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4. From the side of the Biscomaun however, the impugned orders of, removal were sought to be defended by relying upon another Division Bench decision of this Court, in Bihar State Co. operative Marketing Union Ltd., Through its Administrator v. State of Bihar and Ors. 1993-I-LLJ-1177 (Pat-Dc). This was also a case of removal of an employee of the Biscomaun from service but it seems that the earlier (unreported) decision of the Court in Biresh Tripathi was brought to the notice of the Bench hearing this case. In the latter reported case, a similar order of removal from service was first challenged by the employee before the Authority under the Shops and Establishments, Act. The authority held that the order passed by the administrator was arbitrary because the concerned employee was not given any opportunity of hearing in the matter before the order of his removal was passed. It also found and held that the concerned employee was not given one month's pay in lieu of notice and, therefore, the order of removal was also bad for non-compliance with the mandatory requirement of Section 26 of the Shops Act.

7. At the first glance the two decisions may not appear comparable; one (in Biresh Tripathi) was given on a petition filed under Articles 226 and 227 of the Constitution directly before this Court challenging the order of removal from service while the other (in Biscomaun) came in a case arising from a proceeding under Section 26 of the Shops Act. It may further be said that the Division Bench in the case of Biscomaun examined and interpreted the import and scope of Section 26 of the Shops Act, issues that did not arise in Biresh Tripathi and that do not arise in these two cases, either. This is quite true but the irreconcilable conflict between the two lies in the completely different outcome flowing from the two decisions. A person starting from the same set of facts will get completely different results on following one or the other of the two decisions. For illustrations, if a removal order of this kind was directly challenged before this Court in a petition under Arts. 226 and 227 of the Constitution, a learned single Judge before whom such a petition would be normally placed (or even a Division Bench) would be obliged to up hold the challenge and set aside the order of removal following the Division Bench decision in Biresh Tripathi. On the other hand, the same order was taken before the authority in a complaint under Section 26(2) of the Shops Act the authority would be bound to dismiss the complaint following the decision in the earlier case of Biscomaun (supra). Needless to say that this is highly an anamolous and undesirable situation where the same case between the same parties is bound to be decided differently before two different Courts. To say the same thing differently, if an employee dismissed from the service of the Biscomaun fails to get any relief before the Authority under the Shops Act which is also a Court of fact, there is no reason why he should get any relief on the same facts before a writ Court and on the other hand when the employee removed from service is bound to get relief before a writ Court, there is no conceivable reason why he should not get the same relief before the Authority under the Shops Act. It follows, therefore, that either the case of Biresh Tripathi (supra), or the earlier case of Biscomaun was not correctly decided and there is, therefore, a need to review and re-examine the correctness of the two decisions.

8. Before proceeding any further it would be appropriate to take a brief look at the facts of the two cases.

9. According to Rajendra Prasad Sah, the petitioner in C.W.J.C. No. 2188 of 1989, he was engaged to work as a packer on daily-wages by the Chief Engineer of Biscomaun and on that basis he worked from April 7, 1984 to April 25, 1985. He was then appointed as a packer in the Biscomaun Bakery at Phulwari by letter No. AR 2190, dated June 26, 1986 (Annexure 1) issued by the advisor.

He joined the work at the bakery on the same day. Later, by the order of the Managing Director his service was regularised with effect from May 25, 1987 by the Special Officer (Administration) by his Memo No, B-3894, dated June 1, 1987 (Annexure 2). Pursuantto the aforesaid memo issued by Special Officer (Administration) his joining report on the post of packer was accepted by the order issued by the Special Officer (Administration) under his Memo No. M/1461 dated October 7, 1987 (Annexure 3). His monthly salary was fixed by memo, dated October 8, 1987 (Annexure 4), Later, on July 31, 1988, the Managing Committee of Biscomaun was superseded by State Government and an Administrator was appointed with all the powers of the Board of Directors. The Administrator by his order, dated April 3, 1989 (Annexure 5) terminated the petitioner's employment with immediate effect on the ground that his appointment was irregular and illegal. He was given one month's wages at the time of termination of his employment by a bearer's cheque, dated April 27, 1989 (Annexure 6).

18. The Bench hearing the case in The Biscomaun (supra), was also not unconscious of the change in the legal status of Biscomaun pursuant to the appointment of the administrator on July 31, 1988. It accordingly rejected the submission that the appointment of the removed employee was made in contravention of Articles 14 and 16 of the constitution. It, however, held that the appointment was illegal, being in breach of the provisions of the Staff Regulations of Biscomaun laying down the procedure for appointment.