whether the second appellate authority under the Andhra Pradesh Shops and Establishments Act, 1988 (for short, Act) is vested with power to condone delay in filing second appeals, entertain the second appeals filed after 30 days from the date of receipt of copies of the orders of first appellate authority by the bank and consider those second appeals on merits? = Bank filed batch of appeals before the second appellate authority challenging the orders passed by the first appellate authority on the first appeals filed by the employees of the Bank challenging their termination. Bank filed appeals seeking condonation of delay and having entertained the appeals filed after 30 days from the date of receipt of copies of the orders, set aside the order of the first appellate authority and modified the same. - On elaborate consideration of scope of jurisdiction of second appellate authority in entertaining appeals filed beyond 30 days from the date of receipt of copies of the orders of first appellate authority by the second appellant, this Court held in the earlier paragraphs that the second appellate authority has no competence to entertain the appeals filed beyond the time prescribed in Section 48(3) of the Act and has no power to condone the delay in filing the appeals after time prescribed in Section 48(3) expired. The writ petitions filed by the employees are allowed.
THE HONBLE SRI JUSTICE P.NAVEEN RAO
wp.no.20738 OF 2008 and batch
28-4-2017
A Sridhar S/o Mallaiah Aged 38 years, HIG II, Block-5 Flat No.12, Baghlingampally, Hyderabad and others Petitioner
The II Appellate Authority and Deputy Commissioner of Labour (Twin cities), Anjaiah Bhavan, Hyderabad and others . Responde
Counsel for the petitioner: Sri A.K.Jayaprakash Rao,
Sri V.Mallik and
Sri Meher Chand Noori
Counsel for the Respondents : Government Pleader for Labour (TG) Government Pleader for Cooperation
<Gist :
>Head Note:
?Cases referred:
1993 (2) ALT 661
1997 (1) ALD 623 (DB)
(2016) 1 SCC 444
AIR 1995 SC 2272
2015 (7) SCC 58
2015 (4) ALD 572
(1974) 2 SCC 133
HONOURABLE SRI JUSTICE P. NAVEEN RAO
WRIT PETITION NOs.20738 OF 2008; 9875, 9876, 9877,
9878, 9879, 9880, 9881, 9882, 9883, 9884, 9885, 9886,
9887, 9888, 9889, 9890, 9891, 9892, 9893, 9894, 9895,
9896, 9898, 9899, 10016, 10017, 10019, 10020, 10023,
10024, 10027, 10028, 10041, 10042, 10043, 10065, 10066,
10067, 10068, 10069 OF 2010; 4350 OF 2012; 27312,
27315, 30422, 30423, 30426, 30430, 30432, 32328 OF 2014:
Date :28.04.2017
WP NO.20738 OF 2008:
The Court made the following:
HONOURABLE SRI JUSTICE P. NAVEEN RAO
WRIT PETITION NOs.20738 OF 2008; 9875, 9876, 9877,
9878, 9879, 9880, 9881, 9882, 9883, 9884, 9885, 9886,
9887, 9888, 9889, 9890, 9891, 9892, 9893, 9894, 9895,
9896, 9898, 9899, 10016, 10017, 10019, 10020, 10023,
10024, 10027, 10028, 10041, 10042, 10043, 10065, 10066,
10067, 10068, 10069 OF 2010; 4350 OF 2012; 27312,
27315, 30422, 30423, 30426, 30430, 30432, 32328 OF 2014:
COMMON ORDER:
Issue for consideration in these writ petitions is, whether the
second appellate authority under the Andhra Pradesh Shops and
Establishments Act, 1988 (for short, Act) is vested with power to
condone delay in filing second appeals, entertain the second
appeals filed after 30 days from the date of receipt of copies of the
orders of first appellate authority by the bank and consider those
second appeals on merits? As the core issue is common, all writ
petitions are disposed of by this common order.
2. For convenience, the employees are referred to as petitioners
and the Vasavi Co-operative Bank is referred to as respondent
Bank.
3. This litigation has checkered history. The employees of the
Vasavi Cooperative Bank are the victims of mismanagement of the
affairs of their employer, the Vasavi Cooperative Bank (the Bank)
by the persons in the helm of affairs of the Bank. Their services
were terminated on the ground that the Bank sustained heavy
losses and cannot afford to have large workforce, reduced to
skeleton staff, later went into liquidation. They have mounted
challenge against their termination, bravely fighting against
machinations and arm twisting tactics of the persons responsible
to the affairs of the Bank.
4. The history of the litigation unfolds as under:
4.1. Vasavi Co-operative Bank was registered under the
provisions of Cooperative Societies Act with the objective of
undertaking Banking activities. Bank was flourishing. It had set
up 18 branches and had huge work force. Later, Bank incurred
losses. It appears, under the instructions of Reserve Bank of India,
Government of Andhra Pradesh and the Commissioner of
Cooperation and Registrar of Cooperative Societies have taken
policy decision to down size the strength of employees by invoking
Section 116-C of Andhra Pradesh Cooperative Societies Act (for
short, APCS Act) and further to close down various branches of
the Bank. In pursuance of the said decision, it appears, the Bank
has drastically reduced the strength of its employees. Some of the
employees were removed in April, 2003 and some of them in
August, 2004. Many of the employees reconciled to the fate,
accepted whatever was offered by the bank and kept quiet. Brave
once, approached the authority under Section 48 of the Act,
questioning their termination orders. In batch of first appeals, the
first Appellate Authority under the Act set aside the order of
termination (some first appeals are pending due to pendency of
writ petitions in this Court). Aggrieved by the said order, the Bank
filed W.P.No.15872 of 2006. In W.P.M.P.No.19791 of 2006, made
on 04.08.2006, interim suspension of the order of the said
authority was granted. However, after hearing both sides, this
Court was pleased to dismiss the writ petition on the ground that
the Bank has an efficacious alternative remedy under Section 48(3)
of the Act. After the dismissal of the writ petition, the Bank
submitted an application to the Government under Section 73 of
the Act seeking exemption from pre-depositing the amounts for
preferring appeals as required under Section 48(3) of the Act.
4.2. After prolonged correspondence and persuasion, Government
issued G.O.Ms.No.613, Labour, Employment, Training & Factories
(Lab.II) Department, dated 19.03.2008 according exemption to the
Bank from the proviso (1) of sub-section (3) of Section 48 of the
Act, 1988 to enable the Bank to file second appeal before the next
Second Appellate Authority i.e., the Deputy Commissioner of
Labour, Hyderabad without pre-depositing the amount determined
by the first appellate authority.
4.3. Consequent to exemption granted, the Bank took steps to file
appeals under Section 48(3) of the Act. Since the appeals were not
preferred within 30 days as prescribed in Section 48(3) of the Act,
the Bank also filed M.P.Nos.1 to 40 of 2008 under Section 5 of the
Limitation Act praying to condone the delay in filing the second
appeals. Second appellate authority by order dated 19.03.2008 in
M.P.Nos.1 to 40 of 2008 suspended the operation of the order
dated 29.06.2006/30.06.2006 on the file of the Assistant
Commissioner of Labour, Hyderabad in Case Nos.SE/5/2004 to
SE/39/2004, SE/41 & 42/2004 and SE/14 to 16/2005 and
entertained the appeals. However, it is appropriate to note that no
order was passed condoning the delay. This decision of the second
appellate authority is challenged in W.P.No.20738 of 2008.
4.4. Challenging the statutory provision vesting power in the
Government to grant exemption from pre-deposit condition to file
second appeal under Section 48(3) of the Act and G.O.Ms.No.613
dated 19.03.2008, some of the employees filed W.P.No.14438 of
2008. This Court granted interim suspension, made absolute by
order dated 15.09.2008.
4.4. Aggrieved by the said order, the Bank filed S.L.P.No.25932 of
2008 before the Honble Supreme Court of India. Honble Supreme
Court by order dated 10.11.2008 passed the following order:
No coercive steps shall be taken against the 2nd
respondent (the Bank) in the mean time.
4.5. While so, the Joint Commissioner of Labour, Twin Cities,
Hyderabad, passed final orders in the second appeals on
20.04.2010. The order reads as follows:
Reinstatement with 50% of back wages should not be
granted in an automatic manner, without understanding
the circumstances of the case on hand. The Honble
Supreme Court settled the position of law that relief by way
of reinstatement with back wages is not an automatic and
may be wholly in appropriate in a given fact situation even
though the termination of the employee is in contravention
to the prescribed procedure, compensation instead of
reinstatement has been held to meet the ends of justice.
In view of the facts and circumstances of this case
and the principles laid down by the Honble Apex Court, I
am of the opinion that payment of 50% of the last drawn
salary of the respondent per each completed year of service
of the respondent towards compensation and in full and
final settlement of the account of the respondent in addition
to the amount already paid to the respondent by the
appellate bank, in lieu of the relief of reinstatement,
continuity of service attendance benefits and 50% of back
wages etc. (as granted by the first appellate authority)
would meet the ends of justice. Therefore, the appellate
Bank is directed to pay the said compensation to the
respondent within 30 days from the date of receipt of this
order.
4.6. The SLP filed by the bank was disposed of by order dated
28.03.2011. The order reads as under:
It is stated by Mr. Prallav Shishodia, learned senior
counsel appearing for the 2nd respondent that the Deputy
Commissioner of Labour, Hyderabad, on 20.04.2010 decided
the second appeal NO.10/2008. The present SLP has
become infructuous as the challenge was only on the
validity of a Government order reducing the amount to be
deposited before filing of second appeal.
Now the second appeal is decided on 20.04.2010 and
another writ petition No.9881 of 2010 was filed, wherein the
High Court on 28.04.2010 in WP No.9881 of 2010 stayed the
proceedings of second appeal and the same is pending before
the High Court. Hence, the Special Leave Petition is
disposed of having become infructuous.
4.7. Aggrieved by the orders dated 20.04.2010 passed by the
Second Appellate Authority in batch of Second Appeals to the
extent of directing the Bank to pay 50% of the last drawn salary
per each completed year of service rendered by respective
employees, the Bank filed W.P.Nos.9875 to 9896, 9898, 9899,
10016, 10017, 10019, 10020, 10023, 10024, 10027, 10028,
10041 to 10043, 10065 to 10069 of 2010. This Court stayed the
order of the Second Appellate Authority.
4.8. W.P.Nos.4350 of 2012; 27312, 27315, 30422, 30423, 30426,
30430, 30432 and 32328 of 2014 are filed by the employees
challenging the order dated 20.04.2010 in respective Second
Appeals.
4.9. It is also relevant to note that Contempt Case No.694 of 2010
was filed alleging non-implementation of the orders dated
18.07.2008 in W.P.M.P.No.18650 of 2008 in WP No.14438 of 2008.
The Contempt Case was closed by order dated 16.06.2011.
4.10. Sri Ambu Naik and 12 others (retrenched employees of 2004
batch) filed W.P.No.15186 of 2010 aggrieved by rejection of their
claim for last drawn wages. The said writ petition was disposed of
by order dated 07.02.2012 directing to pay the last drawn wages
within a period of 60 days from the date of receipt of a copy of the
order. The Bank filed Review W.P.M.P.No.8314 of 2012 seeking
review of the order made in W.P.No.15186 of 2010 and the same
was dismissed on 17.12.2014. It appears bank has deposited
? 10,00,000.00 on 28.08.2013 and by order dated 24.10.2013 the
court permitted to withdraw the amount. Aggrieved thereby Bank
filed W.A.No.189 of 2015. The W.A. was disposed of by order dated
19.03.2015 directing the bank to deposit ? 10,00,000.00 in the
criminal court and employees were permitted to withdraw
? 4,00,000.00 and employees have withdrawn the same.
WRIT PETITION NOs.20738 of 2008; 4350 of 2012; 27312,
27315, 30422, 30423, 30426, 30430, 30432 and 32328 of
2014 :
5. In these writ petitions, common issue for consideration is
whether the decision of second appellate authority to entertain
second appeals filed after limitation prescribed and to pass
interlocutory and final orders is valid ?
