Changunabai Sambhaji Gaware vs Kapus Visheshadnya, Kapus ...
2015 Latest Caselaw 390 Bom

                                                                                 WP/1237/2015
                                                 1

                        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                   BENCH AT AURANGABAD




                                                                                
                                   WRIT PETITION NO. 1237 OF 2015




                                                        
     Changunabai Sambhaji Gaware,
     Age 68 years, Occ. Retired,
     R/o C/o Marathwada Trade
     Union Centre, Mahavir Society,




                                                       
     Nanded.                                                      ..Petitioner

     Versus

     1. Kapus Visheshadnya,




                                            
     Kapus Sanshodhan Kendra,
     Nanded.                 
     2. The Principal,
     Krishi Tantra Vidyalaya,
     Nanded.                                                      ..Respondent
                            
                                               ...
                        Advocate for Petitioner : Shri Shelke Avishkar S.
                      Advocate for Respondents : Shri Navandar Manish N.
      

                                               ...

                                CORAM : RAVINDRA V. GHUGE, J.

Dated: September 29 & October 5, 2015 ...

ORAL JUDGMENT :-

1. Heard.

2. Rule.

3. By consent, Rule is made returnable forthwith and the petition is

taken up for final disposal.

4. The petitioner is aggrieved by the judgment and order dated

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18.11.2014 delivered by the Industrial Court under Section 7(7) of the

Payment of Gratuity Act, 1972 ("Act of 1972"), thereby allowing Misc. PGA

Delay No. 3 of 2013.

5. The petitioner submits that the Controlling Authority delivered its

judgment, dated 25.2.2013 in Application Nos.199 to 291 of 2010. All the

applications were allowed and the respondent / management was directed

to pay gratuity in accordance with the provisions of the Act of 1972. By

communication dated 13.3.2013, the petitioner supplied the photostat

copies of the judgment of the Controlling Authority to the respondents. As

such, the respondents had received the copy of the judgment on 15.3.2013

as is indicated by the Inward Stamp of acknowledgment of the respondents.

6. The petitioner further submits that the respondents preferred an

Appeal dated 15.10.2013 along with an application for condonation of

delay, which was registered as Misc. PGA Delay No.3 of 2013. The

respondents, by the said application, dated 15.10.2013, sought extension of

time under the first proviso to Section 7(7) of the Act of 1972. By the

impugned order dated 18.11.2014, the said application was allowed.

7. Shri Shelke, learned Advocate submits that there is a clear

prohibition under Section 7(7) read with the first proviso for entertaining

any appeal beyond 120 days from the date of the receipt of the judgment of

the Controlling Authority.

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8. The application dated 13.3.2013, by which the copy of the judgment

was served upon the respondent on 15.3.2013, was exhibited as U-9 before

the Industrial Court. Specific SAY was filed by the petitioner raising the

ground that 120 days will have to be computed under Section 7(7) of the Act

1972 from 15.3.2013. There is no whisper, much less reference to the SAY

of the petitioner and Exhibit U-9, in the reasoning part of the impugned

judgment, which has condoned the delay beyond the permitted 120 days.

9.

Shri Nawandar, learned Advocate on behalf of the respondents has

strenuously supported the impugned judgment. He submits that the

respondents applied for a certified copy of the judgment dated 25.2.2013

on the same date. Certified copy was ready on 21.6.2013. Permission was

sought from the State Government to file an appeal. After receiving the

permission, the Misc. Application along with the PGA Appeal was filed on

15.10.2013 within 120 days, which expired on 18.10.2013.

10. He, therefore, submits that the Industrial Court has properly

computed 120 days from 21.6.2013 and has noted that the appeal was

preferred before the expiry of 120 days. He, therefore, submits that this

petition deserves to be dismissed with costs.

11. I have considered the submissions of the learned Advocates. The

whole issue turns upon Section 7(7) and the first proviso thereunder and the

Payment of Gratuity (Central) Rules 1972 and the Payment of Gratuity

(Maharashtra) Rules, 1972.

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12. Section 7(7) and the two proviso read as under:-

"Section 7 - Determination of the amount of gratuity.

(1) to (6) ............................

