1[(1) No employer shall dismiss or discharge or otherwise terminate the employment of any employee who has been in his employment continuously for a period of not less than six months, except for a reasonable cause and after giving such employee at least one month’s notice or one month’s wages in lieu of such notice :
Provided that such notice shall not be necessary where the services of such employee are dispensed with on a charge of such misconduct as may be prescribed by the State Government, supported by satisfactory evidence recorded at an enquiry held for the purpose:
Sec. 22-26 | Bihar Shops & Establishments Act, 1953 | 23
1. Subs. by Act 2 of 1975.
Provided further that an employee who has been in continuous employment for a year or more and whose services are dispensed with otherwise than on a charge of misconduct shall also be paid compensation equivalent to fifteen days average wages for every completed year of service and any part thereof in excess of six months before his discharge in addition to the notice or pay in lieu of notice as prescribed above.]
1[(2) Every employee, dismissed or discharged or whose employment is otherwise terminated, may make a complaint in writing in the prescribed manner, to a prescribed authority within 90 days of the receipt of the order of dismissal or discharge or termination of employment on the one or more of the following grounds, namely : —
(i) there was no reasonable cause for dispensing with his services; or
(ii) no notice was served on him as required by sub-seciton (1); or
(iii) he has not been guilty of any misconduct as held by the employer ; or
(iv) no compensation as prescribed in sub-section (1) was paid to him before dispensing with his service.]
(3) Notwithstanding anything contained in sub-section (2), where the order of dismissal or discharge was received by an employee at any time before the commencement of the Bihar Shops and Establishments (Amendment) Act, 1959, he may make a complaint in writing in the prescribed manner before a prescribed authority within sixty days of the commencement of the said Act :
Provided that such complaints, if any, pending before an authority prescribed prior to the commencement of the said Act shall be deemed to have been duly filed before the authority prescribed after such commencement and the said authority shall dispose the same in accordance with the provisions of this Act.
(4) The prescribed authority may condone delay in filing such a complaint if it is satisfied that there was sufficient cause for not making the application within the prescribed time.
(5)(a) The prescribed authority shall cause a notice to be served on the employer relating to the said complaint, record briefly the evidence adduced by the parties, hear them and after making such enquiry as it may consider necessary pass orders giving reasons therefor.
(b) In passing such order the prescribed authority shall have power to give relief to the employee by way of reinstatement or money compensation or both.
(6) The decision of the prescribed authority shall be final and binding on both the employer and employee.
Comments & Case-law [A complaint under section 26(1) filed by a person who is a worker within the meaning of section 2 (h) of the Motor Transport Workers Act, 1961 is not maintainable. Raj Narayan Singh v. Presiding Officer, 1986 PLJR 1000.
Labour Court is a quasi-judicial authority and must exercise its power in a quasijudicial manner. The High Court will exercise its powers of superintendence under Article 226 to interfere with order of Labour Court condoning long delay of years in the filing of complaint against wrongful dismissal passed without sufficient cause being shown. Biscomaun Ltd. v. Presiding Officer, 1984 PLJR 291 : 1984 BBCJ 267.
24| Bihar Shops & Establishments Act, 1953 | Sec. 26
1. Subs. by Act 2 of 1975.
This section deals with the notice of dismissal or discharge. It lays down the provisions when the notice is not required.
The Act facilitates the employees to redress their grievances on ground of wrongful dismissal or discharge. The decision of the appellate authority in cases of dismissal or discharge shall be final and shall be binding on both the parties.
Section 26 makes no distinction between various classes of employees. One has to be only an employee under section 2 (4) of the Act. Krishna Kumar Sharma v. State of Bihar, 1984 BRLJ 78 : 1984 PLJR 832.
Accordingly this section will be very much available to muster-roll daily rated workmen, provided they have been continuously employed for a period of not less than six months. ibid.
This section can be pressed in service only when the employer by positive act dismissed, discharged or otherwise terminated the employment of the employees.
Termination of employment as a result of bonafide closure does not attract the provisions of this section. Rajeshwar Prasad Jaiswal v. Bikram Singh, 1977 BBCJ 711.
