Section 328

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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 Engineering Co. Ltd., 1990 (1) PLJR 536 : 1990 (1) BLJR 215. High Court will not ordinarily interfere with order of the Authority under the Act condoning the delay in filing of application under section 26 (2). State Bank of India vs. State of Bihar, 1990 (2) PLJR 336. Order of compulsory retirement of an employee may be set aside by the Labour Court on allowing an application filed by the aggrieved employee under section 26 (2) of the Bihar Shops and Establishments Act. Central Coalfields Ltd. vs. Presiding Officer, 1992 (2) PLJR 315. Inference of malice in fact can be drawn only on the basis of factual matrix and not merely on the basis of insinuation, conjectures and surmises. M. Sankaranarayanan vs. State of Karnataka, (1993)1 SCC 54. The provisions of section 26 make a clear distinction between a case of dismissal on charge of misconduct and a case where employment is terminated for reasonable and sufficient cause. Dismissal on charge of misconduct will be valid only after misconduct is established after holding domestic enquiry in accordance with principles of natural justice. Where a person has been in employment continuously for six months or more, the Employer is required to give one month’s notice or one month’s salary in lieu of notice. The Act does not envisage the application of Rule of “audi alteram partem” where the employer is not “State”. Biscomaun vs. State of Bihar, 1993 (1) PLJR 33. High Court may decline to interfere with order of Labour Court dismissing complaint filed by aggrieved employee challenging order of dismissal, where the impugned order was passed after proper consideration of evidence adduced by the parties. Abdul Rahim vs. Presiding Officer, 1994 (2) PLJR 238. A complaint under the Act is to be adjudicated upon the basis of the legal status of the employer on the date when the cause of action for filing the complaint arose or in any event when the complaint was filed. Any attempt on the part of the Employer, thereafter, to change its legal status unilaterally cannot have any legal effect on pending proceeding. Popular Nursing House vs. State of Bihar, 1995(1) PLJR 750. Provisions of Section 26 of the Act make a clear distinction between cases of dismissal or discharge on a charge of misconduct and cases of termination of service for a reasonable cause. In the case of dismissal or discharge for misconduct, the Disciplinary Authority is required to be satisfied that the order is supported by evidence adduced in the domestic enquiry. This corollary of “Audi Alteram Partem” principle is not necessary to be followed where order of termination of service has not been passed on account of misconduct of employee. Bihar State Co-operative Marketing Union Ltd. vs. State of Bihar, 1993 (1) PLJR 333. The Bihar Shops and Establishments Act is a local statute applicable only in the State of Bihar. Provisions of section 26 are applicable only in cases of dismissal, discharge or termination of services of employee of an establishment coming under the ambit of the provisions of the Bihar Act. Where the appointment was contractual in nature and the period of continuous employment was less than six months, the provisions of section 26 are not attracted. Narendra Kumar Singh vs. Kendriya Vidyalaya Sangathan, 1993 (2) PLJR 10. Where the delinquent employee had been found guilty of several charges of misconduct in domestic enquiry and the complaint under section 26 against the order of dismissal by the aggrieved employee had been dismissed by the Labour Court after hearing the parties, the Court may decline to interfere in exercise of its writ jurisdiction. Requirements of natural justice under Article 314 of the constitution are not applicable. Abdul Ratim vs. Presiding Officer, 1994. BRLJ 126 : 1994 (2) PLJR 238. —Section 26—Labour Court setting aside order of termination of services of employee of TRF Ltd.—Labour Court coming to a finding that order of termination was illegal as concerned employee had not been proved guilty of alleged misconduct—Labour Court directing reinstatement with full back wages and in the alternative Employer given option to pay fifty months wages as compensation in lieu of reinstatement—in cases of wrongful dismissal or discharge, the normal rule is to award reinstatement—however, where a case falls in any of the exceptions to the general rule of reinstatement, industrial adjudicator has discretion to award reasonable and adequate compensation in lieu of reinstatement— compensation in such a case is the solatium for unjustified and premature termination of employment—award of Labour Court set aside by High Court and directions given for payment of salary from date of illegal termination of services to the date of order of reinstatement became final and one month’s salary in lieu of notice and further one year’s salary by way of compensation for loss of the benefit of reinstatement. Management of Tata Robin Fraser Ltd. vs. Presiding Officer,1996 (1) PLJR 502. Sec. 26 | Bihar Shops & Establishments Act, 1953 | 33 34| Bihar Shops & Establishments Act, 1953 | Secs. 27-28 —Section 26(2)-during the pendency of application u/s 26(2), a notification u/s 4(2) amending schedule was issued by which the provisions of the Act ceased to apply to the branches of State Bank situated within Bihar—such a notification will have retrospective effect in relation to cases u/s 26(2) pending before its issuance and therefore Labour Court cannot adjudicate in such cases. State Bank of India vs. State of Bihar, 1999(1) PLJR 274. —Section 26—where the Presiding Officer, Labour Court is of the opinion that there has been no proper enquiry and also that the charges as levelled against the workmen amounts to misconduct, it is incumbent for him to come to his own findings on the evidence which was to be led before him before ordering reinstatement—matter remitted back for decision by the Presiding Officer—Workmen directed to be paid Rs. 30,000 as compensation payment in the meanwhile. Peerless G.F. & Inv. Co. Ltd. vs. Presiding Officer, 2000 (1) PLJR 926. —Section 26(2)—direction for reinstatement of petitioner in service with full back wages and other consequential benefits—petitioner merely claiming back wages and alleging disobedience of the order passed by writ court to this effect—there being no specific direction for payment of back wages till its payment, the opposite party may not be faulted up for committing contempt of High Court; but the order of High Court had not been complied within its spirit —petitioner shall be entitled to and be paid back wages from the date of termination of service till the date of disposal of writ petition. Shyamal Kumar Gupta v. State of Bihar, 2004 (3) PLJR 263.]