(7) Any person aggrieved by an order under sub-section (4) may,

within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as

may be specified by the appropriate Government in this behalf:

Provided that the appropriate Government or the appellate

authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period

by a further period of sixty days:

Provided further that no appeal by an employer shall be

admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with hi m an amount equal

to the amount of gratuity required to be deposited under sub- section (4), or deposits with the appellate authority such amount."

13. It is apparent that the 60 days appeal period is to be computed from

the date of receipt of the order. Further extension of 60 days is permissible

under the first proviso.

14. The petitioner has served a copy of the judgment dated 25.2.2013

upon the respondents by application Exhibit U-9, dated 13.3.2013 and the

respondents received the copy on 15.3.2013. As such, it cannot be over

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looked and the respondents do not dispute that they have received the

photostat copy of the judgment dated 25.2.2013 on 15.3.2013.

15. Rule 18(3) of the Payment of Gratuity (Central) Rules, 1972 reads as

under:-

" 18. Appeal.-(1) ......................

(2) ................................

(3) There shall be appended to the Memorandum of appeal a

certified copy of the finding of the controlling authority and direction for payment of gratuity."

The Maharashtra Rules 1972 contain Rule 18(3) which is exactly the same as

above.

16. It is, therefore, necessary that the memorandum of Appeal must be

accompanied with a certified copy of the findings of the Controlling

Authority i.e. the judgment dated 25.2.2013. No Rule is cited by the parties

to indicate that the certified copy can be dispensed with and the

memorandum of appeal could be accompanied by a photostat copy of the

judgment of the Controlling Authority. As such, the Appeal could be

preferred along with the certified copy of the impugned judgment.

17. However, I find from the impugned judgment of the Industrial Court

that the Appeal was registered on 7.11.2013 and not on 15.10.2013. The

roznama from the proceedings before the Industrial Court placed on record,

indicate that the documents presented on 7.11.2013 include the application

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for extension of time and the appeal memo and those documents are

granted Exhibit Nos. C-1 to C-7. Notice at O-1 was issued on the same date.

...

Dated: October 5, 2015

...

18. It appears from the record and proceedings that though Gratuity

Appeal was registered on 7.11.2013, the presentation form to the memo of

the appeal indicates that the appeal was tendered on 17.10.2013 in the

Registry of the Industrial Court. Below Clause 11 on the presentation form,

certain objections have been raised by the concerned Superintendent and

who has mentioned the date 17.10 (should be read as 17.10.2013), below

his signature.

19. I have calculated the days post receiving the certified copy of the

judgment of the Controlling Authority by the respondents on 21.6.2013.

The day on which the certified copy was received, will have to be excluded.

The 120 days will therefore, have to be calculated from 22.6.2013, which

will be as follows:-

June - 9 days, July - 31 days, August - 31 days, September - 30 days, October - 19 days.

The total, therefore, will be 120 days from 22.6.2013 till 19.10.2013. On

this count, the Appeal can be said to have been filed on the 118th day.

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20. However, there is another angle to this case. The amount of gratuity,

as was assessed by the Controlling Authority, is mandatorily required to be

deposited before the Controlling Authority. The second proviso to Section

7(7) mandates that no appeal by an employer shall be admitted unless at

the time of preferring the appeal, the appellant either produces a

certificate of the controlling authority to the effect that the appellant has

deposited with him an amount equal to the amount of gratuity required to

be deposited under sub-section (4) or deposits with the appellate authority

such amount.

21. This issue has been dealt with by the learned Division Bench of this

Court in the case of Pharma Base India Private Limited Vs. State of

Maharashtra and another [2009 (120) FLR 634]. The learned Division Bench

of this Court has relied upon an earlier judgment, delivered by this Court,

in the matter of J.L.Morrison India Limited Vs. Deputy Commissioner of

Labour and others [2008 I LLJ 775].

