Sitamarchi Central Co-operative Bank Ltd. and Others vs The State of Bihar and Others

S.N.P. Singh, J.—This application under Articles 226 and 227 of the Constitution, which has been filed by Sitamarhi Central Cooperative Bank Ltd. and two of its officers, challenges the validity of the decision dated the 22nd of March, 1969 (Annexure 3) given by the Presiding Officer, Labour Court, North Bihar, Muzaffarpur, in Case No. 11 of 1966 u/s 26(2) of the Bihar Shops and Establishments Act, 1953 hereinafter to be called "the Act."

The relevant facts for the disposal of this application may be shortly stated as follows. Rajdeo Prasad (respondent No. 2.) was in the employment of Sitamarhi Central Co-operative Bank Ltd., as a typist clerk on a monthly salary of Rs. 119 since 1955. He was suspended from duty with retrospective effect from the 11th of January, 1966, by the order of the honorary secretary of the bank dated the 20th of January, 1966, on the ground that he had remained absent from duty without leave from that date. Respondent No. 2 was ultimately dismissed from service by a letter dated the 19th of August, 1966. Respondent No. 2 thereupon filed an application u/s 26(2) of the Act before the Labour Court, North Bihar, Muzaffarpur, within the prescribed time for his reinstatement from the date of his dismissal and for full wages and other benefits. On the basis of that application Case No. 11 of 1966 was instituted. Before the Labour Court it was alleged on behalf of respondent No 2 that he did not remain absent from duty without leave as alleged by the petitioners. Respondent No. 2 put forward the case that 11th and 12th January, 1966 were public holidays on account of the death of the then Prime Minister Shri Lal Bahadur Shastri during which period he fell ill and was not in a position to attend to his duty. He accordingly, submitted an application for leave for two days, that is, 13th and 14th January, 1966. As he did not recover from his illness, he submitted two other applications subsequently on the 15th and 17th of January, 1966, for extension of his leave but the bank did not pass any order on those applications. It was further alleged that prior to the passing of the order of suspension on the 20th of January, 1966, respondent No. 2 was asked to give explanation for his absence from the 11th of January, 1966 by a letter dated the 15th of January, 1966. He was given seven days'' time to submit his explanation. He submitted his show cause against the order of suspension on the 27th of January, 1966 and also submitted a copy of the medical prescription granted to him by a doctor of Lakhisarai Medical College. The bank, however, did not pass any orders in spite of the request made by him from time to time. He thereupon filed a petition before the Labour Court on the 25th of July, 1966, for recovery of his wages for the period of his suspension. Subsequently the bank by a letter dated the 19ih of August, 1966, dismissed him from service with retrospective effect, from the 11th of January, 1966 on the ground of habitual absence without leave, neglect of duty, disobedience and indiscipline. It was alleged that the bank did not serve any notice on respondent No. 2 as required by Sub-section (1) of Section 26 of the Act and dismissed him without holding any enquiry and without giving him an opportunity to defend himself in such enquiry. Respondent No. 2 raised certain other contentions before the Labour Court. On behalf of the bank it was alleged that respondent No. 2 was employed on purely temporary basis and on account of his laches and misconduct he was first suspended and later discharged. It was further alleged that he was in the habit of absenting himself without leave and was also a habitual late comer. The honorary secretary of the bank had made personal enquiry on receipt of the application for leave from him and had visited his house on the 19th of January, 1966, while returning from tour. He had found that respondent No. 2 was not at his home and it was reported to him that he had gone to Motihari in connection with marriage negotiation. It was also alleged that respondent No. 2 was negligent in his duties and used to indulge in acts of wilful disobedience and insubordination. On behalf of the bank it was contended that since the honorary secretary had himself enquired into the matter and had fully satisfied that respondent No. 2 was guilty of misconduct, no further enquiry was necessary. It was alleged that the entire matter was discussed at a meeting of the Board of Directors on the 7th of August, 1966, and after consideration the board decided to dismiss respondent No. 2.