There must be first an action on the part of the employer, like dispensing with the services of an employee, and if that action is absent, there is no question of an employee’s filing an appeal. Thus, where an employee sent his resignation letter, and requested the employer to relieve him on that date itself and the employer accepted the resignation and relieved the employee from his duties, it cannot be said that the employer has dispensed with the services of the employee and hence appeal by employee is not maintainable. G.R.
Ramaswami v. M/s Needle Industries (I) Ltd., 1981 Lab. IC 765.
The expression “employer shall dispense with the services of a person employed” does not comprehend the case of an employer relieving an employee on the basis of the letter of resignation submitted by him, if he subsequently contends that the letter of resignation was obtained from him under coercion or threat. ibid.
The provisions of the Act are covered by items 23 and 24 of the concurrent list in the Constitution i.e. Social Security and Social Insurance, Employment and Unemployment, and Welfare of Labour including conditions of work, Provident funds, Employee’s liability, Workmen’s Compensation, Invalidity and Old age pension and Maternity benefits.
In Jugal Kishore Bhandari v. Labour Commissioner, 1958 BLJR 223, it was held that section 26 (2) of the Act is ultravires as it infringes the right guaranteed under Art. 19 (1) (g) of the Constitution.
The defect, however, stands now cured after the amendment of Section 26 (2) by Act 26 of 1959. Now the provisions of this section read with the rules do not infringe the right guaranteed under Art. 19 (1) (g) of the Constitution. Jagdish Vastralaya v. State of Bihar, 1964 BLJR 672 : AIR 1964 Pat. See also 1966 BLJR Lvi and 1966 BLJR 620.
The scheme of section 26 and rule 24, particularly in cases of persons in continuous employment for not less than six months, contemplates bringing about disengagement only by a written order of termination. The words “receipt of the order of dismissal or discharge or termination” in section 26 (2) read alongwith the prefix of section 26 “Notice of the dismissal or discharge” exclude termination of the service of such persons by an oral order.
If the termination of such an employee is brought about by an oral order, no memorandum of complaint challenging the grounds of the order of dismissal can possibly be made. Further, it would bring about uncertainty as to the date wherefrom the period of limitation is required to be reckoned. It is, therefore, manifest that the termination of service of a person Sec. 26 | Bihar Shops & Establishments Act, 1953 | 25 continuously working for not less than six months can only be effected by a written order, duly communicated. Krishna Kumar Sharma v. State of Bihar, 1984 BRLJ 78:1984 PLJR 832.
While giving the above opinion the Court also looked into the difficulty of service of notice on muster-roll daily rated workman and suggested the posting or putting up of the notice or termination order on the notice board. ibid.
The provisions of this Act are not repugnant to the provisions of I.D. Act, I.E.
(Standing Order) Act and Payment of Wages Act. ibid. See also Indian Oil Corporation v.
C.D. Singh, 1972 (2) LLJ 395.
The proviso to sub-section(1) does not suffer from the vice of excessive delegation.
Caltex (India) Ltd. v. Presiding Officer, 1967 BRLJ 65.
The list of acts shown in rule 20 (1) for which no notice is necessary are major misconducts which justify termination of service. The last clause has been framed in a flexible manner in order to deal with any case which may justify an order of dismissal/ discharge but not provided for in other clauses. ibid.
The requirement of one month’s notice shall not be necessary “where the service of an employee is dispensed with on a charge of such misconduct which may be prescribed by the State Government supported by satisfactory evidence recorded on an enquiry held for the purpose.” This provision does not suffer from excessive delegation and is not unconstitutional. Caltex (India) Ltd. v. Presiding Officer, 1967 BRLJ 65. See also Calcutta Chemical Co. Ltd. v. D.K. Barman, 1969 BLJR 510 : AIR 1969 Pat. 371 : 1969 Lab. IC 1498.
Before terminating the services of a workman it is necessary for the employer to give either one month’s notice or wages in lieu thereof. The failure to comply with this requirement makes the termination order invalid and the workman illegally terminated is liable to be paid back wages with compensation and reinstatement. However, where the employer has no work left and it is not possible to reinstate the workman, all that can be done is that instead of first reinstating him and then giving a month’s notice or a month’s salary in lieu, the employer can give one month’s notice pay with all back wages instead of reinstating him. Manager, Allahabad Bank v. Presiding Officer, 1980 BRLJ 223 : 1980 BBCJ 505: 1981 Lab. IC (NOC) 4.
