Satya Brata Sanyal, J.:— In this writ petition, the petitioner has prayed for quashing that part of the order by which the petitioner's complaint under S. 26 of the Bihar Shops and Establishments Act, 1953 (hereinafter referred to as the Act) has been held to be barred by limitation in view of the provisions of S. 26(2) of the Act.

2. The petitioner is said to be a muster-roll employee of the Bihar State Electricity Board (respondent 2) and he was employed on 10 April, 1974. He was, however, stopped to sign the attendance register with effect from 25 January, 1977. The petitioner's attendance was stopped from the said date. The petitioner made several representations to the authorities (annexure 5 series) as to the reason for not taking his attendance, but his representations were not disposed of. Ultimately, he made a complaint on 12 May, 1978, to the Public Grievance Committee of the State Government (annexure 6), whereupon the respondent — Board communicated to the State authority on 31 July, 1978, that his services had been terminated on and from 25 January, 1977. The petitioner received a copy of the said letter (annexure 7) on 22 September, 1978, from the Chief Minister's Secretariat, and within three days of the receipt of the said letter on 25 September, 1978, the instant complaint under S. 26 of the Act was filed. The said complaint was entertained by the Labour Court and the respondent-Board was asked to show cause as required under law. But no written statement was filed. The Board, however, participated in the proceeding before the Labour Court and cross-examined the witnesses produced by the complainant in support of his complaint. The Labour Court recorded the finding that the termination of the service of the petitioner on and from 25 January, 1977, was without any reasonable cause. The Labour Court, however, thereafter held that the petitioner had knowledgs of his being shut out from work. Since the complaint was filed on 25 September, 1978, long after the said knowledge, it was barred by time. The Labour Court further held that no sufficient cause had been shown by the petitioner for condonation of about one year's delay in filing the complaint. Ultimately, because of its said finding on the question of limitation, the complaint petition was dismissed.

3. Sri Pandey, appearing for the petitioner workman, contended that the Labour Court exceeded in its jurisdiction in dismissing the complaint on the ground of limitation. According to the learned counsel he could know for the first time on 22 September, 1978, that his services had been terminated from the letter of the Secretary of the Board. Prior to that he was under the impression that he was wrongfully not allowed to sign the attendance register. No order terminating his service was issued or served upon him. Therefore, the question of limitation does not arise at all. He further contended that S. 26 of the Act makes no distinction between various kinds of services, namely, whether one is permanent, temporary, casual or probationary, etc. He submits that if a person be in whatsoever category readers work for not than six months. Section 26 of the Act extends certain protection to such persons. The protection provided under S. 26 of the Act, according to the learned counsel of the petitioner entitles them to one month's notice or one month's wages in lieu of such notice who have worked for not less than six months but up to one year. The law entitles persons who have, however, worked for more than one year to compensation as well, that is 15 days' wages for every completed year of service as provided under the second proviso to S. 26(1) of the Act. The notice-pay and the compensation is, however, not payable, where the termination of service is for a misconduct. If it is for a misconduct, then the conduct must be enquired into and, only after the completion of such an enquiry, the order of dismissal or discharge could be passed. Sri Mishra, appearing for the Board, on the other hand contended that the petitioner was only a muster-roll daily-rated workman and he was, therefore, no entitled to any letter of termination or to any notice or to any compensation. He also submitted that the petitioner did not move the Court with due diligence. On his own admission, according to the learned counsel the petitioner was aware that his services had been terminated and, therefore, he ought to have filed the complaint within the period laid down under S. 26(2) of the Act.

4. Section 26 of the Act is prefaced by the words “Notice of the dismissal or discharge”. The said section deals with two kinds of situation:

firstly, where a person's service is terminated for reasons other than misconduct and

secondly, of cases where the termination is on account of misconduct.

In the first category of cases, it entitles the employee to a notice and further to compensation equivalent to fifteen days' wages for every completed year of service, but this is not allowable in cases of misconduct. Sub-section (2) of S. 26 of the Act contemplates that when the termination is brought about either by dismissal or discharge or otherwise, the concerned person is entitled to make a complaint in writing in the manner prescribed to the appropriate authority within ninety days of the receipt of the order of dismissal or discharge or termination of employment. Subsection (3) of S. 26 also emphasises the receipt of an order of dismissal or discharge. Prior to the amendment of the Act the period of limitation prescribed was different. Rules 21 of the Bihar Shops and Establishment Rules, 1955 (hereinafter referred to as the rules), lays down the procedure for filing a complaint. Rule 21(2) envasages that the complaint must be filed in the form of a memorandum setting forth concisely the grounds of objection to the order complained against and that the memorandum shall be accompanied by an affidavit. The memorandum is further required to bear a Court fee. After all this is done, the Court is required to issue notice to the person complained against.

