S.M. Mukhopadhaya, J.

1. This application has been preferred by petitioner, M/s. Uphar picture Palace against the order dated 6.8.1999 passed by learned Presiding Officer, Labour Court, Ranchi, in B.S. Case No. 11/97. The application under Section 26(2) of the Bihar Shops and Establishment Act filed by the respondent, Shankar Karmakar against the order of dismissal was allowed and he was reinstated with full back wages/compensation.

2. The brief fact of the case is that M/s. Uphar Picture Palace is carrying on business of exhibition of cinema shows, a place of public entertainment. It engaged several persons including respondent, Shankar Karmakar who was working since 1975 as operator. A departmental proceeding was initiated against him by charge-sheet dated 28.5.1996 whereinafter the respondent, Shankar Karmakar was dismissed vide order dated 8.5.1997.

3. The respondent, Shankar Karmakar filed a complaint petition under Section 26(2) of the Bihar Shops and Establishment Act registered as B.S. Case No. 11/97. Prior to the same he raised industrial dispute and took steps for conciliation proceeding. No. steps having taken by the Management M/s. Uphar Picture Palace, respondent, Shankar Karmakar on one hand resorted to move for relief under the provision of Industrial Dispute Act, on the other hand, also filed complaint petition under the Bihar Shops and Establishment Act.

4. The respondent, Shankar Karmakar pleaded not guilty of the charges, alleged the charges as vague and indefinite, also alleged the order against the law having not either served with one months notice or wages in lieu of said notice and contravention of Section 33 of the Industrial Disputes Act.

5. The management M/s. Uphar Picture Palace appeared and filed show cause, contested the case and took plea that respondent, Shankar Karmakar having found guilty for the acts of serious allegation regarding theft of projector motor, unauthorised absent from duty and threatening the booking clerk, was dismissed from service.

6. It appears that respondent, Shankar Karmakar did not choose to appear in the departmental proceeding. So notice was published in news paper Ranchi Express on 25.8.1997 and in the notice date of enquiry was intimated and it was made clear that on failure ex-parte enquiry shall be made.

7. In the departmental proceeding he having found guilty a show cause notice was issued on respondent, Shankar Karmakar with a copy of enquiry report to which he submitted reply. Thereafter the order of dismissal was issued by the management on 8.5.1997.

8. One of the reason given by the management to dispense with the services of respondent, Shankar Karmakar, was the past record of service which was not good. The allegation of theft of motor of projector machine being serious and grave, it is stated that the management lost the confidence on the complainant and did not agree to reinstate him as the relation between management and the complainant became strained.

9. The management, M/s. Uphar Picture Palace took specific plea that no violation of any provision of I.D. Act, can be alleged in the petition filed under Section 26(2) of the Bihar Shops and Establishment Act.

10. The learned Presiding Officer looked into the evidences and statements of witnesses and held the order of dismissal without any reasonable cause, charges were held to be not proved in holding the order illegal, passed order in favour of respondent, Shankar Karmakar.

11. Counsel for the petitioner placed the finding of learned Presiding Officer to suggest that the finding is based on mere surmises, conjecture and not on the statements of witnesses on the record. The error of record was also alleged in respect to such finding.

12. For example, learned Presiding Officer at Para 13 though taken into consideration the statements of one or other witnesses, like OW 3, Rela Mukherjee, who has stated that the respondent, Shankar Karmakar took the motor in his presence and never returned the same; O.W. 4 Madhus