BY COURT : 1. Both these writ application is arise out of a common Award. They have been heard together and are being disposed of together. 2. In C.W.J.C. No 713 of 1979, the petitioner is the Bihar State Co-operative Marketing Union Limited (shortly called Biscouman and referred to as such for the sake of brevity) which has challenged the order of the Labour Court dated 7.2.79 (Annexure 1) directing reinstatement of Sudheshwar Prasad alia, Sidheshwar Prasad (respondent No.2), a dismissed employee, and awarding him Rs. 300/-as compensation. The other writ application, C.W.J.C. No. 1399 of 1379 is by the employee, Sudheshwar Prasad, in which he has prayed for modifying the order of the Labour Court and for allowing him back wages i.e. from the date of his dismissal till the date of his reinstatement. 3. Sudheshwar Prasad was working as a peon in the office of Biscouman, opposite Gandhi Maidan, in the town of Patna. The allegation against him is that on 7.4.76 one Chandrika Ram, another peon working in Biscouman, filed a complaint before the Managing Director to the effect that while he was talking with some of the employees at the Canteen near the Guest House, at about 3 O' clock, Sudheshwar Prasad all on a sudden assaulted with a small baton which he always used to carry and abused him. He named the canteen owner Rajendra and Bishundeo and Sukhram, drivers of Biscouman, as having witnessed the occurrence on the said report, the Managing Director Shri N.K. Jha directed the Chief of the Fertilizer business, to hold an enquiry and report. The Chief of the Fertilizer business held an enquiry and submitted his report (Annexure 7) on 3.5.76. Thereupon, the Managing Director directed a departmental proceeding to be started against Sudheshwar Prasad. Charge was accordingly framed against him. A copy of the charge sheet has been filed as Annexure 8. It contains four items of charges. Sudheshwar Prasad filed his written statement on 10.6.76 (Annexure 9) denying the charges. Shri Ranchhor Prasad Sinha was appointed Enquiry Officer who, after enquiry, submitted his report on 18.6.76 (Annexure 12). At the said enquiry, witnesses were examined and some documents were also produced. On the basis of the said report, the Managing Director, by letter dated 20.8.76, dismissed Sudheshwar Prasad from service with immediate effect. Shri Ranchhor Prasad Sinha was appointed Enquiry Officer who, after enquiry, submitted his report on 18.6.76 (Annexure 12). At the said enquiry, witnesses were examined and some documents were also produced. On the basis of the said report, the Managing Director, by letter dated 20.8.76, dismissed Sudheshwar Prasad from service with immediate effect. Sudheshwar Prasad thereafter filed a complaint under section 26 of the Bihar Shops and Establishment Act (hereinafter referred to as the Act) on 21.9.76 before the Labour Court challenging the order of dismissal on the grounds mentioned therein (Annexure 9) Before the Labour Court, Biscouman (employer) examined five witnesses and the employee examined himself as witness. Documents were also exhibited before, the Labour Court. After hearing, the Labour Court passed the impugned order which is under challenge. 4. Shri Rama Raman, learned Counsel appearing on behalf of the employer, has submitted that the Labour Court has wrongly construed the word 'misconduct' and challenged the findings of the Labour Court as being perverse. In support of his first submission, Shri Rama Raman relied upon rule 20 of the Rules framed under the Shops and Establishment Act (hereinafter referred to as the Rules). Rule 20 lays down the list of acts which may be termed is 'misconduct' and the relevant clause of the rule relied upon to cover the instance of misconduct is clause (h) of sub-rule (1) of the 20, which reads as follows:- "(h) riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline." The Labour Court, In the impugned order, while discussing all the four charges that were framed against the employee in the charge sheet (Annexure 8), observed that no Standing Order was produced before it in this regard. The first charge is regarding causing hurt to Chandrika Ram on 4.4.76 near the Guest House. The second charge is that Sudheshwar Prasad, on 7.4.76, was shouting at the top of voice in a most indisciplined and insubordinate manner and abusing some peons in the section and his posture and attitude was rather aggressive and threatening to prevent any gentleman going near him. This was personally heard by the Chief of Fertilzer business. The third charge is regarding his past conduct. It may be mentioned here that earlier he was a driver and had been reverted in the preceding year to the post of peon. This was personally heard by the Chief of Fertilzer business. The third charge is regarding his past conduct. It