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This writ petition has been filed by the Bata India Limited, seeking to set aside the order dated 09.02.2019 passed by the Authority under the T.S. Shops and Establishments Act, 1988-cum-Assistant Commissioner of Labour, Medchal-Malkajgiri District in S.E.No.4 of 2010 and also the orders passed in I.A.Nos.3 of 2018 and 1 of 2019 in the said S.E.No.4 of 2010. They also sought for quashing the show cause notice dated 15.03.2021 issued by the 2nd respondent to explain as to why necessary recovery proceedings should not be initiated against all the petitioners for non-compliance of the orders in S.E.No.4 of 2010.
Heard Sri Anil Bhat, learned counsel appearing on behalf of Ms. Divya Adepu, counsel for petitioners, the learned Assistant Government Pleader for Labour, appearing for respondent Nos.1 and 2 and Sri K.Nirmal Kumar Prasad, learned counsel for respondent No.3. Perused the record.
The aforesaid S.E.No.4 of 2010 has been filed by respondent No.3 herein seeking to set aside the termination made by the petitioners herein and to reinstate him into employment. In the said S.E. The application in I.A.No.3 of 2018 was filed questioning the maintainability of the S.E., on the ground of delay. The authority under the Shops and Establishments Act has dismissed the said application by order dated 22.10.2018 with an observation that the petitioners herein did not take the plea of delay at the initial stage of filing the S.E. and that the said objection was taken after Eight years of filing the S.E. It was also observed that the provisions of the Limitation Act are not applicable to the said Authority and that it has got discretionary power in the matter of condoning the delay. Subsequently, the S.E. was entertained and allowed by order dated 09.02.2019 directing the petitioners herein to reinstate respondent No.3 with immediate effect at the branch from where he was terminated, with full back wages less the subsistence allowance paid, if any, continuity of service and all attendant benefits. Seeking to set aside the order dated 09.02.2019 in S.E.No.4 of 2010, the petitioners herein have filed I.A.No.1 of 2019, on the ground that it was an ex-parte order. The said application was also dismissed on merits, with an observation that the S.E. was contested by the petitioners herein and it was decided on merits.
The case of petitioners is that the 2nd respondent/Assistant Labour Commissioner-cum-Authority under the T.S. Shops and Establishments Act has committed serious error of law by entertaining the claim of 3rd respondent under Section 48(1) of the T.S. Shops and Establishments Act without considering the fact that there was delay in filing S.E.No.4 of 2010. It is contended that the services of 3rd respondent were not terminated but were only suspended in view of certain acts of misconduct committed by him, however, the Authority has treated the matter as that of termination and has erroneously gone into the aspects of misconduct, charge sheet and the domestic inquiry. Accordingly, the petitioners have prayed for setting aside all the orders passed by the 2nd respondent by allowing this writ petition.
Counter affidavit is filed by the 3rd respondent stating that since the petitioners/employers were not permitting the workers to avail holidays on Sundays and on National and other festival days, they filed W.P.No.730 of 2009, and since then, the petitioners herein started harassing the 3rd respondent and suspended him on a false complaint, which was not established before the Authority under the Shops and Establishments Act. The 3rd respondent contended that this writ petition under Article 226 of the Constitution of India is not maintainable as the petitioners have to file second appeal before the 2nd appellate authority against the impugned orders in terms of Section 48(3) of the T.S. Shops and Establishments Act, 1988. It is contended that the impugned orders are passed by taking into consideration all aspects of the matter, and therefore, there are no grounds to interfere with such reasoned orders. It is further stated in the counter affidavit that since the petitioners herein have not complied with the orders of 2nd respondent in S.E.No.4 of 2010 even after six months, the show cause notice was issued proposing to recover amounts payable to the 3rd respondent. Accordingly, the 3rd respondent has prayed for dismissal of the writ petition.
