JUDGMENT :

1. Heard counsel for the parties.

2. Writ jurisdiction of this Court has been invoked under article 226 of the Constitution of India for quashing the orders dated 12.12.2008, 17.02.2009 and 26.05.2008 passed by the respondent No.2 in JSE Case No.1 of 2008 whereby present writ petitioner has been directed to reinstate the respondent No.5 with full back wages.

3. The respondent No.5-namely, Nilendu Kumar Patra, has been appointed as Office Boy/Assistant in January, 2005 on the pay of Rs.2276/- per month and subsequently, orally terminated from the service w.e.f. 5th July, 2006. On such termination, the concerned workman has approached the Labour Superintendent, Bokaro for conciliation (date has not been disclosed) which has ultimately resulted in settlement dated 06.09.2007. In terms of settlement, M/s Sunil International (Labour Supply Contractor of the petitioner) has issued an appointment letter dated 03.10.2007 in favour of the respondent No.5 but he has not joined the post rather approached the authority under Section 26 of the Bihar Shops and Establishments Act, 1953 along with limitation petition. The said complaint has been registered as JSE Case No.1 of 2008. The factum of not joining the service in pursuance of the appointment letter dated 03.10.2007 has been communicated to the conciliator vide letter dated 12.12.2007.

4. Learned Deputy Labour Commissioner-respondent No.2, after considering the materials brought on record, vide order dated 12.12.2008, has directed the petitioner to reinstate the respondent No.5 in service with full back wages. The delay in filing petition under Section 26 (supra) has been condoned vide order dated 26.05.2008. A review petition filed by the petitioner, has also been dismissed vide order dated 17.02.2009. All these orders have been challenged in the present writ petition.

5. Petitioner has taken plea of limitation and further non-existence of relationship of employer and employee. Both plea has been taken unsuccessfully before Deputy Labour Commissioner.

6. Section 26 of the Bihar Shops and Establishments Act, 1953 is quoted hereinbelow:

26. Notice of the dismissal or discharge.-1[(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 such employee at least one month’s notice or one month’s 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 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 employment 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 the one or more of the following grounds, namely : —

(i) there was no reasonable cause for dispensing with his services; or

(ii) no notice was served on him as required by sub-section (1); or

(iii) he has not been guilty of any misconduct as held by the employer ; or

(iv) no compensation as prescribed in sub-section (1) was paid to him before dispensing with his service.]

(3) Notwithstanding anything contained in sub-section (2), where the order of dismissal or discharge was received by an employee at any time before the commencement of the Bihar Shops and Establishm