6.1. Learned counsel for petitioners Sri V.Mallik contended that
under Section 48(3) of the Act, 1988, second appeals are not
maintainable against the decision of the first appellate authority if
they are not filed within 30 days from the date of communication
of the order of first appellate authority. As such appeals were not
preferred within 30 days, the appeals were not maintainable.
There is no power to condone the delay and, therefore, second
appellate authority is not competent to entertain application to
condone the delay and to condone the delay. He would therefore
submit that the order of second appellate authority condoning the
delay is ex facie illegal, without jurisdiction and competence and
on that ground alone the orders of second appellate authority are
liable to be set aside.
6.2. He submitted that the Act is welfare legislation intending to
grant statutory safeguards against illegal actions of the employers.
Act intends to give expeditious redress of grievances of employees
against employer and finality to the decisions of authorities
exercising quasi-judicial powers under the Act. Section 48(2) of the
Act, 1988 read with Rules made there under envisage summary
trial and expeditious disposal, preferably within a period of three
months. Once order was passed by the first appellate authority, it
attains finality subject of course to preferring second appeal to the
second appellate authority within a period of 30 days only.
Section 48(3) and the Rules made under the Act do not envisage
power to condone delay in filing second appeal and the objective is
clearly discernible from the provisions of the Act. Therefore, the
contrary to the intendment of the statute, delay is condoned and
appeals are entertained.
6.3. It is further contended that order of the second appellate
authority entertaining the appeals is also liable to be set aside on
the sole ground that the same was passed without affording due
opportunity to the employees, who succeeded before the first
appellate authority.
6.4. He would further submit that Full Bench of this Court in
The Nalgonda Co-operative Marketing Society Limited, rep. by
its Secretary, Sri S.Narahari vs. Labour Court, Hyderabad,
rep.by its Presiding Officer, Hyderabad and others , dealing with
identical provisions in the A.P. Shops and Establishments Act,
1966 and Rules, 1968, held that Limitation Act has no application
to the second appeal under the Act and second appellate authority
has no power to condone the delay. The present Act made in
supersession of the said Act and the Rules under the new Act
contain analogues provisions.
7.1. In response, learned counsel Sri Rajeswar Rao, Sri A.K.Jaya
Prakash Rao and Sri Mehar Chand Nori stoutly defend the
decisions of the second appellate authority in condoning the delay.
According to the learned counsel, power to condone the delay is
inherent in any adjudicating authority, subject to satisfaction of
the reasons for such delay and, therefore, no error was committed
by the second appellate authority in condoning the delay.
7.2. It is further contended that second appeals were finally
disposed of on 20.04.2010 and, therefore, the W.P.No.20738 of
2008 is not maintainable challenging the interlocutory decision
when once final orders are already passed.
7.3. It is further contended that in matters of condoning delay,
adjudicating authority should adopt liberal approach and,
therefore, decision of the second appellate authority in condoning
the delay, entertaining the second appeals and finally disposing,
having regard to the facts of the case, cannot be faulted. Bank
could not prefer appeals as it did not have funds to comply with
mandate of Section 48(3) of the Act. Bank filed W.P.No.15872 of
2006. Though initially stay was granted, by order dated
20.12.2006 Writ Petition was disposed of to avail remedy of second
appeal. At that stage Official Liquidator had to request Government
to grant exemption and after great persuasion government granted
exemption. Then only second appeals could be filed. In those
peculiar circumstances only there was delay in filling second
appeals. The delay was neither intentional nor deliberate. They
would submit that implementation of the orders of the first
appellate authority would have serious financial implications and
bank cannot afford to bear them.
7.4. It is submitted that due procedure was followed before
terminating the services of the employees. The bank suffered huge
losses and as the business of the bank affected, Bank had to close
its branches and also to terminate the services of the employees as
it was causing huge financial liability on the bank. The bank went
into liquidation and there are no funds available with the Bank.
On the contrary, Bank has huge debts to be paid. Having regard to
these peculiar facts, which were placed before the second appellate
authority, second appellate authority has condoned the delay.
7.5. In support of their contentions, learned counsel placed
reliance on the following decisions:
i) Mahendra Kumar Goyal v. Ex.Officio, Joint Secretary
and Additional Commissioner (C.S.) Hyderabad and another ;
ii) Baleshwar Dayal Jaiswal v. Bak of India and others
8. Before dealing with the respective submissions, it is
appropriate to note the following facts. Learned counsel appearing
for respective parties submitted that the Bank filed M.P.Nos.1 to 40
of 2008 in individual appeals praying to condone the delay in filing
appeals. They have not filed applications to stay the order of first
appellate authority. Strangely, the second appellate authority did
not pass any orders to condone delay, but granted stay of first
appellate authority order as if stay application was filed. He then
proceeded to here second appeals as if delay was condoned.
8.1. To appreciate the respective contentions, brief but formidable
on their respective points of view, it is necessary to look into the
relevant provisions of the Act and the Rules made there under and
analyze the scope of the provisions.
8.2. Section 47 of the Act vests power in the employer to take
action against his employee including placing him under
suspension and to terminate his services. The employee, who is
aggrieved by such termination, is provided legal remedy in the form
of appeal to the designated authority under Section 48 of the Act,
1988. As per Section 48(1), the Chief Inspector has to notify
authority to act as the first appellate authority to decide appeals
arising out of termination of service of employee under Section 47
of the Act.
8.3. To the extent relevant Section 48 reads as under:
Section 48 - Appointment of authority to hear and
decide appeals arising out of termination of services
(1) (a) The Chief Inspector may, by notification, appoint
for any area as may be specified therein, any authority to
hear and decide appeals arising out of the termination of
service of employee under Section 47;
Provided that the Chief Inspector may on administrative
grounds transfer any appeal arising in the territorial
jurisdiction of any authority to the file of another
authority for disposal, and such authority to whom the
appeal is transferred by the Chief Inspector shall dispose
of the appeal so transferred.
(b) Any employee whose services have been terminated
may appeal to the authority concerned within such time
and in such manner as may be prescribed.
(2) The appellate authority may, after inquiry in the
prescribed manner, dismiss the appeal or direct the
reinstatement of the employee with or without wages for
the period he was kept out of employment or direct
payment of compensation without reinstatement or grant
such other relief as it deems fit in the circumstances of
the case;
Provided that the authority concerned shall,
without delay, hear such appeal and pass such
orders within a period of three months from the date
of receipt of such appeal;
Provided further that where any such authority
considers it necessary or expedient so to do, it may, for
reasons to be recorded in writing extend such period by
such further period as it may think fit;
Provided also that no proceedings before such
authority shall lapse merely on the grounds that any
period specified in this subsection had expired without
such proceedings being completed.
(3) Against any decision of the authority under sub-
section (2), a second appeal shall lie to such authority
as may be notified by the Government within thirty
days from the date of communication of the decision
and the decision of such authority on such appeal shall
be final and binding on both the employer and the
employee and shall be given effect to within such time as
may be specified in the order of that Authority:
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:
Provided further that if the second appeal is
against the order of reinstatement given by the appellate
authority under sub-section (2), the employee shall be
entitled to wages last drawn by him during the pendency
of the proceedings before the appellate authority.
(emphasis supplied)
8.4. Section 71 of the Act vests power in the Government to make
Rules. In exercise of said power, Government formulated the Rules,
called A.P.Shops and Establishments Rules 1990 (Rules),
notified vide G.O.Ms.No.169, Women Development, Child Welfare
and Labour (Labour.II) Department, dated 28.10.1991. Rule 20
prescribes the procedure for terminating the services of the
employee by the employer. Rule 21 deals with appeals.
8.5. Rule 21 reads as under:
Rule 21. Appeals: (1) An appeal under sub-section (1) of
Section 48 shall be preferred to the Appellate Authority by
the employee within 60 days from the date of service of the
order terminating his services with the employer, such
service shall be deemed to be effective, if carried out either
personally if that is not practicable, by prepaid registered
post to his last known address, when the date of such
service shall be deemed to be the date when the letter would
arrive in ordinary course of post:
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.
xxxx
(3) The second Appellate Authority shall follow the same
procedure as enumerated in sub-rule (2) above. He shall
also maintain a Register of Second Appeals in Form XV.
8.6. As can be noted from the extracted provisions, Section 48
deals with two distinct legal proceedings. Section 48(1) & (2) deal
with first appeal against termination by the employer; Section
48(3) deals with second appeal against the decision of the first
appellate authority under section 48(1)(b). In Section 48(1)(b), no
time limit is prescribed, but left it to the discretion of the
Government to prescribe the time limit. Accordingly, Rule 21(1)
prescribes 60 days for preferring an appeal. Proviso appended to
Rule 21(1) vests discretion in the first appellate authority to
condone the delay even if first appeal is filed beyond 60 days. In
contrast, Section 48(3) prescribes limitation of 30 days to prefer
second appeal. It does not concede discretion to the rule making
authority to prescribe any additional time or to vest power in the
second appellate authority to condone delay. Section 48(3) does not
envisage entertainment of appeal, if appeal was not preferred
within 30 days. Further conditions imposed in this sub-section
are, if employer seeks to prefer second appeal, he has to deposit the
entire amount of back-wages ordered by the appellate authority;
and if the second appeal is preferred against the order of
reinstatement, the employee is entitled to wages last drawn by him
during the pendency of the second appeal. Unless first two
conditions are fulfilled, the second appeal is not maintainable and
even if second appeal is entertained on compliance of first two
conditions, second appeal is liable to be dismissed if the third
condition is not fulfilled. Having regard to the specific provision in
Section 48(3), Rule making Authority has not incorporated any
provision to condone delay in preferring second appeal.
8.7. Sub-rule (2) of Rule 21 prescribes procedure before the first
appellate authority. Sub-rule (3) envisages that whenever second
appeal is entertained, the second appellate authority should follow
the same procedure of adjudication as indicated in Sub-rule (2).
8.8. Thus, on plain reading of the relevant provisions of the Act
and the Rules, there is no ambiguity in the intendment of the
legislature. The second appellate authority is not conferred with
discretion to condone the delay if second appeal is not preferred
within 30 days and entertain the second appeal. It is also
appropriate to note that there is no extension of Limitation Act
expressly or impliedly to the matters under the Act. In other
words, if appeals are not preferred within 30 days of receipt of
copies of orders passed by first appellate authority, second appeals
are not maintainable. Second appellate authority is denuded of
power to entertain second appeals and consider them. It is not in
dispute that second appeals are not filed within 30 days as
required under Section 48(3) of the Act.
8.9. It is also appropriate to note at this stage that Act is a self
contained code dealing with all aspects of employment in Shops
and Establishments, to which the Act applies. The Rules give effect
to the object of the enactment. Significant change that is brought
out by the Act, 1988 as against the previous enactment is in the
authority, who can deal with second appeals. Act, 1966 vested
jurisdiction in the Labour Court to adjudicate second appeal
arising out of the decision of the first appellate authority under the
Act, whereas the power of adjudication of second appeal is removed
from the Labour Court and power to designate the second appellate
authority is vested in the Government. The Deputy Commissioner
of Labour/Joint Commissioner of Labour is designated as second
appellate authority.
9.1. In the Nalgonda Co-operative Marketing Society Limited,
same issue has fallen for consideration before the Full Bench. The
Full Bench was required to answer the reference by the Division
Bench. The reference reads as under:
It is evident from the foregoing that the decisions
of the Supreme Court, nor of this Court are uniform on
this very important question. We are of the opinion that
it is necessary that the controversy relating to the
application of Section 5 of the Limitation Act read with
Section 29(2) of the Limitation Act to proceedings before a
Labour Court constituted under Section 7 of the
Industrial Disputes Act has to be decided by a Full Bench
of this court. One other question which incidentally
arises is as to whether Section 29(2) of the Limitation
Act read with Article 137 makes Section 5 applicable only
to Civil and Criminal Courts on which jurisdiction is
conferred by the virtue of the provisions of special or
local Act.
9.2. Facts on record noted by the Full Bench would disclose that
employer preferred appeal after 30 days limitation prescribed.
