IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SEVENTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE R.SUBHASH REDDY WRIT PETITION No.15964 of 2007 Between: Talwar Auto Garages Pvt Ltd., 6-3-658, Concord Apartments, Erramanzil, Somajiguda, Hyderabad, Rep. by its Managing Director Sri Sunil Talwar ... PETITIONER AND 1 M.V.R. Prasad Reddy S/o.Rudra Reddy R/o.2-2-488, Buruju gally, Amberpet, Hyderabad 2 Authority under AP Shops & Establishment Act,m 1988 & Asst. Commissioner of Labour-III, T.Anjaiah Karmika Bhavan, RTC X Roads Hyderabad. ...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 a writ order or direction more particularly one in the nature of certiorari calling for records in I.A. No 5 of 2007 in SE.No.237/2003 dated 14.6.2007 on the file of the 2nd respondent and declare the same as illegal, without jurisdiction and consequently set aside the same. Counsel for the Petitioner: Mr. N. VIJAY Counsel for Respondents: GP FOR LABOUR The Court made the following: HONOURABLE SRI JUSTICE R. SUBHASH REDDY Writ Petition No.15964 of 2007 Order: This writ petition is filed seeking a Writ of Certiorari to call for the records in S.E.No.237 of 2003 on the file of the second respondent-appellate authority and to declare the said order as illegal and arbitrary. 2. The first respondent was the employee of the petitioner-establishment. Alleging that his services were terminated by the petitioner-establishment on 07-12-2002, without following due process of law, contrary to the provisions under the A.P. Shops and Establishments Act, 1988 (for short ‘the Act’), the first respondent has questioned the order of termination by way of appeal in S.E.No.237 of 2003 under Section 48(1) of the Act. The said appeal in S.E.No.237 of 2003 was dismissed for default by the appellate authority constituted under Section 48(1) of the Act on 05-07-2006. To set aside the said order, the first respondent has filed I.A.No.5 of 2007 and by impugned order dated 14-06-2007, the appellate authority set aside the order of dismissal dated 05-07-2006 and restored S.E.No.237 of 2003 and further gave opportunity to the petitioner-establishment to cross- examine the applicant. 3. Heard Sri N. Vijay, learned counsel for the petitioner, Sri P. Sridhar Rao, learned counsel for the first respondent and also the learned Government Pleader for Labour, appearing for the second respondent. 4. It is contended by Sri N. Vijay, learned counsel appearing for the petitioner-establishment, that though the appeal filed by the first respondent-employee was dismissed for default on 05-07-2006, he did not choose to file any application within the prescribed time to set aside the dismissal order. But, however, without filing any application for condonation of delay, he has presented I.A.No.5 of 2007 to set aside the order dated 05-07-2006, which is mistakenly allowed by the Tribunal. It is further contended that even the application for condonation of delay is not maintainable and as the application in I.A.No.5 of 2007 was not accompanied by any application for condonation of delay, the Tribunal ought to have dismissed the application in I.A.No.5 of 2007. In support of his argument that Indian Limitation Act will not apply to the Tribunals and various authorities, learned counsel for the petitioner has relied on judgments in the cases o f T h e Nalgonda Cooperative Marketing Society Ltd., V. The Labour Court, Hyderabad[1], Gopal Sardar V. Karuna Sardar[2] and L.S. Synthetics Ltd. V. Fair Growth Financial Services Ltd.[3]. 5. On the other hand, it is submitted by Sri P. Sridhar Rao, learned counsel appearing for the first respondent and learned Government Pleader appearing for the second respondent, that the services of the first respondent were terminated by the petitioner-establishment without following due process as contemplated under the Act. It is submitted that though appeal was filed in the year 2003, in spite of giving number of opportunities, there was no attempt from the side of the petitioner- establishment to cross-examine the first respondent and to lead evidence from their side. But, however, when the matter was coming up for arguments, after completing the evidence of the first respondent, the Tribunal, instead of disposal of the appeal on merits, mistakenly dismissed the same by order dated 05-07-2006. It is submitted that even under Rule 21 (2) (a) of the A.P. Shops & Establishments Rules, 1990, it is open to the party to file an application seeking to set aside the ex parte order by showing