Gujarat High Court
Subodh L Doshi vs Panchal Maheshbhai Bhagvanjibhai on 1 April, 2025
NEUTRAL CITATION
C/SCA/11870/2023 JUDGMENT DATED: 01/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11870 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 11953 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
No
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SUBODH L DOSHI
Versus
PANCHAL MAHESHBHAI BHAGVANJIBHAI & ORS.
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Appearance:
JWALIT B SONEJI(7895) for the Petitioner(s) No. 1
MR ARPIT P PATEL(5497) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 01/04/2025
COMMON ORAL JUDGMENT
1. Both the petitions are arising out of identical issues, hence, a common judgment is passed for disposal of these petitions. Facts of Special Civil Application No.11870 of 2023 has been considered for the disposal of these petitions.
2. This petition is filed by the petitioner, challenging the order passed by the learned Appellate Authority dated 18.05.2023 under the Payment of Gratuity Act, 1972 wherein the learned Appellate Authority has returned Page 1 of 6 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Apr 01 2025 Downloaded on : Tue Apr 01 22:50:11 IST 2025 NEUTRAL CITATION C/SCA/11870/2023 JUDGMENT DATED: 01/04/2025 undefined the memo of the appeal on the ground that the appeal is filed beyond the period of 120 days.
3. It is the case of the present petitioner that the respondent workman filed the Form-N alongwith an application which was registered and numbered as Gratuity Application No.182 of 2021. It is alleged by the respondent workman that he was appointed with the petitioner since 15.11.1997 and terminated on 11.03.2020 and therefore, he is entitled for the gratuity for the period of 23 years. It is the case of the present petitioner that petitioner is a Contractor supplying laborers and the respondent workman was serving with respondent No.2. It is further contended in the petition that the liability of statutory payment of the gratuity as well as P.F. etc. was accepted by the respondent No.2. It is further contended that respondent No.2 did not appear before the learned Controlling Authority though he was joined as a party respondent No.2. It is further contended in the petition that the present petitioner appeared before the learned Controlling Authority and filed it's reply, however, learned Controlling Authority has without referring the said reply accepted the claim Page 2 of 6 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Apr 01 2025 Downloaded on : Tue Apr 01 22:50:11 IST 2025 NEUTRAL CITATION C/SCA/11870/2023 JUDGMENT DATED: 01/04/2025 undefined of the respondent workman.
3.1. It is further contended that respondent No.2, against whom the proceedings are pending before the NCLT is liable for the payment of the gratuity as directed by the learned Controlling Authority. It is further contended that as the resolution professionals were appointed by the learned NCLT, without joining them, the order was passed by the learned Controlling Authority holding the present petitioner and respondent No.2 as jointly and severally liable for the payment of the gratuity of Rs.1,38,703/- with 10% interest from 15.04.2021 till its realization. It is further contended that petitioner was not having the knowledge of the order, however, on receiving the notice from the Recovery Officer the application was filed for certified copy on 02.03.2023 which was received on 31.03.2023. Thereafter, the appeal was filed on 10.05.2023 which is filed by delay of 10 days. It is contended that learned Appellate Authority has returned the appeal memo on the ground that as the appeal is filed after 120 days, the Appellate Authority would not have jurisdiction to condone the delay, which is the subject matter of challenge before this Court. Page 3 of 6 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Apr 01 2025 Downloaded on : Tue Apr 01 22:50:11 IST 2025
NEUTRAL CITATION C/SCA/11870/2023 JUDGMENT DATED: 01/04/2025 undefined
4. Heard learned advocate Mr.Jwalit Soneji for the petitioner and Mr.Arpit Patel for the respondent. 4.1. Learned advocate Mr.Soneji submits that without joining the resolution professionals as a party respondent and without considering the reply filed by the present petitioner, petitioner was held jointly and severally liable for the payment of the gratuity. Learned advocate Mr.Soneji submits that as there was a mutual agreement between the petitioner and the respondent No.2, and respondent No.2 accepted all the liabilities of the payment of statutory dues of the respondent workman, however, without considering the same, impugned order is passed and appeal was not accepted on the ground of delay. Learned advocate Mr.Soneji submits that instead of returning the appeal memo, learned Appellate Authority could have considered the merits of the case. However, without doing the same, learned Appellate Authority has returned the memo vide order dated 18.05.2023 and therefore, same order is required to be set aside and appeal is required to be directed, to be heard on merits.
4.2. On the other hand learned advocate Mr.Patel Page 4 of 6 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Apr 01 2025 Downloaded on : Tue Apr 01 22:50:11 IST 2025 NEUTRAL CITATION C/SCA/11870/2023 JUDGMENT DATED: 01/04/2025 undefined appearing for the respondent has contended that the learned Appellate Authority would not have jurisdiction after 120 days from the date of knowledge of the impugned order. Learned advocate Mr.Patel has drawn the attention of this Court with regard to the averment made in the application for condonation of delay wherein, no specific date has been stated regarding receiving of the impugned order. Learned advocate Mr.Patel submits that the only contention raised in the delay condonation application is that, on 02.03.2023, the application for certified copy was preferred which was received on 31.05.2023 and the appeal was filed on 01.05.2023. Learned advocate Mr.Patel submits that as learned Appellate Authority does not have powers to condone the delay, no error is committed in returning the appeal memo by the learned Appellate Authority, therefore, same does not require any interference.
5. Having considered the arguments advanced by learned advocates for the respective parties, this Court is of the view that the learned Controlling Authority without referring to any contention of the petitioner, though it is stated that reply is received, passed impugned order Page 5 of 6 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Apr 01 2025 Downloaded on : Tue Apr 01 22:50:11 IST 2025 NEUTRAL CITATION C/SCA/11870/2023 JUDGMENT DATED: 01/04/2025 undefined accepting the bare words of the respondent workman. The learned Controlling Authority has also not considered the aspect that the respondent No.2 who was joined before the learned Controlling Authority and the principal employer did not appear, however, the petitioner who appeared was also held liable alongwith the respondent No.2.
6. This Court is of the view that instead of returning the appeal memo on the ground of delay, the main appeal is required to be heard on merits, hence the impugned order deserves to be set aside. Appeal is directed to be heard on merits. The said exercise shall be completed within a period of 90 days from today.
7. This Court has not given any opinion on merits. Without prejudice to the rights and contentions of both parties, the impugned order of returning the appeal memo is set aside.
8. It is open for both the parties to raise their contentions before the learned Appellate Authority.
(M. K. THAKKER,J) NIVYA A. NAIR Page 6 of 6 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Tue Apr 01 2025 Downloaded on : Tue Apr 01 22:50:11 IST 2025