Telangana High Court
Kyndryl Solutions Private Limited, vs The State Of Telangana, And 2 Others on 11 July, 2025
THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT PETITION No.15904 of 2019
ORDER:
This Writ Petition, under Article 226 of the Constitution of
India, is filed seeking the following relief:
“…to issue a Writ of Certiorari or any other Writ calling for
records pertaining to the Order dated 13.06.2019 passed by the
2nd Respondent in SE No. 09 of 2018 and consequently quash the
Order dated 13.06.2019 passed by the 2nd Respondent in S.E
No.09 of 2018 as being patently illegal, unconstitutional and
wholly without jurisdiction, and pass…”
2. The brief facts of the case are that respondent No.3, who was an
employee of the petitioner Company, was terminated from service vide
order dated 24.12.2015, on account of disciplinary grounds, viz.,
abnormal absenteeism, harassment and misbehaviour at workplace.
As such, respondent No.3 was constrained to approach the Labour
Court-I, Hyderabad, by filing I.D.No.50 of 2016, seeking reinstatement
and back wages, along with continuity of service and other attendant
benefits. However, on 28.02.2017, respondent No.3 filed an
application, seeking withdrawal of the said I.D., and the Labour Court
dismissed the said I.D. vide order dated 13.06.2017, with an
opportunity to respondent No.3 to approach the authority under the
Shops and Establishments Act, 1988. Thereafter, respondent No.3
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approached respondent No.2 and filed an application under Section
48 (1) of the Andhra Pradesh Shops and Establishments Act, 1988,
vide S.E.No.09 of 2018, which was allowed vide order dated
13.06.2019, setting aside his termination order dated 24.12.2015,
and directing the petitioner to reinstate respondent No.3 with full
back wages, attendant/consequential benefits and continuity of
service. Hence, the present writ petition.
3. Heard Sri Avinash Desai, learned Senior Counsel appearing on
behalf of the petitioner and Sri R. Shyam Sundar, learned counsel on
appearing for respondent No.3.
4. Learned Senior Counsel for the petitioner submitted that
respondent No.3 had earlier approached the Labour Court-I,
Hyderabad, and filed I.D.No.50 of 2016 on its file only as the
petitioner Company fell outside the scope of the Shops and
Establishments Act, 1988, in view of the an exemption on the
Information Technology Enabled Companies under G.O.Ms.No.22
dated 21.06.2012. In the said I.D., the petitioner Company filed its
counter affidavit, to show that the termination of respondent No.3 was
in accordance with law. However, respondent No.3 took several
adjournments on one or the other pretexts. It was further submitted
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that this Court granted stay of operation of G.O.Ms.No.22 dated
21.06.2012, vide order dated 06.07.2016 in W.V.M.P.No.2582 of 2015
in W.P.M.P.No.43388 of 2014 in W.P.No.34685 of 2014. As such,
respondent No.3 himself filed a withdrawal application in the said I.D.
on 28.02.2017. Thereafter, the Labour Court dismissed the I.D. filed
by respondent No.3 on 13.06.2017, and granted him an opportunity
to approach the authority under the Shops and Establishments Act,
1988, subject to the issue of limitation. The Labour Court has left the
decision of delay in filing the application under Section 48 (1) of the
Shops and Establishments Act, 1988, to the authority, i.e.,
respondent No.2 herein. To that effect, an award, vide G.O.Rt.No.522
dated 06.07.2017 was also published on the notice board of the
Labour Court on 25.07.2017.
5. It was further submitted that after withdrawal of the said I.D.,
respondent No.3 approached respondent No.2 and filed an application
on 19.06.2017, making the same allegations against the petitioner as
were made before the Labour Court. However, the said application
was in itself a premature application as the award of the Labour
Court dated 06.07.2017, was published only on 25.07.2017.
Therefore, as per Section 17 of the Industrial Disputes Act, 1947, the
said award came into force only after 30 days of its publication. It
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was further submitted that respondent No.3 had filed an application
for condonation of a delay of 542 days in filing the application,
without any reasons, except citing pendency of I.D., and no reasons
were also assigned as to why he withdrew the said I.D., even though
the Labour Court was had the jurisdiction to proceed with the case.