may be mentioned here that earlier he was a driver and had been reverted in the preceding year to the post of peon. The fourth charge is regarding filing of a false complaint against Chandrika Ram on 7.4.76 with regard to an incident dated 4.4.76. It is true that if the first charge is established to have been done in the Guest House, which is a part of the establishment, or in the office, or the second charge is established to have been done in the office itself, then anyone of these two charges may amount to a riotous or disorderly behaviour during working hours at the establishment and would be covered under clause (h) of sub-rule (l) of rule 20 of the Rules, and would be misconduct. The other two charges will not be misconduct and, therefore, the petitioner cold not have been dismissed without requisite notice or notice-pay even if the third and fourth charges were found against him. Section 26 of the Act imposes a ban on the employee in his employment who has put in continuous service for six months, unless the employer has a reasonable cause and by giving, at least, one month’s notice to the employee or, in lieu thereof, one month’s wages. The requirement of notice of notice pay was not required when dismissal or discharge was on the ground of ‘misconduct.’ In the instant case, admittedly, one month’s notice or notice-pay was not given to the employee, so the dismissal could only be sustained on the ground of misconduct. Therefore, charge Nos. 3 and 4 which are not for misconduct need not detain us. 5. With regard to charge No.1 the Labour Court has discussed the evidence in paragraph 19 of its order and found after considering the admission made by Chandrika Ram himself, who was examined as M.W. 1. that the story of assault by the employee has not been substantiated. The Labour Court also took note of the fact that none of the three witnesses mentioned in the complaint (Exhibit D), Bishundeo, Rejendra and Sukh Ram, about assault has been examined. that the story of assault by the employee has not been substantiated. The Labour Court also took note of the fact that none of the three witnesses mentioned in the complaint (Exhibit D), Bishundeo, Rejendra and Sukh Ram, about assault has been examined. With regard to charge No.2, the Labour court has found that the Chief of Fertilizar business is the only witness named who personally heard Sudheshwar Prasad shouting and abusing in office on 7.4.76, but he has also not been examined. The Labour Court has finally come to the conclusion that on the basis of the evidence available before it none of the charges has been established. 6. Shri Rama Raman appearing on behalf of the employer has submitted that it is true that Chandrika Ram (M.W. 1) had admitted in his cross examination :- ^^nj[kkLr nsus ds igysa fl}s’oj ls ,oa ge ls ekjihV ugha gqbZ FkhA^^ It is also admitted position that Chandrika Ram filed his complaint on 7.4.76 and the above statement would completely rule out any assault on Chandrika on 4.4.76 which led to the submission of the charge sheet and dismissal of Sudheshwar Prasad. Shri Rama Raman. On the other hand, has submitted that till should not have been relied on in face of the admission of Sudheshwar Prasad before the Enquiry Officer (Annexure 10) that he had nothing to say beyond what has been stated in his written statement filed on 10.6.76 (Annexure 9) and if Annexure 9 is looked into, Sudheshwar Prasad admitted that he assaulted Chandrika Ram. The lines relied in Annexure 9 by Shri Rama Raman may be quoted :- "My petition dated 7.4.76 (copy enclosed) explains the position valuably. I have admitted that I assaulted Shri Ram, but the reasons of the assault has been mentioned. Had Shri Ram been ashamed of what he bad done during my sleep, I would not deal with him violently. But in place of expressing apology he used all the obnoxious words which he could remember. Such behaviour of Shri Ram enraged me and my anger was multiplied which created that situation." This statement of the employee for having assaulted Chandrika Ram has to be understood in the context in which it was made. But in place of expressing apology he used all the obnoxious words which he could remember. Such behaviour of Shri Ram enraged me and my anger was multiplied which created that situation." This statement of the employee for having assaulted Chandrika Ram has to be understood in the context in which it was made. It related to the statement made in Annexure 6, dated 7.4.76 in which a different story of assault, at a different place and in a different manner was alleged by Chandrika Ram. As a matter of fact, Annexure 9 is a denial of any occurrence having taken place in the manner alleged by Chandrika Ram in Exhibit D. On the other hand, it states that when Sudheshwar Prasad was sleeping at the place of