MANAGING COMMITTEE EAST Vs. PRESIDING OFFICER LABOUR COURT

JUDGEMENT

(1.) Smt. Rudh Sore, (respondent No, 2 to this appeal) was a teacher in Seventh Day Advantists School, Baragoan, District Ranchi (hereinafter referred to as the school) established and managed by the Managing Committee of the East India Section of Seventh Day Advantists, Morabadi, District Ranchi. Her service was terminated with effect from 25.8.1980 by the Managing Committee. She thereafter filed an application under Section 26(2) of the Bihar Shops and Establishments Act, 1953, (hereinafter referred to as the Act) before the labour court, Ranchi, challenging the said order of termination of her service. Along with her application she also moved an application for condonation of delay in filing her claim. The labour court condoned the delay and allowed her application declaring that the order terminating her service passed by the Managing Committee is illegal having been passed without any reasonable cause in utter violation of the relevant rules framed by the Managing Committee itself. The labour court accordingly directed her reinstatement in service with full back wages and continuity in service. Being aggrieved by the above order of the labour court, the Managing Committee filed a writ petition (C.W.J.C. No. 1307/82 (R) which has been dismissed by the learned Single Judge, vide judgment dated 23rd December, 1988. Not being satisfied with the judgment of the learned Single Judge, it has now filed this appeal under clause 10 of the Letters Patent.

(2.) The learned counsel for the appellants has made two submissions in support of the appeal namely, (i) the Managing Committee and the school run by it are not 'establishment' within the meaning of the Act and, therefore, the application filed by the respondent No. 2 before the labour court was not maintainable and (ii) in any case the appellants had terminated her service after giving salary for a period of three months in accordance with the service rule applicable and even if the school is treated to be an 'establishment' within the meaning of the Act the order of termination of service was not liable to be interfered with by the labour court. The learned counsel for the respondent No. 2 has disputed the said submissions. It has further been contended by him that the very same judgment which has been impugned in this appeal has been approved in Beldih Club, Jamshedpur v. The Presiding Officer, Labour Court, Jamshedpur and others , 1991 (1) PLJR 81, wherein 'it was cited as a precedent.

(3.) The Act has been enacted "in order to provide for regulation or conditions of work and employment in shops and other establishments and for certain other purposes". Section 2(6) defines 'establishment' as under : "2(6) "establishment' means an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade, or profession and includes : (i) administrative or clerical service appertaining to such establishment; (ii) a shop, restaurant, residential hotel, eating house, theatre or any place of public amusement or entertainment; and (iii) such other establishment as the State Government may, by notification, declare to be an establishment to which the Act applies; but does not include a 'motor transport undertaking' as defined in clause (g) of Section 2 of the Motor Transport Workers Act, 1961 (27 of 1961)." Shop has been defined under Section 2(16) as follows : "2(16) "Shop" means any premises where goods are sold, either by retail or wholesale or where services are rendered to customers and includes an office, store -room, godown, warehouse and work place, whether in the same premises or elsewhere used in connection with such sales or services, but does not include a restaurant, a residential hotel, eating house, theatre or other place of public amusement or entertainment." Section 26 of the Act under which the respondent No. 2 filed her application before the labour court being relevant is also reproduced below : "26. Notice of the dismissed or discharge. - -(1) No employer shall dismiss or discharge or otherwise terminate the employment of any employee who has been in his employment continuously for a period of not less than six months except for a reasonable cause and after giving such employee at least one month's notice or one month's wages in lieu of such notice : Provided that such notice shall not be necessary where the services of such employee are dispensed with on a charge of such misconduct as may be prescribed by the State Government, supported by satisfactory evidence recorded at an enquiry held for the purpose : Provided further that an employee who has been in continuous employment for a year or more and whose services are dispensed with otherwise than on a charge of misconduct shall also be paid compensation equivalent to fifteen days average wages for every completed year of service and any part thereof in excess of six months before his discharge in addition to the notice or pay in lieu of notice as prescribed above. (2) Every employee, dismissed or discharged or whose employment is otherwise terminated, may make, a complaint in writing in the prescribed manner, to a prescribed authority within 90 days of the receipt of the order of dismissal or discharge or termination of employment on one or more of the following grounds namely : (i) there was no reasonable cause for dispensing with his service; or (ii) no notice was served on him as required by sub - section (1); or (iii) he has not guilty of any misconduct as held by the employer; or (iv) no compensation as prescribed in Sub -section (1) was paid to him before, dispensing with his service. (3) Notwithstanding anything contained in sub -section (2) where the order of dismissal or discharge was received by an employee at any time before the commencement of the Bihar Shops and Establishment (Amendment) Act, 1959, he may make a complaint in writing in the prescribed manner before a prescribed authority within six days of the commencement of the said Act : Provided that such complaints, if any, pending before an authority prescribed prior to the commencement of the said Act shall be deemed to have been duly filed before the authority prescribed after such commencement and the said authority shall dispose of the same in accordance with the provisions of this Act. (4) The prescribed authority may condone delay in filing such a complaint if it is satisfied that there was sufficient cause for not making the application within the prescribed time. (5) (a) The prescribed authority shall cause notice to be served on the employer relating to the said complaint, record briefly the evidence adduced by the parties, hear them and after making such enquiry as it may consider necessary pass orders giving reasons therefor. (b) In passing such orders the prescribed authority shall have power to give relief to the employee by way of reinstatement or money compensation or both. (6) The decision of the prescribed authority shall be final and binding on both the employee and employer."