Wanchoo, J. - (1.) The main question raised in this appeal by special leave against the judgment of the Patna High Court is the constitutionality of S. 26 of the Bihar Shops and Establishments Act, No. VIII of 1954, (hereinafter referred to as the Act). The question arises in this way. The appellant is carrying on business in petroleum products in the Patna district. Habibur Rahman was serving as a watchman and Abdul Rahim as a driver in the permanent employee of the appellant at the Dinapore depot. They were charged with gross misconduct and an enquiry was held by the appellant in that connection. Habibur Rahman was discharged on May 5, 1960 and one month's pay in lieu of notice was offered to him. Abdul Rahim was dismissed on April 22, 1960. These two employees made applications under S. 26 of the Act in December 1960 before the labour Court. These applications were obviously barred by time. The labour Court condoned the delay without giving any notice to the appellant on the question and issued notice to show cause why the dismissal/discharge be not set aside. On receipt of this notice, the appellant learnt that delay in making the applications had been condoned without hearing it. Consequently the appellant moved the High Court at Patna under Art. 226 of the Constitution for quashing the order of the labour court condoning the delay on the ground that it had been passed without hearing the appellant. Thereafter in March 1961, the appellant moved the labour Court for recalling the ex parte order of condonation. The labour Court heard the appellant on March 27, 1961 and decided on April 4, 1961 to condone the delay and confirm the exparte order already passed. Thereupon the appellant filed another writ petition in the High Court out of which the present appeal has arisen. In this petition the order, dated April 4, 1961, was attacked on various grounds. Besides the appellant also attacked the validity of S. 26 of the Act. It may be mentioned that a number of other petitions had also been filed before the High Court attacking the validity of S. 26 of the Act. All these petitions were heard together and the High Court held that S. 26 was constitutionally valid. It also held that the order of April 4, 1961, showed that delay had been condoned after hearing the appellant and, therefore, there was no cause for interference with that order. The appellant moved the High Court for a certificate to appeal to this Court, which was refused. It then applied for special leave, which was granted and that is how the matter has come before us.
(2.) The attack of the appellant is on the proviso to S. 26 (1) of the Act and the only ground that has been urged before us on its behalf is that proviso suffers from the vice of excessive delegation and should, therefore, be struck down. The relevant part of S. 26 is in these terms: "26. Notice of dismissal or discharge. - (1) No employer shall dismiss or discharge from his employment any employee who has been in such employment continuously for a period of not less than six months except for a reasonable cause and without 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 inquiry held for the purpose." It is not necessary to set out the rest of S. 26 for that is not under attack.
(3.) The contention on behalf of the appellant is that when the proviso lays down that no such notice would be necessary as is mentioned in the main part of S. 26 (1) where services are dispensed with on the charge of misconduct and the State Government is given full power to specify the nature of the misconduct which would eliminate the necessity of a notice, there is excessive delegation of its authority by the legislature in the matter of specifying the nature of such misconduct. It is urged that as the proviso stands it gives arbitrary and naked power to the State Government to specify any misconduct on proof of which notice could be dispensed with.;