Where the termination of service is by virtue of a term in a contract, sub-section (1) of this section does not apply. AIR 1964 Pat. 180.
It is always open to the employer to pass an order of dismissal on the ground of misconduct or an order of termination simpliciter and such order can only be challenged on the ground of malafide. S.C. Das. v. State of Bihar, 1984 BRLJ 238 : 1984 PLJR 997.
There is no bar laid down under this Act on the employer and employee entering into a contract of service in which it is laid down that the service can be terminated without assigning any reason but with one month’s notice or pay in lieu thereof. ibid.
In a contract, where the employee’s misconduct was noticed by the employer and he started an enquiry but did not charge the employee on the basis of the enquiry report and terminated the service of the employee on the basis of the contract of service, it was held that the termination order does not suffer from any vice and it was not open to the Labour Court to look into the propriety of such a termination. ibid. But see also West Bengal State Electricity Board v. Desh Bandhu Ghose, 1985 PLJR (SC) 9 where termination of service without assigning any reason but on payment of three month’s notice or pay has been held violative of Art. 14 and 16 of the Constitution of India.
An order of discharge of a probationer on the ground of unsuitability in accordance 26| Bihar Shops & Establishments Act, 1953 | Sec. 26 Sec. 26 | Bihar Shops & Establishments Act, 1953 | 27 with the terms of appointment is not an order of punishment. No domestic enquiry before such discharge is necessary. Bank of Madura Ltd. v. Additional Commissioner, 1983 Lab. IC (NOC) 19.
Termination of employment as a result of bonafide closure does not attract the provisions of this section. Rajeshwar Prasad Jaiswal v. Bikram Singh, 1977 BBCJ 711.
Any termination of service in contravention of section 40 of the Act will be legal, unenforceable and invalid but not null and void and non est. National Insurance Co. Ltd. v. M.
Vishwanath, 1979 (1) LLJ 16.
The service of an employee cannot be dispensed with except for a reasonable cause or for misconduct. Mere payment of one months’s wages in lieu of notice or one month’s notice is not sufficient . N.M. Mehra v. Coromandal Fertilisers Ltd., 1977 (1) LLJ 151. See also S.S. Rly Co. v. Workers Union, AIR 1969 SC 513 : 1969 (1) LLJ 734.
Where an employee underwent cataract operation and after the operation his services were terminated by the management on the basis of the Ophthalmologist’s certificate that the employee would have great difficulty in doing normal clerical work, it was held, that the certificate by itself without any corroborative evidence as to how the employee’s poor eyesight had adversely effected his working capacity to the detriment of management, did not constitute “reasonable cause” for the purpose of termination. The termination was held not sustainable. Secretary, M/s Spencer and Co. Ltd. v. Additional Commissioner, 1982 Lab. IC 1676.
In case of discharge of an employee on ground of continued ill health, it is necessary to find out before discharge whether continued ill health has made the employee unfit to perform his duties for which he is employed. Iqbal Narain Saxena v. Presiding Officer, 1982 Lab. IC 79.
There is no comparison between section 26 of this Act and Section 33A of the Industrial Disputes Act. The competent authority under section 2 does not have a limited jurisdiction as in the case of section 33A. The words “any misconduct” used in sub-section
(2) show that sub-section (2) is not confined only to misconduct set out in Rule 20. Chairman, Brooke Bond India (P) Ltd. v. Chandra Nath Choudhary, 1969 PLJR 5A.
The termination order passed without a proper enquiry cannot be upheld as an order made for a reasonable cause. M/s United Wire Ropes Ltd. v. Commissioner for Workmens Compensation, 1976 (1) LLJ 226.
The personal enquiry conducted by the Hony. Secretary of the Co-operative Bank is not an enquiry in law. Sitamarhi Central Co-operative Bank Ltd. v. State of Bihar, 1973 (1) LLJ
179.
The non participation of employee in enquiry despite notices requesting participation, issued by the Enquiry Officer does not vitiate the enquiry as violative of principles of natural justice. S. Gopal Kamath v. Thayath Raghavan, 1979 Lab. IC (NOC) 92.
