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2020 Supreme(Guj) 838
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, J.
Deputy Executive Engineer – Petitioner
Versus
Puriben Badsangji Thakor W/o Late Badsangji Thakor – Respondent
Special Civil Application No. 13760 of 2020
Decided On : 02-12-2020
Advocate Appeared:
For the Petitioner: Mr. Soaham Joshi.
Point of Law: Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract the applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory.
Headnote:
Payment of Gratuity Act, 1972 - Section 7(7) – Gratuity payment – Stay of proceedings – Condonation of delay - Controlling authority ought not to have accepted the application filed by the respondent - It was submitted that in absence of any reason for condonation of delay put-forth by the respondent - Learned AGP appearing for the petitioner-State submitted that both the authorities below erred in not considering the fact that the respondent has approached the authority after a delay of almost two years without filing any application for condonation of delay –
Finding of the Court:
settled legal position of the law, there is no infirmity in the impugned orders passed by the authority, more particularly, the order passed by the appellate authority, whereby, the delay is not condoned, as the appellate authority has no power to condone the delay beyond the statutory prescribed period of 120 days under the provisions of the Payment of Gratuity Act, as the appeal was filed beyond the period of 120 days, it could not have been entertained by the appellate authority –
Result: Petition dismissed
ORDER :
1. Heard learned Assistant Government Pleader Mr. Soaham Joshi for the petitioner-State through video conference.
2. By this petition, the petitioner-State has prayed for the following reliefs:
“(A) The Hon'ble Court may be pleased to admit and allow the present Appeal.
(B) The Hon'ble Court may be pleased to quash and set aside the impugned order dated 18.02.2020 passed by the appellate authority.
(C) The Hon'ble Court may be pleased to quash and set aside the order passed in Gratuity Application No 46 of 2019 passed by Controlling Authority under The Payment of Gratuity Act.
(D) The Hon'ble Court may be pleased to grant stay against the order passed in Gratuity Application No. 46 of 2019 passed by Controlling Authority under The Payment of Gratuity Act and order dated 18.02.2020 passed pass by the appellant authority under The Payment of Gratuity Act till the final disposal of this petition.
(E) Your Lordship may be pleased to grant any other and further reliefs as may be deemed just and proper in the interest of justice and fitness of things, in favour of the appellants.”
3. The brief facts of the present case are as under:
3.1 The husband of the present respondent has joined the service as a daily wager in the year 1989 with the petitioner. It is the case of the petitioner that the husband of the respondent i.e. late Badarsang Thakor did not come for work from 1999 to 2008-2009.
3.2. Late Badarsang Thakor has filed the reference before the Labour Court, for reinstatement and back wages. The Labour Court passed the award dated 23.1.2004. Against the award passed by the learned Labour Court, late Badarsang Thakor filed the Special Civil Application No. 8316/2008.
3.3. The husband of the present respondent expired on 19.09.2017 and therefore, the respondent no. 1 herein made an application before Deputy Executive Engineer, Dharoi Irrigation department, Division seeking the benefits of gratuity.
3.4. The respondent filed application for recovery of gratuity for the period between 27.06.1984 to 19.09.2017. The application of respondent was opposed by petitioner by filing written statement.
3.5. It is the case of the petitioner that though the petitioner has produced details of attendance and payment as per the record, the controlling authority has not considered the same and vide order dated 30.09.2019 allowed the application and directed the petitioner to pay an amount of Rs. 35,808/- with 10% cumulative interest.
3.6. Against the order passed in Gratuity Application No. 46/2019 by the controlling authority, the petitioner filed an appeal on 17.02.2020 before the Appellant Authority, Ahmedabad. The Appellate Authority vide order dated 18.02.2020 rejected the appeal on the ground of delay of 120 days in preferring the appeal even though the petitioner produced the copy of procedure sheet and explained the cause of delay, but without granting the hearing and without considering to condone the delay the appeal was dismissed.
4. Learned AGP Mr. Joshi appearing for the petitioner-State submitted that both the authorities below erred in not considering the fact that the respondent has approached the authority after a delay of almost two years without filing any application for condonation of delay. It was submitted that in absence of any reason for condonation of delay put-forth by the respondent, the controlling authority ought not to have accepted the application filed by the respondent.
5. Learned AGP Mr. Joshi further submitted that the appellate authority on the other hand committed an error without considering the cause for delay by not condoning the delay of 120 days in preferring the appeal against the order passed by the controlling authority.
6. Learned AGP further submitted that both the authorities have failed to consider the provisions of the Gratuity Act, as the same are not applicable in the facts of the case of the respondent, as there is a distinction between the daily wager employee and permanent employee. It was submitted
