JUDGMENT : 1. The present writ petition has been filed for quashing the order dated 19.08.2009, passed by the Presiding Officer, Labour Court, Ranchi, in B.S Case No. 6/2008 (seems that year has been wrongly typed as 2008 in place of 2006 in the impugned order) whereby it has been held that the order of dismissal/discharge has not been issued by the respondents and as such, the complaint filed under Section 26(2) of the Bihar Shops and Establishment Act, 1953 read with Rule 21 of the Jharkhand Shops and Establishment Rules 2001 is not maintainable. 2. The factual background of the case as stated in the writ petition is that the petitioner was employed by the respondents as salesman in the year 1988 and he worked continuously up to 06.10.2005 under the respondents and was also getting salary of Rs.1700/-per month. It is alleged by the petitioner that when he reported for duty on 07.10.2005, the respondent no.2 refused to allow him to work without assigning any reason and he was also neither given any order of termination, nor the dues of the petitioner was cleared. The petitioner filed a petition under Section 33 C (2) of the Industrial Disputes Act, but the same was subsequently withdrawn. Thereafter, the petitioner made complaint before the Dy. Labour Commissioner on 16.08.2006 against his illegal termination and non-payment of the legal dues, but no proceeding was initiated by the learned Deputy Labour Commissioner under Section 12 of the Industrial Disputes Act. Thereafter, the petitioner filed a case under Section 28 of the Bihar Shops and Establishment Act, 1953 (hereinafter called the Act) before the Labour Court, Ranchi which was registered as B.S. Case No.5 of 2006, but the same was dismissed by the Labour Court vide order dated 13.09.2006. Thereafter, the petitioner filed appeal before the Industrial Tribunal Ranchi in B.S Appeal No. 2 of 2006 and the learned Tribunal allowed the said appeal and set aside the order of the Labour Court and remanded the matter back to decide it afresh. Thereafter, the Labour Court vide order dated 05.12.2008 allowed the claim of the petitioner in part by directing the respondents to pay the wages of the petitioner for the month of September 2005 and 6 days in October, 2005 of the monthly salary @ Rs.1700/-pm as on September 05. The respondents also complied the order and paid Rs. Thereafter, the Labour Court vide order dated 05.12.2008 allowed the claim of the petitioner in part by directing the respondents to pay the wages of the petitioner for the month of September 2005 and 6 days in October, 2005 of the monthly salary @ Rs.1700/-pm as on September 05. The respondents also complied the order and paid Rs. 2040/-which was withdrawn by the petitioner. In the meantime, another petition was filed by the petitioner under Section 26(2) of the Bihar Shops and Establishment Act, 1953 and Rule 21 of the Jharkhand Shops and Establishment Rules, 2001 (hereinafter called the Rules) as B.S Case No.6/06. 3. The learned counsel appearing on behalf of the petitioner submits that the Labour Court wrongly dismissed the complaint petition of the petitioner on the ground that since no order of dismissal was issued by the respondents, the complaint under Section 26(2) of the Act and Rule 21 of the Rules is not maintainable. It is further submitted that the oral termination comes under the meaning of “termination” under Section 26 of the Act and Rule 21 of the Rules. In support of the above contention, the learned counsel relied upon the judgment rendered by the Patna High Court in the case of Krishna Kumar Sharma vs. State of Bihar and Others reported in 1984 Lab.I.C 1427. It is further submitted that the learned court below has not appreciated the evidence of the parties and the judgments relied upon by the petitioner. It is further submitted that in B.S. Case No. 5 of 2006/1 of 2008, which was registered on an application made by the petitioner under Section 28 of the Act, the learned Labour Court, Ranchi found the claim of the petitioner genuine and allowed the wages for the month of September 2005 and for six days in October 2005. Learned counsel for the petitioner submits that the observation of the Presiding Officer, Labour Court, Ranchi dated 05.12.2008 clearly indicates that the services of the petitioner was dispensed with w.e.f. 7th October 2005, however without any written order. 4. No one has appeared on behalf of the respondents since 22.06.2017. However, the counter-affidavit of the respondents dated 01.10.2010 is on record, thus the contents of the counter-affidavit filed on their behalf is being taken for the purpose of adjudication of the present case. 5. 4. No one has appeared on behalf of the respondents since 22.06.2017. However, the counter-affidavit of the respondents dated 01.10.2010 is on record, thus the contents of the counter-affidavit filed on their behalf is being taken for the purpose of adjudication of the present case. 5. It is stated in the counter-affidavit filed by the respondents that it is wrong to say that the respondents have terminated the petitioner, rather the actual fact is that the petitioner himself abandoned the service w.e.f. 01.04.2004 and even after the several reminders, he did not join the duty. This fact would be verified from the payment register that the petitioner has not worked from April, 2004. It is further stated that the complaint filed under Section 26 of the Act is much later in time and as such the same is barred by limitation. It is further stated that no order of termination was passed against the petitioner and as such, the case of the petitioner does not come under the purview of section 26(1) of the Act. The learned Labour Court after going through the pleading of the parties as well as oral evidence of the complainant and other witnesses has found that no written order of dismissal/discharge has been issued by the respondents and as such the case of the petitioner is not maintainable. 