Rameshwar Rai, Electric Mistri, on a cot, Chandrika Ram Came and sat on the same bed and misbehaved with him in a drunken state and when Sudheshwar Prasad woke up he got infuriated and assaulted Chandrika Ram. The place of occurrence as given by Chandrika Ram is completely a different place. So, this cannot be taken as an admission of Sudheshwar Prasad or having assaulted Chandrika Ram in the manner and at the place alleged by Chandnka Ram. Thus, there is no admission by the employee about the assault as alleged by Chandrika Ram which has been mentioned by the Labour Court. The finding of he Labour Court, therefore, is unassailable regarding charge No. 1. As regards charge No.2 which is the only other charge regarding his conduct, the allegation is that on 7.4.76, i.e., three days after the main occurrence, Sudheshwar Prasad was shouting in the establishment in an indiscipline and insubordinate manner and abusing some peons in the section itself which was personally heard by the Chief of Fertilizer business. Suffice to mention that since the Chief of Fertilizer Business, who alone is said to have heard these allegation, has not been examined, the Labour Court has not accepted this charge. No exception can be taken to this. Thus, both the charges on which misconduct could have been found against the employee has rightly been held not to have been substantiated by the Labour Court It may be mentioned that other two charges no. 3 and 4 have also been rejected by the Labour Court for cogent reasons. No exception can be taken to this. Thus, both the charges on which misconduct could have been found against the employee has rightly been held not to have been substantiated by the Labour Court It may be mentioned that other two charges no. 3 and 4 have also been rejected by the Labour Court for cogent reasons. There is therefore, no merit in the writ application filed on behalf of the Management. 7. As regards the other writ application namely, C.W.J.C. No 1399 of 1979, filed by the employee. Shri Katriar, learned counsel appearing on behalf of the petitioner has urged that the Labour Court having ordered reinstatement of the employee erred in refusing to award back wages without assigning any reason. Learned counsel has submitted that while setting aside the order of dismissal, all that the Labour Court has said in this regard is as follows :- "The applicant is therefore, entitled to be reinstated with compensation for the harassment daring the trial. He is, however, not entitled to back wages.” The Labour Court has ordered that the applicant be reinstated with a compensation of Rs. 300/- (Rupees three hundred) in lump-sum for harassment during litigation" 8. Shri Katriar, learned counsel appearing on behalf of the petitioner-employee has submitted that where the order of dismissal is set aside and reinstatement is ordered, the concerned employee is entitled to be put in the same position as he was on the date of dismissal, with all consequential benefits including his salary. unless the Court for reasons to be recorded refuses to grant him back wages in an appropriate case, and, has relied upon a Bench decision of this Court in Motipur Sugar Factory (P) Ltd. v. Rikhdeo Prasad. In that case, an employee of the Motipur Sugar Factory moved under section 26 of the Bihar Shops and Establishments Act against the order of his dismissal and the Labour Court directed his reinstatement with half the back wage. Against the order of reinstatement, the employer moved this Court and flied a writ petition while the employee also filed a writ petition against the order awarding only half of back wages. Both the applications as in the instant cases were heared together. The decision in the Motipur Sugar Factory case, which is also a case under the Bihar Shops and Establishments Act, supports the case of the petitioner employee on all fours. Both the applications as in the instant cases were heared together. The decision in the Motipur Sugar Factory case, which is also a case under the Bihar Shops and Establishments Act, supports the case of the petitioner employee on all fours. The relevant observations made in the said decisions may usefully be quoted here :- "Reference may be made to Oxford English Dictionary….where reinstating means restoring of a person or thing to the former state or condition. It will be relevant to refer to 1949 FC 111 (Western India Automobile Assn. v. Industrial Tribunal) where it was observed at page 120 : '... This relief of reinstatement is on the same footing as a relief of restitution. Restitution can be granted in interregnum in certain cases. All that is required is that the ex-employee should be restored to his previous position so far as capacity, status and emoluments arc concerned and there is nothing extraordinary in such restoration