THE HON’BLE SHRI JUSTICE SANJAY KUMAR WRIT PETITION NOs.22368, 22377, 22385 AND 22391 OF 2012 DATED 6th DECEMBER, 2014 WRIT PETITION NO.22368 OF 2012:
Between:
M/s.J.Raj Gopal Rao and Company, Represented by its Managing Partner, Smt.J.Vijaya Lakshmi.
… Petitioner And Authority under Section 50 of the A.P. Shops And Establishments Act, 1988-cum-Assistant Commissioner of Labour, Nellore District, And another.
… Respondents THE HON’BLE SHRI JUSTICE SANJAY KUMAR WRIT PETITION NOs.22368, 22377, 22385 AND 22391 OF 2012 C O M M O N O R D E R The petitioner is common in these four writ petitions. The second respondent in each of these writ petitions, claiming to be an employee of the petitioner, approached the Authority under Section 50 of the Andhra Pradesh Shops and Establishments Act, 1988 for payment of salary allegedly due along with compensation. By individual ex parte orders, the Authority allowed the claims and directed payment. Aggrieved thereby, in the first instance, the petitioner approached this Court by way of W.P.Nos.18812, 18243, 18246 and 18469 of 2011. Interim orders were passed in those writ petitions directing payment of 50% of the amounts due under the orders of the Authority. However, the petitioner failed to make the said payments and thereafter chose to withdraw the writ petitions on 21.02.2012. The petitioner then filed separate applications before the statutory authority to set aside the ex parte orders passed in the four cases.
It appears that in three out of the four cases, the petitioner sought condonation of delay in approaching the Authority to set aside the ex parte order passed therein, invoking Section 5 of the Limitation Act, 1963. In the fourth matter, viz., S.E.No.3 of 2010, the application was filed without reference to any delay or condonation thereof.
Though the Proviso to Sub-rules 4 and 5 of Rule 25 of the Andhra Pradesh Shops and Establishments Rules, 1990 (for brevity, ‘the Rules of 1990’), states that the application for setting aside an ex parte order should be filed within one month from the date of the said order, it is fairly conceded by Sri V.Mallik, learned counsel appearing for the second respondent-workman in each of these cases, that Section 29(2) of the Limitation Act, 1963 would apply and that it would be open to the Authority to invoke the power under Section 5 thereof to condone the delay even beyond the stipulated period of thirty days. However, the endorsement made by the Authority upon the subject applications filed by the writ petitioner evidences that it was not on the ground of delay that the Authority refused to exercise jurisdiction under Rule 25(4) of the Rules of 1990. The endorsements read to the effect that the Authority was of the opinion that it had no liberty to give any decision on the said applications in view of the fact that execution petitions were already pending in the matters.
This opinion of the Authority cannot be countenanced in view of the admitted fact that the limitation stipulated in the Proviso to Sub-rule 4 of Rule 25 of the Rules of 1990 was not absolute and as the delay beyond the stipulated thirty days could be condoned by the Authority by invoking the provisions of Section 5 of the Limitation Act, 1963. The return of the applications filed by the writ petitioner to set aside the ex parte orders on this misconceived ground is therefore unsustainable in law.
The writ petitions are accordingly allowed. The first respondent authority shall entertain the set aside applications along with the delay condonation petitions filed by the petitioner in the subject cases and consider the same on merits in accordance with law and decide the matters. Due opportunity of hearing shall be given to the second respondent-workman in each of these cases. The entire exercise shall be completed by the authority within six weeks from the date of receipt of a copy of this order. Interim orders granted in these writ petitions shall stand vacated in the light of this final order. Pending miscellaneous petitions, if any, shall stand closed. No order as to costs.
6th DECEMBER, 2014
PGS
------------------------------------- SANJAY KUMAR, J THE HON’BLE SHRI JUSTICE SANJAY KUMAR WRIT PETITION NOs.22368, 22377, 22385 AND 22391 OF 2012 DATED 6TH DECEMBER, 2014