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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(V.C. Daga, J.)
R.P. DHANDA- Petitioner.
Vs.
REGIONAL MANAGER, UCO BANK and another - Respondents.
W. P. No. 2850 of 2006
Decided on 5-3-2007.
Advocates Appeared
For petitioner: Jaiprakash Sawant.
For respondent: Pushkar Baware instructed by D. H. Law Associates.
In the above backdrop, turning to the case on hand, after receipt of application under Section 7 along with application for condonation of delay, the controlling authority ought to have taken up the application for hearing only upon condonation of delay in preferring application under Section 7 of the Act as per the law laid down by the Apex Court in the case of Ganganddeep Pratishthan Pvt. Ltd. v. Mechano, 2002 (1) SCC 475. The petitioner did make an application for condonation of delay. However the controlling authority failed to consider the same. Consequently the said authority failed to condone delay in preferring the application under Section 7. In absence of condonation of delay it was not open to the controlling authority to deal with the application on merits rather it had no jurisdiction to consider the same in view of the law laid down by the Division Bench of the Court in Mathuradas Mohta College of Science v. R.T. Borkar, 1997 (2) Mh LJ 168.
In the above view of the matter, the appellate authority was perfectly justified in reversing the order of the controlling authority and allowing the appeal holding that the application under Section 7(4)(b) read with Section 10(1)(ii) was not maintainable since it was filed beyond the period of limitation prescribed under the Rules.
The appellate authority having reversed the order of the controlling authority was not expected to stop by merely allowing the appeal but it ought to have remitted the matter back to the controlling authority for consideration of the application for condonation of delay which was made by the petitioner and not considered by the controlling authority. It was a lapse on the part of the controlling authority in not considering the application for condonation of delay. The petitioner cannot be made to suffer because of the lapse on the part of the controlling authority, who had failed to consider prayer for condonation of delay in preferring application to claim amount of gratuity.
Payment of Gratuity Act, 1972 - Section 7(7) - Limitation period for filing appeal. - Though the period of limitation for filing an appeal against order of controlling authority is 60 days even then delay in filing appeal can be condoned by authority on satisfaction.
Sub-section (7) of Section 7 also prescribes period of limitation of sixty days for filing appeal against the order of the controlling authority. It is provided therein that the delay, if any, beyond sixty days can be condoned by the authority on satisfaction of sufficient cause. Rule 18 provides for procedure and regard to filing of appeal as provided under sub-section (7) of Section 7 of the Act.
Having taken survey of the provisions of the Act and Rules, it is clear that the period of limitation is provided for moving an application to the controlling authority to claim the amount of gratuity. The rule governing the limitation appears not to have been brought to the notice of the single Judge when the case of Gurunath Vithal Tamse (supra) was heard and decided as such ratio of the said judgment cannot be accepted as an authority to hold that no period of limitation is prescribed to move an application to the controlling authority under the Act and Rules framed thereunder.
Rule, returnable forthwith.
2. Mr. Baware waives service for respondent No.1. Respondent No.2 is a formal party, hence service to respondent No.2 is dispensed with. Heard finally by consent of parties.
3. This petition is directed against the order dated 28th August, 2006 (Exh. “L”) passed by respondent No.2, the Appellate Authority under Payment of Gratuity Act, 1972 and Regional Labour Commissioner (Central), Mumbai (“Appellate Authority” for short) thereby reversing the order dated 23rd February, 2006 passed by the Controlling Authority under the Payment of Gratuity Act and the Assistant Labour Commissioner (Central), Mumbai (“Controlling Authority” for short) directing respondent No. 1 to pay to the petitioner the gratuity amounting to Rs. 3,50,000/- along with interest at the rate of 10% per annum from 31st May, 2000 till the date of payment within thirty days from the date of receipt of the order.
The Facts:
4. The facts leading to the present writ petition are that the petitioner was in continuous service for about 36 years with respondent No. 1-UCO Bank in Mumbai. He retired from the service with effect from 31st May, 2000. On the same day, petitioner made application to respondent No.1 requesting to make payment of gratuity. However, no claim of gratuity was settled. No amount of gratuity was paid to the petitioner. The petitioner appears to have contacted various bank authorities but he could not get the amount of gratuity in spite of repeated requests made in that behalf.
5. It appears that the petitioner filed Consumer Complaint No. 407/2002 before the Consumer Disputes Redressal Commission, Maharashtra State, Mumbai which came to be rejected for want of jurisdiction.
6. The petitioner, ultimately, moved an application dated 12th July, 2005 to the Controlling Authority as required under sections 4 and 7 of the Payment of Gratuity Act, 1972 (“Act” for short) read with Rule 10 of the Payment of Gratuity (Central) Rules, 1972 framed under the Act ("Rules" for short) and prayed for direction against respondent No. 1 for payment of gratuity as claimed in the application. On the same day, petitioner also filed application for condonation of delay in making the application dated 17th July, 2005.
7. The Controlling Authority after hearing parties to the application, was pleased to pass the order dated 23rd February, 2006 and thereunder directed respondent No. 1 to pay to the petitioner the amount of gratuity with interest as stated in the opening para of this judgment.
8. Being aggrieved by the aforesaid order dated 23rd February, 2006, respondent No. 1 preferred appeal dated 7th April, 2006 before the Appellate Authority. The Appellate Authority, vide its order dated 28th August, 2006, was pleased to allow the appeal holding that the application made by the petitioner before the Controlling Authority was barred by limitation and thereby reversed the order dated 23rd February, 2006 passed by the Controlling Authority.
9. Being aggrieved by the aforesaid order of the Appellate Authority, the petitioner has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India with a prayer to set aside the impugned order dated 28th August, 2006 and also to seek restoration of the order 23rd February, 2006 passed by the Controlling Authority directing payment of gratuity with interest thereon.
Submissions:
10. The learned counsel for the petitioner submits that the impugned order suffers from an error apparent on the face of record as the application of the petitioner could not have been rejected by the Appellate Authority holding it to be barred by limitation. He placed reliance on the judgment of the learned single Judge of this Court in the case of Gurunath Vithal Tamse vs. National Textile Corporation (N.M.), 2002(1) CLR 809 to contend that the legislature has not specified any particular period of limitation for moving the Controlling Authority to seek amount of gratuity due and outstandin
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