* THE HON’BLE MR JUSTICE L.NARASIMHA REDDY +WRIT PETITION Nos.16035 OF 2007 %Dated 04.03.2008 #Prakash Rao. …Petitioner. and $ The Appellate Authority under Payment of Gratuity Act, 1972 and Deputy Commissioner of Labour, Hyderabad Twin Cities and others. …Respondents ! Counsel for petitioner: Sri P.Sridhar Rao ^ Counsel for Respondent No.1: G.P.for Labour ^ Counsel for Respondent No.2: C.N.Murthy < GIST: > HEAD NOTE: ? Cases referred 1.AIR 1961 SC 1134 2.1996 LAB I.C.2204 * THE HON’BLE MR JUSTICE L.NARASIMHA REDDY +WRIT PETITION Nos. 24329 OF 2007 %Dated 04.03.2008 #K.Kishan. …Petitioner. and $ The Second Appellate Authority under Section 48(3) of A.P.Shops and Establishments Act, 1988-cum-The Deputy Commissioner of Labour, Hyderabad Twin Cities and others. …Respondents ! Counsel for petitioner: Sri P.Sridhar Rao ^ Counsel for Respondent No.1: G.P.for Labour ^ Counsel for Respondent Nos.2 and 3: D.Krishna Murthy < GIST: > HEAD NOTE: ? Cases referred 1.AIR 1961 SC 1134 2.1996 LAB I.C.2204 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FOURTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NOs: 16035 and 24329 of 2007 WRIT PETITION NO : 16035 of 2007 Between: Prakash Rao, S/o. R. Chinnappa, R/o. 186, Saibaba Officers Colony, Sainikpuri, Secunderabad. ..... PETITIONER AND 1 The Appellate Authority Under Payment of Gratuity Act, 1972 and Deputy Commissioner Of Labour, Hyderabad Twin Cities, Anjaiah Karmika bhavan, Hyderabad. 2 The Chariman/President, Cements Manufacturer Association, 202, Pavani Estates, Khairtabad, Hyderabad. 3 The Chief Executive, Cements Manufacturer Association, 202, Pavani Estates, Khairtabad, Hyderabad. 4 The Authority Under Payment of Gratuity Act, And Assistant Commissioner of Labour -III, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to call for the records from the Respondents herein by issuing a Writ, Order or Direction more particularly one in the nature of Writ of Certiorari by setting aside the order dt. 3-5-2007 in PGMA No.5 of 2007 passed by the 1st respondent herein as not maintainable in law, illegal, arbitrary and contrary to law, violation of principles of natural justice and also in violation of Articles 14 and 21 of the Constitution of India and pass such ther order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioners:MR.P.SRIDHAR RAO Counsel for the Respondent No.1: GP FOR LABOUR Counsel for the Respondent No.2:C.N.Murthy WRIT PETITION NO : 24329 of 2007 Between: K. Kishan, S/o. Rajaiah, R/o. H.No. 13-1-1236/98, Indiranagar, Sitarambagh, Hyderabad. ..... PETITIONER AND 1 The Second Appellate Authority Under Section 48(3) of A.P. Shops and Establishment Act, 1988-cum- The Deputy Commissioner of Labour (Twin Cities), Anjaiah Karimikha Bhavan, Hyderabad. 2 A.P. State Co-operative Bank Limited, Rep. byits Managing Director, 4-1-441, Troop Bazar, Hyderabad. 3 The Manager, Reception Guest House, A.P. State Co-operative Bank Limited, Sahakar Bhavan, 3-4- 447/448, Barkatpura, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to call for the records from the Respondents herein by issuing a Writ, Order or direction more particularly one in the nature of Writ of Mandamus by declaring the impugned order dt. 8-10-2007 in SAMP NO. 33 of 2005 and SAMP No. 33-A of 2005 passed by the 1st respondent herein as illegal, arbitrary, unsustainable in law, unjustified, contrary to the mandatory provisions of the A.P. Shops and Establishment Act, 1988 and also in violation of Articles 14 and 21 of the Constitution of India and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioners:MR.P.SRIDHAR RAO Counsel for the Respondent No.1: GP FOR LABOUR Counsel for Respondents 2 and 3:D.Krishna Murthy The Court made the following : COMMON ORDER: In these two Writ Petitions, similar questions fall for consideration, though one arises out of an appeal preferred under the provisions of the Payment of Gratuity Act, 1972 (for short “the Gratuity Act”) and the other under the A.P. Shops and Establishments Act, 1988 (for short “the Shops Act”). The petitioners, in both the Writ Petitions, are the employees of private establishments. The petitioner in W.P.No.16035 of 2007 was employed as a Manager in the Cement Manufacturers Association. After rendering service for about 13 years, he submitted his resignation. Alleging that his employer did not pay the gratuity due to him, he approached the authority i.e. Assistant Commissioner of Labour-III, Hyderabad, under the Gratuity Act. Through an order, dated 19.02.2007, the authority directed the employer of the petitioner i.e., the 2nd respondent in the writ petition, to pay a sum of Rs.2,58,977/-. Aggrieved thereby, the 2nd respondent filed an appeal P.G.A.No.2 of 2007 before the appellate authority-cum-Deputy Commissioner of Labour, Hyderabad Twin Cities. He also filed P.G.M.P.No.5 of 2007 with a prayer to stay the operation of the order passed by the Assistant Commissioner of Labour. On 03.05.2007, the appellate authority passed an order directing stay of all further proceedings, including execution. The grievance of the petitioner is that though under sub-section (7) of Section 7 of the Gratuity Act an appeal shall not be numbered, unless the amount determined by the primary authority is deposited, the appellate authority had entertained the appeal and registered it on payment of Rs.92,000/-, as against Rs.2,58,977/-. The petitioner in W.P.No.24329 of 2007 was employed with the A.P.State Co-Operative Bank Limited, the 2nd respondent therein, as a contingent employee. His services were terminated on 18.03.2003. He approached the authority, i.e. the Assistant Commissioner of Labour-III, Hyderabad, under the Shops and Establishments Act by filing S.E.No.13 of 2004. Vide its order, dated 06.07.2005, the said authority allowed the appeal and directed reinstatement of the petitioner with full back wages till the date of termination and to