Point of Law- It is fundamental rule of interpretation that courts would not fill up the gaps in statute, their function being jus discre non facere i.e. to declare and decide law. The aforementioned provisions can not be interpreted in the manner suitable to the petitioner. The mandate of section 7(7) of the Payment of Gratuity Act does not stipulate that the appellant at his leisure can deposit the amount awarded by the Controlling authority within the period of 120 days.

JUDGMENT :

RULE. Learned advocate Mr.Yogen Pandya waives service of notice of rule on behalf of the respondent No.1.

1. The instant petition is directed against the order dated 25.10.2019 passed by the Appellate Authority under the Payment of Gratuity Act, 1972, Jamnagar in Gratuity Appeal No.35 of 2019 preferred by the petitioner, whereby the appeal has been rejected.

2. Learned advocate for the petitioner has submitted that the appellate authority has misdirected itself in rejecting the appeal of the petitioner on the ground that the petitioner had not deposited the amount awarded by the controlling Authority. It is submitted that the Controlling Authority passed the order dated 15.04.2019 and a certified copy of the same was received on 25.04.2019. He has submitted that within a period 60 days, the petitioner had filed an appeal before the Appellate Authority on 20.06.2019 however, he was unable to deposit the amount awarded by the Controlling Authority as per the provision of Sub-section (7) of section 7 of the Payment of Gratuity Act, 1947. It is submitted that subsequently, petitioner deposited the amount awarded by the Controlling Authority on 08.07.2019 and a certificate of the same was issued on 06.08.2019. He has submitted that it is not in dispute that the amount has been deposited within a period of 120 days from 25.04.2019 i.e. the date of obtaining the certified copy of the order dated 15.04.2019. however, the certificate was issued by the Controlling authority on 06.08.2019 i.e. after a period of one month from the deposit of the amount. It is submitted that since the amount is deposited within 120 days, the Appellate authority should have considered all the said aspect before rejecting the appeal of the petitioner on the ground of non-depositing of the pre-deposit.

2.1 While referring to the provision of Subsection (7) of section 7 of the Payment of Gratuity Act, learned advocate has submitted that the same stipulates about filing of the appeal first within a period of 60 days and, if sufficient cause for preferring appeal is established, a period of preferring the appeal can be further extended for 60 days. It is submitted that as per the second Proviso, the petitioner had in fact deposited the amount as ordered by the Controlling authority within a period of 60 days and hence, as per the second proviso of Sub-section (7) of section 7 of the Payment of Gratuity Act, the appellant, after preferring the appeal, can deposit such amount. He has submitted that the petitioner cannot be put in adverse position only because he has deposited such amount, after a period of 60 days of filing of the appeal since the statute itself provides further extension of a period of 60 days. In support of his submissions, he has placed reliance on the judgement of the Madhya Pradesh High Court in the case of Janpad Panchayat Masturi Vs. Appellate Authority and Dy. Labour Comm., (1994) (68) FLR 281 and the decision of the Allahabad High Court in the case of Sahkari Ganna Vikas Samiti Ltd. Vs. Controlling Authority, 1993 (II) LLJ 1108. Thus, he has submitted that the order of the Appellate Authority may be set aside since the petitioner had already deposited the amount awarded by the Controlling Authority and the Appellate Authority may be directed to hear the appeal on merits.

3. In response to the aforesaid submissions, learned advocate Mr.Yogen Pandya appearing for the respondent has placed reliance on the judgement of this Court in the case of Nadiad Nagarpalika Vs. Hasmukhlal Motilal Soni and Ors., 2010 (2) GLH 250 and has submitted that the statute provides for mandatory deposit of the amount awarded by the Controlling authority before preferring the appeal against its order, and no relaxation is available to the petitioner only because subsequently such amount has been deposited. It is submitted that the provision of Section 7(7) of the Payment of Gratuity Act does not stipulate any such relaxation and since the statute does not