Employer filed I.A., to condone the delay of 7 days in filing the
second appeal. The Presiding Officer of the Labour Court dismissed
the application holding that there is no provision to condone the
delay. On a challenge, the said decision was affirmed by the
learned single Judge in Writ Petition No.4087 of 1986. Aggrieved
thereby, writ appeal was preferred, which was referred to larger
bench.
9.3. The Full Bench considered the relevant provisions of the Act,
1966. Section 41 of the Act, 1966 is analogues to Section 48 of the
Act, 1988. The only difference is, according to sub-section (3)
therein, the second appeal would lie to the Labour Court, whereas,
as per the new Act, second appeal would lie before the Deputy
Commissioner/Joint Commissioner. It appears, under the old Act,
there was no mandate to pre-deposit the amount to prefer second
appeal. Rule 21 of 1966 Rules is also analogous to Rule 21 of
1990 Rules.
9.4. On elaborate consideration of the rival contentions and
precedent decisions on the issue of interpretation of relevant
provisions of the Act, the full bench has categorically held that
unless it is specifically provided, provisions of the Limitation Act
are not attracted to the second appeal under the A.P.Shops and
Establishments Act, 1966 and second appellate authority has no
power to condone the delay in filing second appeal and entertain
the appeal. The full bench held that the Labour Court is not the
court to extend the provisions of the Limitation Act.
9.5. As the issue considered by the Full Bench is directly on the
point, it is necessary and expedient to extract few of the
observations and findings of the Full Bench as under:
5. From the provisions referred to above, it is manifest
that a first appeal is provided against an order of
termination, to an authority appointed by the State
Government for that purpose. The period of limitation
and the manner in which it has to be filed are left to the
rule-making authority to prescribe. The State
Government, which is the rule-making authority,
prescribed in Rule 21 limitation of sixty days for
preferring the first appeal and conferred power on the
appellate authority to admit an appeal after the
expiration of the period of sixty days, where the appellant
satisfied the authority that he had sufficient cause for
not preferring the appeal within the prescribed period.
But, so far as the second appeal is concerned, the
Legislature itself has designated the appellate authority,
viz., the Labour Court constituted under Section 7 of the
Industrial Disputes Act, 1947 and also prescribed the
period of limitation of thirty days for the second appeal. It
is pertinent to note that the Legislature has not conferred
power on the second appellate authority to condone the
delay in preferring an appeal after the expiration of the
period of limitation. In view of the aforesaid provisions,
the Labour Court as well as the learned single Judge had
taken the view that a second appeal preferred beyond the
period of limitation of thirty days could not be
entertained.
xxxx
16. It is manifest from the dicta in the aforesaid
decisions that a Labour Court is not a court within
the meaning of the Indian Limitation Act. Another
principle which has been clearly enunciated is that
the Limitation Act is applicable only to the
applications made to a court either under the Civil
Procedure Code or any other Act. In view of those
decisions, it is not at all necessary to consider any
further whether the Labour Court is a court within the
meaning of the Indian Limitation Act or not.
24. The Limitation Act cannot be extended by analogy
or reference to proceedings to which they do not
expressly apply or could be said to apply by necessary
implication, as pointed out by the Supreme Court in
A.S.K. Krishnappa v. S.V.V. Somiah, [AIR 1964 SC
227]:xxx
27. The Andhra Pradesh Shops and Establishments Act,
1966 is a labour welfare legislation containing all the
relevant provisions relating to the conditions of service
including disciplinary proceedings against the employees
working in the shops and establishments. The
Legislature itself has left it to the State Government to
prescribe the period of limitation and the manner of
disposal of the first appeal. In the exercise of rule-making
power, the State Government made Rule 21 of the Andhra
Pradesh Shops and Establishments Rules prescribing the
period of sixty days as limitation for preferring a first
appeal and specifically conferred the power on the first
appellate authority to admit an appeal presented after
the expiration of the period of limitation if it was satisfied
that there was sufficient cause for condoning the delay.
The disposal of the first appeal is summary in nature.
The Labour Court constituted under Section 7 of the
Industrial Disputes Act is designated as the second
appellate authority by the Legislature itself. Under
Section 41(3) of the Act, the Legislature itself has
prescribed the period of limitation of thirty days for filing
the second appeal but has not considered it necessary to
confer the power on the second appellate authority to
admit an appeal preferred after the expiration of the
period of thirty days. So far as the termination of services
of the employees working in the shops and
establishments is concerned, the provisions of the Act
and the Rules made thereunder prescribe as to what acts
and omissions constitute misconduct. The procedure to
be followed in taking disciplinary action is also
prescribed thereunder. Against an order of termination,
right of first appeal and second appeal is provided.
Finality is attached to an order passed by the second
appellate authority and it shall be given effect within
such time as may be specified in the order of the
authority. Any amount directed to be paid to a party can
be recovered as if it were a fine by a Magistrate. It may
be that keeping in view the beneficial nature of the
legislation and the need to obviate indefinite
prolongation of proceedings, the Legislature did not
intend to confer the power on the second appellate
authority to admit an appeal which was presented
after the prescribed period of limitation had expired.
If the intention of the State Legislature is to achieve
finality of the proceedings expeditiously without
giving scope to the parties to protract the litigation,
such intention cannot be defeated by extending the
application of the provisions of the Limitation Act to
the proceedings under the Act. In labour welfare
legislation, it is not uncommon for the Legislature, to
prescribe certain limitations in the filing of appeals.
For example, under the provisions of the Workmen's
Compensation Act, even a first appeal preferred under
Section 30 of that Act to the High Court against an
order of the Commissioner of Workmen's
Compensation cannot be entertained unless a
substantial question of law is involved. Thus, it
appears to us that the Andhra Pradesh Shops and
Establishments Act constitutes a self-contained code
so far as the conditions of service of the employees
working in the shops and establishments including
the disciplinary proceedings if any initiated against
them and the right of appeal provided in respect of
such proceedings, are concerned. Therefore, having
regard to the scheme and the nature of remedies
provided under the Shops and Establishments Act
and the rules made thereunder, it has to be held that
the application of the provisions of Section 5 of the
Limitation Act to the filing of appeals under the Act
and the rules has by necessary implication been
excluded.
33. From the foregoing discussion, it is clear that a
Labour Court which has been designated as a second
appellate authority under the A.P. Shops and
Establishments Act, is not a Civil Court. The appeal
preferred to it is under a special Act and not under
the provisions of the Civil Procedure Code. Therefore,
the provisions of the Limitation Act are not
applicable to an application filed for condonation of
delay in filing the appeal.
42. In view of the foregoing discussions, we hold as
follows:
(1) The provisions of Section 5 read with Section 29(2)
of the Limitation Act, 1963 are not applicable to an
appeal or an application filed before the Labour
Court constituted under Section 7 of the Industrial
Disputes Act, 1947 and designated as the second
appellate authority under Section 41(3) of the A.P.
Shops and Establishments Act, 1966.
(2) The provisions of Section 29(2) of the Limitation
Act, 1963 read with Article 137 in the Schedule to
the Act, make Section 5 of the Act applicable to an
appeal or application filed under any special or local
law in a Civil or Criminal Court in so far as and to
the extent to which Section 5 is not expressly
excluded and they have no application to an appeal
or application filed under any special or local law
before a Tribunal which is not such a Court.
(emphasis supplied)
10. Except for the numerical change in the relevant provision, the
provision is same and the principle laid down by the Full Bench
applies in all fours to the facts of this case. In fact, the provision in
Section 48 of new Act is more stringent. Unlike the provision in
Section 41 of the old Act, this Section mandates the employer to
deposit the amount quantified by the first appellate authority
before seeking to file second appeal and further mandates payment
of last pay drawn pending appeal if direction was issued by the
first appellate authority to reinstate the employee.
11. Suffice to note from the above judgment of the Full Bench
that the Full Bench declined to extend the provisions of the
Limitation Act to Labour Court. By no stretch of imagination,
interpreting the analogous provisions, the Limitation Act can be
extended to an authority who is an executive authority of the State
vested with power to adjudicate second appeal arising out of the
Act, 1988.
12. Though, the issue is settled by the said decision of the Full
Bench, learned counsel representing the respondent Bank
vehemently contended that the provisions of the Limitation Act are
applicable to second appeal under the Act on the ground that it is
not expressly excluded and, therefore, by necessary implications
provisions of the Limitation Act are attracted, by placing heavy
reliance on the decision of Division Bench of this court in
Mahendra Kumar Goyal. They emphasized that decision is
rendered by the Division Bench in Mahendra Kumar Goyal after
considering the decision of Full Bench and has taken a different
view following the law laid down by Supreme Court in subsequent
decisions and the decision of Division Bench being later in point of
time, same is binding on the learned single Judge.
13. In Mahendra Kumar Goyal, issue for consideration was
when an appeal filed under the Essential Commodities Act, 1955,
can be entertained by condoning the delay in filing appeal.
Interpreting the relevant provisions of the Act and following the
principle laid down by the Supreme Court in Mukri Gopalan v
C.P.Aboobacker , Division Bench held that the provisions of the
Limitation Act are applicable to the appeals under the Essential
Commodities Act and power to condone the delay is available to the
appellate authority.
14.1. In M.P.Steel Corporation v. Commissioner of Central
Excise , on review of precedent decisions, Supreme Court held
that Mukri Gopalan case is no longer good law.
14.2. Supreme Court held as under:
22. A series of decisions of this Court have clearly held
that the Limitation Act applies only to courts and does not
apply to quasi-judicial bodies. Thus, in Town Municipal
Council, Athani v. Presiding Officer [(1969) 1 SCC 873 :
(1970) 1 SCR 51] , a question arose as to what
applications are covered under Article 137 of the Schedule
to the Limitation Act. It was argued that an application
made under the Industrial Disputes Act to a Labour Court
was covered by the said article. This Court negatived the
said plea . .
xxxx
28. Two other judgments of this Court need to be dealt
with at this stage. In Mukri Gopalan v. Cheppilat
Puthanpurayil Aboobacker [(1995) 5 SCC 5] , a two-Judge
Bench of this Court held that the Limitation Act would
apply to the appellate authority constituted under Section
13 of the Kerala Buildings (Lease and Rent Control) Act,
1965. This was done by applying the provision of Section
29(2) of the Limitation Act. Despite referring to various
earlier judgments of this Court which held that the
Limitation Act applies only to courts and not to tribunals,
this Court in this case held to the contrary. In
distinguishing the Parson Tools case [(1975) 4 SCC 22 :
1975 SCC (Tax) 185 : (1975) 3 SCR 743] , which is a
three-Judge Bench binding on the Court that decided
Mukri Gopalan case [(1995) 5 SCC 5] , the Court held:
(Mukri Gopalan case [(1995) 5 SCC 5] , SCC p. 23, para 18)
18. If the Limitation Act does not apply then
neither Section 29(2) nor Section 14(2) of the
Limitation Act would apply to proceedings before
him. But so far as this Court is concerned it did
not go into the question whether Section 29(2)
would not get attracted because the U.P. Sales Tax
Act Judge (Revisions) was not a court but it took
the view that because of the express provision in
Section 10(3-B) applicability of Section 14(2) of the
Sales Tax Act was ruled out. Implicit in this
reasoning is the assumption that but for such an
express conflict or contrary intention emanating
from Section 10(3-B) of the U.P. Sales Tax Act
which was a special law, Section 29(2) would have
brought in Section 14(2) of the Limitation Act even
for governing period of limitation for such revision
applications. In any case, the scope of Section
29(2) was not considered by the aforesaid decision
of the three learned Judges and consequently it
cannot be held to be an authority for the
proposition that in revisional proceedings before
the Sales Tax Authorities functioning under the
U.P. Sales Tax Act Section 29(2) cannot apply as
Mr Nariman would like to have it.
It then went on to follow the judgment in CST v. Madan Lal
Das & Sons [(1976) 4 SCC 464 : 1977 SCC (Tax) 27] ,
which, as has been pointed out earlier, is not an authority
for the proposition that the Limitation Act would apply to
tribunals. In fact, Mukri Gopalan case [(1995) 5 SCC 5]
was distinguished in Om Prakash v. Ashwani Kumar
Bassi [(2010) 9 SCC 183.
