi Consumer Co-operative WholeSale Stores Ltd. v. Secretary (Labour), 1984 (1) ELJ (L & S) 433 Del.