being ordered when considered necessary in the interest of peaceful settlement of industrial dispute.” The learned Judges also referred to the case of S.S. Shetty v. Bharat Nidhi Ltd. where-in. it has been observed that the order of reinstatement is not a fresh contract of employment between employer and the employee. Shri Katriar has relied upon another decision of this Court in Desbhandhu Cinema, jharia v. Industrial Tribunal (Appellate Authority) and other. This was also a case under the Bihar Shops and Establishments Act. In this case, the Labour Court while reinstating the workmen had not said anything about the back- wages claimed in the petition under section 26 of the Act, but only gave him compensation for the harassment. Thereafter, the workmen filed an application under section 28 of the Act, claiming arrears of wages for the period he was out of employment. That was allowed by the Assistant Labour Commissioner and affirmed by the Industrial Tribunal, on appeal. Thereafter, the workmen filed an application under section 28 of the Act, claiming arrears of wages for the period he was out of employment. That was allowed by the Assistant Labour Commissioner and affirmed by the Industrial Tribunal, on appeal. It was against the order that the Management filed the above writ application and it was observed by a Bench of this Court as follows :- "Learned counsel for respondent 3(a) has urged that the meaning of 'reinstatement' contemplated by S. 26 of the Act is that the dismissed employee is put back in the same position as if he had never been dismissed, and as by reinstatement status quo ante the dismissal is restored, the Assistant Labour Commissioner was perfectly justified in granting arrears of wages to the employee under S. 28 of the Act. This contention is not without force" The other decision relied upon by Shri Katriar is the case of The District Manager, A.P.S.R.T.C., Jaggaihpet v. Labour Court, Guntur. It was no doubt a case under the Industrial Disputes Act where the Industrial Tribunal has wider powers but certain observations made in a different context supports the contention of Shri Katriar. There a question arose as to whether a ran of the back wages could be withheld as a matter of punishment for some of the offences proved against the workman and it was held that it could be so done, although withholding of back-wages was not one of the punishments provided under Regulations or Standing Orders. In the instant case, the Tribunal found that the misconduct alleged against the employee his not been established. He has also not been found guilty of any other minor charges. Where an employee has not been found guilty of any major or minor charge, his back-wages cannot be withheld as a matter of punishment as he was not found guilty of any charge. It is another matter where an employee was gainfully employed elsewhere during the period the was out of employment, and in that case, it was open to the Labour Court not to allow back-wages for the period he was employed elsewhere, as it will be inequitable to allow him to get back wages when he was gainfully employed elsewhere during that period. But in the instant case, there is no such allegation nor is there any finding that the petitioner employee was gainfully employed elsewhere during the period in question. Therefore, the order refusing back-wages is arbitrary and penal in nature. 9. Shri Rama Raman appearing on behalf of the employer has, however, urged that under section 26 (5) (b) of the Act the authority had to give reasons for passing an order of reinstatement and also back wages, and has submitted that as no reasons haw been assigned for reinstatement, the order of reinstatement itself was bad and so no arrears of salary could be awarded to the employee. The relevant provision in the Act may usefully be quoted:- “26 (5) (a)-The prescribed authority shall cause a notice to be served on the employer relating to the said complaint, record briefly the evidence adduced by the parties, hear them and after making such enquiry as it may consider necessary pass orders giving reasons there-for. (b) In passing such order the prescribed authority shall have power to give relief to the employee by way of reinstatement or money compensation or both.” The argument of Shri Rama Raman proceeds on the footing that even after the charges on which the employee has been dismissed by the employer are set aside, the Labour Court has to give reasons for reinstatement of the employee, and that it has also to give reason if it is awarding money compensation or both. The fallacy in the argument of Shri Rama Raman is that once the order of dismissal of an employee is set aside (the reasons for setting aside the order of dismissal are precisely the reasons for reinstatement), separate reasons have to