29. Quite apart from Mukri Gopalan case [(1995) 5 SCC
5] being out of step with at least five earlier binding
judgments of this Court, it does not square also with
the subsequent judgment in Consolidated Engg.
Enterprises v. Irrigation Deptt. [(2008) 7 SCC 169].
32. Obviously, the ratio of Mukri Gopalan [(1995) 5
SCC 5] does not square with the observations of the
three-Judge Bench in Consolidated Engg. Enterprises
[(2008) 7 SCC 169]. In the latter case, this Court has
unequivocally held that Parson Tools [(1975) 4 SCC 22
: 1975 SCC (Tax) 185 : (1975) 3 SCR 743] is an
authority for the proposition that the Limitation Act
will not apply to quasi-judicial bodies or tribunals. To
the extent that Mukri Gopalan [(1995) 5 SCC 5] is in
conflict with the judgment in Consolidated Engg.
Enterprises case [(2008) 7 SCC 169] , it is no longer
good law.
33. The sheet anchor in Mukri Gopalan [(1995) 5 SCC 5]
was Section 29(2) of the Limitation Act. .
A bare reading of this section would show that the
special or local law described therein should prescribe for
any suit, appeal or application a period of limitation
different from the period prescribed by the Schedule. This
would necessarily mean that such special or local law
would have to lay down that the suit, appeal or application
to be instituted under it should be a suit, appeal or
application of the nature described in the Schedule. We
have already held that such suits, appeals or applications
as are referred to in the Schedule are only to courts and
not to quasi-judicial bodies or tribunals. It is clear,
therefore, that only when a suit, appeal or application
of the description in the Schedule is to be filed in a
court under a special or local law that the provision
gets attracted. This is made even clearer by a reading
of Section 29(3). xxxx
(emphasis supplied)
15. In view of the law laid down by the Supreme Court in
M.P.Steel Corporation, the decision of the Division Bench in
Mahendra Kumar Goyal does not come to the aid of the counsels
appearing for Bank.
16.1. Similar issue has come up for consideration in D.Uma Rani
v. District Collector, Karimnagar and others . In the said case
scope of application of the Limitation Act to authorities exercising
jurisdiction to adjudicate matters under Andhra Pradesh Assigned
Lands (Prohibition of Transfers) Act, 1977 was considered. In the
batch of writ petitions, the decision of the Revisional Authority
rejecting the revision petition filed under Section 4B of the Act,
1977 on the ground that the revisions were filed beyond the period
of 90 days prescribed in the Act was challenged as erroneous. It
was contended that the provisions of Limitation Act are attracted to
the proceedings under the Act, 1977 and, therefore, the revisional
authority erred in dismissing the revision and not condoning the
revision. This Court considered the several pronouncements of
Supreme Court starting from Hukumdev Narain Yadav v. Lalit
Narian Mishra and culled out principles for extension of
provisions of the Limitation Act to adjudicating authorities under
special statutes.
16.2. This Court held as under:
23. In GOPAL SARDAR v. KARUNA SARDAR, (2004) 4
SCC 252, the issue for consideration was whether
Limitation Act applies to matters arising out of the
West Bengal Land Reforms Act, 1955. Supreme Court
held:
"14. The decision of that case turned upon the
facts of that case in criminal appeals by
comparison of the provision of the old
Limitation Act to the provision of the new
Limitation Act. Further, the decision in
Hukumdev Narain Yadav (cited supra) was not
brought to the notice of this Court when
Mangu Ram case (cited supra) was decided. In
the light of the three-Judge Bench decision of
this Court in Hukumdev Narain Yadav we do
not find any good reason to take a different
view."
24. In FAIRGROWTH INVESTMENTS LIMITED v.
CUSTODIAN, (2004) 11 SCC 472, the question for
consideration was whether the Special Court
constituted under the Special Court (Trial of Offences
Relating to Transactions in Securities) Act, 1992 has
power to condone the delay in filing a petition under
Section 4(2) of the Act. On review of precedents on the
subject, Supreme Court held:
"12. If the power to condone delay were
implicit in every statutory provision providing
for a period of limitation in respect of
proceedings before courts, Section 29(2) of the
Limitation Act, 1963 would be rendered
redundant. (emphasis supplied)
19. But in this case apart from the mandatory
and compulsive provisions of sub-section (2) of
Section 4 of the Act, there are in addition two
provisions of the Act which show that the
provisions of Section 5 of the Limitation Act,
1963 cannot be invoked. These are: an express
provision for condonation of delay under
Section 10(3) and the non obstante provision
in Section 13 of the Act. (emphasis supplied).
25. In COMMISSIONER OF CUSTOMS AND CENTRAL
EXCISE, Supreme Court held:
"35. In our considered view, that even in a case where
the special law does not exclude the provisions of
Sections 4 to 24 of the Limitation Act by an express
reference, it would nonetheless be open to the court to
examine whether and to what extent, the nature of
those provisions or the nature of the subject-matter
and scheme of the special law exclude their operation.
36. It is well-settled law that it is the duty of the court
to respect the legislative intent and by giving liberal
interpretation, limitation cannot be extended by
invoking the provisions of Section 5 of the Limitation
Act."
26. In VEERAPPA, Division Bench of this Court
considered similar provisions obtaining in A.P. (Andhra
Area) Inams (Abolition and Conversion into Ryotwari)
Act, 1956 wherein District Collector, Chittor filed
appeal on 24.5.1994 under Section 7 (2) of the Act
assailing the orders granting Ryotwari Pattas on
6.1.1985 and 7.3.1986. By order dated 7.6.1994 appeal
was entertained and stay was granted. On a challenge
in W.P. No. 11598 of 1994, writ was disposed of by
order dated 14.12.2000 directing the Revenue
Divisional Officer to dispose of appeal after affording
reasonable opportunity. The same was challenged in
writ appeal. The Division Bench held:
"8. The Revenue Divisional Officer is a creature of
statute and whatever power he exercises under the
statute should be strictly within the parameters of
power granted to him. Since the statute does not confer
any power on him to condone the delay, the Revenue
Divisional Officer condoning delay of 2555 days would
not arise... Secondly, it is quite startling to notice that
the Revenue Divisional Officer straight away, without
notice to the writ petitioner and completely ignoring
natural justice and fair-play in action, ex parte
condoned the enormous delay of 2555 days."
27. In G.NARASIMHA RAO, Full bench of this Court
considered whether Andhra Pradesh Administrative
Tribunal has power to condone the delay in filing
review. Administrative Tribunals Act, 1985 and rules
made there under have not made provision condone the
delay. Full Bench held:
"13. In the absence of any provisions
prescribed for condoning the delay either in
the Act or in the Rules, the Tribunal will not
have jurisdiction to condone the delay in
taking aid and assistance of Section 5 of the
Limitation Act on the premise that
Limitation Act is made applicable in view of
Sub-section (2) of Section 29 of the
Limitation Act."
32. The principles deducible from precedents are: (1)
that Special Act/Local Act should provide a period of
limitation different from period of limitation prescribed
in Limitation Act; (2) Special Act/Local Act has not
expressly excluded application of Limitation Act; (3)
Such exclusion can be by necessary implication, such
as incorporating power to condone delay in some
Sections and not providing in other Sections of the
Special Act; (4) Even if Special Act is silent on
exclusion of application of Limitation Act, it is not
automatic that Limitation Act would apply to Special
Act; the Court ought to examine the nature of the
subject and scheme of special law to ascertain whether
legislature intend to exclude the operation of Limitation
Act; (5) Power to condone delay cannot be implicit; (6) If
the statute does not confer power to condone delay,
statutory authority cannot condone the delay; (7) If
Special Act incorporates non-obstante clause no other
law including Limitation Act would apply; and (8) If the
Act is a self-contained code, provisions of Limitation
Act cannot be imported, more particularly when
express provision of adoption is not made.
17. The principles culled out in D.Uma Rani would equally
apply to the cases on hand.
18. I am of the considered opinion that the law laid down by the
Full Bench is binding on single judge, more particularly as the Full
Bench interpreted the analogous provisions of the earlier Act,
which is superseded by the present Act.
19. The case on hand is worse than the issue considered by the
Full Bench in The Nalgonda Cooperative Marketing Society
Limited. In the instant case, as informed by all learned counsel,
no orders were passed on the condone delay applications filed by
the respondent-Bank. While the respondent-Bank filed
applications for condonation of delay in filing second appeals
under Section 5 of Limitation Act, no prayer was sought in the said
applications for granting interim stay of the order of the first
appellate authority, but second appellate authority proceeds to stay
the order of first appellate order and there is no whisper in the
entire order on condoning the delay in filing the appeals. Further,
prior to entertaining the IAs and passing orders, albeit defective, no
notice was caused on the respondents before the second appellate
authority. These two aspects are sufficient to nullify the entire
exercise undertaken by the second appellate authority.
20. Thus, in view of the law laid down by the Full Bench of this
Court directly on the point and also in view of the judgment of the
Supreme Court in M.P.Steel Corporation, I am of the considered
opinion that a second appeal is not maintainable unless the same
is filed within 30 days from the date of receipt of copies of orders of
first appellate authority. If no second appeal is filed within 30 days,
the second appellate authority is denuded of power to entertain the
second appeals and becomes functus officio. Thus, even assuming
second appellate authority has considered the delay in filing
second appeals, as second appeals are not maintainable if they are
not filed within 30 days, it would have no power and jurisdiction to
decide the second appeals. Therefore, the second appellate
authority erred in entertaining the second appeals filed by the
respondent Bank after 30 days and disposing them on merits. The
decisions made by second appellate authority are perverse. Thus,
the orders of the second appellate authority made in M.P.Nos.1 to
40 of 2008 and final orders in S.A.Nos.10, 12, 28, 29, 30, 32, 33,
35, 40 of 2008, impugned herein are liable to be set aside. They are
accordingly set aside. The writ petitions are allowed with costs of ?
2,000.00 to be paid to each of the petitioners.
WRIT PETITION NOs.9875, 9876, 9877, 9878, 9879, 9880,
9881, 9882, 9883, 9884, 9885, 9886, 9887, 9888, 9889,
9890, 9891, 9892, 9893, 9894, 9895, 9896, 9898, 9899,
10016, 10017, 10019, 10020, 10023, 10024, 10027, 10028,
10041, 10042, 10043, 10065, 10066, 10067, 10068 and
10069 of 2010 :
21. Bank filed batch of appeals before the second appellate
authority challenging the orders passed by the first appellate
authority on the first appeals filed by the employees of the Bank
challenging their termination. Bank filed appeals seeking
condonation of delay and having entertained the appeals filed after
30 days from the date of receipt of copies of the orders, set aside the
order of the first appellate authority and modified the same. The
second appellate authority directed payment of 50% of the last
drawn salary of the respondent employees for each completed year
of service towards compensation as full and final settlement of the
account in addition to the amount already paid to the respondent
employees in lieu of relief of reinstatement, continuity of services,
attendant benefits and 50% of the back wages. Bank challenges
this portion of the order passed by the second appellate authority
in these writ petitions.
22. On elaborate consideration of scope of jurisdiction of second
appellate authority in entertaining appeals filed beyond 30 days
from the date of receipt of copies of the orders of first appellate
authority by the second appellant, this Court held in the earlier
paragraphs that the second appellate authority has no competence
to entertain the appeals filed beyond the time prescribed in Section
48(3) of the Act and has no power to condone the delay in filing the
appeals after time prescribed in Section 48(3) expired. The writ
petitions filed by the employees are allowed.
23. In view of the finding recorded above and since the very act of
entertaining second appeals and passing orders thereon held as
without jurisdiction and competence, no relief as sought for by the
petitioner-Bank can be granted in these writ petitions. Writ
petitions are accordingly dismissed.