6. Heard the learned counsel for the petitioner and perused the materials available on records. It is not in dispute that the petitioner was an employee of the respondents. The learned court below has passed the impugned order dated 19.08.2009 by strongly relying on para 8 of the judgment of this court passed in Gokul Rana Vs. Presiding Officer Labour Court, Jamshedpur & Ors. reported in 2002 (3) JCR 391 (jhr). I have gone through para 8 of the aforesaid judgment which reads as follows:- 8. A plain reading of the Section 26(2) of the Act clearly shows that the Labour Court has jurisdiction if the employee has been dismissed or discharged or whose employment is otherwise terminated. reported in 2002 (3) JCR 391 (jhr). I have gone through para 8 of the aforesaid judgment which reads as follows:- 8. A plain reading of the Section 26(2) of the Act clearly shows that the Labour Court has jurisdiction if the employee has been dismissed or discharged or whose employment is otherwise terminated. Obvious it is that the question of dismissal or discharge arisen only when there is misconduct on the part of an employee Rule 20 (1) lists the misconduct; (2) provides the procedure of discharge in case of misconduct; and Rule 21 clearly provides that any employee aggrieved by an order of dismissal or discharge under Section 26 of the Act may make a complaint. It is to be noted that under Rule 21, the complaint is maintainable only in case of dismissal or discharge and as this rule does not mention "even otherwise termination", no complaint can be lodged for the "otherwise termination of the service" under Section 26. It is amply clear that the petitioner of this case has not been found guilty of any misconduct as listed under Rule 20. Consequently, his case does not fall within the mischief of dismissal or discharge with the obvious consequences that no complaint could have been made under Subsection (2) of Section 26 of the Act. So if the complaint did not lie and even if the Labour Court entertained the complaint, then the mere entertaining of the complaint by the Labour Court was without jurisdiction and the impugned order in excess of jurisdiction. Therefore, the impugned order is without jurisdiction. Thus, in the aforesaid legal situation, the petitioner cannot derive any benefit out of the quashing of the impugned order. 7. I have also gone through the judgment referred by the learned counsel for the petitioner recorded in the case of Krishna Kumar Sharma (Supra.). Paragraphs 4, 5 and 6 read as follows:- 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 persons service is terminated for reasons other than misconduct, and, secondly, of cases where the termination is on account of misconduct. Paragraphs 4, 5 and 6 read as follows:- 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 persons 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-sec. (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. Sub-sec. (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. Rule 21 of the Bihar Shops & Establishment Rules. 1955 (hereinafter referred to as the Rules) lays down the procedure for filing a complaint. Rule 21 (2) envisages 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. Sec. 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. Sec 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 Section 26 and R. 21. If it be for not less than six months. Sec 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 Section 26 and R. 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. The words "receipt of the order of dismissal or discharge or termination" in Section 26 (21 read along with the prefix of Sec 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 wherefrom 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 Ext. 2 on the 22nd Sept. 1978. The complaint was filed within three days there from. 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. 8. In the case of Krishna Kumar Sharma (Supra.) a Division Bench of Patna High Court (during the period of unified Bihar) has held that Section 26 of the Act quite explicitly delineates that an employee who had worked for a period of not less than six months and has been terminated either by way of dismissal, discharge or otherwise, he shall be entitled to notice and further compensation equivalent to fifteen days wages for every completed year of service. Section 26 also confer right upon the employee to file complaint to the concerned authority within a certain period from the date of receipt of the order of termination. Thus if the termination of an employee is brought by an oral order, a complaint challenging the grounds of the order of dismissal cannot be made at all and the period of limitation also cannot be calculated for filing of the case. Having explained the above situation, it has been held 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. Further, the judgment in the case of Gokul Rana (Supra.) was rendered by the learned Single Judge of this Court in a complete different factual context particularly considering the matter of superannuation wherein the employee continued in service even beyond the age of 60 years, which as per the employer, he was not permitted, since the age of superannuation of any employee in the said establishment was 60 years. Thus the ratio of Gokul Rana (Supra.) cannot be applied in the fact of the present case. On the contrary, the judgment rendered by the Division Bench of Patna High Court to which I am in respectful agreement, shall be applicable in the fact situation of the present case. From bare perusal of section 26 of the Act, it appears that the notice is prerequisite before dismissal or discharge or otherwise termination of the employee who has continuously worked for a period not less than six months, but such notice is waived where service of the workman is dispensed with on a charge of misconduct. However, in Rule 21 of the Rules, it has been provided that any employee aggrieved by an order of dismissal or discharge under section 26 may make a complaint to the Labour Court, thus the word “otherwise termination of the employee” has not been mentioned in the Rule. 9. In the case of M/s Ispat Industries Ltd. Vs. Commissioner of Customs, Mumbai reported in 2006 (12) SCC 583 the Hon’ble Supreme Court in para 26 and 27 held as under:- 26. 