IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1844 of 2007 1. THE NATIONAL SEEDS CORPORATION LTD. REPRESENTED THROUGH THE MANAGING DIRECTOR, NATIONAL SEEDS CORPORATION (A GOVT. OF INDIA UNDERTAKING), C.T.O. BUILDING BEEJ BHAWAN, PUSHA COMPLEX, NEW DELHI- 110012. 2. THE MANAGING DIRECTOR, NATIONAL SEEDS CORPORATION ( A GOVT. OF INDIA UNDERTAKING), C.T.O. BUILDING, BEEJ BHAWAN, PUSHA COMPLEX, NEW DELHI-110012. 3. THE ADMINISTRATIVE OFFICER, NATIONAL SEEDS CORPORATION ( A GOVT. OF INDIA UNDERTAKING), C.T.O. BUILDING BEEJ BHAWAN, PUSHA COMPLEX, NEW DELHI- 110012. 4. THE REGIONAL MANAGER, NATIONAL SEEDS CORPORATION ( A GOVT. OF INDIA UNDERTAKING), SHEIKHPURA, PATNA. 5. THE ASSISTANT ADMINISTRATIVE OFFICER, NATIONAL SEEDS CORPORATION LTD. ( A GOVT. OF INDIA UNDERTAKINGS), SHEIKHPURA, PATNA ….(OPPOSITE PARTIES)- PETITIONERS. Versus 1. THE STATE OF BIHAR 2. PRESIDING OFFICER, LABOUR COURT AND AUTHORITY UNDER BIHAR SHOPS AND ESTABLISHMENT ACT, PATNA. 3. SARYUG SINGH, SON OF BECHO SINGH, RESIDENT OF SRI GAURAIYA MATH, WEST OF B.D.EVENING COLLEGE (JOGEEYA TOLA), P.O. G.P.O., P.S. JAKKANPUR, DISTRICT- PATNA (APPLICANT)- RESPONDENTS. ----------- For the petitioners : Mr. Sunil Kumar Tiwary, Advocate. Mr. Farooq Mozaam, Advocate Mr. S.K.Sinha, Asst. Manager (L) For Respondent No. 3 : Mr. Sanjeev Kumar Singh, Advocate. For the State : Mr. A. Amanullah, G.A.-4 Mr. M.K.Pathak, A.C. to G.A.4. ===== 10. 25.03.2011. Heard learned counsel for the petitioners and counsel for Respondent No. 3. 2. Petitioners are aggrieved by the decision of the Presiding Officer, Labour Court, Patna dated 23rd September, 2006 passed in Bihar Shops Establishment Case No. 17 of 1995, Annexure-4, 2 whereunder the Labour Court set aside the impugned termination order dated 23.8.1987 and directed for reinstatement of Respondent No. 3 herein with full back-wages and other consequential benefits as it found that before issue of termination order dated 23.8.1987 no enquiry was ever conducted by the petitioner-employer. Aforesaid order is being challenged on the ground that Respondent No. 3 at the relevant time was a muster roll worker who absented himself from his place of work with effect from 18.12.1986 and notice was published in the newspaper on 20th July, 1987 directing him to report for duty by 31st July, 1987 but Respondent No. 3 failed to appear and report for duty and consequently the impugned termination notice dated 23.8.1987 was published in the newspaper terminating his engagement. 3. It is submitted on behalf of the petitioners that as Respondent No. 3 failed to report for duty in the light of the instructions given to him under notice published in the newspaper on 20th July, 1987 no enquiry is required to be conducted and for failure to report for duty his engagement/service was terminated under notice dated 23.8.1987. 4. Aforesaid submission has been rejected by the Labour Court in the light of the fact that 3 Respondent No. 3 was engaged to serve as a clerk on daily wage basis with effect from 17.09.1968. His engagement/services was terminated on 25.4.1970. Said termination was questioned before the Labour Court vide Bihar Shops Establishment Case No. 23/1978. The Labour Court under order dated 24th November, 1979 set aside the termination order dated 25.4.1970 directing reinstatement of Respondent No. 3. Against the order passed by the Labour Court dated 24.11.1979 petitioner-employer filed C.W.J.C.No. 730 of 1980 which was dismissed under orders dated 01.07.1985. Even after dismissal of C.W.J.C.No. 730/1980 under orders dated 01.07.1985 Respondent No. 3 was not paid his back wages and he had to file C.W.J.C.No. 2615 of 1986 which was disposed of by a Division Bench under orders dated 03.08.1986 directing the petitioner- employer to clear the back wages of Respondent No. 3. In compliance of the orders of the Division Bench dated 03.08.1986 Respondent No. 3 was paid wages for the period 25.04.1970-03.08.1986 and was permitted to join the Saharsa office of the petitioner- employer. Respondent No. 3 admittedly served at Saharsa