CONCLUSION:
24.1. Accordingly, Writ Petition Nos.20738 of 2008; 4350 of
2012; 27312, 27315, 30422, 30423, 30426, 30430, 30432 and
32328 of 2014 are allowed with costs;
24.2. Writ Petition Nos.9875, 9876, 9877, 9878, 9879, 9880,
9881, 9882, 9883, 9884, 9885, 9886, 9887, 9888, 9889, 9890,
9891, 9892, 9893, 9894, 9895, 9896, 9898, 9899, 10016, 10017,
10019, 10020, 10023, 10024, 10027, 10028, 10041, 10042,
10043, 10065, 10066, 10067, 10068 and 10069 of 2010 are
dismissed without costs.
Miscellaneous petitions if any pending in these writ petitions
shall stand closed.
__________________________
JUSTICE P.NAVEEN RAO
Date: 28.04.2017
wp.no.20738 OF 2008 and batch
28-4-2017
A Sridhar S/o Mallaiah Aged 38 years, HIG II, Block-5 Flat No.12, Baghlingampally, Hyderabad and others Petitioner
The II Appellate Authority and Deputy Commissioner of Labour (Twin cities), Anjaiah Bhavan, Hyderabad and others . Responde
Counsel for the petitioner: Sri A.K.Jayaprakash Rao,
Sri V.Mallik and
Sri Meher Chand Noori
Counsel for the Respondents : Government Pleader for Labour (TG) Government Pleader for Cooperation
<Gist :
>Head Note:
?Cases referred:
1993 (2) ALT 661
1997 (1) ALD 623 (DB)
(2016) 1 SCC 444
AIR 1995 SC 2272
2015 (7) SCC 58
2015 (4) ALD 572
(1974) 2 SCC 133
HONOURABLE SRI JUSTICE P. NAVEEN RAO
WRIT PETITION NOs.20738 OF 2008; 9875, 9876, 9877,
9878, 9879, 9880, 9881, 9882, 9883, 9884, 9885, 9886,
9887, 9888, 9889, 9890, 9891, 9892, 9893, 9894, 9895,
9896, 9898, 9899, 10016, 10017, 10019, 10020, 10023,
10024, 10027, 10028, 10041, 10042, 10043, 10065, 10066,
10067, 10068, 10069 OF 2010; 4350 OF 2012; 27312,
27315, 30422, 30423, 30426, 30430, 30432, 32328 OF 2014:
Date :28.04.2017
WP NO.20738 OF 2008:
The Court made the following:
HONOURABLE SRI JUSTICE P. NAVEEN RAO
WRIT PETITION NOs.20738 OF 2008; 9875, 9876, 9877,
9878, 9879, 9880, 9881, 9882, 9883, 9884, 9885, 9886,
9887, 9888, 9889, 9890, 9891, 9892, 9893, 9894, 9895,
9896, 9898, 9899, 10016, 10017, 10019, 10020, 10023,
10024, 10027, 10028, 10041, 10042, 10043, 10065, 10066,
10067, 10068, 10069 OF 2010; 4350 OF 2012; 27312,
27315, 30422, 30423, 30426, 30430, 30432, 32328 OF 2014:
COMMON ORDER:
Issue for consideration in these writ petitions is, whether the
second appellate authority under the Andhra Pradesh Shops and
Establishments Act, 1988 (for short, Act) is vested with power to
condone delay in filing second appeals, entertain the second
appeals filed after 30 days from the date of receipt of copies of the
orders of first appellate authority by the bank and consider those
second appeals on merits? As the core issue is common, all writ
petitions are disposed of by this common order.
2. For convenience, the employees are referred to as petitioners
and the Vasavi Co-operative Bank is referred to as respondent
Bank.
3. This litigation has checkered history. The employees of the
Vasavi Cooperative Bank are the victims of mismanagement of the
affairs of their employer, the Vasavi Cooperative Bank (the Bank)
by the persons in the helm of affairs of the Bank. Their services
were terminated on the ground that the Bank sustained heavy
losses and cannot afford to have large workforce, reduced to
skeleton staff, later went into liquidation. They have mounted
challenge against their termination, bravely fighting against
machinations and arm twisting tactics of the persons responsible
to the affairs of the Bank.
4. The history of the litigation unfolds as under:
4.1. Vasavi Co-operative Bank was registered under the
provisions of Cooperative Societies Act with the objective of
undertaking Banking activities. Bank was flourishing. It had set
up 18 branches and had huge work force. Later, Bank incurred
losses. It appears, under the instructions of Reserve Bank of India,
Government of Andhra Pradesh and the Commissioner of
Cooperation and Registrar of Cooperative Societies have taken
policy decision to down size the strength of employees by invoking
Section 116-C of Andhra Pradesh Cooperative Societies Act (for
short, APCS Act) and further to close down various branches of
the Bank. In pursuance of the said decision, it appears, the Bank
has drastically reduced the strength of its employees. Some of the
employees were removed in April, 2003 and some of them in
August, 2004. Many of the employees reconciled to the fate,
accepted whatever was offered by the bank and kept quiet. Brave
once, approached the authority under Section 48 of the Act,
questioning their termination orders. In batch of first appeals, the
first Appellate Authority under the Act set aside the order of
termination (some first appeals are pending due to pendency of
writ petitions in this Court). Aggrieved by the said order, the Bank
filed W.P.No.15872 of 2006. In W.P.M.P.No.19791 of 2006, made
on 04.08.2006, interim suspension of the order of the said
authority was granted. However, after hearing both sides, this
Court was pleased to dismiss the writ petition on the ground that
the Bank has an efficacious alternative remedy under Section 48(3)
of the Act. After the dismissal of the writ petition, the Bank
submitted an application to the Government under Section 73 of
the Act seeking exemption from pre-depositing the amounts for
preferring appeals as required under Section 48(3) of the Act.
4.2. After prolonged correspondence and persuasion, Government
issued G.O.Ms.No.613, Labour, Employment, Training & Factories
(Lab.II) Department, dated 19.03.2008 according exemption to the
Bank from the proviso (1) of sub-section (3) of Section 48 of the
Act, 1988 to enable the Bank to file second appeal before the next
Second Appellate Authority i.e., the Deputy Commissioner of
Labour, Hyderabad without pre-depositing the amount determined
by the first appellate authority.
4.3. Consequent to exemption granted, the Bank took steps to file
appeals under Section 48(3) of the Act. Since the appeals were not
preferred within 30 days as prescribed in Section 48(3) of the Act,
the Bank also filed M.P.Nos.1 to 40 of 2008 under Section 5 of the
Limitation Act praying to condone the delay in filing the second
appeals. Second appellate authority by order dated 19.03.2008 in
M.P.Nos.1 to 40 of 2008 suspended the operation of the order
dated 29.06.2006/30.06.2006 on the file of the Assistant
Commissioner of Labour, Hyderabad in Case Nos.SE/5/2004 to
SE/39/2004, SE/41 & 42/2004 and SE/14 to 16/2005 and
entertained the appeals. However, it is appropriate to note that no
order was passed condoning the delay. This decision of the second
appellate authority is challenged in W.P.No.20738 of 2008.
4.4. Challenging the statutory provision vesting power in the
Government to grant exemption from pre-deposit condition to file
second appeal under Section 48(3) of the Act and G.O.Ms.No.613
dated 19.03.2008, some of the employees filed W.P.No.14438 of
2008. This Court granted interim suspension, made absolute by
order dated 15.09.2008.
4.4. Aggrieved by the said order, the Bank filed S.L.P.No.25932 of
2008 before the Honble Supreme Court of India. Honble Supreme
Court by order dated 10.11.2008 passed the following order:
No coercive steps shall be taken against the 2nd
respondent (the Bank) in the mean time.
4.5. While so, the Joint Commissioner of Labour, Twin Cities,
Hyderabad, passed final orders in the second appeals on
20.04.2010. The order reads as follows:
Reinstatement with 50% of back wages should not be
granted in an automatic manner, without understanding
the circumstances of the case on hand. The Honble
Supreme Court settled the position of law that relief by way
of reinstatement with back wages is not an automatic and
may be wholly in appropriate in a given fact situation even
though the termination of the employee is in contravention
to the prescribed procedure, compensation instead of
reinstatement has been held to meet the ends of justice.
In view of the facts and circumstances of this case
and the principles laid down by the Honble Apex Court, I
am of the opinion that payment of 50% of the last drawn
salary of the respondent per each completed year of service
of the respondent towards compensation and in full and
final settlement of the account of the respondent in addition
to the amount already paid to the respondent by the
appellate bank, in lieu of the relief of reinstatement,
continuity of service attendance benefits and 50% of back
wages etc. (as granted by the first appellate authority)
would meet the ends of justice. Therefore, the appellate
Bank is directed to pay the said compensation to the
respondent within 30 days from the date of receipt of this
order.
4.6. The SLP filed by the bank was disposed of by order dated
28.03.2011. The order reads as under:
It is stated by Mr. Prallav Shishodia, learned senior
counsel appearing for the 2nd respondent that the Deputy
Commissioner of Labour, Hyderabad, on 20.04.2010 decided
the second appeal NO.10/2008. The present SLP has
become infructuous as the challenge was only on the
validity of a Government order reducing the amount to be
deposited before filing of second appeal.
Now the second appeal is decided on 20.04.2010 and
another writ petition No.9881 of 2010 was filed, wherein the
High Court on 28.04.2010 in WP No.9881 of 2010 stayed the
proceedings of second appeal and the same is pending before
the High Court. Hence, the Special Leave Petition is
disposed of having become infructuous.
4.7. Aggrieved by the orders dated 20.04.2010 passed by the
Second Appellate Authority in batch of Second Appeals to the
extent of directing the Bank to pay 50% of the last drawn salary
per each completed year of service rendered by respective
employees, the Bank filed W.P.Nos.9875 to 9896, 9898, 9899,
10016, 10017, 10019, 10020, 10023, 10024, 10027, 10028,
10041 to 10043, 10065 to 10069 of 2010. This Court stayed the
order of the Second Appellate Authority.
4.8. W.P.Nos.4350 of 2012; 27312, 27315, 30422, 30423, 30426,
30430, 30432 and 32328 of 2014 are filed by the employees
challenging the order dated 20.04.2010 in respective Second
Appeals.
4.9. It is also relevant to note that Contempt Case No.694 of 2010
was filed alleging non-implementation of the orders dated
18.07.2008 in W.P.M.P.No.18650 of 2008 in WP No.14438 of 2008.
The Contempt Case was closed by order dated 16.06.2011.
4.10. Sri Ambu Naik and 12 others (retrenched employees of 2004
batch) filed W.P.No.15186 of 2010 aggrieved by rejection of their
claim for last drawn wages. The said writ petition was disposed of
by order dated 07.02.2012 directing to pay the last drawn wages
within a period of 60 days from the date of receipt of a copy of the
order. The Bank filed Review W.P.M.P.No.8314 of 2012 seeking
review of the order made in W.P.No.15186 of 2010 and the same
was dismissed on 17.12.2014. It appears bank has deposited
? 10,00,000.00 on 28.08.2013 and by order dated 24.10.2013 the
court permitted to withdraw the amount. Aggrieved thereby Bank
filed W.A.No.189 of 2015. The W.A. was disposed of by order dated
19.03.2015 directing the bank to deposit ? 10,00,000.00 in the
criminal court and employees were permitted to withdraw
? 4,00,000.00 and employees have withdrawn the same.
WRIT PETITION NOs.20738 of 2008; 4350 of 2012; 27312,
27315, 30422, 30423, 30426, 30430, 30432 and 32328 of
2014 :
5. In these writ petitions, common issue for consideration is
whether the decision of second appellate authority to entertain
second appeals filed after limitation prescribed and to pass
interlocutory and final orders is valid ?
6.1. Learned counsel for petitioners Sri V.Mallik contended that
under Section 48(3) of the Act, 1988, second appeals are not
maintainable against the decision of the first appellate authority if
they are not filed within 30 days from the date of communication
of the order of first appellate authority. As such appeals were not
preferred within 30 days, the appeals were not maintainable.
There is no power to condone the delay and, therefore, second
appellate authority is not competent to entertain application to
condone the delay and to condone the delay. He would therefore
submit that the order of second appellate authority condoning the
delay is ex facie illegal, without jurisdiction and competence and
on that ground alone the orders of second appellate authority are
liable to be set aside.
