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1967 Supreme(Pat) 28
PATNA HIGH COURT
R.L.Narasimham and U.N.Sinha JJ.
Management Of Vihar Talkies
Versus
Presiding Officer, Industrial Tribunal
Civil Writ Jurisdiction Case No. 438 of 1966 ;
Decided On : APRIL 11, 1967
The Assistant Labour Commissioner has the authority to condone the delay in filing an application under Sec. 28 of the Bihar Shops and Establishments Act, 1953, if the applicant can demonstrate sufficient cause for the delay, and the management's participation in the proceedings indicates that they were not prejudiced by the delay.
Headnote:
BIHAR SHOPS AND ESTABLISHMENTS ACT, 1953 - SEC. 26, 28 - LIMITATION - CONDONATION OF DELAY - RES JUDICATA - REINSTATEMENT - ARREARS OF WAGES - INTERPRETATION.
Fact of the Case:
Employees (respondents 5 and 6) of a cinema were dismissed from service and filed applications under Sec. 26 of the Bihar Shops and Establishments Act, 1953, seeking reinstatement and compensation for wrongful dismissal. The Labour Court ordered their reinstatement and granted two months' pay as compensation but did not specifically address their claim for arrears of wages. Subsequently, the employees filed an application under Sec. 28 of the Act, claiming arrears of wages for the period of dismissal. The Assistant Labour Commissioner condoned the delay in filing the application and directed the management to pay the arrears of wages. The management challenged the orders of the Assistant Labour Commissioner and the Industrial Tribunal (appellate authority) in the High Court.
Finding of the Court:
1. The Assistant Labour Commissioner had jurisdiction to condone the delay in filing the application under Sec. 28, as the employees had provided sufficient cause for the delay, and the management had appeared and participated in the proceedings. 2. The claim for arrears of wages was not barred by res judicata, as the Labour Court's order under Sec. 26 did not specifically address the issue of arrears of wages, and the compensation granted was not intended to cover all arrears. 3. The term "reinstatement" under Sec. 26 should be interpreted in the context of the purpose of the order, and in this case, the order was intended to restore the employees to their previous positions, including payment of arrears of wages.
Issues: 1. Whether the Assistant Labour Commissioner had jurisdiction to condone the delay in filing the application under Sec. 28. 2. Whether the claim for arrears of wages was barred by res judicata due to the Labour Court's order under Sec. 26. 3. Whether the term "reinstatement" under Sec. 26 includes payment of arrears of wages.
Ratio Decidendi: 1. The Assistant Labour Commissioner has the authority to condone the delay in filing an application under Sec. 28 if the applicant can demonstrate sufficient cause for the delay. The management's participation in the proceedings indicates that they were not prejudiced by the delay. 2. The principle of res judicata does not apply in this case because the Labour Court's order under Sec. 26 did not specifically address the issue of arrears of wages. The compensation granted by the Labour Court was not intended to cover all arrears, and the employees were not precluded from pursuing their claim under Sec. 28. 3. The term "reinstatement" under Sec. 26 should be interpreted in the context of the purpose of the order. In this case, the order was intended to restore the employees to their previous positions, including payment of arrears of wages.
Final Decision: The High Court dismissed the management's application, upholding the orders of the Assistant Labour Commissioner and the Industrial Tribunal. The management was directed to pay the arrears of wages to the employees and bear the costs of the proceedings.
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 orders passed by the authorities under the Bihar Shops and Establishments Act, 1953 (Bihar Act VIII of 1954) incorporated in Annexure C, dated the 5th October, 1965 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. 677.86 paise to each of respondents Nos. 5 and 6 of this application, for arrears of wages for the period from 14th Tune 1960 to 31st October 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: Respondents Nos. 5 and 6 had been employed as "inside boys" of the cinema in question and they were dismissed from service on the 14th June, 1960. The employees filed two applications under sec. 26 of the Bihar Shops and Establishments Act (Annexure A) complaining of the dismissal and making the following prayer:-
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"It is, therefore, prayed that your honour may be pleased to pass order directing the respondent to reinstate the complainant with full back wages for the period of his unemployment and to pay a reasonable compensation for causing harassment and humiliation to the petitioner by dismissing him illegally".
This application was allowed in part by the presiding officer of the labour Court by order dated the 10th July, 1961 (Annexure B). The employer was ordered to reinstate the employees and also to pay each of them two months pay by way of compensation. Nothing specifically was decided about the prayer regarding claim of arrears of wages. Thereafter the respondent-employees filed an application under Sec.28 of the Act before the Assistant Labour Commissioner on the 25th August, 1962 claiming arrears of wages for the period mentioned above. As indicated earlier, the employer has been asked to pay the arrears of wages. No other compensation was allowed. 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 respondents Nos. 5 and 6 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 hear the application. The second contention urged by the learned counsel is that when the employees had asked for arrears of wages in their applications made under Sec.26 of the Act, for the period of forced unemployment and as that relief had not been granted to them by the presiding officer of the labour Court, the claim was barred by res judicata and the Assistant Labour Commissioner has no jurisdiction to grant any arrears of wages.
4. The relevant provisions of the Act and the rules are Sec.26 and Sub-sections (1), (2) and (5) and Sec.28 Sub-sections (1) and (2) and Rule 22 Sub-rules (1) and (2) of the rules, which are quoted below :-
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Sec.26 -- "(1) No employer shall dismiss or discharge from his employment any employee who has been 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 may be prescribed by the State Government, supported by satisfactory evidence recorded at an inquiry held for the purpose.
(2). Every empl