The petitioners are questioning the impugned orders of the Assistant Labour Commissioner-cum-Authority Under the Shops and Establishments Act on the ground that the said Authority did not consider the aspect of delay in filing the S.E. by the 3rd respondent. In support of the said contention, the learned counsel for petitioners has relied on the judgment of the then High Court of Judicature, Andhra Pradesh at Hyderabad in The Nalgonda Co-operative Marketing Society Limited v. The Labour Court, Hyderabad 1993 (2) A.P.L.J. 336 (HC)(FB) and on the judgments of Hon’ble Supreme Court in Ramesh Chand Sharma v. Udham Singh Kamal & others (1999) 8 SCC 304, Ballumal v. M/s. J.J.Builders 2003 (3) Mh.L.J. and in Gannmani Anasuya & others v. Parvatini Amarendra Chowdhary & others (2007) 10 SCC 296. The sum and substance of the findings in those judgments is that the Labour Courts/Tribunals have no authority to deal with the applications under Section 5 of the Limitation Act to condone the delay and that even the Courts cannot condone the delay in the absence of proper application to that effect. There is no dispute with regard to the law laid down by the Hon’ble Supreme Court in the above judgments. But, in the present case, the aspect of delay has been dealt with by the 2nd respondent/Authority on merits and while observing that Section 5 of Limitation Act has no application to the 2nd respondent/Authority, a reference was made to Rule 21 of the T.S. Shops and Establishments Rules, which was extracted as under in the order in S.E.
“Provided that the Appellate authority may admit an appeal after the expiration of the period of sixty days where the appellant satisfies the Appellate Authority that he had sufficient cause for not preferring the appeal within the stipulated period of sixty days.”
In view of the above, the judgments relied on by the learned counsel for petitioners are not applicable to the facts of the present case.
The learned counsel for respondent No.3 has relied on the judgment of the High Court of Judicature of Andhra Pradesh at Hyderabad in the case of Hyderabad Co-operative Trading Society Limited, Hyderabad v. Authority under A.P.Shops and Establishments Act, 1988 and Assistant Commissioner of Labour-III, Hyderabad and another 2004 (1) ALD 742, wherein, it is held that when reasons for delay are explained in the appeal memorandum, the appellate authority can condone the delay and entertain the appeal even without a separate application for condonation of delay. This judgment is squarely applicable to the facts of the present case, as in this case also, the delay has been condoned without separate application being filed, and further, the said aspect of delay was raised by the petitioners herein after Eight years of filing the S.E. Therefore, there is no illegality or irregularity in the order passed by the 2nd respondent in condoning the delay in filing S.E.No.4 of 2010.
With regard to the contention of 3rd respondent that the writ petition is not maintainable in view of availability of alternative remedy of preferring second appeal before the authority concerned, a reference can be made to the judgment of the High Court of Judicature, Andhra Pradesh at Hyderabad in Hindustan Coca-Cola Beverages (Private) Ltd. v. Authority under the A.P.Shops and Establishments Act-cum-Assistant Commissioner of Labour and others 2001 (3) L.L.N. 898, wherein, it is held:
“The petitioner, instead of approaching the second appellate authority, has approached the High Court invoking extraordinary jurisdiction of the High Court under Art. 226 of the Constitution, without exhausting the existing alternative remedy under S.48(3) of the Shops Act. The petitioner is unable to satisfy any of the conditions for invoking writ jurisdiction of the High Court, viz., for enforcement of any of the fundamental rights, that there has been violation of principles of natural justice, that the impugned order was wholly without jurisdiction or that vires of the Act is challenged. The petitioner has participated in the enquiry before the first appellate authority and the petitioner was given full opportunity of being heard and after considering his version, the first appellate authority has passed the order. The question whether the first appellate authority has passed the order correctly has to be further scrutinized by the second appellate authority only and not this Court under extraordinary writ jurisdiction under Art. 226 of the Constitution, inasmuch as there is no violation of fundamental rights. No violation of the principles of natural justice, or the proceedings were passed without jurisdiction or that the vires of any Act is challenged. Unless the petitioner justifies one of the above aspects, without availing the alternative remedy, the writ petitions cannot be entertained as the High Court has imposed upon itself certain restrictions.”
The aforesaid judgment is squarely applicable to the facts and circumstances of the case on hand, as, in this case also, the petitioners have approached this Court without availing the remedy of second appeal before the Authority concerned.
For the aforesaid reasons, the writ petition is devoid of merits and it is accordingly dismissed, confirming the orders impugned. The petitioners are directed to comply with the order dated 09.02.2019 passed by the 2nd respondent in S.E.No.4 of 2010 within a period of two months from the date of receipt of a copy of this order, if not already complied with. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.