5. Section 26 of the Act confers benefit upon any employee who has been in employment continuously for a period not less than six months. This section does not take notice of the character or the kind of services rendered by an employee. What it envisages is continuity of service for a given period. If it be for not less than six months, S. 26 provides for certain benefits as well as confers a right on an employee to make complaint to the concerned authority within a certain period from the receipt of the order of termination. The scheme of S. 26 and rule 21, in my opinion, particularly in cases of persons in continuous employment for not less than six months, contemplates bringing about disengagement only by a written order of termination.

6. The words “receipt of the order of dismissal or discharge or termination” in S. 26(2) read along with the prefix of S. 26 “notice of the dismissal or discharge” exclude termination of the services of such persons by an oral order. If the termination of such an employee is brought about by an oral order, I fail to conceive how a memorandum of complaint challenging the grounds of the order of dismissal can at all be made. Further, it would bring about uncertainty as to the date where from the period of limitation is required to be reckoned. It is, therefore, manifest that the termination of service of a person continuously working for not less than six months can only be effected by a written order, duly communicated. Admittedly, in this case, there has been no written order of dismissal. There has been no communication of such a written order to the petitioner at any time prior to the filing of the complaint. The petitioner was forwarded a copy of the order vide exhibit 2 on 22 September, 1978. The complaint was filed within three days therefrom. The question, therefore, arises — whether in those circumstances the Labour Court was justified in coming to the conclusion that the petition of complaint is barred by time.

7. Limitation starts running as provided under the Act from the receipt of the order of dismissal/discharge/termination. The respondents have not been able to show the receipt of any such order prior to 22 September, 1978. Further, there could be no receipt of the order of discharge by the petitioner as the respondents themselves admit that there was no written order of termination of service as the petitioner was a muster-roll employee. As there has been no written order duly communicated terminating the services of the petitioner, there can be no question of limitation at all arising in this case. The limitation, if any, will run from the date when he received the letter terminating his service from the Grievance Committee, that is, 22 September, 1978.

8. A question may arise — Can a workman make inoperative the period of limitation by avoiding receipt of an order of dismissal or discharge? This question, however, does not arise in the present case. According to the respondents since the petitioner was a muster-roll workman, there was no need of a written order of dismissal, either to be notified or to be communicated to the workman concerned. Learned counsel has placed before us the standing orders of the respondent-Board which show that the workmen have been classified into five categories, namely, permanent, probationer, temporary, casual and apprentice. There is no classification of muster-roll workmen in the standing orders. I have stated earlier, S. 26 makes no distinction between various classes of employees. One has to be only an employee under S. 2(4) of the Act. Section 26 gives certain protection to “employees” who have worked for not less than six months continuously. Admittedly, the petitioner has worked for about three years continuously. He was as such, not only entitled to a notice and/or notice-pay under S. 26 of the Act, but he was also entitled to a compensation for fifteen days' average wages for every completed year of service. The Labour Court has found that there was no reasonable cause of termination of the petitioner's service. That being the finding of the Labour Court, such termination was required to be preceded by a mandatory notice as envisaged under S. 26(1) of the Act as well as compensation payable under the second proviso to S. 26(1). None of these things having been complied with, the termination per se is bad.

9. The finding of the Labour Court that the petition of complaint is barred by time for the season aforesaid is fit to be quashed. Admittedly, there being no written order of dismissal or discharge nor the dismissal or discharge having been notified nor the same having been communicated and received by the workman, there is no question of any limitation arising in respect of the petition of complaint entertained by the Labour Court.

10. As I have found that the complaint petition could not have been treated as barred by limitation, the consequential relief flows from the order of the Labour Court itself. Admittedly, the termination was not preceded by notice or notice-pay accompanied by any compensation as envisaged under the second proviso to S. 26(1) of the Act. The result would be that the petitioner would be deemed to be continuing in service throughout the period and would be entitled to all consequential relief flowing from the continuity of service.

11. In the result, the order of the Labour Court in so far as it held that the petition of complaint is barred by time is quashed and the respondents are directed to treat the petitioner as continuing in service and give all benefits arising out of the continuity — of service till data. The petition is, accordingly, allowed. The petitioner shall also be entitled to costs; hearing fee Rs. 100 (one hundred) only.

12. Uday Sinha, J.:— I agree to the order proposed. I would, however, like to add that the Board has to thank itself for the result of this application No written-statement was filed on behalf of the Board before the authority under the Bihar Shops and Establishments Act. In that view of the matter, the conclusion in regard to the removal of the petitioner from service without a reasonable cause had to be a foregone conclusion. The question whether a daily-rated workman can thwart the object of S. 26 of the Act seems to be pertinent, but in that situation the employer should take precaution of pasting or putting up the termination order on the notice board. There is no averment that anything of the kind was done. In that view of the matter, I agree with my learned brother that the petition must be allowed.