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2009 (3) GCD 2143 (Guj)
Hon’ble Mr. Justice K.M. Thaker
G.S.R.T.C. Through Divisional Controller
Versus
Anwarhusain Mamhadbhai Kadri C/o K.M. Joshi, Advocate
Special Civil Application No. 8985 of 2008—Decided on 24/02/2009
Payment of Gratuity Act, 1972 — Section 7(7) — Delay in filing appeal — Condonation of delay — Scope of — Finding as to — Under the provisions of the Act appellate authority can condone delay beyond the permissible and prescribed time upto 60 days — It means that appellate authority can not condone delay of more than sixty days occurred after the outer limit prescribed by statute for filing appeal — In the present case there is no dispute that appeal was filed after delay of more than sixty days beyond the period of limit — Thus so far as the order of appellate authority is concerned no fault with the order can be found — Court referred the judgment of Division Bench of this Court in 2008 (3) GLH 662 and held in the extraordinary circumstances explaining the delay, writ jurisdiction of the Court can be invoked — In view of this Court observed that in the facts and circumstances of the case there appears to be reasonable and arguable case in favour of respondent which deserves to be examined by the appellate authority on merit — Court accordingly set aside the order of appellate authority on condition of payment of Rs. 3,500/- towards cost to respondent.
Held :
In present case there is no dispute that appeal was filed after delay of more than sixty days beyond the prescribed period of limitation. Differently put the appeal was filed after more than 120 days (60 days being the prescribed period of limitations and delay of other 60 days which the appellate authority can condone), from the date of the order by controlling authority. [Para 12]
Thus so far as the order of appellate authority is concerned, no fault with the said order can be found. The appellate authority could not have condoned delay beyond 60 days inasmuch as the authority’s power is circumscribed by the provisions of the statute.
[Para 18]
The respondent has already paid an amount of Rs. 3,14,000/- toward gratuity. Hence, this is not the case where no amount towards gratuity has been paid to the appellant, dispute is only with regard to the difference and it is the case of the appellant corporation that as per its calculation, the respondent is entitled for Rs. 3,14,000/- only. Hence, that appears to be reasonable and arguable case in favour of the respondent, which deserves to be examined by the appellate authority on merit. [Para 19]
Under the circumstances, the order of the appellate authority is set aside on the condition that the petitioner shall pay Rs. 3,500/- towards cost to the respondent. [Para 20]
Law Laid Down :
In extra-ordinary circumstances explaining the delay appeal can be allowed to be entertained beyond the period prescribed for condonation of delay invoking writ jurisdiction by Court.
Case Law Analysis :
D.R. Industries Ltd. and Anr. vs. Union of India and Ors., 2008 (3) GLH 662 [Para 14];; Mahagujarat Medical Society vs. Deputy Labour Commissioner, 2004 (0) GLHEL-HC 207138 [Para 15].—Relied on
State Bank of India and Others vs. Sree Rayalaseema Paper Mills Ltd., 2004 (13) SCC 769 [Para 15].—Distinguished
K.M. Thaker, J.—Heard Ms. Jyoti Mehta learned Advocate for Mr. Rawal learned Advocate for petitioner and Mrs. Shaikh learned Advocate for respondent.
2. Rule. Ms. Jyoti Mehta learned Advocate for Mr. Rawal learned Advocate for the petitioner waives service of rule and Mrs. Shaikh learned Advocate waives service of notice of rule for the respondent. At the request and with the consent of the learned advocates, this petition is taken up for final disposal today.
3. In this petition the petitioner has brought under challenge order dated 29.6.2007 passed by the controlling authority in gratuity Application No. 16 of 2007 and has also brought under challenge order dated 19.2.2008 passed by the appellate authority in gratuity Appeal No. 57 of 2008. By the said order the appellate authority has rejected appeal and confirmed the order passed by the controlling authority.
4. By the impugned order dated 29.6.2007 the controlling authority came to the conclusion that the applicant viz. present respondent was entitled to receive Rs. 3,50,000/- towards gratuity whereas he was paid only Rs. 3,14,091/- towards gratuity by present petitioner. The controlling authority also came to the conclusion that the said amount of Rs. 3,14,091/- was paid after delay of about 9 months and 25 days. Having arrived at such conclusion the controlling authority passed aforesaid order dated 29.6.2007 directing present petitioner to pay Rs. 35,909/- difference towards gratuity amount and to also pay the said amount with interest at the rate of 10% per annum
5. Upon being aggrieved by said order of controlling authority, petitioner approached appellate authority. There was delay in filing appeal. The delay caused in filing appeal was more than the period which the appellate authority could have condoned under the provisions of Section 7(7) Payment of Gratuity Act, 1972 and that therefore the appellate authority rejected the appeal as time barred. Aggrieved by said orders the petitioner is before this Court.
6. Ms. Jyoti Mehta learned Advocate for Mr. Raval learned Advocate for the petitioner has appeared and Mrs. Shaikh learned Advocate for the respondent has appeared.
7. Ms. Jyoti Mehta learned Advocate for the petitioner submitted that appellate authority has not condoned delay though reasonable cause for condoning delay was made out by the petitioner corporation. She submitted that appellate authority ought to have condoned delay and entertain the appeal.
8. On the other hand Mrs. Shaikh learned Advocate for the respondent submitted that the power of appellate authority to condone delay is limited and has been circumscribed by the provisions of the Act and that therefore, appellate authority could not have condoned delay for period beyond the permissible and prescribed limit i.e. beyond maximum permissible period of 60 days.
9. In view of the aforesaid submission it is appropriate to take into account the provisions under Section 7(7) of the Payment of Gratuity Act, 1972 which reads as under:
7. Determination of the amount of gratuity:—
(7) Any person aggrieved by an order under Sub-section (4) may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf;
Provided that the appropriate Government or the appellant authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days:
[Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under Sub-section (4), or deposits with the appellant authority such amount.”
10. It ca
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