pay all other attendant benefits (within 30 days from the date of order). The employer of the petitioner filed second appeal before the Deputy Commissioner of Labour, Hyderabad Twin Cities. It also filed an application for condonation of delay and an application for stay of further proceedings. Here again the question of making pre-deposit arose. On the ground that the management raised a very important question of jurisdiction, the appellate authority directed that the second appeal be numbered without insisting on making pre-deposit as provided for under sub-section (3) of Section 48 of the Shops Act. Sri P.Sridhar Rao, learned counsel for the petitioners, submits that the conditions imposed by the Legislature in the respective enactments are mandatory and the appellate authority has no discretion whatever to waive the same either in part, or in its entirety. He contends that the appellate authority has committed gross irregularity and illegality in entertaining the appeals without ensuring compliance with the mandatory provisions. Learned Government Pleader for Labour, appearing in both the Writ Petitions, Sri C.N.Murthy, learned counsel for the 2nd respondent in W.P.No.16035 of 2007 and Sri D.Krishna Murthy, learned counsel for respondents 2 and 3 in W.P.No.24329 of 2007, submit that the appellate authority has taken a practical view of the matter and no exception can be taken to it. They contend that at the most it is a case of postponing compliance, than total waiver thereof. Parliament or State Legislatures, as the case may be, have enacted several legislations, wherein making pre-deposit of the disputed amount is made, as a condition precedent for entertaining the appeals. For instance, under Section 30 of the Workmen’s Compensation Act, an appeal against an order passed by the authority under that Act can be entertained by the High Court, only on depositing of the amount determined by the authority. Similarly, appeals provided for under the Payment of Gratuity Act and the Shops and Establishments Act are to be entertained only after the amounts determined by the respective primary authorities are deposited. The discretion of the authorities, if at all, in matters of this nature, is only as regards permission to withdraw the deposited amount by the concerned persons. I n Commissioner of Income Tax v. Filmistan Limited[1], the Hon’ble Supreme Court held that howsoever justified a prayer for waiver of the condition, as to pre- deposit may be, the appellate authority had virtually no power or discretion in matters of that nature. Unless the corresponding amounts are deposited, the very occasion for numbering the appeals does not arise. This principle was followed by a Division Bench of this Court, in Mahendra Kumar v. Real Feb.Autonagar[2]. When such is the mandatory nature of the provisions, and pronouncements made by the Courts of law, it is rather shocking and surprising that the appellate authority, in both the cases, who incidentally is the same Officer, has chosen to waive the condition as to pre-deposit; in one case totally and in the other, partially. The surprising part of it is that in the order challenged in W.P.No.16035 of 2007, he proceeded to record a finding to the effect that the actual amount to be deposited by the appellant therein is Rs.92,000/-, as against Rs.2,58,977/-. The relevant paragraph reads as under: “The issue raised by the appellant management has been examined and found that the Controlling Authority instead of giving direction for payment of Rs.92,000/- (approximately), has directed for payment ofRs.2,58,977/-. It appears that the Controlling Authority mentioned the said amount due to oversight.” The reason furnished by the same officer while passing order, dated 06.07.2005, in S.A.No.6 of 2007 challenged in the other writ petition, runs thus: “The appellant management raised a very important issue of jurisdiction which needs to be examined thoroughly before going into the merits of the case. It may not be proper on part of this Authority to direct the appellant management to deposit back wages awarded by the First Appellate Authority, without deciding the basic issue of jurisdiction of the First Appellate Authority under the Act. This Authority is of opinion that it is the primary responsibility of any Authority to check whether the provisions of the Act can be invoked before hearing the case on merits. Therefore, in order to decide the issue of jurisdiction, the Second Appeal is numbered as SA/6/20007 while allowing the I.A’s filed by the appellant management.” To say the least, the approach of the officer is not only perverse, but is, in fact, in clear violation of the provisions of the Act. In a way, it reflects the lack of basic understanding of the provisions on the part of the Officer, who is acting as an appellate authority. Had it been in an isolated case, it would have been treated as an instance of oversight. Consistent approach of similar nature is prone to be treated as a glaring act of misconduct. Hence, the Writ Petitions are allowed and the orders challenged in the respective Writ Petitions are set aside. It is directed that the appellate authority shall cancel the numbers given to the respective appeals and assign the number only after the conditions as to pre-deposit are complied with. Having regard to the fact that the violations are repeated in nature, the Commissioner of Labour, Government of Andhra Pradesh shall verify the compliance in this regard, by the officer, who is now functioning as an appellate authority and if any instances of this nature are noticed hereafter, they shall be treated per se as acts of indiscipline and misconduct, and report the same to the appointing authority. There shall be no order as to costs. ____________________ Dt.04.03.2008 L.NARASIMHA REDDY, J L.R.Copy to be marked. GJ [1] AIR 1961 SC 1134 [2] 1996 LAB I.C. 2204