The Labour Court upon a consideration of the materials placed before it came to the finding that the petitioners did not hold proper enquiry into the alleged charges of misconduct and did not allow respondent No. 2 sufficient opportunity to defend himself at such an enquiry. It further held that it had not been proved satisfactorily that respondent No. 2 was guilty of any misconduct. It appears that the Labour Court did not accept the case of the bank that respondent No. 2 was in the habit of absenting himself on false pretext. In the result the Labour Court allowed the application and directed the bank to reinstate respondent No. 2 with effect from the date of his dismissal and to pay him all back dues and a sum of Rs. 260 as compensation.

That finding of the Labour Court that the bank did not hold a proper enquiry into the alleged charge of misconduct and did not allow him sufficient opportunity to defend himself at such an enquiry has been arrived at by it after taking into consideration all the relevant facts and circumstances of the case. This finding is unassailable and it cannot be interfered with. The finding that it has not been satisfactorily proved that respondent No. 2 was guilty of any misconduct is also a finding of fact and it is based on a proper consideration of the materials placed before the Labour Court. Realising the difficulties that the above findings cannot be assailed, Mr. Indu Shekhar Prasad Sinha, learned Counsel appearing for the petitioners, very fairly argued this case on a short point. learned Counsel contended that the order of reinstatement of respondent No. 2 passed by the Labour Court is illegal as no reasons have been given by it for giving that relief to him. In support of his contention, he relied on a Bench decision of this Court in the case of Calcutta Chemical Co. Limited v. D. K. Burman, 1969 B.L.J.R. 510. In that case it was held that the expression "pass orders giving reasons therefor" occurring in Clause (a) of Sub-section (5) of Section 26 of the Act must be interpreted to mean that the Court is bound to give reasons not only for holding that the order of dismissal or discharge is not justified, but also in support of the concluding portion of the order as to why a particular relief or reliefs is or are being given to the employee concerned. The decision in that case no doubt supports the contention of the learned Counsel that reasons have to be given for giving a particular relief to the employee concerned. In the instant case, as I have already indicated, the main relief which was sought by respondent No. 2 was the relief for reinstatement on the ground that his dismissal was wrong, The relief of reinstatement was opposed mainly on the ground that respondent No. 2 had already attained the age of 61 years. In paragraph 17 of its decision the Labour Court considered the question whether the objection raised on behalf of the bank regarding the reinstatement of respondent No. 2 was tenable or not. The Labour Court ultimately rejected the contention raised on behalf of the bank with this observation :

Firstly, the opposite party has not produced any documents to show that service conditions applicable to Government servants are applicable also to the employees of the bank. No resolution of the bank adopting those service conditions has been produced. The bank has its own by-laws enumerating the service conditions of its employees. No such document has been produced in this Court. Therefore, it is not possible to hold what was the age of retirement of the applicant. The opposite party has not also produced the applicant''s service book or any other document to show when his retirement was due. He was admittedly in service at the time he was dismissed. He was dismissed from 11-1-1965 and before the order of dismissal he was called upon to explain why he had remained absent without leave from that date. It is, therefore, clear that his retirement had not become due when he was dismissed. I, accordingly, rub out this contention as well.

It appears that in view of the above observation and also because the Labour Court held that there was no satisfactory proof that respondent No. 2 was guilty of any wilful act of misconduct, it passed the order of reinstatement. It cannot, therefore, be said that in the instant case no reasons have been given by the Labour Court for ordering the reinstatement of respondent No 2. It is, therefore, difficult in the instant case to modify the decision of the Labour Court on the ground that it has not given reasons for granting the relief of reinstatement to respondent No. 2.

In course of argument it was more or less conceded by learned Counsel appearing for respondent No. 2 that he cannot be retained in service if he is found physically unfit on medical examination in absence of any rule for superannuation. On behalf of the petitioners Mr. Indu Shekhar Prasad Sinha submitted that if in fact respondent No. 2 is physically unfit it will be hardship on the bank to retain him in service. I do not think that there should be any difficulty to the bank in this regard. As soon as respondent No. 2 joins his post, it will be open to the petitioners to get him medically examined to find out whether he is physically fit for service or not. If he is found to be physically unfit for service after the medical examination, it will be open to the petitioners to terminate his service forthwith. If respondent No. 2 does not join his service within a fortnight of this order, he will not be entitled to any remuneration for the subsequent period till he joins the post.

In the result, this application is dismissed with observation made above. There will be no order as to costs.

Akbar Hussain, J.

I agree.