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2023 Supreme(Ker) 265
IN THE HIGH COURT OF KERALA AT ERNAKULAM
AMIT RAWAL, J.
The Secretary, Sree Avittom Thirunal Hospital - Petitioner
Versus
State of Kerala, Rep. By The Secretary, Department of Labour & Ors. - Respondents
WP(C) No. 2502 of 2021
Decided On : 23-01-2023
For the Petitioner: R.S. Sarat.
For the Respondent: B. Ananthu, Sri. Sunil Kumar Kuriakose.
Headnote:Payment of Gratuity Act - Limitation - Section 7(7), Section 5, and Section 29 of the Limitation Act FACT OF THE CASE The petitioner filed an appeal against the order of the controlling authority rejecting their appeal on the grounds of limitation. The petitioner argued that the provisions of Section 29(2) of the Limitation Act should be applicable to their case. FINDING OF THE COURT The court held that the provisions of Section 29(2) of the Limitation Act were not applicable as the Payment of Gratuity Act specifically excluded its application by providing a limitation period for filing an appeal. Therefore, there could be no condonation of delay under Section 5 of the Limitation Act. ISSUES The main issue was whether the provisions of Section 29(2) of the Limitation Act were applicable to appeals filed under the Payment of Gratuity Act. RATIO DECIDENDI The court ruled that since the Payment of Gratuity Act specifically excluded the application of limitation, there could be no condonation of delay under Section 5 of the Limitation Act. FINAL DECISION The court dismissed the writ petition, upholding that there was no ground for interference with the order rejecting the appeal on grounds of limitation.
Certainly. Based on the provided legal document, here are the key points summarized:
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The court examined whether the provisions of Section 29(2) of the Limitation Act are applicable to appeals filed under the Payment of Gratuity Act. The court concluded that such provisions are not applicable because the Payment of Gratuity Act explicitly excludes the application of limitation periods for filing appeals, specifying a fixed limitation period of 60 days, with a possible extension of another 60 days for sufficient cause (!) (!) .
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The court emphasized that the limitation period prescribed under the Payment of Gratuity Act is specific and excludes the general applicability of the Limitation Act’s Section 5, which allows for condonation of delay. Therefore, delays beyond the prescribed period cannot be condoned by invoking Section 5 of the Limitation Act (!) .
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The court clarified that the provisions of the Limitation Act, particularly Section 29(2), are applicable only to suits, appeals, and applications filed before courts, not to those filed before statutory authorities or tribunals, unless the specific law governing the proceedings expressly incorporates the Limitation Act (!) (!) .
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The court reaffirmed that the legislative intent in the Payment of Gratuity Act was to set a strict limitation period for filing appeals, which cannot be extended or condoned through general provisions of the Limitation Act. This ensures the finality and timeliness of proceedings under the Act (!) (!) .
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Consequently, the court dismissed the writ petition, holding that the rejection of the appeal on the ground of limitation was legally correct, given the specific exclusion of the Limitation Act’s provisions by the Payment of Gratuity Act (!) (!) .
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JUDGMENT :
Order dated 10.12.2020 of the Regional Joint Labour Commissioner, Kollam rejecting the appeal preferred by the petitioner against the order of the controlling authority dated 28.3.2019 in G.C No.233 of 2018 being barred by law of limitation is under challenge and subsequent recovery proceedings brought on record vide interim application Exts.P10 and P11 which had been stayed for a period of six months.
2. Succinctly, the facts in brief are that an application under Section 7(4) of the Payment of Gratuity Act was filed by a workman namely Sindhu S on the ground that he had been working as a Senior Computer Operator with effect from 5.10.1998 and sought voluntary retirement on 16.3.2018. At the time of retirement, was drawing a sum of Rs.26,725/- as last drawn salary and claimed a sum of Rs.3,80,831/- as gratuity. The aforementioned application was numbered as GC 233 of 2018. Notice was issued to the petitioner Sree Avittam Thirunal Hospital, Thiruvananthapuram and sought to file the written statement. Thereafter, remained absent; nor filed written statement and accordingly, on 29.1.2019 was proceeded ex-parte.
3. Learned Controlling authority vide order dated 28.3.2019 assessed the gratuity to the tune of Rs.2,92,947/- by considering 19 years of length of service and taking into consideration of the last drawn salary of Rs.26,725/-. Accordingly, notice of payment of gratuity was served upon the petitioner on 28.3.2019, Ext.P2. Petitioner vide reply dated 8.11.2019 submitted that there was no scheme of gratuity or any fund when the respondent workman left the society. It was a charitable institution and performing functions without any financial assistance either from Government or Government agencies and requested to review the order dated 28.3.2019.
4. Jurisdiction of this Court, on behalf of the petitioner, was invoked by writ petition (C) No.21468 of 2020 by challenging the order of the authority and vide order dated 13.10.2020 it withdrawn with a liberty to avail the alternative remedy. The appeal accordingly was filed accompanied by an application for condonation of delay of one year. It has been rejected vide impugned order Ext.P8 on ground of being barred by limitation and subsequently recovery proceedings Exts.P10 and P11.
5. Learned counsel appearing on behalf of the petitioner submitted that the remedy of appeal is to be availed under Section 7 of the Act to be preferred within a period of 60 days from the date of receipt of the order with a further condonation of 60 days in case, it could not be filed within 60 days as prescribed under Section 7 of the Act. There is no exclusion of the applicability of the limitation Act and therefore the provisions of Section 29(2) of the Limitation Act, 1963 would be applicable. It is a beneficial legislation and persons so affected should not be prevented to espouse the grievance by availing the remedy under the Act. In support of the contentions relied upon the judgment of the Supreme Court in Commissioner of Sales Tax, U.P. v. Madan Lal Dan and Sons, Barielly (1977 AIR 523) and Commissioner of Customs and Central Excise v. M/s Hongo India (P) Ltd. And Anr. arising out of S.L.P No.18999 of 2007 decided on 27.3.2009.
6. In the first judgment, the controversy was with regard to the condonation of delay and payment of the application for condonation of delay by the appellate authority as in the aforementioned case the matter related to assessment years, and one appeal was preferred by the dealer respondent against the order of the Sales Tax officer which was disposed of by the Assistant Commissioner (Judicial) Sales Tax, Bareilly and served upon the dealer on 2.8.1965. The dealer lost the copy of the appellate order served upon him and thereafter re-applied for the same and delivered in the year 1967. Revision under Section 10 of the UP Sales Tax Act was preferred. Sub - Section 3B of Section 10 of the Act prescribed the period of limitation for filing such a revision; ie., one