In spite of the same, without deciding the issue of delay, respondent
No.2 treated the application as a regular one and arbitrarily
proceeded with the matter. It was further submitted that the
petitioner herein had filed an interim application raising preliminary
objections on the maintainability of the petition filed by respondent
No.3, in addition to it being premature, and prayed respondent No.2
to put the case in abeyance till this Court decides the writ petition,
wherein, G.O.Ms.No.22 dated 21.06.2012 was stayed. However,
without considering the same, respondent No.2 has passed orders in
the interim application on 28.02.2018, holding that the petition was
maintainable in light of stay of G.O.Ms.No.22 dated 21.06.2012. As
such, the petitioner herein filed a Memo, seeking hearing of the delay
condonation application before proceeding with the main case.
However, the said Memo was surprisingly treated as an interim
application, and orders were passed on 11.03.2019, holding that the
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petitioner is filing Memos to drag the case, which is totally false and
misconceived.
6. It was further submitted that the petitioner filed another Memo
before respondent No.2, bringing it to its notice that W.P.No.34685 of
2014, wherein, operation of G.O.Ms.No.22 was stayed, was disposed
of on 20.03.2018, and in view of vacation of stay of G.O.Ms.No.22, it
was again in force, and thus, respondent No.2 does not have the
jurisdiction to adjudicate the application filed by respondent No.3. It
was further submitted that during the pendency of the aforesaid writ
petition, i.e., W.P.No.34685 of 2014, respondent No.2 continued with
the proceedings against the petitioner therein and passed final orders,
which were challenged before this Court in W.P.No.17453 of 2017.
This Court, vide order dated 02.06.2017 in W.P.M.P.No.21320 of 2017
in W.P.No.17453 of 2017, suspended the order impugned in the said
writ petition and eventually allowed the said writ petition on
04.05.2020, holding that the order impugned therein was ex-facie
illegal and passed by an authority without jurisdiction. It was further
submitted that after dismissal of W.P.No.34685 of 2014,
G.O.Ms.No.22 dated 21.06.2012, has once again come into force,
thereby, it was binding on respondent No.2. However, respondent
No.2 erroneously proceeded further with the case and passed the
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impugned order, even though its jurisdiction was ousted as a result of
G.O.Ms.No.22. As such, the impugned order passed by respondent
No.2 is wholly without jurisdiction and is patently illegal, arbitrary,
contrary to law, and in violation of Articles 14 and 19 (1)(g) of the
Constitution of India. Therefore, learned Senior Counsel for the
petitioner prayed this Court to allow the present writ petition, by
setting aside the impugned order passed by respondent No.2 dated
13.06.2019 in S.E.No.09 of 2018. In support of his case, learned
Senior Counsel for the petitioner relied on a decision of this Court in
Cognizant Technology Solutions Pvt. Ltd. v. The Appellate
Authority and others 1.
7. Learned counsel for respondent No.3 vehemently contended
that the writ petition is not maintainable either in law or in facts, as
the order passed by respondent No.3 is appealable under Section
48(3) of the Shops and Establishments Act, 1988. However, without
filing a statutory appeal, only to avoid the deposit of full payment, as
directed by respondent No.2, the petitioner has filed the present writ
petition. It was submitted that respondent No.3 joined the services of
the petitioner Company on 17.08.2009, and successfully complete
probation on 17.08.2010. However, falsely alleging that respondent
1 2020 (4) ALD 146
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No.3 did not cooperate with a Pakistani client (who was repeatedly
insisting on cooperating in unlawful things), the petitioner forced him
to resign on 24.01.2011. Aggrieved by the same, respondent No.1
had filed S.E.No.05/2011 before respondent No.2, and the authority
passed an order on 05.11.2012, directing the petitioner to reinstate
respondent No.3 into service, with back wages and other
consequential benefits. However, instead of reinstating respondent
No.3, the petitioner dragged the matter months together, and only on
16.09.2013, reinstated him into service. After receiving his pay-slip,
respondent No.3 realized that the petitioner, instead of reinstating
him into service, issued fresh re-appointment orders, duly allotting a
new PF Number, instead of continuing the old one, and also denied
the payment of consequential benefits. However, when respondent
No.3 forced the petitioner to implement the order of respondent No.2
in to-to, disciplinary proceedings were initiated against him,
culminating in termination of his services, w.e.f., 24.12.2015.