6.2. He submitted that the Act is welfare legislation intending to
grant statutory safeguards against illegal actions of the employers.
Act intends to give expeditious redress of grievances of employees
against employer and finality to the decisions of authorities
exercising quasi-judicial powers under the Act. Section 48(2) of the
Act, 1988 read with Rules made there under envisage summary
trial and expeditious disposal, preferably within a period of three
months. Once order was passed by the first appellate authority, it
attains finality subject of course to preferring second appeal to the
second appellate authority within a period of 30 days only.
Section 48(3) and the Rules made under the Act do not envisage
power to condone delay in filing second appeal and the objective is
clearly discernible from the provisions of the Act. Therefore, the
contrary to the intendment of the statute, delay is condoned and
appeals are entertained.
6.3. It is further contended that order of the second appellate
authority entertaining the appeals is also liable to be set aside on
the sole ground that the same was passed without affording due
opportunity to the employees, who succeeded before the first
appellate authority.
6.4. He would further submit that Full Bench of this Court in
The Nalgonda Co-operative Marketing Society Limited, rep. by
its Secretary, Sri S.Narahari vs. Labour Court, Hyderabad,
rep.by its Presiding Officer, Hyderabad and others , dealing with
identical provisions in the A.P. Shops and Establishments Act,
1966 and Rules, 1968, held that Limitation Act has no application
to the second appeal under the Act and second appellate authority
has no power to condone the delay. The present Act made in
supersession of the said Act and the Rules under the new Act
contain analogues provisions.
7.1. In response, learned counsel Sri Rajeswar Rao, Sri A.K.Jaya
Prakash Rao and Sri Mehar Chand Nori stoutly defend the
decisions of the second appellate authority in condoning the delay.
According to the learned counsel, power to condone the delay is
inherent in any adjudicating authority, subject to satisfaction of
the reasons for such delay and, therefore, no error was committed
by the second appellate authority in condoning the delay.
7.2. It is further contended that second appeals were finally
disposed of on 20.04.2010 and, therefore, the W.P.No.20738 of
2008 is not maintainable challenging the interlocutory decision
when once final orders are already passed.
7.3. It is further contended that in matters of condoning delay,
adjudicating authority should adopt liberal approach and,
therefore, decision of the second appellate authority in condoning
the delay, entertaining the second appeals and finally disposing,
having regard to the facts of the case, cannot be faulted. Bank
could not prefer appeals as it did not have funds to comply with
mandate of Section 48(3) of the Act. Bank filed W.P.No.15872 of
2006. Though initially stay was granted, by order dated
20.12.2006 Writ Petition was disposed of to avail remedy of second
appeal. At that stage Official Liquidator had to request Government
to grant exemption and after great persuasion government granted
exemption. Then only second appeals could be filed. In those
peculiar circumstances only there was delay in filling second
appeals. The delay was neither intentional nor deliberate. They
would submit that implementation of the orders of the first
appellate authority would have serious financial implications and
bank cannot afford to bear them.
7.4. It is submitted that due procedure was followed before
terminating the services of the employees. The bank suffered huge
losses and as the business of the bank affected, Bank had to close
its branches and also to terminate the services of the employees as
it was causing huge financial liability on the bank. The bank went
into liquidation and there are no funds available with the Bank.
On the contrary, Bank has huge debts to be paid. Having regard to
these peculiar facts, which were placed before the second appellate
authority, second appellate authority has condoned the delay.
7.5. In support of their contentions, learned counsel placed
reliance on the following decisions:
i) Mahendra Kumar Goyal v. Ex.Officio, Joint Secretary
and Additional Commissioner (C.S.) Hyderabad and another ;
ii) Baleshwar Dayal Jaiswal v. Bak of India and others
8. Before dealing with the respective submissions, it is
appropriate to note the following facts. Learned counsel appearing
for respective parties submitted that the Bank filed M.P.Nos.1 to 40
of 2008 in individual appeals praying to condone the delay in filing
appeals. They have not filed applications to stay the order of first
appellate authority. Strangely, the second appellate authority did
not pass any orders to condone delay, but granted stay of first
appellate authority order as if stay application was filed. He then
proceeded to here second appeals as if delay was condoned.
8.1. To appreciate the respective contentions, brief but formidable
on their respective points of view, it is necessary to look into the
relevant provisions of the Act and the Rules made there under and
analyze the scope of the provisions.
8.2. Section 47 of the Act vests power in the employer to take
action against his employee including placing him under
suspension and to terminate his services. The employee, who is
aggrieved by such termination, is provided legal remedy in the form
of appeal to the designated authority under Section 48 of the Act,
1988. As per Section 48(1), the Chief Inspector has to notify
authority to act as the first appellate authority to decide appeals
arising out of termination of service of employee under Section 47
of the Act.
8.3. To the extent relevant Section 48 reads as under:
Section 48 - Appointment of authority to hear and
decide appeals arising out of termination of services
(1) (a) The Chief Inspector may, by notification, appoint
for any area as may be specified therein, any authority to
hear and decide appeals arising out of the termination of
service of employee under Section 47;
Provided that the Chief Inspector may on administrative
grounds transfer any appeal arising in the territorial
jurisdiction of any authority to the file of another
authority for disposal, and such authority to whom the
appeal is transferred by the Chief Inspector shall dispose
of the appeal so transferred.
(b) Any employee whose services have been terminated
may appeal to the authority concerned within such time
and in such manner as may be prescribed.
(2) The appellate authority may, after inquiry in the
prescribed manner, dismiss the appeal or direct the
reinstatement of the employee with or without wages for
the period he was kept out of employment or direct
payment of compensation without reinstatement or grant
such other relief as it deems fit in the circumstances of
the case;
Provided that the authority concerned shall,
without delay, hear such appeal and pass such
orders within a period of three months from the date
of receipt of such appeal;
Provided further that where any such authority
considers it necessary or expedient so to do, it may, for
reasons to be recorded in writing extend such period by
such further period as it may think fit;
Provided also that no proceedings before such
authority shall lapse merely on the grounds that any
period specified in this subsection had expired without
such proceedings being completed.
(3) Against any decision of the authority under sub-
section (2), a second appeal shall lie to such authority
as may be notified by the Government within thirty
days from the date of communication of the decision
and the decision of such authority on such appeal shall
be final and binding on both the employer and the
employee and shall be given effect to within such time as
may be specified in the order of that Authority:
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:
Provided further that if the second appeal is
against the order of reinstatement given by the appellate
authority under sub-section (2), the employee shall be
entitled to wages last drawn by him during the pendency
of the proceedings before the appellate authority.
(emphasis supplied)
8.4. Section 71 of the Act vests power in the Government to make
Rules. In exercise of said power, Government formulated the Rules,
called A.P.Shops and Establishments Rules 1990 (Rules),
notified vide G.O.Ms.No.169, Women Development, Child Welfare
and Labour (Labour.II) Department, dated 28.10.1991. Rule 20
prescribes the procedure for terminating the services of the
employee by the employer. Rule 21 deals with appeals.
8.5. Rule 21 reads as under:
Rule 21. Appeals: (1) An appeal under sub-section (1) of
Section 48 shall be preferred to the Appellate Authority by
the employee within 60 days from the date of service of the
order terminating his services with the employer, such
service shall be deemed to be effective, if carried out either
personally if that is not practicable, by prepaid registered
post to his last known address, when the date of such
service shall be deemed to be the date when the letter would
arrive in ordinary course of post:
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.
xxxx
(3) The second Appellate Authority shall follow the same
procedure as enumerated in sub-rule (2) above. He shall
also maintain a Register of Second Appeals in Form XV.
8.6. As can be noted from the extracted provisions, Section 48
deals with two distinct legal proceedings. Section 48(1) & (2) deal
with first appeal against termination by the employer; Section
48(3) deals with second appeal against the decision of the first
appellate authority under section 48(1)(b). In Section 48(1)(b), no
time limit is prescribed, but left it to the discretion of the
Government to prescribe the time limit. Accordingly, Rule 21(1)
prescribes 60 days for preferring an appeal. Proviso appended to
Rule 21(1) vests discretion in the first appellate authority to
condone the delay even if first appeal is filed beyond 60 days. In
contrast, Section 48(3) prescribes limitation of 30 days to prefer
second appeal. It does not concede discretion to the rule making
authority to prescribe any additional time or to vest power in the
second appellate authority to condone delay. Section 48(3) does not
envisage entertainment of appeal, if appeal was not preferred
within 30 days. Further conditions imposed in this sub-section
are, if employer seeks to prefer second appeal, he has to deposit the
entire amount of back-wages ordered by the appellate authority;
and if the second appeal is preferred against the order of
reinstatement, the employee is entitled to wages last drawn by him
during the pendency of the second appeal. Unless first two
conditions are fulfilled, the second appeal is not maintainable and
even if second appeal is entertained on compliance of first two
conditions, second appeal is liable to be dismissed if the third
condition is not fulfilled. Having regard to the specific provision in
Section 48(3), Rule making Authority has not incorporated any
provision to condone delay in preferring second appeal.
8.7. Sub-rule (2) of Rule 21 prescribes procedure before the first
appellate authority. Sub-rule (3) envisages that whenever second
appeal is entertained, the second appellate authority should follow
the same procedure of adjudication as indicated in Sub-rule (2).
8.8. Thus, on plain reading of the relevant provisions of the Act
and the Rules, there is no ambiguity in the intendment of the
legislature. The second appellate authority is not conferred with
discretion to condone the delay if second appeal is not preferred
within 30 days and entertain the second appeal. It is also
appropriate to note that there is no extension of Limitation Act
expressly or impliedly to the matters under the Act. In other
words, if appeals are not preferred within 30 days of receipt of
copies of orders passed by first appellate authority, second appeals
are not maintainable. Second appellate authority is denuded of
power to entertain second appeals and consider them. It is not in
dispute that second appeals are not filed within 30 days as
required under Section 48(3) of the Act.
8.9. It is also appropriate to note at this stage that Act is a self
contained code dealing with all aspects of employment in Shops
and Establishments, to which the Act applies. The Rules give effect
to the object of the enactment. Significant change that is brought
out by the Act, 1988 as against the previous enactment is in the
authority, who can deal with second appeals. Act, 1966 vested
jurisdiction in the Labour Court to adjudicate second appeal
arising out of the decision of the first appellate authority under the
Act, whereas the power of adjudication of second appeal is removed
from the Labour Court and power to designate the second appellate
authority is vested in the Government. The Deputy Commissioner
of Labour/Joint Commissioner of Labour is designated as second
appellate authority.
9.1. In the Nalgonda Co-operative Marketing Society Limited,
same issue has fallen for consideration before the Full Bench. The
Full Bench was required to answer the reference by the Division
Bench. The reference reads as under:
It is evident from the foregoing that the decisions
of the Supreme Court, nor of this Court are uniform on
this very important question. We are of the opinion that
it is necessary that the controversy relating to the
application of Section 5 of the Limitation Act read with
Section 29(2) of the Limitation Act to proceedings before a
Labour Court constituted under Section 7 of the
Industrial Disputes Act has to be decided by a Full Bench
of this court. One other question which incidentally
arises is as to whether Section 29(2) of the Limitation
Act read with Article 137 makes Section 5 applicable only
to Civil and Criminal Courts on which jurisdiction is
conferred by the virtue of the provisions of special or
local Act.
9.2. Facts on record noted by the Full Bench would disclose that
employer preferred appeal after 30 days limitation prescribed.
Employer filed I.A., to condone the delay of 7 days in filing the
second appeal. The Presiding Officer of the Labour Court dismissed
the application holding that there is no provision to condone the
delay. On a challenge, the said decision was affirmed by the
learned single Judge in Writ Petition No.4087 of 1986. Aggrieved
thereby, writ appeal was preferred, which was referred to larger
bench.