The appointment of Legal Adviser of the Company by the employer does not vitiate enquiry. ibid. [1971 Lab IC (SC) 1 and 1979 Lab. IC 7 9 (Ker) Relied on.]
The enquiry is valid if it makes a bonafide attempt to ascertain the correct facts, after giving the employee an opportunity to place his case and if the employee has not suffered a substantial prejudice in placing and proving facts for his innocence. Manindra Nath Ganguly v. Presiding Officer, 1979 BBCJ 245.
The appellate authority can apply the principles of natural justice and declare such enquiries as invalid which were conducted merely as an empty formality. Kavita Movi House v. L.M. Mary, 1979 (I) LLJ 10.
There is no provisions of suspension of a workman in the Act. Inter-State Transport Agency v. P.C. Sinha, 1965 BRLJ 934.
Section 26 (2) of the Act and Rule 21 provide the limitation of thirty days for preferring an appeal or complaint against the orders of discharge or dismissal. The period of limitation starts from the date of order was communicated to the employee by his employer, in writing.
The delay in filing an appeal can be condoned by the prescribed authority in case where there is sufficient cause for not filling an application in time. Section 5 of the Limitation Act will apply to all cases under this Act, as this provision corresponds with Section 5 of the Limitation Act.
The question of limitation, however, should be determined only after giving notice to both the parties. Jagdish Vastralaya v. State of Bihar, AIR 1964 Pat. 180 : 1964 BRLJ 674.
A muster-roll daily rated workman was not allowed to make attendance after he had served for three years. The notice of termination of his service was served on him after 18 months. He filed a complaint before the Labour Court the very next day but the Labour Court dismissed it by taking the period when he was not allowed to sign the attendance into account for the purpose of limitation. The High Court on appeal set aside the Labour Court’s judgment and held that where there is no written order of dismissal or discharge nor the dismissal or discharge has been notified or communicated and received by the workman, there is no question of any limitation arising in respect of the petition of complaint to be entertained by the Labour Court. Krishna Kumar Sharma v. State of Bihar, 1984 BRLJ 78 :
1984 PLJR 832.
An employee of a co-operative society, dismissed from service, can invoke the provisions of sec. 26 (2). There being no provision in the Bihar and Orissa Co-operative Societies Act to deal with such matters. The Labour Court has definitely the jurisdiction to entertain such a case. Salendra Narain Singh v. Presiding Officer, 1981 Lab. IC (NOC) 20. See also Bhilwar S.U.W. Bhandar Ltd. v. Prescribed Authority, 1983 Lab. IC 987.
A person appointed to be a Presiding Officer by a notification has the jurisdiction to entertain the complaint. East India Pharmaceutical Works v. G.S. Verma, 1973 BRLJ 150 :
1973 Lab. IC 1501.
The Labour Court, the prescribed authority under this Act, is a court sub-ordinate to the High Court and hence its decision under section 25 can be the subject matter of revision under section 125 of C.P.C. India Tube Co. v. Pratap Mishra, 1969 BLJR 589 : 1970 (1) LLJ
328.
The appellate authority cannot dismiss an application for default of applicant or his representative. Munniruddin v. Pierce Leslie & Company, 1966 (1) LLJ 271.
An appellate authoritiy has no power or jurisdiction to wave its earlier condition fixed in earlier order. Doctrine of substantial compliance is not applicable. P.M. Geogre v.
Dy. Labour Commissioner, 1976 (2) LLJ 14.
The appellate authority has no jurisdiction to proceed with the appeal filed by an employee against his dismissal if the employee subsequently (before appeal has been taken up) withdraws the dismissal order. President, Eraveli Co-op. Consumer’s Stores Limited v. Dy.
Labour Commissioner, 1978 (1) LLJ 265.
Under section 26 (2) a workman can challenge the validity of the order of discharge/ dismissal on the ground that no notice was served on him as required by seciton 26 (1). Md.
Fakhruddin v. Presiding Officer, 1980 BRLJ 142 : 1980 BBCJ 463.