8. It was further submitted that as on the date of his termination,
i.e., 24.12.2015, G.O.Ms.No.22 dated 21.06.2012 was in operation,
prohibiting the jurisdiction of the Shops and Establishments Act,
1988, to entertain the application filed under Section 48 (1) of the Act,
with specific exemption for the establishments of IT industry. As
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such, respondent No.3 approached the Labour Court under Section 2-
A(2) of the Industrial Disputes Act, 1947, by filing I.D.No.50 of 2016,
seeking to set aside the illegal termination order and to reinstate him
into service, along with back wages and all other consequential
benefits. In the said I.D., the petitioner took several adjournments,
without even filing a counter affidavit, and in the mean time, this
Court suspended the operation of G.O.Ms.No.22 dated 21.06.2012
vide order in W.P.No.34685 of 2014. As such, respondent No.3
immediately approached the Labour Court and filed an application on
28.02.2017, seeking withdrawal of the I.D., with a liberty to approach
the under Authority under Section 48(1) of the Shops and
Establishments Act, 1988. Thereafter, the Labour Court passed an
award vide G.O.Rt.No.522 dated 06.07.2017, permitting respondent
No.3 to withdraw the I.D., and the said award was published on the
Notice Board on 25.07.2017. It was further submitted that soon after
withdrawal of his I.D., respondent No.3 approached the authority
under Section 48(1) of the Shops and Establishments Act, 1988, vide
S.E.No.09 of 2018, wherein, respondent No.2 passed the order dated
13.06.2019, directing the petitioner to reinstate respondent No.3 into
service, with full back wages, attendant benefits and continuity of
service.
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9. It was further submitted that the Authority had stopped
entertaining the applications under Section 48(1) of the Shops and
Establishments Act, 1988, from 17.11.2014, in view of lack of
jurisdiction to entertain the applications for Information Technology
and Information Technology Enabled Service Units. However, only
after this Court had suspended G.O.Ms.No.22, respondent No.3 filed
an application before respondent No.2. As such, the question of
limitation does not arise and no delay can be attributed to respondent
No.3, and the time spent before the Labour Court has to be deleted
while computing the limitation. It was further submitted that
contention of the petitioner that the application filed by respondent
No.2 is a premature one, is untenable, as the Labour Court passed
the award on 13.06.2017, and respondent No.3 has filed the
application before respondent No.2 only on 19.06.2017. As such, the
primary authority has rightly held that the publication of award is
only a directory provision but not mandatory. It was further
submitted that respondent No.2 has rightly passed the order in the
interim application filed by petitioner, holding that the said petition
was maintainable. Further, the petitioner first filed a Memo stating
that the application is premature and also filed another Memo stating
that the delay was on the part of respondent No.3. As such, the
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authority has rightly held that the petitioner was trying to prolong the
proceedings.
10. It was further submitted that the main contention of the
petitioner was that the impugned order passed by respondent No.2 is
not maintainable in view of G.O.Ms.No.22 dated 21.06.2012, which
came into operation after the stay was vacated in W.P.No.34685 of
2014 vide order dated 20.03.2018. However, in the said writ petition,
this Court did not decide the validity of the said G.O., particularly
prohibiting certain provisions to certain establishments by an
Executive Order. Further, the Government of Telangana has stopped
the continuation of the said G.O. and restored the powers of the
authorities under the Shops and Establishments Act, 1988, vide
G.O.Ms.No.25 dated 25.07.2019. It was further submitted that the
petitioner has filed the present writ petition, without first availing an
alternate remedy of appeal under Section 48(3) of the Shops and
Establishments Act, 1988. Therefore, it was contended that the
present writ petition is not maintainable, and thus, prayed to dismiss
the same.
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11. This Court has taken note of the rival submissions/contentions
urged by the learned counsel for the respective parties and perused
the material on record.
12. Admittedly, respondent No.3 was terminated from service on
24.12.2015, and at that point of time, G.O.Ms.No.22 dated
21.06.2012, which exempted the Information Technology and
Information Technology Enabled Service Establishments from the
purview of the Shops and Establishments Act, 1988, was very much
in force. As such, in view of lack of jurisdiction of respondent No.2,
i.e., the Authority under Section 48(1) of the Shops and
Establishments Act, 1988, respondent No.3 has righty approached
the Labour Court-I, Hyderabad, and filed I.D.No.50 of 2016. However,
it is to be noted that the operation of G.O.Ms.No.22 dated 21.06.2012
was stayed by this Court vide order 06.07.2016 in W.V.M.P.No.2582
of 2015 in W.P.M.P.No.43388 of 2014 in W.P.No.34685 of 2014.
