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2005 DIGILAW 297 (AP)

V. Mankoji Rao v. United Commercial Corporation

2005-03-29

L.NARASIMHA REDDY

body2005
( 1 ) THIS revision is directed against the Judgment in C. M. A. No. 13 of 1992, in the Court of Additional District Judge, Madanapalle, confirming the order in O. P. No. 10 of 1984 rendered by the Principal District Munsif, Madanapalle. ( 2 ) THE petitioner claims that he was employed with the first respondent since 01-11-1968 as an attender. Respondents 2 to 4 and 7 are the partners of the first respondent-film. After death of second respondent, his legal representatives were brought on record as respondents 8 to 10, and respondents 11 to 14 are the legal representatives of fifth respondent. The petitioner claims that he worked till September 1983 as attender, but was paid salary only up to November 1981. Alleging that he was not paid the salary due to hi, he filed O. P. No. 10 of 1984 under Sections 43 and 44 (i) and (ii) of Andhra Pradesh Shops and Establishment Act 15 of 1966 (for short the Act) with a prayer to direct the respondents to pay arrears of salary, gratuity, leave salary bonus, increment, damages, costs and other benefits. ( 3 ) THE respondents filed counter-affidavit before the trial Court stating that they have closed their business in the year 1979, so much so, they have vacated the premises where their office was located. It was their case that on closure of the business by the first respondent, the petitioner had stopped working and the question of payment of salary does not arise. ( 4 ) THE petitioner examined himself as P. W. 1 and examined Labour Officer as P. W. 2. He marked Exs. A1 to A6. On behalf of respondents R. Ws. 1 to 4 were examined. R. W. 3 is the Manger of Chowltry. R. W. 4 is Assistant labour Officer, who is said to have made endorsements on various registers. On their behalf, Exs. B1 to B43 and Exs. X1 to X4 were marked. On a consideration of the oral and documentary evidence before it, the Trial Court dismissed the O. P. through its Judgment dated 09-10-1991. The lower appellate Court confirmed the same. ( 5 ) SRI. K. V. Reddy, learned Counsel for the petitioner submits that the Courts below have taken a hyper-technical view that the claim was not submitted within one year from the date on which, the wages were due. The lower appellate Court confirmed the same. ( 5 ) SRI. K. V. Reddy, learned Counsel for the petitioner submits that the Courts below have taken a hyper-technical view that the claim was not submitted within one year from the date on which, the wages were due. He submits that second proviso to Section 44 of the Act empowers the Court to accept the application even beyond one year, if proper explanation is offered. Placing reliance upon a Judgment of this Court in Andari Govindaiah v. Vemula Venkatamma 1996 (1) ALD 118 , he submits that, even in the absence of a specific application for condonation of delay, it is competent for the Court to receive applications after the due date, if a proper explanation is offered. He also submits that the finding recorded by the Courts below, that the first respondent did not function beyond the year 1979-80, is contrary to record. He submits that the endorsements made by P. W. 2 disclose that the first respondent was liable to pay wages to the petitioner. ( 6 ) SRI. N. Pramod, learned Counsel for the respondents, on the other hand, submits that the Act being a special enactment, the period of limitation prescribed therein has to be observed strictly and that even on facts, the petitioner failed to justify his approaching the Court at a belated stage. Referring to the evidence of R. W. 4, who is an official of the Labour Department, learned Counsels states that the documents marked through him clearly disclose that the first respondent-firm did not function beyond 1980 and the question of the petitioner being in service, much less, not being paid wages does not arise. ( 7 ) THE petitioner approached the trial Court under Sections 43 and 44 of the Act, claiming the relief of payment of wages. Proviso to Sub-section 1 of Section 44 of the Act mandates that an application for such relief shall be presented within one year from the date on which the wages are due. The second proviso empowers the Court to admit the applications even after such a period, if it is satisfied that sufficient cause is shown for such belated approach. ( 8 ) IT is a matter of record that the petitioner did not submit an application for condonation of delay. The second proviso empowers the Court to admit the applications even after such a period, if it is satisfied that sufficient cause is shown for such belated approach. ( 8 ) IT is a matter of record that the petitioner did not submit an application for condonation of delay. Learned Counsel for the petitioner places reliance upon the judgment of this Court in Andari Govindaiah v. Vemula Venkatamma (1 supra) and the one in Unniraman v. Padmanabhan AIR 1988 Kerala 257, wherein this Court took the view that in applications filed unde5r Order 9 Rule 13 C. P. C. , the explanation in the affidavit filed in