Rajesh Shankar, J. - (1.) The present writ petition has been filed for quashing the order dated 19.08.2009, passed by the Presiding Officer, Labour Court, Ranchi, in B.S Case No. 6/2008 (seems that year has been wrongly typed as 2008 in place of 2006 in the impugned order) whereby it has been held that the order of dismissal/discharge has not been issued by the respondents and as such, the complaint filed under Section 26(2) of the Bihar Shops and Establishment Act, 1953 read with Rule 21 of the Jharkhand Shops and Establishment Rules 2001 is not maintainable.
(2.) The factual background of the case as stated in the writ petition is that the petitioner was employed by the respondents as salesman in the year 1988 and he worked continuously up to 06.10.2005 under the respondents and was also getting salary of Rs.1700/- per month. It is alleged by the petitioner that when he reported for duty on 07.10.2005, the respondent no.2 refused to allow him to work without assigning any reason and he was also neither given any order of termination, nor the dues of the petitioner was cleared. The petitioner filed a petition under Section 33 C (2) of the Industrial Disputes Act, but the same was subsequently withdrawn. Thereafter, the petitioner made complaint before the Dy. Labour Commissioner on 16.08.2006 against his illegal termination and non-payment of the legal dues, but no proceeding was initiated by the learned Deputy Labour Commissioner under Section 12 of the Industrial Disputes Act. Thereafter, the petitioner filed a case under Section 28 of the Bihar Shops and Establishment Act, 1953 (hereinafter called the Act) before the Labour Court, Ranchi which was registered as B.S. Case No.5 of 2006, but the same was dismissed by the Labour Court vide order dated 13.09.2006. Thereafter, the petitioner filed appeal before the Industrial Tribunal Ranchi in B.S Appeal No. 2 of 2006 and the learned Tribunal allowed the said appeal and set aside the order of the Labour Court and remanded the matter back to decide it afresh. Thereafter, the Labour Court vide order dated 05.12.2008 allowed the claim of the petitioner in part by directing the respondents to pay the wages of the petitioner for the month of September 2005 and 6 days in October, 2005 of the monthly salary @ Rs.1700/- pm as on September 05. The respondents also complied the order and paid Rs. 2040/- which was withdrawn by the petitioner. In the meantime, another petition was filed by the petitioner under Section 26(2) of the Bihar Shops and Establishment Act, 1953 and Rule 21 of the Jharkhand Shops and Establishment Rules, 2001 (hereinafter called the Rules) as B.S Case No.6/06.
(3.) The learned counsel appearing on behalf of the petitioner submits that the Labour Court wrongly dismissed the complaint petition of the petitioner on the ground that since no order of dismissal was issued by the respondents, the complaint under Section 26(2) of the Act and Rule 21 of the Rules is not maintainable. It is further submitted that the oral termination comes under the meaning of "termination" under Section 26 of the Act and Rule 21 of the Rules. In support of the above contention, the learned counsel relied upon the judgment rendered by the Patna High Court in the case of Krishna Kumar Sharma vs. State of Bihar and Others, 1984 LabIC 1427. It is further submitted that the learned court below has not appreciated the evidence of the parties and the judgments relied upon by the petitioner. It is further submitted that in B.S. Case No. 5 of 2006/1 of 2008, which was registered on an application made by the petitioner under Section 28 of the Act, the learned Labour Court, Ranchi found the claim of the petitioner genuine and allowed the wages for the month of September 2005 and for six days in October 2005. Learned counsel for the petitioner submits that the observation of the Presiding Officer, Labour Court, Ranchi dated 05.12.2008 clearly indicates that the services of the petitioner was dispensed with w.e.f. 7th October 2005, however without any written order.;