POPULAR NURSING HOME Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) In this case, the petitioner is challenging the order of Deputy Labour Commissioner cum Controlling Authority dated 28.9.2011 in G.A. Case No. 4 of 2007, whereby and whereunder, he has assessed the amount of Rs. 1,36,358/- as an amount of gratuity and directed for payment of the same along with 10% simple interest within a period of thirty days. The petitioner has further challenged the order passed by the Labour Commissioner, Bihar cum Appellate Authority dated 11.2.2014 passed in Appeal Case No. 1 of 2011 who has affirmed the order passed by the Deputy Commissioner cum Controlling Authority. The present case has a chequred history as Mahabir Ojha, respondent no.4 and the petitioner which is a nursing home has been litigating from 1981 as Mahabir Ojha was dismissed from service while discharging as a Cashier cum Manager and since then they are fighting litigation in one form or the other under different forums and the present matter relates to the amount payable to Mahabir Ojha by way of gratuity.

(3.) The short fact of this case is that Mahabir Ojha was appointed as a Cashier cum Manager on 29.5.1973 who was dismissed from service on account of charges leveled against him of defalcation of money of the petitioner, a nursing home. Mahabir Ojha challenged the order of dismissal by filing a complaint application under Section 26 of the Bihar Shop and Establishment Act claiming that the order of dismissal is bad in law and he should be reinstated in service with back wages which was registered as BSE Case No. 18 of 1981. When the Labour Court after recording the evidence found that the dismissal was bad in law and vide judgment and order dated 27.3.1992, the same was set aside. As per claim of the petitioner, Mahabir Ojha did not join duty and, on that account, the petitioner was compelled to publish notice in the daily newspaper dated 24.3.1992 informing that he failed to join the duty as per judgment of the Labour Court, Patna dated 27.3.1992 and if he would not join by 4.5.1992, he would loose his lien, right and title on his job but, event after publication of the notice in the newspaper, Mahabir Ojha did not join which compelled the petitioner management to dispense of his service again and the same was published in the newspaper dated 6.5.1992. In the said notice, it has been mentioned that Mahabir Ojha was hereby informed that as he did not join his duty till 4.5.1992 in spite of notice to join as per the judgment of the Labour Court, Patna dated 27.3.1992, as notified in Hindustan Times dated 24.3.1992, he has lost his lien, right and title on his post with effect from 5.5.1992. So, as per petitioner, as Mahabir Ojha did not join the post, that led to loosing the lien and resulted into termination of service. Mahabir Ojha under Section 28 of the B.S.E. Act filed a case for computation of his entitlement of his salary in terms of the order passed bythe Labour Court in proceeding under Section 26 vide BSE Case No. 28 of 1992. The Labour Court has passed the order in favour of Mahabir Ojha and, thereby, calculated the amount of Rs.91,242.33/- made him entitled of such amount. The relevant part of the order is as follows:-