22. It would be apposite to reproduce the relevant facts and conclusions

of the learned Division Bench in the Pharma Base judgment (supra), which

are as under:-

"3. By the order dated October 5, 2006 the controlling Authority under the Payment of Gratuity Act, 1972 passed an order thereby directing the petitioner Company to pay respondent No. 2 an amount of Rs. 13,75,000/-by way and as a gratuity. The petitioner challenged the aforesaid order before the Appellate Authority by filing an Appeal on December 13, 2006. However, the petitioner

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deposited the amount of gratuity with the Appellate Authority on

March 12, 2007. Respondent No. 2 raised preliminary objection as to the maintainability of the Appeal on the ground of limitation. The

petitioner filed reply on May 29, 2007 to this Application. The Appellate authority by its order dated August 9, 2007 upheld the preliminary objection raised by the respondent No. 2 and held that

the petitioner has filed the Appeal after the expiration of limitation period of 120 days. Consequently, the petitioner's Appeal came to be dismissed.

4. The petitioner being aggrieved, preferred above said Writ

Petition No. 1946/2007 before the learned single Judge of this Court. However, by an order dated November 2, 2007 the learned

single Judge confirmed the order passed by the Appellate Authority and consequently dismissed the petitioner's Writ Petition. This order as stated above is under challenge in the present Appeal.

5. The following facts are not disputed. The Controlling

Authority passed an order on October 5, 2006 directing the petitioner to pay an amount of Rs. 13,75,000/- to the respondent No. 2 by way and as of gratuity. The copy of this order was received

by the petitioner on October 27, 2006. The petitioner applied and received the certified copies on the same day i.e. on November 10, 2006. The petitioner's Appeal sent by speed post was received in the office of the Appellate Authority on December 13, 2006 and the

petitioner made deposit of gratuity amount before the Appellate Authority by way of D.D. on March 12, 2007.

6. The submissions of Mr. Wasnik, the learned Counsel appearing for the appellant, are threefold. Firstly, that the Appeal being filed on December 13, 2006, the same is well within the period of limitation as contemplated under Section 7(7) of the Payment of Gratuity Act, 1972. Secondly, the requirement of compulsory deposit

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as contemplated under Proviso of Section 7(7) is at the time of

admission by the Appeal and not at the time of preferring an Appeal and thirdly, even it is assumed that the Appeal is filed on March 12,

2007 on which date, deposit was made, in that case also Appeal is within limitation inasmuch as the limitation would start to run from the date of receipt of the certified copy of the order. Apart from

these submissions, Mr. Wasnik also submitted that it was not open for the Appellate authority to go into the questions of limitation and the Appeal ought to nave been heard on merits in view of the

order dated April 23, 2007 passed in Writ Petition No. 1946/2007.

7.

Mr. Wasnik also relied upon the following judgments.

1. Madurai District Central Co-operative Bank, Ltd., Madurai v. Appellate Authority under Payment of Gratuity Act, Madurai and Ors. ;

2. Palaniswamy L. v. Appellate Authority under Payment of Gratuity Act, Coimbatore and Anr. (1999) IILLJ 1263

Mad;

3. Sahakari Ganna Vikas Samiti Ltd. v. Controlling

Authority under Payment of Wages Act (1993) IILLJ 1108 All;

4. Janpad Panchayat Masturi, Bilaspur v. Appellate Authority and Dy. Labour Comm. and Ors. ; 1998 III LLJ

(Suppl) 163 (MP),

5. Malabar Spinning & Weaving Mill v. Narayanan Nair 1994 III LLJ (Suppl) 323 (Kerala),

6. Commissioner, Edapadi Municipality, Edapadi, Salem District v. Joint Commissioner of Labour, Appellate Authority under the Payment of Gratuity Act, Coimbatore and Ors. (2008) ILLJ 763 Mad ;

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7. Shaik Kaisar and Ors. v. Forbes Gokak Ltd. and Ors. :

(2008) ILLJ 30 Bom ;

8. Sunderlal Laxman Mahyavanshi v. National Textile

Corporation (MN) Ltd. and Anr. : (2008) IIILLJ 196 Bom ;

9. Standard Store wares & Tiles v. Appellate Authority :

(2004) IIILLJ 403 Ker ;

8. Per contra Ms. Purav, the learned Counsel appearing for respondent No. 2. supported the order of Appellate Authority as

well as that of learned single Judge in the aforesaid Writ Petition. She submitted that the limitation would start to run from the date

of receipt of the order and not from the date of receipt of the Certified copy as certified copy was received within one day. She

further submitted that the petitioner could not have been preferred an appeal without compliance with the provisions of proviso 2 of Section 7(7) which was admittedly complied on March 12, 2007 and

therefore, it could not be said that the Appeal was preferred within a period of limitation. She lastly submitted that the Appellate

Authority has no powers to condone the delay and therefore, the Appeal was rightly rejected. In this regard, she relied upon the Division Bench judgment in J.L. Morrison India Ltd. v. Deputy

Commissioner of Labour and Ors. (2008) ILLJ 775 Bom.

