K. B. N. Singh, P. S. Sahay, J.

1. In this application a prayer is made for quashing an award of the Presiding Officer, Labour Court, Patna, dated the 30th August, 1973, a copy of which has been filed as Annexure 8.

2. Respondent No.2. Visnudeo Prasad, was appointed as a part-time temporary pass-book writer, in the University Branch of the Allahabad bank, Patna, by the predecessor-in-office of petititioner No, 1, sometime in the year 1970. It is stated that the remuneration payable to Respondent no.2 was one-third of the initial full rate payable to a permanent clerk of the said Bank. It is alleged in the writ application that the temporary service of the respondent was allowed to continue till the 9th May, 1972, when it was terminated as no work was left to be done by the said respondent in the bank. The respondent thereafter filed a petition under Sec.26 of the bihar Shops and Establishments Act, 1953 (hereinafter referred to as the Act)before the Labourt, Court Patna, for reinstatement to his post with all related benefits. A copy of the said petition has been filed as Annexure 3.

3. Before the Labour Court witnesses were examined on behalf of the parties and the main contention on behalf of the petitioners was that it being a termination simpliciter in terms of the contract, the said respondent was not entitled to any relief under Sec.26 of the said Act, as it covered only cases of dismissal or discharge and not termination simpliciter.

4. The Labour Court found that Respondent No.2 worked for more than six months without any break from the 1st January, 1971 to the 9th may, 1972 the date on which his service was terminated, and, therefore, section 26 of the Act was attracted and as neither, one months notice nor one months wages in lieu of such notice way paid to the said respondent, the order of termination of his service was invalid The order of termination was accordingly set aside and a direction was issued to reinstate Respondent no.2 with all his dues.

5. Learned Counsel appearing on behalf of the petitioners has urged that Sec.26 of the Act, as it existed at the relevant time, before its amendment by the Bihar Shops and Establishments (Amendment) Act (Bihar Act II of 1975), was applicable only to a case of dismissal or discharge. In other words, it was applicable only to a case where an employee was being removed by way of punishment and not to a case where the service of the employee is terminated on account of the fact that no work is left for him in the establishment, a in the instant case Learned Counsel has relied upon a Bench decision of this Court in the case of Calcutta Chemical Company limited V/s. D. K, Barman (1969 BLJR 510 ). wherein an curlier Bench decision of this Court in the case of Jagdish Vastralaya V/s. The State of Bihar (AIR 1964 patna 180) was relied upon.

6. A reference So the decision in. the case of Jagdish Vashtralaya (supra)shows that Sec.26 of the Act, as it existed then, would be attracted only in the cases where dismissal or discharge was as a punishment after a domestic enquiry, prior to its amendment by Bihar act II of i.975 relevant portion of the old provision of Sec.26, as it existed then, read as follows :

" (1) No employer shall dismiss or discharge from his employment any employee who has been in such employment continously 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. . . . . . . . . . . "

Learned Counsel for the petitioners submitted that the aforesaid two Bench decisions apply to the case of the petitioners, as the application for reinstatement was filed by Respondent No.2 in the year 1972, and it was disposed of by the Labour Court on the 30th August, 1973, before Sec.26 of the Act was amended by Bihar Act il of 1975,

7 As none appeared on behalf of the concerned employee (respondent no.2), and, as an important point was raised, we called