- (1.) CHALLENGE in this writ application is to the Award dated 25.06.2008, passed by the Presiding Officer, Labour Court in B.S. Case No. 13 of 2005, whereby the petitioner's application filed under Section 26 (2) of the Bihar (Jharkhand) Shops & Establishments Act, was dismissed.
(2.) HEARD Mr. Yughal Kishore Prasad, learned counsel for the petitioner and Mr. Ashwini Kumar, learned counsel for the Respondents. The brief facts of the case are as follows: - The petitioner -Foundary Forge Cooperative Societies Ltd., Dhurwa, Ranchi, represented by the Secretary (Respondent No. 1), is an establishment, carrying on various businesses, and one of its business engagements is of sale and distribution of Indane Gas Refills amongst its customers. The service of the petitioner was engaged under the Respondent -Society as a Driver for carrying the Gas refills and as per petitioner's claim, he was appointed as Driver since October, 1991 on monthly wages of Rs.1965/ - inclusive of Dearness Allowance and was continuously working as such. On account of non -supply of Gas by the Indian Oil Corporation the Gas Agency business of the Society could not continue since September, 2002 and the petitioner, as such, was not assigned any work, although he was given some amount, "by way of subsistence allowance" for a few months. The business of Gas Agency of the Respondents was revived on and from 02.05.2005, but despite the petitioner presenting himself at the office of the Respondents, he was not given any work and on the other hand, other persons were employed by the Respondents. Being aggrieved, the petitioner filed representations before several authorities, including the Deputy Labour Commissioner, Ranchi, who entered into a conciliation proceedings calling upon the employer to appear and submit their replies to the petitioner's demand. The Respondent -society did not appear before the Deputy Labour Commissioner, Ranchi. Consequently, the Deputy Labour Commissioner vide Communication dated 07.09.2005, advised the petitioner to file a case under the provisions of the Bihar (Jharkhand) Shops &Establishments Act. Upon such advice, petitioner filed a complaint under the provisions of Section 26 (2) of the Bihar (Jharkhand) Shops & Establishments Act before the court below raising the following grounds: - (i) The petitioner was in continuous employment for the past 15 years. (ii) Without there being any charge of misconduct against the petitioner, his service has been terminated. (iii) His employer has otherwise terminated his services without serving him the mandatory one month's notice or paying one month's wages nor has any compensation being paid to him.
(3.) THE Respondent -Society appeared before the court below in the proceeding and through its written statements, had contested the petitioner's claim on several grounds stating, inter alia, (i) that the complaint itself is not maintainable, (ii) that the complaint is barred by limitation, (iii) that the petitioner was only a casual worker and not a permanent employee, (iv) that the payment of "subsistence allowance" was made by the Administrator who was put in charge of the Management of the Society during the period of its supercession and that such payments, were found by the Auditor to be illegal payments and the Auditor had asked the Respondents to realize the amount so paid from the petitioner, (v) that during the period when the business of gas Agency of the Respondents, remained inoperative between September, 2002 to April, 2005, there was no work to be assigned to any employee, much less the petitioner, (vi) that on the eve of the revival of its business of Gas Agency, the Respondents have published a notice, which was displayed on the notice Board, calling upon its own employees including the petitioner to rejoin their duties on 02nd May, 2005 but none of the workers had joined and as such, new employees were inducted in the Gas Agency Business of the Respondents. ;