9. ...............................

10. The plain reading of above said proviso will reveal that any person aggrieved by an order, under sub-clause 4 of Section 7, may within 60 days from the receipt of the order, prefer an Appeal to the Appellate Authority. However, the Appellate Authority is at liberty, if a sufficient cause is shown, to extend the period of 60 days for further period of 60 days. The Second proviso of Section 7(7) provides that no Appeal by an employer shall be admitted unless, at the time of preferring an appeal, the appellant either

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produce a certificate of controlling authority to the effect that the

appellant has deposited with him an amount equal to the amount of gratuity, required to be deposited under Section 7(4) with the

Appellate Authority or deposit with the Appellate Authority such amount. Thus, this proviso has imposed fetter on the employers right to file an Appeal. It is amply clear, that employer is obliged to

deposit the amount or produce the certificate of the controlling authority as the case may be at the time of preferring an Appeal.

11. In the background of above legal provisions, now let us consider the facts of the present case. There is no dispute of the

fact that the petitioner received copy of the order of controlling authority on October 27, 2006. There is also no dispute that

petitioner applied for the certified copy and received the same on November 10, 2006. In view of the provisions of sub-section 7 of Section 7, limitation would start to run from the date of receipt of

the order and in this case limitation would start from October 27, 2007. We do not find any substances in the contention of the learned

Counsel appearing for the petitioner that limitation would start to run from the date of receipt of the certified copy. The petitioner from October 27, 2006 to November 10, 2006 did not apply for

certified copy. For the first time the Certified Copy was applied on November 10, 2006 and the same was delivered to him on the same day. Therefore, at the most one day can be excluded which required to obtain Certified Copy while computing of period of limitation of

either 60 days or further extended period of 60 days. The petitioner sent Appeal by speed post which was received by the office of the Appellate Authority on December 13, 2006. However, along with this Appeal, petitioner neither produced the certificate of the controlling authority to the effect that they have deposited with them an amount equal to the gratuity required to be deposited under sub-section 4 of Section 7 nor deposited such amount with the Appellate Authority. In our view, if the petitioner wanted to

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challenge the order of controlling authority, in that case, he was

duty bound to produce the certificate or deposit the amount as the case may be, at the time of preferring an Appeal. Though the above

dates show that the petitioners preferred an appeal within a period of 120 days, mandatory deposit as contemplated under second proviso of Section 7(7) was not made within a period of 120 days.

There is no dispute that this deposit was made by the petitioner on March 12, 2007. Precondition of deposit at the time of preferring an Appeal being mandatory, we are of the view that it is to be

presumed that the petitioner filed Appeal only on March 12, 2007.

12.

Since the petitioner received order of the controlling authority on October 27, 2006, his appeal is beyond the period of

120 days, even if it granted the benefit of exclusion of time required for obtaining certified copies. The issue before the Division Bench in J.L. Morrison India Ltd. v. Deputy Commissioner of Labour and Ors.

(supra) was whether the Appellate Authority under the payment of Gratuity Act, 1972 can entertain the Appeal beyond 120 days from

the date of receipt of the order? After examining several judgments including that of Apex Court, Division Bench concluded that the Appellate authority under the said Act cannot entertain the Appeal

beyond 120 days from the date of receipt of the order. The Division Bench also held that Section 5 of the Limitation Act would have no Application, in this regard. In the facts and circumstances mentioned above, we are of the clear view that the Appellate Authority as well

as the learned single Judge of this Court rightly upheld the respondent No. 2's preliminary objection regarding maintainability of the Appeal and there is no reason to interfere in the said findings.