office for the period until 17.12.1986 whereafter he did not report for duty and petitioner- employer published notice in the newspaper on 20th July, 1987 stating that Respondent No. 3 is not 4 reporting for duty with effect from 18.12.1986 and directed him to report for duty by 31st July, 1987 failing which his services shall be terminated. It is submitted on behalf of the petitioner-employer that even after publication of the notice dated 20th July, 1987 Respondent No. 3 did not report for duty and notice terminating his services was published in the newspaper on 23.08.1987. In the background of the aforesaid facts it is submitted that as Respondent No. 3 did not report for duty in the light of notice dated 20th July, 1987 petitioner-employer had no option but to terminate his services which was actually terminated under notice dated 23.08.1987 without conducting any enquiry as Respondent No. 3 was not available for conduction of any enquiry. In the light of the aforesaid facts it is submitted that the order passed by the Labour Court is fit to be set aside. 5. I regret not to accept the aforesaid submission in view of the fact that from the narration of facts noted above it is quite evident that Respondent No. 3 was engaged to serve the petitioners as a clerk as far back on 17.09.1968 whereafter he served the Corporation until 24.04.1970 without any blemish but his engagement was terminated on 25.04.1970 which termination he successfully challenged before the Labour Court and 5 the order of the Labour Court dated 24.11.1979 setting aside the termination order was upheld by this Court under orders dated 01.07.1985 passed in C.W.J.C.No. 730 of 1980. Even after setting aside of the termination order and the order having been upheld by the Writ Court Respondent No. 3 was not paid his arrears of wages and he had to approach this Court in C.W.J.C.No. 2615 of 1986 which was disposed of by a Division Bench of this Court under orders dated 03.08.1986 whereafter the arrears of wages of Respondent No. 3 for the period between 25.4.1970-03.08.1986 was paid. Having received such payment Respondent No.3 served the petitioner-Corporation until 17.12.1986 whereafter he is said to have remained absent with effect from 18.12.1986 and notice asking him to report for duty was published in the newspaper on 20th July, 1987 but on his failure to report for duty his service was terminated under notice dated 23.08.1987. It is thus, quite evident that before passing the termination order contained in notice dated 23.08.1987 the petitioner-employer has not conducted any enquiry to ascertain/disprove the claim of Respondent No. 3 that he was prevented by his illness from reporting for duty with effect from 18/19-12-1986 and information to that effect was given to the authorities at Saharsa office of the 6 petitioner which fact is stated in paragraph 29 to 32 of the petition filed by Respondent No. 3 in the Labour Court and not disputed in the written statement of the petitioner. Sub-section (1) of Section 26 of the Bihar Shops & Establishment Act, 1953 require the employer to conduct an enquiry before terminating the service/engagement of the employee who has served the employer for more than six months so as to establish that termination is preceded by reasonable cause. Petitioner-employer having not conducted any enquiry in the matter to establish reasonable cause preceding the termination, the Labour Court has rightly set aside the termination notice dated 23.08.1987 as violative of sub-section (1) of Section 26 of the Bihar Shops & Establishment Act, 1953. During the pendency of the writ petition Respondent No. 3 attained the age of superannuation. In the circumstances, while dismissing the writ petition it is directed that Respondent No. 3 shall be entitled for back wages from 18/19.12.1986 until the date of his superannuation without being reinstated in service of the petitioners. The Labour Court Record which was called by this Court under orders dated 07.02.2011 be returned to the Labour Court. A.F.R. P.K.P. (V.N.Sinha,J.)