28| Bihar Shops & Establishments Act, 1953 | Sec. 26 Where a complaint is lodged under section 26 (2) of the Act and where any ground is taken by the complainant about non-service of notice as required by section 26 (1), it is the mandatory duty of the Labour Court to give a finding on this point, specially when the fact is in dispute between the parties. The factum of payment of one month’s wages in lieu of notice becomes specially important when the fact is not at all mentioned in the order of discharge. ibid.
In a complaint case under section 26 (2), the proceeding before the Labour Court is in the nature of an original trial. That is the reason why section 26 (5) has been enacted. It is for the Labour Court to enquire whether one month’s wages in lieu of notice has been given to the employee or not. For this the Labour Court is competent to record the evidence adduced by the parties, and after making an enquiry it should pass orders after giving reasons therefor. The Labour Court is also required to give a finding about the correctness and legality of the enquiry as envisaged by the provision to section 26 (1). ibid.
In an appeal, the appellate authority may confine itself to the records of the domestic enquiry and the evidence adduced in that enquiry. If it finds that the enquiry was not fair and proper or violated the principles of natural justice, it may set aside the enquiry proceedings. It is also open to it to disagree on merits with the findings of the domestic enquiry. In either case it is open to it to afford a chance to the management to substantiate the charges at a de no vo enquiry before it and reach a conclusion in accordance with the provisions of the Act. S Gopal Kamath v. Thayath Raghavan, 1979 Lab. IC (NOC) 92. See also Kavita Movi House v. M.A Abdul Khader, 1979 Lab. IC 763.
It is incumbent on the appellate authority to consider only the remaining charges whether they are substantiated fully and are grave to the extent of punishment awarded;
while finding that few of the charges are vague or indefinite so that they are not to have been taken in account. ibid.
Section 2 does not empower a Labour Court to impose a punishment on the basis of a complaint made by a person aggrieved by the action of the employer. Usha Sales Ltd. v.
Presiding Officer, 1983 PLJR 398.
The finding recorded by Labour Court in an application u/s 26 of this Act shall operate as resjudicata in a reference made u/s 10 of I.D. Act on the same matter before the same Labour Court. B. Choudhary v. Presiding Officer, 1983 PLJR 419: 1983 Lab. IC 1755.
The dispute about the payment of gratuity is also a dispute which may be referred to the Tribunal. Reference of such case under section 2A of the Industrial Disputes Act is valid. Joseph Niranjan Kumar Pradhan v. Presiding Officer, 1977 (1) LLJ 36.
It is not necessary that the appellate authority while accepting that the dismissal order is unjustified must also order for reinstatement. Authority may order for only compensation and back wages. Hydrose Haji v. K. M. Bara, 1978 (2) LLJ 534.
But the Patna High Court held that to deny the person who has been illegally dismissed the relief of reinstatement would he quite unjust. Indian Tube Company Ltd. v. Pratap Mishra, 1969 BLJR 589. See also Mgt. of Deshbandhu Cinema v. Presiding Officer, 1968 IMFJ Pt. 1191.
For the circumstances in which reinstatement can be denied—see Manager, Allahabad Bank v. Presiding Officer, 1980 BRLJ 223: 1980 BBCJ 505: 1981 Lab. IC (NO) 4 : M/s Spencer & Co.
Ltd. v. L. Lakshminarayana, 1983 Lab. IC 596.
While passing an order for reinstatement of an employee the Court must also consider the case of the employee for back wages and cannot deprive the employee of his back wages. Ganesh Flour Mills Co. Ltd. v. Labour Court, 1971 (1) LLJ 287. See also Rikhdeo Prasad v. Presiding Officer, CWJC no. 986 of 1971 decided on 15.4.1975.
Sec. 26 | Bihar Shops & Establishments Act, 1953 | 29 Remand order is not fit to be set aside if it was for the purpose of finding out whether the respondent has committed any act in his capacity as an employee that would entail his discharge from service while writing offending letter as a share holder of the company.
Rallis India Ltd. v. G. Lakshmi Kanthan, 1969 (1) LLJ 7.
