The Assistant Labour Commissioner has the authority to condone delay in filing an application under Sec.28 of the Bihar Shops and Establishments Act, 1953, if sufficient cause is shown, and the claim for arrears of wages is not barred by res judicata if the Labour Court's order under Sec.26 did not specifically address the issue of arrears.

U.N.Sinha, J.

1. This application has been filed under Articles 226 and 227 of the Constitution of India by the management of a cinema for quashing the order passed by the authorities under Bihar Shops and Establishments Act. 1953 (Bihar Act VIII of 1954), incorporated in Annexure C, dated the 6th October. 1966, and Annexure D, dated the 16th May 1966. The order incorporated in Annexure C was passed by the Assistant Labour Commissioner under Sec.28 of the Act under which the petitioner of this Court has been ordered to pay a sum of Rs. 1,380-60 paise to respondent No. 3(a) of this application for arrears of wages for the period from 1st May, 1960 to 21st April, 1961. The order incorporated in Annexure D was passed by the Industrial Tribunal, an Appellate Authority under Sec.28(7) of the Act, by which the original order has been affirmed.

2. The facts necessary for determination of this application are as follows: Respondent No. 3(a) had been employed as chief operator of the cinema in question and he was dismissed from service on the 31st May. 1960. The employee filed an application under Sec.26 of the Bihar Shops and Establishments Act (Annexure A) complaining of the dismissal and making the following prayers:

"(a) to reinstate the complainant,

(b) to pay the complainant all the back wages for the period of his forced unemployment due to his illegal dismissal, and

(c) to pay a reasonable compensation to the complainant for causing harassment and humiliation to him by illegal dismissal."This application was allowed in part by the presiding officer of the Labour Court by order, dated the 23rd March, 1961 (Annexure B). The employer was ordered to reinstate the employee and also to pay him one months wages by way of compensation. Nothing specifically was decided about the second prayer regarding claim of arrears of wages. Thereafter this respondent-employee filed an application under Section 28 of the Act before the Assistant Labour Commissioner on the 25th August, 1962, claiming arrears of wages from the 1st May 1960 to 30th April, 1961, at the rate of Rs. 140 per month, amounting to a total sum of Rs. 1726.66 paise. As indicated earlier, the employer had been asked to pay an amount of Rs. 1,380.60 paise for the period mentioned above, at the rate of Rs. 118 per month No other compensation has been granted by the Assistant Labour Commissioner. This order has been affirmed by the Industrial Tribunal.

3. In support of the application filed in this Court, learned Counsel for the management has urged two points. The first contention is that the application filed under Sec.28 of the Act was barred by limitation under Rule 22 of the Bihar Shops and Establishments Rules, 1955, and as respondent No. 3(a) had not applied before the Assistant Labour Commissioner for condoning the delay in filing the application, the officer had no jurisdiction to condone the delay and bear the application. The second contention urged by the learned Counsel is that when the employee had asked for arrears of wages in his application made under Sec.26 of the Act, for the period of forced unemployment and as that relief had not been granted to him by the presiding officer of the Labour Court, the claim was barred by res judicata and the Assistant Labour Commissioner had no jurisdiction to grant any arrears of wages.

4. The relevant provisions of the Act and the Rules are Sec.26. Sub-sections (1), (2) and (6) and Sec.28, Sub-sections (1) and (2) and Rule 22. Sub-rules (1) and (2) of the Rules, which are quoted below: Sec.26-

"(1) No employer shall dismiss or discharge from his employment any employee who has heen in such employment continuously for a period of not less than six months except for a reasonable cause and without giving such employee at least one months notice or one months 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