Subsequently, on 28.02.2017, respondent No.3 filed an application
before the Labour Court seeking withdrawal of the aforesaid I.D. and
the Labour Court, vide award dated 13.06.2017, dismissed the I.D.
with a liberty to respondent No.3 to approach the authority under
Section 48(1) of the Shops and Establishments Act, 1988, subject to
limitation and the issue of delay. Thereafter, respondent No.3 filed
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S.E.No.09 of 2018 before respondent No.2 on 19.06.2017. In this
connection, it is to be noted that petitioner specifically contended the
application as premature, as the award of the Labour Court vide
G.O.Rt.No.522 dated 06.07.2017, was published on its notice board
on 25.07.2017. However, the main dispute before this Court pertains
to the jurisdiction of respondent No.2 in entertaining the petition, but
not the timing of filing the said petition.
13. Further, it is pertinent to note that this Court, vide order dated
20.03.2018, dismissed W.P.No.34685 of 2014, and categorically held
that the interim orders staying G.O.Ms.No.22 dated 21.06.2012
stands automatically vacated. As such, it can be inferred that the
exemption of IT/ITES establishments from the scope of the authority
under the Shops and Establishments Act, 1988, has come into force.
According to the petitioner, the same was also brought to the notice of
respondent No.2, by filing a Memo to that effect, on Nil.04.2018.
However, in spite of ousting of jurisdiction, respondent No.2
proceeded to adjudicate the matter and passed the impugned order
dated 13.06.2019, directing the petitioner to reinstate respondent
No.3 into service with all back wages and consequential benefits.
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14. In a near identical matter, in Cognizant Technology Solutions
Pvt. Ltd. (supra), this Court categorically held as follows:
22. The quasi-judicial Authority is a creature of the Act. He has
limited jurisdiction. He has to act within the four corners of the
Act under which he was created. Under the Act, the ‘Authority is
required to adjudicate dispute on termination of an employee by
the employer, who answers the description of ‘establishment’. If
the employer, like the petitioner does not answer the description of
‘establishment’, albeit on account of exemption notification under
Section 73(4), the Authority under the Act is ousted of jurisdiction
to adjudicate the dispute. As the issue of jurisdiction and
competence to decide dispute on termination of an employee by
the establishment goes to the root of the matter, there can be no
bar to raise the said issue in a writ petition filed under Article 226
of the constitution of India, even for the first time, assuming that
such plea was not raised before the Authority.
…
25. Further, it is settled principle of law that parties do not
confer jurisdiction on a quasi judicial Authority, for that matter
even on the Court. The Authority created by the statute has to
work within four corners of that statute and would have
jurisdiction only if matter arises under the Act. Though the
Authority has jurisdiction to adjudicate the dispute on termination
of service of an employee of ITES/IT establishment, but in view of
the exemption of operation of provisions of the Act to ITES/IT
companies, by way of exemption notification issued by the
Government in exercise of power vested under Section 73(4) of the
Act, the jurisdiction of the authority was ousted.
…
28. One of the parameters of judicial review to test the validity of a
decision of quasi-judicial authority is on the competence and
jurisdiction to decide the dispute in issue. Thus, when the
petitioner raises plea of jurisdiction of quasi-judicial authority to
adjudicate the dispute in issue, the Court is bound to consider the
said objection to test the validity of the order under challenge. In
such a case, petitioner need not be relegated to avail remedy of
second appeal under Section 48(3) of the Act.
…
30. The Authority formulated three issues for consideration. The
second issue is with reference to the exemption notification dated
30.05.2012. The objection on maintainability of appeal,
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apparently, over-ruled by referring to interlocutory order passed by
this Court in W.V.M.P. No. 2582 of 2015 in WPMP No. 4338 of
2014 in W.P.No. 34685 of 2014. By this order, the High Court
vacated the earlier interlocutory order staying the proceedings
before the authority and suspended the operation of G.O. Ms. No.
22, dated 21.06.2013. With reference to application of relevant
notifications, the authority holds that having raised plea before the
High court that G.O.Ms. No. 22 was issued, it was not permissible
to petitioner to now contend that G.O.Ms. No. 62 is relevant, but
not G.O.Ms. No. 22. Further on the day when the appeal was filed
by the 2nd respondent, G.O.Ms. No. 22 was in force and as said
Government Order was suspended, Authority is competent to
decide the appeal.