A statutory entitlement cannot be denied to a person on the solitary ground that there has been a misdescription as to the nature of the relief which he would be otherwise entitled to in law. Where the employee asks for long leave on the ground of illness and his service is terminated on the plea that the post on which he serves is of such a nature that it cannot be kept vacant even for a short period and the termination as held valid by the Labour Court under the Shops & Establishments Act, it cannot be said that the order of the Labour Court barred an employee from proceeding to claim reliefs available to him under other Legislations for example retrenchment compensation under Industrial Disputes Act.
Raghavachari v. Madras Printers & Lithographers Association, 1980 Lab. IC 116.
Where the appellant was pursuing concurrent remedy of reference by Government to Labour Court under the Industrial Disputes Act, in the application for condonation of delay in filing appeal under Act, it was held that this by itself could not be a ground for condoning the delay. M. Thirunavukharasu v. Mgl. of Indian Bank, 1982 Lab. IC (NOC) 96.
Even an employee appointed on temporary basis, can be dismissed or discharged only for a reasonable cause and after being given at least one month’s notice or one month’s wages in lieu thereof. The employer must establish that the services were terminated for a reasonable cause irrespective of any condition imposed to the contrary in the letter of appointment. The Labour Court has jurisdiction to go into all the circumstances which led to the order of termination. Where the order of termination is founded on misconduct by the employee, the non-holding of domestic enquiry to prove the charges levelled against the aforesaid employee will be contrary to the provisions of seciton 26 (as amended by Amendment Act 8 of 1975.) Shri S.C. Das, Chairman, H.S.E. C.C. S. v. State of Bihar, 1988 PLJR (NOC) 15.
Where order of dismissal which followed the earlier order of suspension of the workman, is late set aside the employee concerned will be entitled to compensation in lieu of back wages from the date of suspension itself. Harish Kumar v. State of Bihar, 1988 LLJ (NOC) 13.
Where the employee has chosen wrong form for redressal of his grievance, and the Labour Court while deciding the issue has also pointed out about the wrong form, the employee may not be prevented from taking further steps under the provisions of the Bihar Shops and Establishments Act. The findings of the Labour Court cannot be said to be binding on the employee if he takes further steps under the Bihar Shops and Establishments Act. M/s Instrumentation Ltd. v. Presiding Officer, 1988 PLJR 145: 1988 BRLJ 19.
Principle of natural justice cannot be stretched in all cases, just as a matter of routine.
Unnatural expansion of principle of natural justice without reference to the administrative realities and other factors of a given case, can he exasperating. If the totality of the circumstances satisfies the court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the court should decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures. ibid.
Power of substantial review must be expressly conferred upon the Court or Tribunal or Authority by reason of statute. The power of review can be exercised only when the same is conferred specifically or by necessary implication. Where power of review has not been vested, any order passed in exercise of such power must be held to be bad in law. Bal Govind Yadav. v. Ramcharitra Dubey, 1988 PLJR 1070 : 1989 BLJ 133.
30| Bihar Shops & Establishments Act, 1953 | Sec. 26 Once the period of absence is treated as leave of any kind whatsoever, the fact that the delinquent employee remained absent without prior permission does not survive. The absence will be deemed to have been condoned. State of Punjab v. Chanan Singh, 1988 (3) SLJ 216.
Suspension in absence of any prima facie case for imposing any penalty is penal in nature. Such suspension for a long period amounts to imposition of penalty without following mandatory procedure. O.P. Gupta v. Union of India, 1988 (1) SLJ 121.
Where there was sufficient material to prove otherwise also, the charges against the employee, the taking into account of extraneous factors does not vitiate the finding of enquiry.
R.S. Mehta v. N.I.A. Co. Ltd., 1988 (2) SLJ 89.
The fact that the domestic enquiry is found to be vitiated will not have the effect of obliterating whatever was done in the course of the enquiry. What transpired therein can he used in an enquiry held later. Workmen, represented by General Secretary v. Labour Court. 1988
(2) SLJ 222.
In exercise of its writ jurisdiction the High Court cannot go into the question of sufficiency of evidence once it finds that it was not a case of “no evidence at all” in course of enquiry. ibid.
Even a daily-rated worker cannot be removed for misconduct without giving him a show cause notice. Kuldip Singh v. State of H.P. 1988 (2) SLJ 109.