sufficient cause for the absence and, as such, the impugned order is passed by recording valid reasons, allowing the application filed by the first respondent and in that view of the matter there is no illegality or irregularity which warrants interference by this court in this petition filed under Section 226 of the Constitution of India. It is submitted that as much as the very nature of enquiry is summary, the authority ought to have disposed of the main petition on merits. In support of his arguments, learned counsel for respondents has placed reliance on judgments in the cases of Vice President, M/s. Placer Pharma V. Assistant Commissioner of Labour[4], Mukri Gopalan V. Cheppilat Puthanpurayil Aboobacker[5] a n d Mahenrda Kumar Goyal V. Addl. Commissioner of Civil Supplies[6]. 6. I have perused a copy of the impugned order passed by the notified authority under Section 48(1) of the Act, passed in I.A.No.5 of 2007. The said order dated 14-06-2007 passed in I.A.No.5 of 2007 is not an order passed under Section 5 of the Limitation Act, but however, the same is an order setting aside the order of dismissal dated 05-07- 2006 passed by the authority. Though it is the case of the petitioner that as per the Rules the first respondent ought to have filed an application within a period of 30 days from the date of dismissal, but in the counter affidavit it is categorically stated that the order dated 05-07- 2006 was not to the notice of the first respondent and the said order was never communicated either to his counsel or to him. In the counter affidavit, it is also categorically stated that the said order has come to the notice of the first respondent only in the last week of January, 2007 and immediately thereafter, the application was filed on 08-02-2007. 7. Though learned counsel appearing for both the parties have referred to several judgments of this court and the Apex Court, all those judgments deal with the applicability of the Indian Limitation Act before various authorities and the Tribunals. But, however, the impugned order is not the one passed under Section 5 of the Limitation Act. The judgments relied on by learned counsel for the parties are not of avail to decide the present writ petition. The application filed in I.A.No.5 of 2007 is an application to set aside the order dated 05-07-2006 which is allowed by the impugned order dated 14-06-2007. The proceedings before the authority are governed by separate rules framed under Section 71 of the Act and Rule 21 deals with the procedural aspects and limitation for filing appeals. Under Rule 21 (2) (c) of the Rules, the authority is empowered to dismiss the application, ex parte, in default, but however, under proviso to Rule 21 (2) (c), the authority is also empowered, on showing good cause for the absence of the party, to set aside the order of dismissal. Though one month’s period is prescribed in the proviso for filing application to set aside the order of dismissal, which is passed ex parte, but, however, in the counter affidavit, it is categorically stated that the order dated 05-07-2006 was not communicated to the first respondent and it came to his notice only in the last week of January, 2007 and thereafter application in I.A.No.5 of 2007 was filed on 08-02-2007. In view of the said averments, it cannot be said that that the application was filed beyond the period of one month as contemplated under proviso to Rule 21 (2) (c) of the Act. In any event, as much as the appeal filed by the first respondent was questioning the termination of his services in the year 2003 and as much as it is stated that evidence on his behalf is already completed, it is for the petitioner to oppose such appeal on merits. As the A.P. Shops and Establishments Act, 1988 is designed to safeguard the interests of the employees and further the impugned order is passed only in an interlocutory application and the main enquiry is still pending before the appellate authority, I am of the view that it is not a fit case for interference under Article 226 of the Constitution of India. 8. Hence, keeping open to the petitioner to avail the opportunity to cross-examine the first respondent and also to lead further evidence, the writ petition is dismissed. No order as to costs. __________________________ JUSTICE R. SUBHASH REDDY. March 7, 2008 Ajr/MRR .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRK} [1] 1993 (2) ALT 661 (FB) [2] (2004) 4 SCC 252 [3] (2004) 111 SCC 456 [4] 2001 (1) ALT 277 [5] (1995) 5 SCC 5 [6] (1997) 2 ALT 722