be given for reinstatement The question of not ordering reinstatement, whore the order of dismissal is set aside, will arise only in those cases whore there is loss of confidence between the employer and the employee. Reinstatement after setting aside the order of dismissal will be in the interest of healthy industrial relationship. No such case of loss of confidence has been raised in the instant case before the Labour Court. The trouble was between two peons on a Sunday, outside the office premises, and the charge of shouting at the superior officer has not been believed. No such case of loss of confidence has been raised in the instant case before the Labour Court. The trouble was between two peons on a Sunday, outside the office premises, and the charge of shouting at the superior officer has not been believed. It is, therefore, apparent that it is not one of those cases where the question was of loss of confidence between the employer and the employee. Shri Rama Raman has laid emphasis on one line in the order of the Labour Court which also may be reproduced: “I am convinced to hold that the charges are (have) not materially been proved and the order of dismissal is too harsh” From this he wanted to draw an inference that the employee was found guilty of some charge which has been proved to some extent. What has been said in that sentence is that the charges have not been proved. Discussion in the judgment clearly shows that none of the charges has been proved. Therefore, there is no scope for the argument that back wages could be withheld as punishment, as some offence has been proved Shri Rama Raman has relied upon the decision in the case of Calcutta Chemical Coltd. V.D.K Berman and Sadanand patamkar V. New Prabhat Silk Mills in support of his submission. The first one is a decision of our own High Court. It was a case of loss of confidence between the employer and the employee and has thus no application to the instant case. He relied on the observations made in para 25 of the judgment. Those observations have to be understood in the context in which they were made and the context was that in a cases where there was loss of confidence, reinstatement could not be made without giving adequate reasons for the same. In that case the principle laid down by the full Bench of the Labour Appellate Tribunal is Buckingham and Carnatic Mills Ltd. V. Their Workmen was quoted and relied upon which runs as follows. “in so ordering the tribunal is expected to be inspired by a sense of fair-play towards the employee on the one hand and consideration of discipline in the concern on the other. “in so ordering the tribunal is expected to be inspired by a sense of fair-play towards the employee on the one hand and consideration of discipline in the concern on the other. The past record of the employee, the nature of his alleged present lapse and the ground on which the order of the management is set aside are also relevant factors for consideration” As already held above the fight was between two peons on a Sunday outside the office premises and no question of loss of confidence could arise in such a case. The facts of the case or the charges framed against the petitioner employee which have been disbelieved did not show that there was any question of loss of confidence between the employer and the employee. The petitioner was formerly a driver and for rash driving he was demoted in an earlier proceeding as a peon. Beyond that there is nothing to show that there was any case of loss of confidence between the employer and the employee. The other decision relied upon by Mr. Rama Raman (1974) 2 Labour Law Journal 52-is a Bench decision of the Bombay High Court wherein it has been held that it was the Tribunal's duty to raise the necessary issue whether the employee should be reinstated or not. It was a case under the Industrial Disputes Act under which the power of the Tribunal is more extensive in the interest of industrial peace and is not a decision in relation to the provisions of the Bihar Shops and Establishment Act with which we are concerned. It is, therefore, not necessary to go into the correctness or otherwise of this decision Therefore this decision is not of any help to Shri Rama Raman learned counsel for the petitioner employer. 10. In the result, the order of the Labour Court refusing back wages the petitioner employee is set aside and the a ward is modified accordingly. It may be mentioned that it has not been argued that the compensation awarded was in lieu of interest and rightly so, in view of the fact that it has been awarded for harassment. C.W.J.C. No. 793 of 1979 is dismissed and C.W.J.C. 1399 of 1979 is allowed. In the circumstances of case, however, there will be no order as to costs. C.W.C J. 793/79 dismissed. C.W.J.C. 1399/79 allowed.