support of an application shall hold good to condone delay in presenting the application also. It was held that it is not necessary that a separate and independent application under Section 5 of the Limitation Act be filed. The case before this court as well as those relied upon while deciding it, arose under Order 9 Rule 13 C. P. C. ( 9 ) IT is doubtful whether the same principle holds good for presentation of original applications. An application under Order 9 Rule 13 C. P. C. , is interlocutory in nature, whereas original petitions filed under special enactments partake a different character. Even assuming that the same principle applies to the facts of this case, a perusal of the petition presented before the trial Court discloses that hardly any reason or justification worth its name were offered for a belated approach. When the period of limitation itself is one year from the date from which the wages are due, the petitioner was under obligation to offer cogent and sufficient reasons for approaching the Court almost two years beyond the period of limitation. Therefore, whatever may have been the justification for the Courts below in holding that the application itself was barred by limitation, prescribed under Proviso to Sub-section 1 of Section 44 of the Act, this Court finds that the petitioner failed to offer satisfactory explanation for the belated submission of the application. ( 10 ) APART from the question of limitation, an important aspect that arose before the trial Court was that the respondents denied the existence of the relationship of employer and employee beyond the year 1980. They did not plead that they have terminated the service of the petitioner. ( 10 ) APART from the question of limitation, an important aspect that arose before the trial Court was that the respondents denied the existence of the relationship of employer and employee beyond the year 1980. They did not plead that they have terminated the service of the petitioner. It was their case that on closure of their business in the year 1980, the petitioner as well as various others associated with it discontinued their employment voluntarily. In support of their contention, the respondents have examined R. Ws. 3 and 4. R. W. 3 is the Manager of a Chowltry. Respondents contended that after closure of the business, at its rented premises, they have shifted to the Chowltry in the year 1979-80. R. W. 3 has spoken to this fact. R. W. 4. is Assistant Labour Officer. According to the entries made in Exs. X1 to X3, the first respondent did not run its business since 1979. The respondents have also field the income tax returns, account books and various other documents to prove their contention. Nothing was elicited through R. Ws. 3 and 4 to discredit their version. In the teeth of such a flat denial by respondents as to the existence of relationship of employer and employee, the burden rested heavily upon the petitioner to establish that he continued to be in employment up to July 1983, he was paid wages till November 1981 and that the failure to pay wages was unjustified. The petitioner has only relied upon the endorsements said to have been made by R. W. 2 during his inspection on 06-04-1984. The endorsement marked as Ex. A4 does not disclose that the wages are payable to the petitioner or that he was in service. The other documents relied upon by the petitioner are of hardly any help to him in this regard. ( 11 ) THE Act provides for different kinds of remedies to meet different situation. It provided the mechanism for adjudication of the disputes as to termination from service. Section 41 of the Act provides for an appeal to be made against the order of termination to an authority designated by the State Government, and the second appeal against the decision, to the Labour Court. Termination need not be through a written order. It provided the mechanism for adjudication of the disputes as to termination from service. Section 41 of the Act provides for an appeal to be made against the order of termination to an authority designated by the State Government, and the second appeal against the decision, to the Labour Court. Termination need not be through a written order. Just as under the Industrial Disputes Act, an unauthorized discontinuation of service by an employer of an employee can also be treated as termination. So far as payment of wages are concerned, the Act has provided a different kind of remedy in the form of adjudication by regular courts under Sections 43 and 44 of the Act. The petitioner had availed the remedy under Sections 43 and 44 of the Act. This remedy presupposes the existence of relationship of employer and employee. When the some is disputed, one has, invariably, to have recourse to the remedy provided under Section 41 of the Act. The petitioner endeavoured a lot to get the declaration as to his very being in service, in the proceedings initiated under Section 43 and 44 of the Act. The same was impermissible in law. Viewed from any angle, I do not find any basis to interfere with the concurrent findings of the Courts below. Accordingly, the C. R. P. is dismissed. No costs.