Back
2020 Supreme(Telangana) 66
IN THE HIGH COURT OF JUDICDATURE FOR THE STATE OF TELANGANA AT HYDERABAD
P. Naveen Rao, J.
M/s. Cognizant Technology Solutions India Pvt. Ltd., - Petitioner
Vs.
The Appellate Authority under Section 48(1) of the A.P. Shops & Establishments Act, 1988 and the Assistant Commissioner of Labour & Ors. - Respondents
Writ Petition No.17453 of 2017
Decided On : 04-05-2020
For the Petitioners: Sri C.R. Sridharan, senior counsel for Sri Saloori Ramesh
For the Respondents: for Labour, Sri. P. Lakshmana Rao
Point of Law
Section 73(4) vests power in the State Government to exempt operation of any or all of the provisions of the Act. In exercise of such power, if a notification is issued, published vide G.O.s, the notifications have the same force as a law made by the legislature and is binding on a quasi-judicial Authority whose existence is constrained by the provisions of the Act. It cannot plead ignorance of such notifications.
Headnote:
A.P. Shops & Establishments Act, 1988 - (Telangana Shops & Establishments Act, 1988) - Section 48(1) – Termination of Service – Appeal – Petitioner-company is exempted from the purview of the Shops & Establishments Act, the authority under the Act is not competent to adjudicate the dispute with reference to the termination of service of 2nd respondent and, therefore, the order is not sustainable; and secondly, even assuming that the authority has jurisdiction to adjudicate the dispute between the petitioner-company and the 2nd respondent, the 2nd respondent does not answer the definition of ‘an employee – Held, The leave to withdraw was granted holding that cause does not survive for adjudication. There was no adjudication of the issue on merits. Further, the cause of action to institute this writ petition is final order passed by the Authority under Section 48 of the Act. It is an independent cause of action. In the facts of this case, neither the principle of res judicata nor the principle of constructive res judicata are attracted – Petitioner establishment was not amenable to the jurisdiction of the Authority under the Act, the decision of the Authority under Section 48(2) of the Act dated 06-04-2017, impugned herein, on the order of termination from service of 2nd respondent by the petitioner, is without jurisdiction, ex-facie illegal and unsustainable. It is liable to be set aside. It is accordingly set aside. The Writ Petition is allowed. Consequently, all pending Interlocutory Applications are closed. However, it is made clear that the right of the 2nd respondent to work out his legal remedies against alleged illegal termination are preserved and it is open to him to work out remedies as available in law. It is also made clear that there is no expression of opinion on merits. Miscellaneous petitions, if any pending, are closed – Petition allowed
Facts of the Case:
Second respondent in writ petition joined the service of the petitioner-company as Manager-Projects on 25.05.2011 on consolidated pay of _ 14.00 lakhs per annum, later increased to _ 15.00 lakhs per annum, inclusive of HRA, Special Allowance, Medical Allowance, Company Contribution to Provident Fund etc. Petitioner-company terminated his services by order dated 16.05.2013. Challenging the said termination, 2nd respondent filed appeal
Finding of the Court:
The leave to withdraw was granted holding that cause does not survive for adjudication. There was no adjudication of the issue on merits. Further, the cause of action to institute this writ petition is final order passed by the Authority under Section 48 of the Act. It is an independent cause of action. In the facts of this case, neither the principle of res judicata nor the principle of constructive res judicata are attracted – Petitioner establishment was not amenable to the jurisdiction of the Authority under the Act, the decision of the Authority under Section 48(2) of the Act dated 06-04-2017, impugned herein, on the order of termination from service of 2nd respondent by the petitioner, is without jurisdiction, ex-facie illegal and unsustainable. It is liable to be set aside. It is accordingly set aside. The Writ Petition is allowed. Consequently, all pending Interlocutory Applications are closed. However, it is made clear that the right of the 2nd respondent to work out his legal remedies against alleged illegal termination are preserved and it is open to him to work out remedies as available in law. It is also made clear that there is no expression of opinion on merits. Miscellaneous petitions, if any pending, are closed
Result: Petition allowed
ORDER :
Second respondent in writ petition joined the service of the petitioner-company as Manager-Projects on 25.05.2011 on consolidated pay of _ 14.00 lakhs per annum, later increased to _ 15.00 lakhs per annum, inclusive of HRA, Special Allowance, Medical Allowance, Company Contribution to Provident Fund etc. Petitioner-company terminated his services by order dated 16.05.2013. Challenging the said termination, 2nd respondent filed appeal under Section 48(1) of the A.P. Shops & Establishments Act, 1988 (Telangana Shops & Establishments Act, 1988) (hereinafter referred to as the Act) before the Authority cum the Assistant Commissioner of Labour, Vikarabad, which was numbered as S.E.No.7 of 2016. The authority, by his order dated 06.04.2017, held that enquiry was not properly conducted and ample opportunity was not afforded to the applicant and observed that applicant is entitled to opportunity to defend his case. The authority further directed that till completion of enquiry, the applicant should be paid allowances as envisaged under Section 47(6) of the Act and further directed that such allowances should be paid from the date of termination till the date of order passed on 06.04.2017, within thirty dates of the order. Petitioner challenges the said order in this writ petition on various grounds.
2. For the present, suffice to note two principal grounds urged by the petitioner: firstly, as the petitioner-company is exempted from the purview of the Shops & Establishments Act, the authority under the Act is not competent to adjudicate the dispute with reference to the termination of service of 2nd respondent and, therefore, the order is not sustainable; and secondly, even assuming that the authority has jurisdiction to adjudicate the dispute between the petitioner-company and the 2nd respondent, the 2nd respondent does not answer the definition of ‘an employee’ for the authority to entertain the appeal against termination and adjudicate as second respondent was working in Managerial capacity and was drawing far higher salary than prescribed in the Act i.e., _ 1,600/- per month.
3. On the issue of maintainability of the appeal under Section 48 of the Act, extensive submissions are made by learned senior counsel appearing for the petitioner-company and Dr. K.Laxmi Narasimha for P.Laxman, learned counsel for the 2nd respondent.
4. Learned senior counsel Sri Sridharan made the following submissions:
(1) According to learned senior counsel for petitioner, Authority under the Act is vested with jurisdiction to decide a dispute on termination of an employee if such employee is working in an establishment covered by the Act. The Government of the then combined State of Andhra Pradesh vide G.O.Ms.No.5, Information Technology and Communications Department dated 28.01.2002 notified its IT Policy and also resolved to exclude ITES and IT establishments from the purview of the Act. Consequently, in exercise of power vested under Section 73(4) of the Act, Government issued notification vide G.O.Ms.No.16, LET&F (Lab.II) Department, dated 30.05.2002 exempting from the provisions of Sections 15, 16, 21, 23, 31 and sub-sections (1), (2), (3) and (4) of Section 47 of the Act, to all Information Technology Enabled Services (ITES) and Information Technology (IT) establishments. This exemption is extended from time to time and in the series of such extensions, notification was issued vide G.O.Ms.No.62 Labour, Employment Training and Factories (Lab.IV) Department, dated 30.05.2012, extending the exemption for one year from 30.05.2012.
(2) He would submit that petitioner is an ITES/IT company. In view of this exemption, the authority under the Act, has no jurisdiction to go into the validity of the termination of employee working in the petitioner company. He would therefore submit that the order of the authority is not sustainable in law.
(3) Learned senior counsel would submit that an identical issue was considered by this Court in HCL Technologies Limite
