THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 36240 OF 1998 Date: 30.01.2008 Between: M/s. Agro Mech. Industries, B.7, Industrial Estate, Sanathnagar, Hyderabad. … Petitioner and Second Appellate Authority U/s 48(3) of A.P. Shops & Establishments Act, 1988 & Deputy Commissioner of Labour, Hyderabad (Twin cities) and two others. … Respondents. THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 36240 OF 1998 ORDER: Aggrieved by the order of the Second Appellate Authority under the A.P. Shops and Establishments Act, 1988 in S.A. No. 167 and 168 of 1993 dated 02.05.1998, the present writ petition is filed by the employer. The third respondent herein filed S.E. No. 2074 of 1986, before the authority under Section 41 of the Shops & Establishments Act, 1966 & the Assistant Commissioner of labour. Before the authority, he sought salary for the period 01.03.1986 to 16.04.1986, bonus for two and half years, compensation amount and good will gratuity as per the Payment of Gratuity Act. The original authority, however, directed payment of Rs.6,300/- towards notice pay, service compensation and 50% back wages in lieu of reinstatement and for a further amount of Rs.692/- towards his salary for the period from 01.03.1986 to 16.04.1986. Both the petitioner-employer and the third respondent-workman preferred S.A. No. 167 and 168 of 1993 respectively before the Labour Court, Hyderabad which was the Second Appellate Authority under the A.P. Shops and Establishments Act, 1966. Consequent on the 1966 Act being repealed, and the 1988 Act coming into force, the Deputy Commissioner of Labour, Hyderabad was notified by the Government as the Second Appellate Authority under the Act. The Labour Court transferred both these appeals to the Deputy Commissioner of Labour, Hyderabad who, by order in S.A. No. 167 and 168 of 1993 dated 02.05.1998, directed the petitioner herein to pay full wages of Rs.450/- per month for the period from 01.03.1986 to 30.04.1998 under Section 48(4) of the 1988 Act and computed the total benefits payable as Rs.65,250/-. The Second Appellate Authority also held that the appeal of the workman for reinstatement was dismissed. Before this Court Sri G. Ramachandra Rao, learned Counsel appearing for the petitioner-employer, would seek to have the order of the second appellate authority quashed on the following grounds: 1. Since the second appeals were filed before the Labour Court prior to the 1988 Act coming into force, and since the Labour Court was the Second Appellate Authority under the 1966 Act, the Labour Court ought to have continued with the proceedings and ought not to have transferred the Second Appeals to the Deputy Commissioner of Labour. 2. Since the appeal preferred by the workman in S.A. No. 167 of 1993 was dismissed, the Second Appellate Authority could not have enhanced the compensation payable from Rs.6,300/- to Rs.65,250/- in the second appeal preferred by the employer against the order of the Original Authority in S.E. No. 2074 of 1986 dated 26.04.1988 and, at best, could have dismissed the appeal preferred by the employer, in which event only an amount of Rs.6,300/- + 50% back wages + Rs.692/- towards salary for the period from 01.03.1986 to 16.04.1986 would be liable to be paid. Sri A.K. Jayaprakash Rao, learned Counsel appearing for respondents 3 and 4, would contend that the Deputy Commissioner of Labour had only rejected the appeal of the workman in so far as reinstatement was concerned and had, instead, directed payment of compensation in lieu of reinstatement. Learned Counsel would submit that, consequent to the 1966 Act having been repealed, the Labour Court no longer had the jurisdiction to entertain and adjudicate the second appeal and it is only the Deputy Commissioner of Labour who has jurisdiction to do so. According to the Learned Counsel, the action of the Labour Court, in transferring the appeals to the Deputy Commissioner of Labour, instead of dismissing the appeals giving liberty to them to approach the Deputy Commissioner of Labour (the competent authority under the 1988 Act), could not be faulted. Before examining the rival contentions it is useful to take note of the applicable statutory provisions. Section 41(3) of the A.P. Shops and Establishments Act, 1966 reads thus: “Against any decision of the authority under sub-section (2), a second appeal shall lie to the Labour Court constituted under section 7 of the Industrial Disputes Act, 1947, within thirty days from the date of communication of the decision and the decision of the Labour Court 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 Court.” Section 48(3) of the A.P. Shops and Establishments Act, 1988 prescribes the authority to decide appeals and sub-section (3) thereof reads thus: “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.” It is evident from Section 48(3) that a second appeal shall lie only to the authority as may be notified by the Government and, since the Government notified the Deputy Commissioner of Labour as the Second Appellate Authority, it is only he and not the Labour Court which could exercise jurisdiction as the Second Appellate Authority under the A.P. Shops and Establishments Act, 1988. It must, however, be borne in mind that the second appeals were preferred to the Labour Court when the 1966 Act was in force. The question which necessitates examination is the consequence of repeal of