MANINDRA NATH GANGULY Vs. THE PRESIDING OFFICER, LABOUR COURT AND ANOTHER

JUDGEMENT

(1.) By this application under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order passed by the Presiding Officer Labour Court, Muzaffarpur, Respondent no. 1, as contained in Annexure 6 to the writ application. The petitioner was employed as the chief Operator in the cinema hall known as 'Chitra Bani' in the town of Purnea. Respondent no. 2 was the managing partner of the cinema. According to the case of the petitioner, on 1.4.1971 he received a notice (Annexure 2) demanding explanation in respect of his conduct in a matter mentioned therein. The petitioner submitted his explanation (Vide Annexure 2/1.). On the 11th May, 1971, the petitioner is said to have received another letter through registered post from Respondent no. 2 calling upon him to explain as to why he refused to receive a letter dated 6.5.71 sent to him through peon with a peon book and why he had misbehaved with the manager of the cinema. The petitioner submitted his explanation as contained in Annexure 3 dated 13.5.71. Respondent no. 2 thereafter without holding an enquiry dismissed the petitioner by order dated 21.5.71 as contained in Annexure 1. The petitioner then made a complaint before Respondent no. 1 under Sub -section (2) of Sec. 26 of the Shops and Establishments Act, 1953 (hereinafter referred to as 'the Act'); copy of the application has been annexed to the writ petition as Annexure 4. After service of notice, Respondent no. 2 filed show cause on 28.7.72 supporting the petitioner's dismissal. On 22.11.1971 Respondent no. 2 by an amendment introduced, inter alia, a new plea that a domestic enquiry had been held on the 17th and 18th May, 1971 against the petitioner and although the petitioner had appeared at the enquiry, but he did not defend himself, and that the petitioner was found guilty on the charges of misconduct by the enquiring Officer. The petitioner stated that the amendment was wrongly allowed by Respondent no. 1 after the period of limitation. Besides, both sides adduced oral and documentary evidence before the Labour Court which ultimately dismissed the petitioner's application by the impugned order as mentioned in Annexure 6. The petitioner has also prayed before this court for a direction to Respondent no. 2 to reinstate the petitioner.

(2.) Mr. B.C. Chose, learned counsel for the petitioner, contended that the employer did not hold a domestic enquiry before dismissing the petitioner, nor one month's notice was served on him and, for that reason, the Labour Court should have set aside the dismissal order. Alternatively, he said that assuming that an enquiry was held by respondent no. 2, it was defective on the very finding recorded in Annexure 6, and therefore, the requirement of service of notice cannot be dispensed with. As will appear from the language of Sec. 26 of the Act, the following two conditions are essential before an employer can dismiss an employee who has served him for a period of six months or more: - -

(3.) Both the parties led evidence before the Labour Court which, so far as the merits of the charges are concerned, came to the following findings.: - -