B. P. Jha, M. P. Verma, JJ.

1. The workman has challenged the validity of an order as contained in annexure 6 in a Writ Petition. Annexure-6 contains the order of the Labour Court under Sec.26 (5) of the bihar Shops and Establishments Act, 1953 (Act VIII of 1954) (hereinafter referred to as the Act ).

2. In the present case, there was a domestic enquiry by Messrs. Lipton (India) Ltd. (hereinafter referred to as the company ). The domestic en quiry was held on 11th and 13th December, 1971. On 8th February, 1972 (vide annexure-3), the petitioner was discharged from the service of the company. Thereafter, the petitioner lodged a complaint before the labour Court under Sec.26 (2) of the Act on the ground that no prior one months notice was served on him before passing the order of discharge as well as on other grounds.

3. The Labour Court recorded the evidence under Sec.26 (5) (a)of the Act. On the evidence recorded by the Labour Court, it held that the discharge order passed by the Management of the Company was a correct order.

4. Learned Counsel for the petitioner attacks the validity of the order for non-compliance with Sec.26 (1) of the Act. It is relevant to quote sub-sections (1), (2) and (5) of Sec.26 of the Act which run as follows : -

"26. Notice of the dismissal or discharge. (1) No employer shall dismiss or discharge or otherwise terminate the employment of any employee who has been in his employment continuously for a period of not less than six months, except for a reasonable cause and after giving to such employee at last 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 miscon duct as may be prescribed by the State Government, supported by satisfactory evidence recorded at an enquiry held for the purpose : provided further that an employee who has been in continuous employment for a year or more and whose services are dispensed with otherwise than on a charge of misconduct shall also be paid compensation equivalent to fifteen days average wages for every completed year of service and any part thereof in excess of six months before his discharge in addition to the notice or pay in lieu of notice as prescribed above. (2) Every employee, dismissed or discharged or whose employ ment is otherwise terminated, may make, a complaint in writing, in the prescribed manner, to a prescribed authority within 90 days of the receipt of the order of dismissal or discharge or termination of employment on one or more of the following grounds, namely, - (i) there was no reasonable cause for dispensing with his ser vices ; or (ii) no notice was served on him as required by sub-section (1); or (iii) he had not been guilty of any misconduct as held by the em ployer ; or (iv) no compensation as prescribed in sub-section (1) was paid to him before dispensing with his service. (5) (a) The prescribed authority shall cause a notice to be served on the employer relating to the said complaint, record briefly the evidence adduced by the parties, hear them and after making such enquiry as it may consider necessary pass orders giving reasons therefor. (b) In passing such order the prescribed authority shall have power to give relief to the employee by way of reinstatement or money compensation or both. "

5. On a perusal of sub-section (2) of Sec.26 of the Act, it is clear that the workman can challenge the validity of the order of discharge or dismissal on the ground that no notice was served on him as required by sub-section (1) of Sec.26 of the Act. It is clearly mentioned in paragraph no.3 of the complaint petition that no notice was served on the petitioner as required by sub-section (1) of Sec.26 of the Act. In reply to the allegation made in paragraph no.3 of the complaint petition, it is stated in paragraph no.1 (viii) of the written statement that the petitioner was paid one months wages in lieu of