IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 20909 of 2008 Between: Yenamadala Primary Agricultural Co-operative Credit Society,Yenamadala,rep.by its Secretary Cheekatla Birava Swamy,S/o.naganna, 45 years R/o.Ramachandrapuram village & mandal, East Godavari District ..... PETITIONER AND 1 The Joint Commisisoner of Labour,Zone-II Eluru, West Godavari District 2 The Assistant Commissioner of Labour,kakinada East Godavari District 3 Pilli Srinivasa Rao S/o.Appa Rao Sakshi Telugu News paper,D.No.6-1-43, Naidu STreet 23rd ward, Ramchandrapuram, East Godavari District .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue writ of Certiorari calling for the records relating to the impugned order passed by the 1st respondent in Ref.Endt./N.dis.B/4649/2008 dated 30.8.2008 preferred against the order of the 2nd respondent in A.P.S.E.No.3/2007 dated 24.4.2008 and set aside the same after declaring it as illegal, null and void for a consequential directing the respondent No.1 not to insist the petitioner to deposit full back wages to the 3rd respondent contrary to the order of the 2nd respondent in A.P.S.C.M.P.No.2/2007 dated 16.4.2007 for entertaining the appeal. Counsel for the Petitioner: MR.CH.DHANAMJAYA Counsel for the Respondents 1 & 2.: GP FOR LABOUR Counsel for the Respondent No.3:MR. G.VIDYASAGAR The Court made the following : ORDER: The petitioner is Yenamadala Primary Agricultural Co-operative Credit Society, Yenamadala, represented by its Secretary, registered under A.P. Co-operative Societies Act, 1954. The petitioner Society appointed Pilli Srinivasa Rao-3rd respondent as Clerk on 01.02.1993. The appointment is subject to the approval of the Registrar of Co- operative Societies. However, permission from the Registrar has not been obtained. During the course of audit, the auditors took an objection as to how the petitioner Society appointed Pilli Srinivasa Rao- 3rd respondent without obtaining permission from the Registrar under Section 116 [c] of the A.P. Co-operative Societies Act, 1954. In pursuance of the directions of the Divisional Co-operative Officer, the 3rd respondent was terminated from service on 11.11.1995. The 3rd respondent filed W.P.No.26199 of 1995 and the said writ petition ended in dismissal on 15.09.2006 giving liberty to him to approach the authorities concerned. The 3rd respondent filed claim petition under Section 48 of the A.P. Shops and Establishment Act, 1988, seeking reinstatement with backwages along with an application to condone the delay of 4016 days. The authority entertained the delay condonation application and proceeded to condone the delay of 4016 days on condition that the 3rd respondent is not entitled for any backwages from the date of his termination till 16.04.2007. The Authority, on full pledged enquiry, allowed the application of the 3rd respondent and set aside the termination order and also granted back wages at the rate of Rs.525/- per month from the date of termination. The petitioner Society filed an appeal before the 1st respondent as provided under Section 48(3) of the A.P. Shops and Establishment Act, 1988. The appeal filed by the petitioner came to be returned for compliance of the statutory provision of deposit of the entire amount of backwages as ordered by the authority. The said order is under challenge in this writ petition. 2. Notice before admission came to be ordered on 24.09.2008. An interim suspension as prayed for also came to be ordered on the even date vide W.P.M.P.No.27329 of 2008. 3. 3rd respondent entered appearance and filed WVMP No.3523 of 2008 with a prayer to vacate the interim suspension order dated 24.09.2008 passed in WPMP No.27329 of 2008. 3rd respondent filed counter-affidavit in the writ petition. It is stated in the counter-affidavit that the compliance of proviso to sub-section (3) of Section 48 of the A.P. Shops and Establishment Act, 1988 is mandatory for entertaining the second appeal. 4. When the vacate stay petition came up for consideration, with the consent of learned counsel appearing for the parties, the writ petition is taken up for final disposal. 5. Heard learned counsel appearing for the petitioner and learned counsel appearing for the 3rd respondent. 6. Learned counsel appearing for the petitioner submits that the appellate authority missed to note the earlier order passed on delay condonation petition and thereby erred in directing the petitioner Society to pay the backwages. Learned counsel took me to the earlier order dated 16.04.2007 passed in APSEMP 2/2007 on the file of the Authority under Section 48 of the A.P.S.E. Act and Asst.Commissioner of Labour, Kakinada. The relevant portion of the said order reads as hereunder: “As seen from the petition, the date of termination is 3.11.1995 and the date of filing the petition is 4.1.2007. Hence, there is a delay of 4016 days. The contention of the petition is that soon after his termination, he approached the Hon’ble High Court by filing a writ petition and the said writ petition was dismissed on 15.9.2006 and as per the observations of the Hon’ble High Court only he filed this petition and hence thee is no fault of him in filing the petition and prayed to condone the delay. The contention of the opposite parties is that the applicant approached the High Court of A.P. without approaching the proper authority and hence, it is not ground for condonation of delay as the petitioner has not filed the petition in time and as the applicant failed to explain the delay of each and every day, the petitioner is not entitled to file a petition to condone the delay. The applicant might have approached this court for remedy soon after he was terminated from service. But he has filed a writ petition in High Court and the disposal of the said writ petition cause a much delay in filing the petition. However, keeping in view of the workers interest, the delay in filing the petition is condoned without causing any monetary loss to the opposite parties. In view of the above, the delay of 4016 days in filing the main petition is condoned on the condition that THE APPLICANT IS NOT ENTITLED FOR ANY BACK WAGES FROM THE DATE OF HIS TERMINATION TO TILL TODAY IF HIS CLAIM IS ALLOWED.” 7. Learned counsel appearing for the 3rd respondent submits that deposit of the amount awarded by the authority is a condition precedent as provided under sub-section (3) of Section 48 of the A.P. Shops and Establishment Act, 1988, and it is mandatory and the petitioner Society is bound to comply the mandatory provision for maintaining the second appeal. He also placed reliance on the Division bench judgment of this Court in Dist.Co-op.Central Bank Ltd., Eluru v. State of A.P. & Ors.[1], wherein it has been held that proviso prescribing that a second appeal filed by the employer against the order of the first appellate tribunal without depositing the back wages ordered to be paid cannot be entertained is neither arbitrary nor illegal. 8. Though the appellate authority missed to note the order passed earlier in the delay condonation petition, in view of the mandatory provisions of deposit of backwages, I am unable to grant any relief to the petitioner Society. The petitioner Society is bound to comply the mandatory provision with regard to deposit of the backwages as awarded by the appellate authority for maintaining the second appeal. 9. Accordingly, the writ petition is dismissed. The petitioner-Society is granted four weeks time for compliance of the mandatory provision of sub-section (3) of Section 48 of the A.P. Shops and Establishment Act, 1988. On deposit of such amount, the appellate authority has to maintain the second appeal and dispose of the same in accordance with law, more particularly, keeping in view the earlier order passed in the delay condonation petition. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:10th February, 2009. cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KSRANI} [1] 1998 (2) ALD 535 (DB)