POPULAR NURSING HOUSE Vs. STATE OF BIHAR

JUDGEMENT

(1.) This writ petition arises out of a complaint filed by the second Respondent under Section 26 of the Bihar Shops and Establishment Act ('the Act', for short) regarding his dismissal from service. By order, dated 4.10.88 (copy at Annexure 1) the Labour Court and the Authority under the Act rejected the Petitioner's objection that the complaint under Section 26 of the Act was not maintainable as the Petitioner establishment was exempted from all the provisions of Act by virtue of Entry 2 in Schedule 1 read with Section 4(2) of the Act, Finally by order, dated 27.3.92 (copy at Annexure-2), the authority allowed the claim of the second Respondent; the authority found that the charges levelled against the complainant (Respondent No. 2) were not proved before him even in terms of Section 26(5) of the Act and that the action of the Petitioner in dismissing Respondent No. 2 from service appeared to be tainted with malafide, bias and prejudice. The Petitioner was, accordingly, directed to reinstate Respondent No. 2 in service with full back wages and further to pay him a sum of Rs. 3,000/- as litigation cost. These two orders came under challenge in this writ petition in course of hearing, however, the challenge was sharply targetted at the first order relating to the maintainability of a proceeding under the Act against the Petitioner.

(2.) In order to appreciate the Petitioner's challenge to the order relating to the maintainability of the complaint under Section 26 of the Act, it would be apposite to take note of the following facts and circumstances. Section 4 of the Act deals with the establishments which are exempted from any one or more of the provisions of the Act and Sub-section (2) of Section 4 is in the following terms:

(3.) At that time a dispute has arisen regarding the amenability of the Petitioner establishment to the provisions, particularly Section 26 of the Act. The matter had come before this Court in Miscellaneous Judicial Case No. 1234 of 1960. This case was heard and disposed of, as one of a batch of cases, by a Bench of this Court by judgment and order, dated August 7, 1963 (copy at Annexure-6). In that decision this Court noted the assertion made by the Petitioner in the writ petition then filed before the Court that M/s Popular Nursing Home was an institution for the treatment or care of the infirm, sick and ailing persons. And such an establishment being exempt from all the provisions of the Act by virtue of Entry 2 (as it then stood) of Schedule 1 the Court held that the provisions of Section 26 of the Act did not apply to the Petitioner establishment and, hence, the order of the Labour Court coming under challenge in that writ petition was held to be ultra vires, illegal and without jurisdiction.