9.3. The Full Bench considered the relevant provisions of the Act,
1966. Section 41 of the Act, 1966 is analogues to Section 48 of the
Act, 1988. The only difference is, according to sub-section (3)
therein, the second appeal would lie to the Labour Court, whereas,
as per the new Act, second appeal would lie before the Deputy
Commissioner/Joint Commissioner. It appears, under the old Act,
there was no mandate to pre-deposit the amount to prefer second
appeal. Rule 21 of 1966 Rules is also analogous to Rule 21 of
1990 Rules.
9.4. On elaborate consideration of the rival contentions and
precedent decisions on the issue of interpretation of relevant
provisions of the Act, the full bench has categorically held that
unless it is specifically provided, provisions of the Limitation Act
are not attracted to the second appeal under the A.P.Shops and
Establishments Act, 1966 and second appellate authority has no
power to condone the delay in filing second appeal and entertain
the appeal. The full bench held that the Labour Court is not the
court to extend the provisions of the Limitation Act.
9.5. As the issue considered by the Full Bench is directly on the
point, it is necessary and expedient to extract few of the
observations and findings of the Full Bench as under:
5. From the provisions referred to above, it is manifest
that a first appeal is provided against an order of
termination, to an authority appointed by the State
Government for that purpose. The period of limitation
and the manner in which it has to be filed are left to the
rule-making authority to prescribe. The State
Government, which is the rule-making authority,
prescribed in Rule 21 limitation of sixty days for
preferring the first appeal and conferred power on the
appellate authority to admit an appeal after the
expiration of the period of sixty days, where the appellant
satisfied the authority that he had sufficient cause for
not preferring the appeal within the prescribed period.
But, so far as the second appeal is concerned, the
Legislature itself has designated the appellate authority,
viz., the Labour Court constituted under Section 7 of the
Industrial Disputes Act, 1947 and also prescribed the
period of limitation of thirty days for the second appeal. It
is pertinent to note that the Legislature has not conferred
power on the second appellate authority to condone the
delay in preferring an appeal after the expiration of the
period of limitation. In view of the aforesaid provisions,
the Labour Court as well as the learned single Judge had
taken the view that a second appeal preferred beyond the
period of limitation of thirty days could not be
entertained.
xxxx
16. It is manifest from the dicta in the aforesaid
decisions that a Labour Court is not a court within
the meaning of the Indian Limitation Act. Another
principle which has been clearly enunciated is that
the Limitation Act is applicable only to the
applications made to a court either under the Civil
Procedure Code or any other Act. In view of those
decisions, it is not at all necessary to consider any
further whether the Labour Court is a court within the
meaning of the Indian Limitation Act or not.
24. The Limitation Act cannot be extended by analogy
or reference to proceedings to which they do not
expressly apply or could be said to apply by necessary
implication, as pointed out by the Supreme Court in
A.S.K. Krishnappa v. S.V.V. Somiah, [AIR 1964 SC
227]:xxx
27. The Andhra Pradesh Shops and Establishments Act,
1966 is a labour welfare legislation containing all the
relevant provisions relating to the conditions of service
including disciplinary proceedings against the employees
working in the shops and establishments. The
Legislature itself has left it to the State Government to
prescribe the period of limitation and the manner of
disposal of the first appeal. In the exercise of rule-making
power, the State Government made Rule 21 of the Andhra
Pradesh Shops and Establishments Rules prescribing the
period of sixty days as limitation for preferring a first
appeal and specifically conferred the power on the first
appellate authority to admit an appeal presented after
the expiration of the period of limitation if it was satisfied
that there was sufficient cause for condoning the delay.
The disposal of the first appeal is summary in nature.
The Labour Court constituted under Section 7 of the
Industrial Disputes Act is designated as the second
appellate authority by the Legislature itself. Under
Section 41(3) of the Act, the Legislature itself has
prescribed the period of limitation of thirty days for filing
the second appeal but has not considered it necessary to
confer the power on the second appellate authority to
admit an appeal preferred after the expiration of the
period of thirty days. So far as the termination of services
of the employees working in the shops and
establishments is concerned, the provisions of the Act
and the Rules made thereunder prescribe as to what acts
and omissions constitute misconduct. The procedure to
be followed in taking disciplinary action is also
prescribed thereunder. Against an order of termination,
right of first appeal and second appeal is provided.
Finality is attached to an order passed by the second
appellate authority and it shall be given effect within
such time as may be specified in the order of the
authority. Any amount directed to be paid to a party can
be recovered as if it were a fine by a Magistrate. It may
be that keeping in view the beneficial nature of the
legislation and the need to obviate indefinite
prolongation of proceedings, the Legislature did not
intend to confer the power on the second appellate
authority to admit an appeal which was presented
after the prescribed period of limitation had expired.
If the intention of the State Legislature is to achieve
finality of the proceedings expeditiously without
giving scope to the parties to protract the litigation,
such intention cannot be defeated by extending the
application of the provisions of the Limitation Act to
the proceedings under the Act. In labour welfare
legislation, it is not uncommon for the Legislature, to
prescribe certain limitations in the filing of appeals.
For example, under the provisions of the Workmen's
Compensation Act, even a first appeal preferred under
Section 30 of that Act to the High Court against an
order of the Commissioner of Workmen's
Compensation cannot be entertained unless a
substantial question of law is involved. Thus, it
appears to us that the Andhra Pradesh Shops and
Establishments Act constitutes a self-contained code
so far as the conditions of service of the employees
working in the shops and establishments including
the disciplinary proceedings if any initiated against
them and the right of appeal provided in respect of
such proceedings, are concerned. Therefore, having
regard to the scheme and the nature of remedies
provided under the Shops and Establishments Act
and the rules made thereunder, it has to be held that
the application of the provisions of Section 5 of the
Limitation Act to the filing of appeals under the Act
and the rules has by necessary implication been
excluded.
33. From the foregoing discussion, it is clear that a
Labour Court which has been designated as a second
appellate authority under the A.P. Shops and
Establishments Act, is not a Civil Court. The appeal
preferred to it is under a special Act and not under
the provisions of the Civil Procedure Code. Therefore,
the provisions of the Limitation Act are not
applicable to an application filed for condonation of
delay in filing the appeal.
42. In view of the foregoing discussions, we hold as
follows:
(1) The provisions of Section 5 read with Section 29(2)
of the Limitation Act, 1963 are not applicable to an
appeal or an application filed before the Labour
Court constituted under Section 7 of the Industrial
Disputes Act, 1947 and designated as the second
appellate authority under Section 41(3) of the A.P.
Shops and Establishments Act, 1966.
(2) The provisions of Section 29(2) of the Limitation
Act, 1963 read with Article 137 in the Schedule to
the Act, make Section 5 of the Act applicable to an
appeal or application filed under any special or local
law in a Civil or Criminal Court in so far as and to
the extent to which Section 5 is not expressly
excluded and they have no application to an appeal
or application filed under any special or local law
before a Tribunal which is not such a Court.
(emphasis supplied)
10. Except for the numerical change in the relevant provision, the
provision is same and the principle laid down by the Full Bench
applies in all fours to the facts of this case. In fact, the provision in
Section 48 of new Act is more stringent. Unlike the provision in
Section 41 of the old Act, this Section mandates the employer to
deposit the amount quantified by the first appellate authority
before seeking to file second appeal and further mandates payment
of last pay drawn pending appeal if direction was issued by the
first appellate authority to reinstate the employee.
11. Suffice to note from the above judgment of the Full Bench
that the Full Bench declined to extend the provisions of the
Limitation Act to Labour Court. By no stretch of imagination,
interpreting the analogous provisions, the Limitation Act can be
extended to an authority who is an executive authority of the State
vested with power to adjudicate second appeal arising out of the
Act, 1988.
12. Though, the issue is settled by the said decision of the Full
Bench, learned counsel representing the respondent Bank
vehemently contended that the provisions of the Limitation Act are
applicable to second appeal under the Act on the ground that it is
not expressly excluded and, therefore, by necessary implications
provisions of the Limitation Act are attracted, by placing heavy
reliance on the decision of Division Bench of this court in
Mahendra Kumar Goyal. They emphasized that decision is
rendered by the Division Bench in Mahendra Kumar Goyal after
considering the decision of Full Bench and has taken a different
view following the law laid down by Supreme Court in subsequent
decisions and the decision of Division Bench being later in point of
time, same is binding on the learned single Judge.
13. In Mahendra Kumar Goyal, issue for consideration was
when an appeal filed under the Essential Commodities Act, 1955,
can be entertained by condoning the delay in filing appeal.
Interpreting the relevant provisions of the Act and following the
principle laid down by the Supreme Court in Mukri Gopalan v
C.P.Aboobacker , Division Bench held that the provisions of the
Limitation Act are applicable to the appeals under the Essential
Commodities Act and power to condone the delay is available to the
appellate authority.
14.1. In M.P.Steel Corporation v. Commissioner of Central
Excise , on review of precedent decisions, Supreme Court held
that Mukri Gopalan case is no longer good law.
14.2. Supreme Court held as under:
22. A series of decisions of this Court have clearly held
that the Limitation Act applies only to courts and does not
apply to quasi-judicial bodies. Thus, in Town Municipal
Council, Athani v. Presiding Officer [(1969) 1 SCC 873 :
(1970) 1 SCR 51] , a question arose as to what
applications are covered under Article 137 of the Schedule
to the Limitation Act. It was argued that an application
made under the Industrial Disputes Act to a Labour Court
was covered by the said article. This Court negatived the
said plea . .
xxxx
28. Two other judgments of this Court need to be dealt
with at this stage. In Mukri Gopalan v. Cheppilat
Puthanpurayil Aboobacker [(1995) 5 SCC 5] , a two-Judge
Bench of this Court held that the Limitation Act would
apply to the appellate authority constituted under Section
13 of the Kerala Buildings (Lease and Rent Control) Act,
1965. This was done by applying the provision of Section
29(2) of the Limitation Act. Despite referring to various
earlier judgments of this Court which held that the
Limitation Act applies only to courts and not to tribunals,
this Court in this case held to the contrary. In
distinguishing the Parson Tools case [(1975) 4 SCC 22 :
1975 SCC (Tax) 185 : (1975) 3 SCR 743] , which is a
three-Judge Bench binding on the Court that decided
Mukri Gopalan case [(1995) 5 SCC 5] , the Court held:
(Mukri Gopalan case [(1995) 5 SCC 5] , SCC p. 23, para 18)
18. If the Limitation Act does not apply then
neither Section 29(2) nor Section 14(2) of the
Limitation Act would apply to proceedings before
him. But so far as this Court is concerned it did
not go into the question whether Section 29(2)
would not get attracted because the U.P. Sales Tax
Act Judge (Revisions) was not a court but it took
the view that because of the express provision in
Section 10(3-B) applicability of Section 14(2) of the
Sales Tax Act was ruled out. Implicit in this
reasoning is the assumption that but for such an
express conflict or contrary intention emanating
from Section 10(3-B) of the U.P. Sales Tax Act
which was a special law, Section 29(2) would have
brought in Section 14(2) of the Limitation Act even
for governing period of limitation for such revision
applications. In any case, the scope of Section
29(2) was not considered by the aforesaid decision
of the three learned Judges and consequently it
cannot be held to be an authority for the
proposition that in revisional proceedings before
the Sales Tax Authorities functioning under the
U.P. Sales Tax Act Section 29(2) cannot apply as
Mr Nariman would like to have it.
It then went on to follow the judgment in CST v. Madan Lal
Das & Sons [(1976) 4 SCC 464 : 1977 SCC (Tax) 27] ,
which, as has been pointed out earlier, is not an authority
for the proposition that the Limitation Act would apply to
tribunals. In fact, Mukri Gopalan case [(1995) 5 SCC 5]
was distinguished in Om Prakash v. Ashwani Kumar
Bassi [(2010) 9 SCC 183.
29. Quite apart from Mukri Gopalan case [(1995) 5 SCC
5] being out of step with at least five earlier binding
judgments of this Court, it does not square also with
the subsequent judgment in Consolidated Engg.
Enterprises v. Irrigation Deptt. [(2008) 7 SCC 169].
