A.KUPPUSWAMY,J. - (1.) G. M. F. Cotton Development Research Association, Bombay, is the petitioner in this writ petition. The third respondent herein, who is an employee of the petitioner and whose services were terminated preferred an appeal to the Appellate Authority under S. 41 (1) (b) of the Andhra Pradesh Shops and Establishments Act, 1966, referred to in this judgement as the Act. The appellate authority allowed the appeal and directed reinstatement. As against the said order, a second appeal was preferred to the Labour Court, Guntur, under S. 41 (3) of the Act. The Labour Court in Second Appeal No. 11 of 1976, allowed the appeal and remanded the case to the appellate authority with a direction to allow both parties to cross- examine the witnesses and let in fresh evidence and then dispose of the matter according to law. After remand, one of the points which was considered by the appellate authority was whether the appellant was an employee within the meaning of the Act. The appellate authority came to the conclusion that the appellant did not come within the purview of the provisions of the Act and he cannot said to be an employee under the Act. In the result, it held that the appeal was not maintainable and dismissed the appeal.
(2.) As against the said decision, the third respondent preferred Second Appeal No. 20 of 197y, to the Labour Court, Guntur. Before the Labour Court it was contended that the second appeal was not maintainable under S. 41(3) of the Act. This contention was negative and it was held that second appeal was maintainable. The Labour Court thereupon directed the second appeal to be posted for bearing on merits to 4 November 1980. Challenging the said decision, the petitioner has tiled this writ Petition.
(3.) The contention that the second appeal was not maintainable before the Labour Court, Guntur, has again been raised before us by the learned counsel for the petitioner, Sri K. Seshu. In order to appreciate this contention, it is necessary to set out Sections 41 (2) and 41 (3) of the Act: " 41. (2) The authority may, after Inquiry in the prescribed manner, dismiss the appeal or direct the reinstatement of the employee with or without wages for the period he was kept out of employment or direct payment of compensation without reinstatement or grant such other relict as it deems fit in the circumstances of the case. 41. (3) Against any decision of the Authority under Sub-sec. (2), a second appeal shall he to the Labour Court constituted under S. 7 of the Industrial Disputes Act, 1947." It is argued that under S. 41 (3), a second appeal shall lie against any decision of the Authority under Sub-sec. (2) and in this context, the expression "decision" must be construed only as a final decision of the authority on the merits regarding the validity of the termination of services of an employee. It does not include a decision on the preliminary question which is raised, namely, whether the person whose services are terminated is an employee within the meaning of the Act and whether the Act applies to such a person even though the result of that decision might be to dismiss the appeal. We are unable to agree with this contention. Section 41 (2) clearly states that the authority may after inquiry in the prescribed manner dismiss the appeal. The dismissal may be because the appellate authority has come to the conclusion on the merits that the termination of the services is bad. The dismissal may also be on the ground that the appeal is not maintainable as the person whose cervices were terminated is not an employee. Whatever may be the ground of dismissal, the fact remains that the appeal has been dismissed and S. 41 (3) refers to any decision of the Authority under Sub-sec. (2). The expression "any decision" is wide enough to include a decision on the question whether the person is an employee or not and cannot be confined to the decision on the question of termination of services only. We, therefore, see no substance in the contention that the second appeal was not maintainable. Apart from this consideration, we are of the view that the jurisdiction under Art. 226 of the Constitution should not be exercised at this stage when all that has happened is that the Labour Court has merely held that the appeal is maintainable and has posted it for hearing on the merits.;