2006 Supreme(Bom) 752

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S. U. KAMDAR, J.
Metal Box India Ltd. - Petitioner.
Vs.
B. R. Rangari & Ors. - Respondents.
Writ Petition No.46 of 2003
Decided on 2nd May, 2006.
Advocates Appeared
C. U. SINGH a/w. KIRAN BAP A T i/b. Tejpal & Co., for Petitioners.
N. M. GANGULI, for Respondent Nos.3 to 64.
MAMTA SADH, A.G.P., for Respondent Nos.1 &2.
SAMRAT RASAL i/b M. K. Ambalal Co., for Respondent No.65.

Headnote:Limitation Act, 1963 - Section 5 - Payment of Gratuity Act, Section 7(7) - Appeal against order passed under Section 7(4) of Act. - Since a limited period of condonation is prescribed by a special statute hence provisions of Section 5 of Limitation Act not attracted.

       Payment of Gratuity Act, 1972 - Section 2(a)(i)(b) - Constitution of India, Article 226 - Jurisdiction - Can a new point be raised directly in writ - Order by Controlling Authority for payment of gratuity - Jurisdiction of writ Court - Contention - Company has various branches in States - Rebuttal - Not allowable to raise for first time in writ - Held - To raise a new point necessary to build up a background first. - In the present case the issue of jurisdiction is a mixed question of law and facts and therefore, cannot be determined for the first time in writ jurisdiction, for the purpose of issue of jurisdiction where it is a mixed question of law and facts, it is necessary for the petitioners to lay foundation of facts before the authority. In the present case, the question of facts has to be established before the Controlling Authority and Appellate Authority namely that the petitioners has branches in more than one State. Having not laid any such foundation before the authority, both before the Controlling Authority or the Appellate Authority, it is not permissible to entertain the issue of jurisdiction for the first time in writ proceeding under Article 226 of the constitution of India. However, even accepting the contention of the counsel for the petitioners that if there is no dispute on the facts then in that event the Court must go into the consideration of the issue of jurisdiction. There is no such admitted position in the present case.

       Payment of Gratuity Act, 1972 - Section 2(a)(i)(b) - Order to pay gratuity to a sick company - Branches of petitioner company in different States - Appropriate Government shall be Central and not State - Branches not included in factories - Order passed by lower authorities valid. - On the facts of the case before the single Judge, it was established that there were various branches and thus the said case was covered by the provisions of Section 2(a)(i), (b) and therefore, the Court was right in holding that the Central Government is the appropriate Government but in the present case there is no such evidence and the bare averments are also denied by the other side. Thus, if it is a factory then it will not be governed by the Section 2(a)(i), (b) and thus, it cannot be held that in the present case the Con trolling Authority and Appellate Authority had no jurisdiction to deal with the case as contended.

       Payment of Gratuity Act, 1972 - Section 7 - Order to pay gratuity amount - Company declared sick - Challenged - Contention - Section 22 of sick Industries Companies Act - Recovery of gratuity is barred - Held - Section 22, SICA has no application in this case as at under cases referred to. - The contention which has been raised in respect of Section 22 of the SICA Act. Court would agree with the view which has been taken by the single Judges in the case of Carona Ltd. v. Sitaram Atmaram Ghag and others, reported in 2000 (II) CLR 295; Ralliwolf Limited v. Regional Provident Fund Commissioner-I for Maharashtra and Goa and others, reported in 2002 Suppl Bom CR (OS) 496; Piramal Spinning and Wvg. Mills Ltd. v. Rashtriya Mill Mazdoor Sangh Mumbai, reported in 2002 Suppl Bom CR (OS) 496, and the Division Bench Judgment in the case of Ramesh Daji Jadhav v. National Textile Corporation (M.N.) Ltd. and 30 another, reported in 2004 (1) Bom CR 4, and in that view of the matter Court also decides the issue against the petitioners the provision of Section 22 of the SICA Act has no application for the reason set out in the aforesaid judgments. In that light of the matter, there is no substance in the present petition. Petition therefore must fail. Petition dismissed accordingly.

       Payment of Gratuity Act, 1972 - Section 7(7) - Appeal - Limitation - Company declared as sick - Controlling Authority ordered for taking over - Non-registration of appeal for reason of non-deposit of amount - Order to deposit by High Court - Amount not deposited - Appeal filed late - Delay of more than 120 days not, condonable - Only upto 60 days delay can be condoned - Held - No error in findings. - Once a special statute prescribes for a limitation period for condonation of delay then provision of Section 5 of the Limitation Act has no application. In the light of the aforesaid, it is not possible to accept the contention of the counsel for the petitioners that even after the period of 60 days has expired within which the Appellate Authority has power to condone the delay still the Appellate Authority by relying on Section 5 of the Limitation Act can condone the delay beyond the period of 60 days. The aforesaid submission is required to be rejected and accordingly, rejected.