The non-condonable nature of delay beyond the prescribed time limit under Section 7(7) of the Payment of Gratuity act, 1972 and the mandatory nature of the limitation under the act.

JUDGMENT

Purushaindra Kumar Kaurav, J. - The petitioner-employer is aggrieved by order dated 07.06.2016 (annexure P/6) passed by the appellate authority under the Payment of Gratuity act, 1972 and Deputy Chief Labour Commissioner (Central), Jabalpur, in case No.PGa-12/2016, whereby, the appeal preferred by the employer under Section 7(7) of the Payment of Gratuity act, 1972 (hereinafter referred to as 'The PG act, 1972), has been dismissed on the ground of delay.

2. The employee-respondent approached the Controlling authority under the PG act, 1972 vide application dated 17.12.2009 under sub-Rule

(1) of Rule 10 of the Payment of Gratuity (Central) Rules, 1972 (hereinafter referred to as 'The PG Rules, 1972) for issuance of appropriate directions for the payment of gratuity.

3. The case of the employee was that he was working with the employer-petitioner as Clerk and had discharged his services from the year 1976 to October, 2009. Since the admissible payment under the provisions of the PG act, 1972 and the rules made thereunder were not made to the employee, hence, the Controlling authority vide order dated 03.01.2011, directed the employer to pay the amount of gratuity of Rs.74,250/- as per last drawn salary of the employee for 33 years service along with interest at the rate of 10% from the due date till the date of actual payment. The employer challenged the said order in appeal under Section 7(7) of the PG act, 1972 and the appellate authority vide impugned order has dismissed the same on the ground that the appeal should have been preferred within a period of 60 days from the date of receipt of copy of the order and the maximum period of 60 days can be extended in case of sufficient reason. Since the appeal was filed after expiry of about five years, therefore, a period beyond 60 days cannot be condoned.

4. The learned counsel appearing for the petitioner-employer submits that neither the employer was aware of the limitation nor he was aware of the appropriate remedy, where, the appeal should have been preferred and, therefore, when the execution proceedings were started, he approached this Court. He filed writ petition before this Court, which was dismissed, thereafter, he approached the appellate court. Such a period of about five years is not inordinate and the same is also not deliberate. Hence, the appellate authority has erred in passing the impugned order.

5. The learned counsel for the employee-respondent submits that firstly, the petitioner's conduct has to be seen as he has suppressed the material fact at all stages. The first stage where he has suppressed the material fact is the stage when he approached the appellate authority without disclosing the fact that before approaching the said authority, the writ petition filed by the employer was already dismissed by the High Court. Even thereafter, when he filed the present writ petition, he has not disclosed the fact that earlier also he filed Writ Petition No.7153 of 2016 and the same was dismissed by this Court on 29.04.2016. He further submits that not only on account of suppression of the material fact but even on merits also, the petitioner does not have any case as it is a settled legal position that once the authority is not conferred with the power to condone the delay, the delay beyond the prescribed time cannot be condoned. He places reliance on a decision of the Hon'ble Supreme Court in the matter of Ravi Khullar and other Vs. Union of India and others (2007) 5 SCC 231.

6. In response to the aforesaid submission, the learned counsel appearing for the petitioner tried to explain his conduct by placing reliance on rejoinder and he states that the employer had only come to know about passing of the said order when RRC was issued and, therefore, he approached this Court. Since no relief was granted by this Court in the earlier writ petition, therefore, he had to approach the appellate forum against the main order. Since this Court in earlier round did not adjudica