1. Heard learned counsel for the petitioner, learned Government Pleader for Labour and Sri Anand Kumar Kapoor learned counsel for 3rd respondent.

2. As the 3rd respondent had grievance regarding settlement of his gratuity from the petitioner-employer, he filed application before the Controlling Authority under Payment of Gratuity Act, 1972 (for short the Act) vide Case No.PG/02/2007 on the file of Assistant Commissioner of Labour, Circle-III, Hyderabad, who is the Controlling Authority. The Controlling Authority by order dated 12.10.2007 allowed the claim and ordered payment of gratuity arrived at Rs.90,045/- by taking the total service rendered by the 3rd respondent as 27 years. Aggrieved by the same, petitioner herein preferred appeal on 03-08-2013 before the Appellate Authority under Section 7(7) of the Act, vide File No.B/1457/2013. The said appeal was dismissed by order dated 17.10.2013, holding that the appeal was filed beyond the limitation prescribed under Section 7(7) of the Act and amount was not deposited as required by the provision.

3. Learned counsel for the petitioner contends that the same authority who decided the original petition of the 3rd respondent, in the meantime became the Deputy Commissioner of Labour and he decided the appeal preferred by the petitioner and the same is ex- facie illegal. He would further submit that the 3rd respondent had worked for only 11 years and when he left the service in the year 1991 all the benefits were settled and therefore, the authority erred in holding that the amount of gratuity be determined by taking the total service as 27 years.

4. To appreciate the first contention, which goes to the root of the matter, it is necessary to consider scope of Section 7. Section 7 of the Act deals with various aspects of determination of gratuity. On an application by aggrieved employee that his employer has not paid the gratuity due to him, the authority shall decide and pass order under sub-section 4 on the claim of employee.

5. As per Section 7(7) any person aggrieved by order made under Sub-section (4) may prefer appeal within 60 days from the date of receipt of the order. If the employer is aggrieved by the order of original authority, as per proviso appended to section, he is required to deposit the amount of gratuity quantified before the Controlling Authority and shall enclose the certificate of the Controlling Authority to the effect that the appellant has deposited with him amount equivalent to the amount of gratuity awarded by him. The Appellate Authority is vested with discretion to condone the delay in filing appeal to a maximum extent of 60 days if sufficient cause is shown for not preferring the appeal within the time prescribed. In other words, the maximum time available to prefer appeal, including grace period, is 120 days. Thus, to prefer appeal by the employer he is required to comply with two conditions at the threshold, (i) pre-deposit of amount awarded and (ii) filing appeal within limitation prescribed. These two are mandatory and appeal is not maintainable even if one of the two conditions are not satisfied and the Appellate Authority has no discretion on these two aspects. The Appellate Authority becomes functus officio even if one of these two conditions are not satisfied.

6. It is not in dispute that copy of the order of the authority was received by the petitioner on 25.10.2007. Learned counsel for respondent no. 4 submits that initially petitioner filed application on 05.11.2007 to recall the order. The Controlling Authority passed conditional order on 29.12.2008 by directing to deposit 50% of the amount ordered. This condition was not complied. Therefore, the conditional order worked itself out and the original order revived. Petitioner filed application to condone delay of 2335 days. This shows that appeal was not preferred within 120 days as required by Section 7 (7) of the Act.

7. Further, admittedly amount awarded by the original authority was not de