NARENDRA NATH TIWARI, J. - (1.) IN this writ application the petitioner has prayed for quashing of the order dated 12.8.1993 passed by the respondent No. 1 the Presiding Officer, Labour Court, Bokaro Steel City -Cum Authority under Shops and Establishment Act, condoning the delay in exercise of his power lander Section 26 of the Bihar Shops and Establishment Act, 1953, hereinafter . to be referred to as the said Act, and also for quashing the order dated 24.5.1996 whereby the said Presiding Officer -respondent No. 1 has passed an order directing reinstatement for the respondent No. 2 with full back wages along with other consequential benefits. According to ' the petitioner, the said orders passed by the respondent No. 1 are wholly illegal, unjust and not sustainable, The case of the petitioner is that the respondent No. 2 was appointed as a sales man on 4.9.1962 and from the very beginning he was in the habit of ignoring his duty. In the month of July/August, 1974 it was detected that the respondent No. 2 did not deposit the sale proceeds of the commodities and he defalcated a sum of Rs. 181 1/ - whereupon his sureties were noticed to deposit the amount. Subsequently a further sum of Rs. 6,990/ was also found to have been defalcated by the respondent No, 2 whereupon another notice was issued to his sureties and asked them to adjust the said amount. On receiving the notices, the sureties filed representation stating that the amount could be recovered from their salary and, accordingly, the said amount was adjusted' from the salary of the sureties of the respondent No, 2. The, further case is that the petitioner, thereafter, sent several letters to the respondent No. 2 to explain regarding the said defalcation but he did not turn -up rather kept himself absent for more than 12 years. In view of the said misconduct, the Managing Committee in its meeting dated 6.4.1977 unanimously resolved to dismiss the respondent No. 2 and, accordingly, he was dismissed. Against the said dismissal order the respondent No. 2 filed a ease Under Section 26 of the said Act before the Presiding Officer, Labour Court, Bokaro Steel City which was numbered as B.S.E. Case No. 1/1.989. In the said case the petitioner appeared and filed written statement stating, infer alia, that the application of the respondent No. 2 having been filed after more than 12 years, the same was hopelessly barred by limitation. By order dated 12.8.1993 as contained in Annexure -5 the Presiding Officer, Labour Court respondent No. 1 decided the said objection of limitation as a preliminary issue and condoned the delay. The said order has been annexed as Anncxure -5 to the writ application. Subsequently by order dated 24.5.1996 as contained in Annexure -6, other issues were decided and an order was passed by the respondent No. 1 re -instating the respondent No. 2 with full back wages and other consequential benefits. According to the petitioner, the respondent No. 2 was traceless for about more than 12 years and he was not entitled to any back wages as he had not worked with the petitioner. There was also serious laches on the part of respondent No. 2 in filing a complaint Under Section 26(2) of the said Act, which was also not t properly considered and the complaint was entertained and the said impugned orders were passed. On the said premise the petitioner has prayed for quashing of the said impugned orders as contained in Annexures -5 and 6 to this writ application.
(2.) THE respondent No. 2 (the concerned workman) contested the writ application by filing his counter affidavit. In the counter affidavit the respondent No. 2 has stated, inter alia, that the writ application has no merit as there was absolutely no infirmity and illegality in the said orders as contained in Annexures -5 and 6 to the writ application. It was stated that the writ petition has not brought any iota of evidence, either oral or documentary, in support of his objection. According to the said respondent, the petitioner has raised new points in this writ application which arc beyond the records and which is not permissible, inasmuch as, the points which have been raised arc disputed questions of fact which can not be adjudicated upon and decided by this Court in its writ jurisdiction. According to the said respondent, since his termination has been held to be bad and illegal and the petitioner filed to prove any misconduct against the respondent No. 2, he can not be deprived of his back wages which has been rightly allowed by the Labour Court. Mr. B.B. Sinha, learned counsel appearing on behalf of the petitioner, submitted that both the orders as contained in Annexures -5 and 6 are wholly arbitrary and unsustainable as the same have been passed without considering the past conduct of the petitioner. According to Mr. Sinha, for awarding back wages past' conduct of the employee is always relevant fact which has not at all been considered and as such the impugned orders at least awarding the back wages to the petitioner is wholly arbitrary and illegal. According to him. the respondent No. 1 has erroneously condoned the long delay of more than 12 years and entertained the said petition filed Under Section 26 of the said Act. According to him, the reasons recorded for condoning the delay are not sound and the explanation which was furnished for condonation of delay was not sufficient. According to him, the said orders are, thus, vitiated in law and the same are liable to be quashed.
(3.) MR . A.K. Sinha, learned counsel appearing on behalf of the respondent No. 2, on the other hand, urged that the Presiding Officer, Labour Court considered all the materials available on records and found that the explanation furnished for con - donation of delay was sufficient and in exercise of his discretion he passed the order of condonation of delay in favour of the respondent No. 2. He further submitted that the said preliminary issue regarding the limitation was decided prior to passing of the order as contained in Annexure -6 which was then not challenged by the petitioner and the same became final and binding and at this stage he can not raise any such objection. Further according to him, the order for condoning the delay was sound and the same has been passed in due exercise of jurisdiction and the same is perfectly legal and sound. The order as con - tained in Anne'xure -6 has also been passed on due consideration of all the materials available on records and the same is perfectly just and legal Mr. Sinha further submitted that there is not an iota of evidence on behalf of the petitioner, either oral or documentary, in support of the objection raised by them. According to Mr. Sinha, the grounds of the petitioner are not supported by any evidence or material on record. According to him, thus, there is no illegality or infirmity in the said orders of the respondent No. 1. The said orders have been passed .on due consideration of the materials on record and in exercise of statutory jurisdiction and the same are perfectly sound and legal.;