13. Now, we shall consider the petitioner's submission in this regard. So far as the first submission that the Appeal was filed on December 13, 2006 and therefore, it was well within 120 days, is

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concerned, we find no merit. On December 13, 2006, the appellant

has neither produced certificate of controlling authority to the effect that they have deposited with him an amount equal to an

amount of gratuity required to be deposited under Section 7(4) nor deposited the said amount with the Appellate Authority. In view of the 2nd proviso or Section 7(7), the petitioner's Appeal cannot be

said to have been filed on December 13, 2006, in the absence of production of certificate of controlling authority or deposit of an amount of gratuity. The petitioner deposited the amount for the

first time with Appellate Authority on March 12, 2007 and therefore, it is to be presumed that the petitioner filed an Appeal on March 12,

2007 which is beyond the period of 120 days.

14. The petitioners second submission namely the production of certificate from the controlling authority or deposit of the amount of gratuity as contemplated under 2nd proviso of Section 7(7)

required to be complied with at the time of admission of the Appeal and not at the time of institution of Appeal also devoid of merit, in

view of the specific provisions of 2nd proviso of Section 7(7) that the above said Certificate is to be produced or deposit is to be made at the time of "preferring the Appeal."

22. It is, therefore, apparent that the learned Division Bench has

concluded that if the appellant desired to challenge the order of the

controlling authority, he was duty bound to either produce the certificate

from the controlling authority or deposit the said amount before the

appellate authority at the time of preferring an appeal. It was, therefore,

held that though the petitioners preferred an appeal within a period of 120

days, the mandatory deposit as contemplated under the second proviso to

Section 7(7) was not made along with the tendering of the appeal or within

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the period of 120 days.

23. In the J.L.Morrison's case (supra), the learned Division Bench of this

Court has held that the appellate authority cannot entertain the appeal

beyond 120 days from the date of receipt of the order. It was further held

that Section 5 of the Limitation Act would have no application in this

respect. The appeal beyond 120 days along with the receipt or depositing

of the amount was not maintainable.

24.

In the instant case, though the appeal was tendered on 17.10.2013

and the 120 days expired after 19.10.2013, the respondent deposited the

amount under the second proviso to Section 7(7) before the appellate

authority on 31.10.2013 after the Industrial Court permitted it to deposit

the said amount.

25. It is, therefore, apparent that the appeal preferred by the

respondent was beyond limitation of 120 days in the light of the ratio laid

down by the learned Division Bench of this Court in the Pharma Base

judgment (supra).

26. Shri Shelke, learned Advocate has also canvassed that this Court must

deal with the issue of the petitioners getting their certified copy within

three weeks from the date of the judgment of the controlling authority

dated 25.2.2013 and having served a photostat copy of the certified copy on

the respondent on 15.3.2013. Therefore, considering the ratio laid down in

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the J.L.Morrison's judgment (supra), the limitation period of 120 days shall

be computed from 16.3.2013.

27. I find from the judgment of the learned Division Bench of this Court

in the J.L.Morrison's case (supra), that Rule 18(3) mandating filing of a

certified copy of the judgment of the controlling authority, along with the

memorandum of appeal under the Payment of Gratuity (Maharashtra) Rules,

1972 and the corresponding Rule 18(3) of the Payment of Gratuity (Central)

Rules, 1972 were not cited before the learned Division Bench. However, I do

not intend to deal with this issue in this judgment for the reason that the

appeal preferred by the respondent is barred in the light of the ratio laid

down by the learned Division Bench of this Court in the Pharma Base

judgment (supra).

28. I find from the impugned judgment of the Industrial Court, dated

18.11.2014 that the above factors were neither canvassed nor has the

Industrial Court considered the Maharashtra Rules and the Central Rules of

1972. Similarly, the judgment of the learned Division Bench of this Court in

the Pharma Base case (supra) was also not brought to the notice of the

Industrial Court.

29. In the light of the above, this petition is allowed.

30. The impugned judgment of the Industrial Court dated 18.11.2014 is

quashed and set aside. Misc. Application (PGA) Delay No.3 of 2013 stands

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dismissed. In the event, the appeal has been registered by the Industrial

Court, the same does not survive and shall stand disposed off.

31. Rule is, therefore, made absolute in the above terms.

( RAVINDRA V. GHUGE, J. ) ...

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