HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.17766 of 2003 Date : 21.08.2009 Between : Bhanwarlal Bohra. …..Petitioner And Appellate Authority U/s.53 of A.P.S.E. Act, 1988 and Assistant Commissioner of Labour, Besant Road, Vijayawada & 2 others. …..Respondents HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.17766 of 2003 ORDER : In this writ petition, the petitioner has questioned the order dated 27th of November 1998, passed by the competent authority under Section 50 of the A.P. Shops and Establishments Act, 1988, in APSE Case No.1 of 1998, as confirmed by the appellate authority by order dated 14th December 2001, passed in Appeal No.1 of 1999. 2. Respondent No.3 herein has filed an application before the 2nd respondent-authority, claiming service compensation for the period from November 1981 to September 1995, to a tune of Rs.8,585/-, Notice pay of Rs.1,145/- and Leave salary for 60 days, Rs.2,200/-, totalling to Rs.12,020/-. The said application was filed by the 3rd respondent, stating that she was working with one proprietary concern by name 'Mahalaxmi Electricals', situated at Brahmin street, Vijayawada, wherein the said concern was manufacturing the fluorescent fixtures, fittings, chokes, starters, etc., with APGST No. 7-1-1287. It is stated that the said Firm continued its business up to 1994, and subsequently, changed to the premises of 'Pankaj and Pankaj Electricals', for which, petitioner is the Proprietor. Pleading that at the time of shifting in the year 1994, though all the employees of Mahalaxmi Electricals were taken into service, she was not continued in Pankaj and Pankaj Electricals owned by the petitioner, without issuing any notice and without paying any compensation, the above said amounts were claimed. 3. Upon filing such application, the primary authority, by an order dated 27.11.1998, passed in APSE Case No.1 of 1998, allowed it on the ground that inspite of an effort to serve notice, the petitioner refused to take notice, as evident from the statement of an Attender in Ex.B-1. As against the same, the petitioner carried the matter in Appeal No.1 of 1999 before the 1st respondent-appellate authority under Section 53 of the A.P. Shops and Establishments Act, 1988. The 1st respondent, by recording a finding that the petitioner was aware of the proceedings pending before the primary authority, and further, referring to the evidence recorded by the primary authority, dismissed the appeal. 4. In this writ petition, the orders passed by both, the primary authority as well as the appellate authority, are questioned mainly on the ground that respondent No.3 was not the employee of Pankaj and Pankaj Electricals, for which, the petitioner is the Proprietor. It is submitted that Pankaj and Pankaj Electricals is altogether a different and distinct entity, which is in no way concerned with Mahalaxmi Electricals, but by making false allegations, this writ petition is filed. It is further submitted that the impugned order is passed without serving any notice, and also without giving proper opportunity to the petitioner, as contemplated under A.P.Shops and Establishments Act, 1988, and the Rules framed thereunder. 5. Though Vakalat is filed on behalf of respondent No.3, there is no representation on her behalf. Further, counter affidavit is also not filed by respondent No.3. 6. Heard learned counsel for petitioner and perused the material on record. 7. The procedure for dealing with applications for recovery of wages or service compensation are governed by Statutory Rules, namely, A.P. Shops and Establishments Rules, 1990, framed in exercise of powers under sub-section (1) of Section 71 of the A.P.Shops and Establishments Act, 1988. Under Rule 25 (3) of the Rules referred above, if an application is filed claiming service compensation, etc., a notice is required to be issued in Form XIX, calling upon the applicant as well as the employer, as the case may be, to appear before the Appellate Authority on a specified date, together with all relevant documents and witnesses, if any. In this case, it is the specific case of the petitioner that he was not given any notice by the competent authority. The primary authority has passed the order, relying on a statement of the Attender, marked as Ex.B-1, to the effect that the petitioner has refused to receive the notice. When such a plea is raised before the appellate authority, the appellate authority has found that the grounds raised in the Memo of Appeal, disclose about the knowledge of the petitioner about the pendency of the matter before the authorities. Nowhere in the orders passed either by the primary authority or the appellate authority, finding is recorded to the effect that petitioner was served notice as contemplated under Rule 25(3) of the Rules, in Form XIX. It is well settled that when the Statute or the Rules made thereunder prescribes the manner and method of service of notice, it is to be served in the same manner provided in the Rules. When it is the case of the petitioner that he was not served with any notice, the Tribunal or the appellate authority ought not to have passed orders, merely based on the statement of an Attender, which is exhibited as Ex.B-1. In any event, on merits of the matter also, it is to be noted that even according to the claim made by the 3rd respondent, she was working with Mahalaxmi Electricals and the same is subsequently shifted to the premises of the petitioner. In such an event, unless there is a definite finding with regard to the merger of business, so as to claim service compensation from the petitioner, who is a Proprietor of a different Firm which is being run under the name and style of 'Pankaj and Pankaj Electricals', the 1st and 2nd respondents ought not to have awarded the claim made by the 3rd respondent. In that view of the matter, and also in the absence of any counter affidavit and representation on behalf of respondent No.3, and further, having regard to the objections raised by the petitioner, I deem it as a fit case to give further opportunity to the petitioner, before deciding the claim made by the 3rd respondent. 8. For the aforesaid reasons, the order of the primary authority passed in APSE Case No.1 of 1998, dated 27.11.1998, and the order of the appellate authority in APSE Case No.1 of 1999, dated 14.12.2001, are hereby set aside. The matter is remanded to the primary authority, who shall consider it afresh, by giving opportunity to the petitioner as well as respondent No.3. It is made clear that if the petitioner has deposited an amount of Rs.12,020/- as per the orders of this Court, he is entitled to withdraw the same without furnishing any security. 9. Subject to above directions, the writ petition is disposed of. No order as to costs. ______________________ R. SUBHASH REDDY, J 21st August 2009 ajr