9. In the case of M/s Ispat Industries Ltd. Vs. Commissioner of Customs, Mumbai reported in 2006 (12) SCC 583 the Hon’ble Supreme Court in para 26 and 27 held as under:- 26. In this connection, it may be mentioned that according to the theory of the eminent positivist jurist Kelsen (The Pure Theory of Law) in every legal system there is a hierarchy of laws, and whenever there is conflict between a norm in a higher layer in this hierarchy and a norm in a lower layer the norm in the higher layer will prevail (see Kelsens `The General Theory of Law and State). 27. In our country this hierarchy is as follows : (1) The Constitution of India; (2) The Statutory Law, which may be either Parliamentary Law or Law made by the State Legislature; (3) Delegated or subordinate legislation, which may be in the form of rules made under the Act, regulations made under the Act, etc.; (4)Administrative orders or executive instructions without any statutory backing. 28. The Customs Act falls in the second layer in this hierarchy whereas the rules made under the Act fall in the third layer. Hence, if there is any conflict between the provisions of the Act and the provisions of the Rules, the former will prevail. However, every effort should be made to give an interpretation to the Rules to uphold its validity. This can only be possible if the rules can be interpreted in a manner as to be in conformity with the provisions in the Act, which can be done by giving it an interpretation which may be different from the interpretation which the rule could have if it was construed independently of the provisions in the Act. In other words, to uphold the validity of the rule sometimes a strained meaning can be given to it, which may depart from the ordinary meaning, if that is necessary to make the rule in conformity with the provisions of the Act. This is because it is a well settled principle of interpretation that if there two interpretations possible of a rule, one of which would uphold its validity while the other which would invalidate it, the former should be preferred. 10. Thus, even if the word “otherwise termination of the employee” is not mentioned in the Rules, a complaint may be filed against the termination without issuance of any notice. 10. Thus, even if the word “otherwise termination of the employee” is not mentioned in the Rules, a complaint may be filed against the termination without issuance of any notice. The respondents have tried to justify the termination by contending that the petitioner has himself abandoned the service of the respondents, but the argument of the respondent is not acceptable as in the case of Krishna Kumar Sharma (Supra.) it has been held that even if the employee is avoiding the notice of termination, the same may be pasted in the notice board for satisfying the provisions of section 26 of the Act. However no such step has been taken by the respondents in the present case, thus the respondents appears to have violated the mandatory provisions prescribed under section 26 of the Act. Otherwise also, if the provisions of Section 26(2) of the Act read with Rule 21 of the Rules is construed to mean that in the cases of “otherwise termination”, the claim before the Labour Court would not be maintainable, the same will frustrate the very purpose of the Act and the employers will be encouraged not to issue any written order in the case of termination of the employees. Section 27 of the Act also mandates that no employee shall be terminated from his employment unless he has been given notice of at least one month prior to the termination. Rule being a subordinate legislation is framed to carry out the purposes of the Act which can neither over-ride nor frustrate the substantive provision of the parent Act. Since in the present case, apparently there is no such notice given by the petitioner to the respondents employer being their employee, it cannot be said that the petitioner abandoned service out of his own. The contention of the respondents that the claim is barred by limitation is also not acceptable, as no notice of termination was served upon the petitioner. The court below has dismissed the complaint of the petitioner only on the ground of maintainability and the other issues were not looked into. Thus, the question before this court is as to what relief the petitioner is entitled to under the present circumstances. Since, considerable time has elapsed from the date of termination, it will not be appropriate to remand the matter to the learned court below. Thus, the question before this court is as to what relief the petitioner is entitled to under the present circumstances. Since, considerable time has elapsed from the date of termination, it will not be appropriate to remand the matter to the learned court below. Moreover, it would also not be proper to let the petitioner work with an employer with whom he has been in litigating terms for a long time and as such grant of compensation in terms of money as provided u/s 26(5)(b) read with 2nd proviso of 26(1) of the Act is the appropriate relief that can be granted to the petitioner. 11. Considering the fact that the petitioner was in service of respondents since 1988 and he was terminated from service w.e.f. 07.10.2005 and his salary in the year 2005 was Rs. 1700/-per month. Thus, to meet the ends of justice, the respondent no. 2 is directed to pay lump sum compensation of Rs. 50,000/-to the petitioner within a period of eight weeks from the date of receipt/production of a copy of the order. 12. Accordingly, the order dated 19.08.2009, passed by the learned Presiding Officer, Labour Court, Ranchi in B.S Case No. 6/2008 is set aside. 13. The writ petition is allowed and disposed of with aforesaid observations and directions.