31. The said view of the authority is clearly erroneous. The
Authority misdirected itself in appreciating the issue of
jurisdiction. On the day when second respondent was terminated,
exemption notification published vide G.O. Ms No. 62 dated
30.05.2012 was in force. Sub-sections (1), (2), (3) & (4) of Section
47 of the Act stipulate procedural safeguards against termination
of service of employee by the establishment. Under Section 48 of
the Act, the Authority is vested with jurisdiction to decide validity
of termination of employee under Section 47 of the Act. Thus,
Authority acquires jurisdiction only if termination of employee
attracts provisions of Section 47 and not otherwise. As on the date
of termination of second respondent, application of Section 47 of
the Act was exempted to petitioner, such termination of service
was outside Section 47 of the Act. While testing the validity of an
order of termination of an employee by an ‘establishment’, what is
relevant is date of order of termination and not the date of filing of
appeal. Even otherwise, even on the date of filing of appeal
exemption notification published vide G.O. Ms No. 22 was in force.
Further suspension of G.O. Ms No. 22 would ultimately abide the
result of the writ petition and once writ petition was dismissed,
vacating the interim order made in the WVMP, the interlocutory
order gets dissolved. Thus, even otherwise exemption was in
operation. Therefore, decision taken by the Management of an
establishment exempted from the purview of the Act was not
amenable for challenge before the Authority.
…
33. From the cumulative assessment of above aspects, two things
are palpable. Firstly the parties cannot confer jurisdiction on a
quasi-juridical Authority who is a creature of the Statute whose
application is expressly exempted to petitioner company. Even if
parties do not raise objection on jurisdiction and subject
themselves to the jurisdiction, the decision cannot be legal and
valid as the Authority was not competent to adjudicate the
dispute. It is a case of inherent lack of jurisdiction and the same
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cannot be cured merely because parties subject to its jurisdiction.
Secondly, the petitioner did not waive his right to raise objection
on maintainability and said issue was contested and merely
because petitioner participated in the proceedings before the
authority, does not amount to waiving his right to raise objection
on the jurisdiction of the Authority. Further, and more importantly
jurisdictional fact is a core issue and question of
waiver/acquiescence does not arise.
…
36. Petitioner sought for writ of prohibition and to restrain
proceeding with adjudication in appeal filed by the 2nd
respondent. By order dated 14.11.2014 made in WMP No. 43388
of 2014, Court granted interim suspension prayed. In W.V.M.P.
No. 2582 of 2015, the said interim order was vacated and the
court also stayed the operation of G.O.Ms. No. 22. After vacation of
the interim order, the appeal was disposed of finally. Decision of
appellate authority is against the petitioner. Section 48(3) provides
for remedy of appeal. Without availing remedy of appeal,
challenging the order of the Authority under the Act, this writ
petition is filed, primarily on the ground that, he is not competent
to decide the issue. In view of the subsequent developments,
petitioner sought withdrawal of earlier writ petition.
…
42. Having cleared three ancillary issues and as the 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.”
15. From the above, it is clear that the jurisdiction of respondent
No.2, who is a quasi-judicial authority under the Shops and
Establishments Act, 1988, has been ousted in view of the vacation of
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interim stay on G.O.Ms.No.22 dated 21.06.2012, vide order passed by
this Court dated 20.03.2018 in W.P.No.34685 of 2014. As such, the
impugned order passed by respondent No.2 is without jurisdiction
and unsustainable in the eye of law.
16. Further, it is to be noted that the Government issued
G.O.Ms.No.25 dated 25.07.2019, rescinding G.O.Ms.No.22 dated
21.06.2012, restoring the jurisdiction to the authority under the
Shops and Establishments Act, 1988. However, the said G.O. came
into effect only after the passing of impugned order dated 13.06.2019.
Hence, it is of no avail to respondent No.3.
17. In light of the foregoing discussion, this Court is of the view that
impugned order dated 13.06.2019 suffers from lack of jurisdiction
and is legally unsustainable. As such, the impugned order is liable to
be set aside.
18. Accordingly, the Writ Petition is allowed setting aside the
impugned order dated 13.06.2019 passed by respondent No.2 in
S.E.No.09/2018. However, it is made clear that the right of
respondent No.3 to work out his legal remedies against his
termination order dated 24.12.2015 is preserved and it is open to him
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to work out his remedies as available in law. It is also made clear
that this Court has not expressed any opinion on the merits.
Miscellaneous applications, if any, pending in this writ petition,
shall stand closed. No costs.
_________________________________
JUSTICE PULLA KARTHIK
Date: 11.07.2025.
GSP