32. Obviously, the ratio of Mukri Gopalan [(1995) 5
SCC 5] does not square with the observations of the
three-Judge Bench in Consolidated Engg. Enterprises
[(2008) 7 SCC 169]. In the latter case, this Court has
unequivocally held that Parson Tools [(1975) 4 SCC 22
: 1975 SCC (Tax) 185 : (1975) 3 SCR 743] is an
authority for the proposition that the Limitation Act
will not apply to quasi-judicial bodies or tribunals. To
the extent that Mukri Gopalan [(1995) 5 SCC 5] is in
conflict with the judgment in Consolidated Engg.
Enterprises case [(2008) 7 SCC 169] , it is no longer
good law.
33. The sheet anchor in Mukri Gopalan [(1995) 5 SCC 5]
was Section 29(2) of the Limitation Act. .
A bare reading of this section would show that the
special or local law described therein should prescribe for
any suit, appeal or application a period of limitation
different from the period prescribed by the Schedule. This
would necessarily mean that such special or local law
would have to lay down that the suit, appeal or application
to be instituted under it should be a suit, appeal or
application of the nature described in the Schedule. We
have already held that such suits, appeals or applications
as are referred to in the Schedule are only to courts and
not to quasi-judicial bodies or tribunals. It is clear,
therefore, that only when a suit, appeal or application
of the description in the Schedule is to be filed in a
court under a special or local law that the provision
gets attracted. This is made even clearer by a reading
of Section 29(3). xxxx
(emphasis supplied)
15. In view of the law laid down by the Supreme Court in
M.P.Steel Corporation, the decision of the Division Bench in
Mahendra Kumar Goyal does not come to the aid of the counsels
appearing for Bank.
16.1. Similar issue has come up for consideration in D.Uma Rani
v. District Collector, Karimnagar and others . In the said case
scope of application of the Limitation Act to authorities exercising
jurisdiction to adjudicate matters under Andhra Pradesh Assigned
Lands (Prohibition of Transfers) Act, 1977 was considered. In the
batch of writ petitions, the decision of the Revisional Authority
rejecting the revision petition filed under Section 4B of the Act,
1977 on the ground that the revisions were filed beyond the period
of 90 days prescribed in the Act was challenged as erroneous. It
was contended that the provisions of Limitation Act are attracted to
the proceedings under the Act, 1977 and, therefore, the revisional
authority erred in dismissing the revision and not condoning the
revision. This Court considered the several pronouncements of
Supreme Court starting from Hukumdev Narain Yadav v. Lalit
Narian Mishra and culled out principles for extension of
provisions of the Limitation Act to adjudicating authorities under
special statutes.
16.2. This Court held as under:
23. In GOPAL SARDAR v. KARUNA SARDAR, (2004) 4
SCC 252, the issue for consideration was whether
Limitation Act applies to matters arising out of the
West Bengal Land Reforms Act, 1955. Supreme Court
held:
"14. The decision of that case turned upon the
facts of that case in criminal appeals by
comparison of the provision of the old
Limitation Act to the provision of the new
Limitation Act. Further, the decision in
Hukumdev Narain Yadav (cited supra) was not
brought to the notice of this Court when
Mangu Ram case (cited supra) was decided. In
the light of the three-Judge Bench decision of
this Court in Hukumdev Narain Yadav we do
not find any good reason to take a different
view."
24. In FAIRGROWTH INVESTMENTS LIMITED v.
CUSTODIAN, (2004) 11 SCC 472, the question for
consideration was whether the Special Court
constituted under the Special Court (Trial of Offences
Relating to Transactions in Securities) Act, 1992 has
power to condone the delay in filing a petition under
Section 4(2) of the Act. On review of precedents on the
subject, Supreme Court held:
"12. If the power to condone delay were
implicit in every statutory provision providing
for a period of limitation in respect of
proceedings before courts, Section 29(2) of the
Limitation Act, 1963 would be rendered
redundant. (emphasis supplied)
19. But in this case apart from the mandatory
and compulsive provisions of sub-section (2) of
Section 4 of the Act, there are in addition two
provisions of the Act which show that the
provisions of Section 5 of the Limitation Act,
1963 cannot be invoked. These are: an express
provision for condonation of delay under
Section 10(3) and the non obstante provision
in Section 13 of the Act. (emphasis supplied).
25. In COMMISSIONER OF CUSTOMS AND CENTRAL
EXCISE, Supreme Court held:
"35. In our considered view, that even in a case where
the special law does not exclude the provisions of
Sections 4 to 24 of the Limitation Act by an express
reference, it would nonetheless be open to the court to
examine whether and to what extent, the nature of
those provisions or the nature of the subject-matter
and scheme of the special law exclude their operation.
36. It is well-settled law that it is the duty of the court
to respect the legislative intent and by giving liberal
interpretation, limitation cannot be extended by
invoking the provisions of Section 5 of the Limitation
Act."
26. In VEERAPPA, Division Bench of this Court
considered similar provisions obtaining in A.P. (Andhra
Area) Inams (Abolition and Conversion into Ryotwari)
Act, 1956 wherein District Collector, Chittor filed
appeal on 24.5.1994 under Section 7 (2) of the Act
assailing the orders granting Ryotwari Pattas on
6.1.1985 and 7.3.1986. By order dated 7.6.1994 appeal
was entertained and stay was granted. On a challenge
in W.P. No. 11598 of 1994, writ was disposed of by
order dated 14.12.2000 directing the Revenue
Divisional Officer to dispose of appeal after affording
reasonable opportunity. The same was challenged in
writ appeal. The Division Bench held:
"8. The Revenue Divisional Officer is a creature of
statute and whatever power he exercises under the
statute should be strictly within the parameters of
power granted to him. Since the statute does not confer
any power on him to condone the delay, the Revenue
Divisional Officer condoning delay of 2555 days would
not arise... Secondly, it is quite startling to notice that
the Revenue Divisional Officer straight away, without
notice to the writ petitioner and completely ignoring
natural justice and fair-play in action, ex parte
condoned the enormous delay of 2555 days."
27. In G.NARASIMHA RAO, Full bench of this Court
considered whether Andhra Pradesh Administrative
Tribunal has power to condone the delay in filing
review. Administrative Tribunals Act, 1985 and rules
made there under have not made provision condone the
delay. Full Bench held:
"13. In the absence of any provisions
prescribed for condoning the delay either in
the Act or in the Rules, the Tribunal will not
have jurisdiction to condone the delay in
taking aid and assistance of Section 5 of the
Limitation Act on the premise that
Limitation Act is made applicable in view of
Sub-section (2) of Section 29 of the
Limitation Act."
32. The principles deducible from precedents are: (1)
that Special Act/Local Act should provide a period of
limitation different from period of limitation prescribed
in Limitation Act; (2) Special Act/Local Act has not
expressly excluded application of Limitation Act; (3)
Such exclusion can be by necessary implication, such
as incorporating power to condone delay in some
Sections and not providing in other Sections of the
Special Act; (4) Even if Special Act is silent on
exclusion of application of Limitation Act, it is not
automatic that Limitation Act would apply to Special
Act; the Court ought to examine the nature of the
subject and scheme of special law to ascertain whether
legislature intend to exclude the operation of Limitation
Act; (5) Power to condone delay cannot be implicit; (6) If
the statute does not confer power to condone delay,
statutory authority cannot condone the delay; (7) If
Special Act incorporates non-obstante clause no other
law including Limitation Act would apply; and (8) If the
Act is a self-contained code, provisions of Limitation
Act cannot be imported, more particularly when
express provision of adoption is not made.
17. The principles culled out in D.Uma Rani would equally
apply to the cases on hand.
18. I am of the considered opinion that the law laid down by the
Full Bench is binding on single judge, more particularly as the Full
Bench interpreted the analogous provisions of the earlier Act,
which is superseded by the present Act.
19. The case on hand is worse than the issue considered by the
Full Bench in The Nalgonda Cooperative Marketing Society
Limited. In the instant case, as informed by all learned counsel,
no orders were passed on the condone delay applications filed by
the respondent-Bank. While the respondent-Bank filed
applications for condonation of delay in filing second appeals
under Section 5 of Limitation Act, no prayer was sought in the said
applications for granting interim stay of the order of the first
appellate authority, but second appellate authority proceeds to stay
the order of first appellate order and there is no whisper in the
entire order on condoning the delay in filing the appeals. Further,
prior to entertaining the IAs and passing orders, albeit defective, no
notice was caused on the respondents before the second appellate
authority. These two aspects are sufficient to nullify the entire
exercise undertaken by the second appellate authority.
20. Thus, in view of the law laid down by the Full Bench of this
Court directly on the point and also in view of the judgment of the
Supreme Court in M.P.Steel Corporation, I am of the considered
opinion that a second appeal is not maintainable unless the same
is filed within 30 days from the date of receipt of copies of orders of
first appellate authority. If no second appeal is filed within 30 days,
the second appellate authority is denuded of power to entertain the
second appeals and becomes functus officio. Thus, even assuming
second appellate authority has considered the delay in filing
second appeals, as second appeals are not maintainable if they are
not filed within 30 days, it would have no power and jurisdiction to
decide the second appeals. Therefore, the second appellate
authority erred in entertaining the second appeals filed by the
respondent Bank after 30 days and disposing them on merits. The
decisions made by second appellate authority are perverse. Thus,
the orders of the second appellate authority made in M.P.Nos.1 to
40 of 2008 and final orders in S.A.Nos.10, 12, 28, 29, 30, 32, 33,
35, 40 of 2008, impugned herein are liable to be set aside. They are
accordingly set aside. The writ petitions are allowed with costs of ?
2,000.00 to be paid to each of the petitioners.
WRIT PETITION NOs.9875, 9876, 9877, 9878, 9879, 9880,
9881, 9882, 9883, 9884, 9885, 9886, 9887, 9888, 9889,
9890, 9891, 9892, 9893, 9894, 9895, 9896, 9898, 9899,
10016, 10017, 10019, 10020, 10023, 10024, 10027, 10028,
10041, 10042, 10043, 10065, 10066, 10067, 10068 and
10069 of 2010 :
21. Bank filed batch of appeals before the second appellate
authority challenging the orders passed by the first appellate
authority on the first appeals filed by the employees of the Bank
challenging their termination. Bank filed appeals seeking
condonation of delay and having entertained the appeals filed after
30 days from the date of receipt of copies of the orders, set aside the
order of the first appellate authority and modified the same. The
second appellate authority directed payment of 50% of the last
drawn salary of the respondent employees for each completed year
of service towards compensation as full and final settlement of the
account in addition to the amount already paid to the respondent
employees in lieu of relief of reinstatement, continuity of services,
attendant benefits and 50% of the back wages. Bank challenges
this portion of the order passed by the second appellate authority
in these writ petitions.
22. On elaborate consideration of scope of jurisdiction of second
appellate authority in entertaining appeals filed beyond 30 days
from the date of receipt of copies of the orders of first appellate
authority by the second appellant, this Court held in the earlier
paragraphs that the second appellate authority has no competence
to entertain the appeals filed beyond the time prescribed in Section
48(3) of the Act and has no power to condone the delay in filing the
appeals after time prescribed in Section 48(3) expired. The writ
petitions filed by the employees are allowed.
23. In view of the finding recorded above and since the very act of
entertaining second appeals and passing orders thereon held as
without jurisdiction and competence, no relief as sought for by the
petitioner-Bank can be granted in these writ petitions. Writ
petitions are accordingly dismissed.
CONCLUSION:
24.1. Accordingly, Writ Petition Nos.20738 of 2008; 4350 of
2012; 27312, 27315, 30422, 30423, 30426, 30430, 30432 and
32328 of 2014 are allowed with costs;
24.2. Writ Petition Nos.9875, 9876, 9877, 9878, 9879, 9880,
9881, 9882, 9883, 9884, 9885, 9886, 9887, 9888, 9889, 9890,
9891, 9892, 9893, 9894, 9895, 9896, 9898, 9899, 10016, 10017,
10019, 10020, 10023, 10024, 10027, 10028, 10041, 10042,
10043, 10065, 10066, 10067, 10068 and 10069 of 2010 are
dismissed without costs.
Miscellaneous petitions if any pending in these writ petitions
shall stand closed.
__________________________
JUSTICE P.NAVEEN RAO
Date: 28.04.2017
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