Termination of services of adhoc or temporary employee due to her pregnancy is violative of Articles 14, 15 and 19 of the Constitution of India. Mrs. Savita Ahuja v. State of Haryana, 1988 (3) SLJ 175.
Termination order based upon a case of no evidence before the Enquiry Officer is illegal. State of Punjab v. Balbir Singh, 1988 (3) SLJ 210.
In an application for condonation of delay, there must be some attempt to explain the cause for such delay. Union of India v. Tata Yodogawa Ltd., 1989 PLJR (SC) 5.
Where there is wide discretion, the procedural safeguards should be more rigidly followed. Ranjit Thakur v. Union of India, 1989 (1) SLJ 109.
The penalty imposed should not he disproportionate to the nature of the offence.
ibid.
Section 26 contemplates the filing of complaint by an employee challenging the validity of the order of termination of his services. No provision has been made in the Act for determining the jurisdiction of the Labour Court, which may entertain the complaint filed under section 26. In the absence of any provision in the Bihar Shops and Establishments Act, t he procedure laid down in section 20 of the Code of Civil Procedure shall he applicable.
TISCO Ltd. v. Presiding Officer, 1989 PLJR 650 : 1989 (2) BLJR 276.
While deciding a complaint, under section 26 the Labour Court’s jurisdiction is confined to the question raised therein and it cannot come to a finding that the employee’s earlier supersession (not part of the complaint) was bad in law. ibid.
The Labour Court is competent to go into the question as to whether the “resignation” submitted by the employee was voluntary, or the resignation as well as its acceptance was illegal and inoperative. ibid.
The compliance of the provision of sub-section (1) of section 26 is not mandatory where the employee has been found guilty of misconduct in a domestic enquiry. Although the question whether the domestic enquiry was defective or not may itself be subject matter Sec. 26 | Bihar Shops & Establishments Act, 1953 | 31 32| Bihar Shops & Establishments Act, 1953 | Sec. 26 for determination in a complaint petition under section 26(2), but only because there is some procedural defect in the enquiry, the same will not vitiate the finding arrived at. Sri Sao. vs. Presiding Officer, 1989 PLJR 810.
An employee claiming that his resignation was not voluntary but had been obtained by coercived methods is required to be pleaded and proved, before an inference of his services having been “Otherwise terminated” in terms of section 26(2) can be legitimately drawn by the Labour Court. Mere assertion on the part of the employee will not be enough. Finding arrived at on mere conjecture by the Labour Court cannot be relied upon. Tata Robins Fraser Co. Ltd. vs Presiding Officer, 1989 PLJR 115: 1989 BLJR 555.
“Labour Court”, the prescribed Authority under the Bihar Shops and Establishments Act, is a “Court”. Abdul Rahim vs. Telco Ltd., 1990(2) PLJR 161 (FB).
Since there is no provision in the Act for filing any appeal against order of Labour Court u/s 26 before the High Court, therefore since the Labour Court is not a Court “subordinate” to the High Court, no revision application under section 115 of C.P.C. will be maintainable against an order of Labour Court passed under section 26 of Bihar Shops and Establishments Act. Forum for tiling appeal from order under section 26 is the Industrial Tribunal. ibid.
Labour Court can be said to retain its jurisdiction to hear a pending appeal by the employee under section 26 inspite of the Commercial Banks being taken away from the ambit of the provisions of the Act during the pendency of the proceedings. The amendment of the schedule appended to the Act is not to give retrospective effect. State Bank of India vs.
State of Bihar, 1990 (2) PLJR 336.
The plea of non-service of the order of termination cannot be allowed to be raised belatedly for the first time before the High Court, although it is essential for the order of termination to be served on the employee whose services are being dispensed with. Sri Sao vs. Presiding Officer, 1989 PLJR 810.
Even if the issues have not been properly framed, but the parties have not been prejudiced because of it, no illegality can be said to attract to that findings. ibid.
Where an aggrieved employee has two remedies available; one to invoke the provisions of section 26 of the Act and the other to take recourse to section 10 of the I.D. Act, ordinarily he cannot invoke the writ jurisdiction of the High Court without exhausting the alternative remedy available. Bachchu Prasad Singh vs. Bharat Wagon and E