the 1966 Act, and a new authority being designated as the Second Appellate Authority under the 1988 Act, on second appeals filed prior to the date on which the 1988 Act came into force. It cannot also be lost sight of that the petitioner herein did not choose to question the jurisdiction of the Deputy Commissioner of Labour to hear the second appeals, when the appeals were listed before him, and had instead participated in the proceedings. It is only for the first time in this writ petition that the question whether the Deputy Commissioner of Labour has the jurisdiction to hear Second Appeals filed before the 1988 Act came into force, has been raised. If the Deputy Commissioner of Labour is held to suffer from an inherent lack of jurisdiction to entertain the Second Appeal, the mere fact that the petitioner had appeared before him would not preclude him from questioning his jurisdiction to hear the second appeal, since it is well settled that even consent of parties would not confer jurisdiction on a Court or a Tribunal of limited jurisdiction. (United Commercial Bank Ltd Vs. Their Workmen[1]). It is in this context that Section 79 of the 1988 Act must be taken note of. Section 79 is the repeals and savings clause and reads thus: “Repeal and Saving: - With effect on and from the date on which this Act is brought into force in any area, the Andhra Pradesh Shops and Establishments Act, 1966, (Act 15 of 1966) as in force in that area shall stand repealed: Provided that- a. every appointment, order rule, notification or notice made, issued or given under the provisions of the Act so repealed shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been made, issued or given under the provisions of this Act, unless and until superseded by any appointment, order, rule, notification or notice made, issued or given under this Act; b. any proceedings relating to the trial of any offence punishable under the provisions of the Act so repealed shall be continued and completed as if the said Act had not been repealed but had continued in operation and any penalty imposed on such proceedings shall be recovered under the Act so repealed.” By Section 79 of the 1988 Act, the 1966 Act stood repealed from the date on which the 1988 Act came into force. Proviso (a) of Section 79 saves every appointment, order, rule or notification issued under the 1966 Act in so far as it is not inconsistent with the provisions of the 1988 Act. While the 1966 Act prescribes the Labour Court to be the second appellate authority, the 1988 Act empowered the State Government, by notification, to prescribe the second appellate authority and the Government had by a notification designated the Deputy Commissioner of Labour as the second appellate authority. As such the provisions of the 1966 Act, in so far as it relates to the designated second appellate authority to hear second appeals, is inconsistent with the provisions of the 1988 Act and as such proviso (a) would not save the proceedings instituted before the Labour Court under the 1966 Act. Proviso (b) saves proceedings relating to the trial of offences punishable under the provisions of the 1966 Act. The second appeal is not a proceeding for trial of any offences punishable under the Act and as such proviso (b) also has no application. Since the 1966 Act stood repealed in its entirety, except to the limited extent specified in the proviso thereunder, consequent to its repeal, and the 1988 Act coming into force on 01.11.1988, the Labour Court no longer had the jurisdiction to adjudicate the second appeals pending before it. While it could have dismissed the second appeal leaving it open to the parties to approach the Deputy Commissioner of Labour who was designated as the Second Appellate Authority under the 1988 Act, the mere fact that it had, instead, transferred the proceedings to the Deputy Commissioner of Labour is of little consequence. The first contention that the Deputy Commissioner of Labour lacked jurisdiction to adjudicate the second appeal must, therefore, be rejected. It is true that the Deputy Commissioner of Labour (Second Appellate Authority) had observed that the second appeal preferred by the workman seeking reinstatement was dismissed. It is, however, necessary to note that the workman, in S.A. No. 167 of 1993, had sought for payment under several heads and had not confined the relief sought for only to reinstatement. The relief sought for by the workman for reinstatement into service was negatived by the Second Appellate Authority and instead he was directed to be paid full wages of Rs.450/- per month for the period from 01.03.1986 to 30.04.1998 and a total amount of Rs.65,250/-. This amount payable to the workman is towards the amounts claimed by him and also as wages in lieu of reinstatement. The dismissal of the workman’s second appeal, to the limited extent he sought for reinstatement, would not disentitle him from claiming and being granted the other benefits sought for by him. It cannot also be said that the above mentioned relief granted to the workman is in the second appeal preferred by the employer. Both the contentions urged on behalf of the petitioner-employer stand rejected. The writ petition fails and is, accordingly, dismissed. However, in the circumstances, without costs. _______________________________ Date: 30.01.2008 RAMESH RANGANATHAN, J MRKR [1] AIR 1951 Supreme Court 230