IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Present:

The Hon’ble Justice Shampa Dutt (Paul)

WPA 25382 of 2023 Sail Growth Works Versus Sri Vinod Orang & Ors.

For the Petitioner : Mr. Nirmalendu Ganguly, Mr. Angshunath Chakraborty.

For the Respondent Nos. : Mr. Kumar Jyoti Tewari, Sr. Adv.

2 and 3 Mr. T.J. Tewari.

Hearing concluded on : 10.03.2025 Judgment on : 10.03.2025 SHAMPA DUTT (PAUL), J. :

1. The present writ application has been preferred against an order dated 27.07.2022 passed by the respondent no. 3 being the appellate authority under the Payment of Gratuity Act and Deputy ALC(C), Asansol, granting gratuity in favour of the petitioner.

2. The respondent no. 1 herein being engaged through a contractor to perform works of the petitioner has claimed gratuity after rendering service through the contractor to the principal employer being the petitioner herein.

3. Learned counsel for the writ petitioner has relied upon the following judgments in support of his contention that the claim is barred by limitation:-

1) M. Jayaseelan-vs- The Management, Jaigopal Garodia Vivekananda Vidyalaya, Vivekananda Nagar, Avadi and another, reported in W.A. No.

570 of 2020 of the High Court of Madras;

2) Londhe Prakash Bhagwan -vs- Dattatraya Eknath Mane and Ors. reported in (2013) 10 SCC 627, Para 9 of which reads as follows:-

“Para 9. Even if we assume that no limitation is prescribed in any statute to file an application before the court in that case, can an aggrieved person come before the court at his sweet will at any point of time? The answer must be in the negative. If no time-limit has been prescribed in a statute to apply before the appropriate forum, in that case, he has to come before the court within a reasonable time. This Court on a number of occasions, while dealing with the matter of similar nature held that where even no limitation has been prescribed, the petition must be filed within a reasonable time. In our considered opinion, the period of 9 years and 11 months, is nothing but an inordinate delay to pursue the remedy of a person and without submitting any cogent reason therefor. The court has no power to condone the same in such case. (See Cicily Kallarackal v. Vehicle Factory, State of Orissa v. Mamata Mohanty and K.R. Mudgal v. R.P. Singh). In these cases, it has been held that the application should be rejected on the ground of inordinate delay. Furthermore, it is to be noted that appointment of the appellant was within the knowledge of Respondent 1 from day one but he did not take any step for such a long time.”

4. The claim of gratuity has been made after being in service till

01.04.2003. An application was submitted before the Controlling Authority under the Payment of Gratuity Act, also raising the issue of limitation and praying for condonation of delay (referred to in Para 1 of the order).

5. It appears that delay has been deemed to be condoned as the authority then proceeded to hear and dispose of the matter on merit.

6. The Controlling Authority rejected the application for payment of gratuity on the following grounds:-

(i) The Applicant could not submit any document to prove that he had applied for gratuity to the contractor concerned and contractor refused to pay.

(ii) The contractors have not been impleaded as a party in the claim for gratuity & moreover the very existence of contractors is doubtful after 15 years of closure of establishment.

(iii) The Applicant was engaged under multiple contractors, but service period in respect of each contractor & documentary evidences in support of the same are not available.

(iv) Documentary evidences in respect of period of service, continuous service, last drawn wages not available for computation of gratuity amount as the establishment was closed during the year 2003 and documents not available. The Principal Employer cannot be compelled to maintain records for over a decade that too in respect of contract labour.

7. An appeal was preferred by the r