ANDHRA CEMENT CO LTD Vs. MOHD ILYAS

JUDGEMENT

(1.) The first respondent was employed by the petitioner comsub-sectionpany on 1-1-1967. On the allegasub-sectiontion that he had written anonymous letters and letters with pseudonymous signatures addressub-sectionsed to the Managing Director of the Company which amounts to misconduct, disciplinary action was taken against him. In his report dated August 9, 1982 the enquiry officer found the first respondent guilty of the misconsub-sectionduct. On the basis of the ensub-sectionquiry report, the petitioner issued a show cause notice to the first respondent and after considering his reply discharged him from service by order, dated September 27, 1982. He challensub-sectionged the correctness of the order of discharge before the Appelsub-sectionlate Authority under Section 41 of the Andhra Pradesh Shops and Establishments Act (for short 'the Act'). The Appellate Authosub-sectionrity dismissed the appeal on October 10, 1983. Aggrieved by the order of the Appellate Authority, the first respondent preferred Second Appeal 63 of 1983 before the Labour Court, the second respondent. The second respondent though held that the misconduct is proved, yet directed the petitioner to reinstate the first respondent with full back wages on the ground that Rule 20 (3) of the Andhra Pradesh Shops and Establishment Rules (for short 'the Rules') has not been complied with. The correctness of the judgment of the second respondent is assailed in this writ petition by the petitioner company by praying for a writ of certiorari to call for records containing judgment Dt.21-7-1987 in S.A.No.63 of 1983 from the second respondent and quash the same.

(2.) The first contention of Sri Ramachandra Rao, the learned counsel for the petitioner, is that the Appellate Authority under Section 41 of the Act at Hyderabad has no territorial jurisdiction to entertain the appeal, as the order of discharge was passed by the petitioner's branch in Krishna District and that the second respondent erred in holding that the appellate authority at Hyderabad had jurisdiction to entertain the appeal.

(3.) In the appeal filed by the first respondent before the Appellate Authority under Sec.41 of the Act, at Hyderabad the petitioner raised preliminary objection regarding the ' jurissub-sectiondiction of the Appellate Authosub-sectionrity to entertain the appeal. The appellate authority consisub-sectiondered the preliminary objection and by an order dated January 3, 1983 and held that it had jurissub-sectiondiction to entertain the appeal. Against that order the petitiosub-sectionner filed Second Appeal 12 of 1983 before the second responsub-sectiondent, which was dismissed on October 9 1985 holding that under Section 41 (3) of the Act no second appeal lies against a finding on a preliminary issue. However, having regard to the observation made in the judgment in S.A.No.12 of 1983, the second respondent considered the quessub-sectiontion of jurisdiction and held that the Appellate Authority at Secunderabad had jurisdiction to entertain the appeal. In our view, it was not open for the peitioner to raise that question in S.A.No. 63/83. Any error, defect or irregularity in any order affecting the decision of the case can be set forth as a ground of objection in memoransub-sectiondum of appeal against the decree . under appeal in view of Sub. Sec (1) of section 105 of the Code of Civil Procedure. Admittedly, the Code of Civil Procedure does not apply to the proceedings before the Appellate Authority under Section 41 of the Act. As such the order of the Appellate Authority dismissing the appeal has become final and cannot be reagitated in the second appeal filed by the first respondent against the final order of the Appellate Authority dismissing his appeal. As after the dismissub-sectionsal of second appeal No. 12/83 by the second respondent the petitioner did not pursue the matter further, the objection as to jurisdiction of the Appellate Authority would be deemed to have been, waived particularly when that Authority is not even impleaded as party respondent in the writ petition. Therefore, we cannot permit this contention of the learned counsel to be raised in this writ petition.