Audi Suresh Babu v. The Government of Andhra Pradesh, represented

THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.8423 OF 2012

O R D E R This matter came up for hearing before the Court on the vacate stay petition filed by the fifth respondent in the writ petition. However, as the issue is amenable to resolution, the writ petition itself is taken up for final disposal with the consent of the learned counsel. The challenge of the petitioner in this writ petition is to the order dated 21.03.2012 passed by the second appellate authority under the Andhra Pradesh Shops and Establishments Act, 1988 (for brevity, the ‘Act of 1988’)-cum-Deputy Commissioner of Labour, Akkayyapalem, Visakhapatnam, in APSEMP SA No.1 of 2012. By the said order, the second appellate authority set aside the order dated 07.08.2011 passed by the first appellate authority under the Act of 1988-cum- Assistant Commissioner of Labour, Circle-II, Visakhapatnam, in APSE No.3 of 2010, whereby the first appellate authority had directed reinstatement of the petitioner in service with back wages and continuity of service.

Sri P.Venkat Rao, learned counsel for the petitioner, contended that the entertainment of the second appeal by the second appellate authority itself was in violation of the statute. Learned counsel relied upon Section 48(3) proviso of the Act of 1988 which states as under:

Provided that the second appeal shall not be entertained unless the employer deposits the entire amount of back wages as ordered by the appellate authority under sub-section (2) or the amount of compensation ordered as the case may be:

Admittedly, the fifth respondent company did not comply with the condition of depositing the entire amount of back wages directed to be paid by the first appellate authority. Sri G.Vidya Sagar, learned counsel for the fifth respondent company, stated that there was delay in the filing of the second appeal and a miscellaneous petition had been moved for condonation of the delay of 97 days in the filing of the second appeal.

Thereupon, the second appellate authority passed a comprehensive order not only in the condone delay application but also in the main second appeal. It is however not in dispute that by the said order, the second appellate authority set aside the order under appeal and therefore exercised jurisdiction as a second appellate authority. When the statute provides in no uncertain terms that the second appeal itself cannot be ‘entertained’ unless the deposit is made as required under the proviso to Section 48(3) of the Act of 1988, the second appellate authority could not have exercised its jurisdiction as such. The order dated 21.03.2012 passed by the second appellate authority is therefore in violation of the statute and is consequently unsustainable. The order is accordingly set aside and the matter is remitted to the second appellate authority for independent consideration of the condone delay application.

Needless to state, unless the delay is condoned, the second appeal would not be taken on file. Unless the appeal is taken on file, it cannot be said to have been entertained. Therefore, the fifth respondent would be required to make the deposit in terms of the proviso to Section 48(3) of the Act only upon the condonation of the delay. The second appellate authority shall, in the first instance, consider the condone delay application filed by the fifth respondent on its own merits after giving due opportunity of hearing to both sides and pass appropriate orders thereon in accordance with law. The Writ Petition is accordingly allowed and the matter is remitted to the second appellate authority for consideration of the condone delay application. Interim order dated 27.03.2012 passed in WPMP No.10659 of 2012 shall stand vacated. WPMP Nos.10659, 24624 and 24813 of 2012 and WVMP No.2185 of 2012 do not survive for consideration in the light of this final order. No order as to costs. ---------------------------- SANJAY KUMAR, J. 12th OCTOBER, 2012. Note: Issue C.C. in three days. (BO) PGS