Bombay High Court

Nanded Zilla Dekhrekh Sahakari ... vs Narhar Pralhadrao Kulkarni on 20 December, 2016

Bench: R.V. Ghuge

                                                                  WP/12526/2016+
                                            1

                    IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD




                                                                             
                             WRIT PETITION NO. 12526 OF 2016




                                                     
     Nanded Zilla Dekhrekh Sahakari
     Sanstha Maryadit, Nanded, through
     it's Chief Executive Officer, Office
     situated behind Kabde Hospital,




                                                    
     Shivaji Nagar, Nanded.                                    ..Petitioner

     Versus

     Narhar Pralhadrao Kulkarni,




                                          
     Age 70 years, Occ. Retired Secretary,
     R/o At Post Halda, Tq. Kandhar,
                             
     District Nanded.                                          ..Respondent

                                          AND
                             WRIT PETITION NO. 12545 OF 2016
                            
     Nanded Zilla Dekhrekh Sahakari
     Sanstha Maryadit, Nanded, through
     it's Chief Executive Officer, Office
      

     situated behind Kabde Hospital,
     Shivaji Nagar, Nanded.                                    ..Petitioner
   



     Versus

     Namdev Maneji Tidke
     Age 70 years, Occ. Retired Secretary,





     R/o Kamta (Kh.), Tq. Nanded,
     District Nanded.                                          ..Respondent

                                         ...
            Advocate for Petitioners : Shri G.D.Kale & Shri S.H.Panchal
                Advocate for Respondents : Dr. C.S.Tembhurnikar





                                         ...
                         CORAM : RAVINDRA V. GHUGE, J.

Dated: December 20, 2016 ...

ORAL JUDGMENT :-

1. Heard learned Advocates for the respective parties.

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2. Rule.

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

is taken up for final disposal.

4. The issue raised for the decision of this Court is as to whether

the Appeal filed under Section 7(7) of the Payment of Gratuity Act,

1972 before the appellate authority, could be entertained beyond

the limitation period.

5. The petitioner in both these matters is aggrieved by the order

dated 28.11.2016, by which, it has concluded that the Appeal filed by

the petitioner for challenging the judgment of the Controlling

Authority beyond the limitation period cannot be entertained as the

Appellate Authority does not have the jurisdiction to condone delay

beyond 60 days.

6. The learned counsel for the petitioner has strenuously

criticized the impugned order and has narrated in details the

circumstances which precluded the petitioner from approaching the

Appellate Authority within limitation. The judgment of the

Controlling Authority dated 14.3.2016 was challenged on 18.11.2016.

I am not required to consider the reasons and circumstances for the

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delay since the Industrial Court, which is the appellate authority, has

held that the appeal is not maintainable purely on the ground of

delay.

7. Learned Advocates for the petitioners have strenuously

submitted that what could not have been done by the appellate

authority, can be done by this Court as it has unlimited jurisdiction

under Article 226 of the Constitution of India. He submits that the

limitation period can be enlarged by exercising extra-ordinary

jurisdiction of this Court.

8. He has placed reliance upon the judgment of the Honourable

Gujarat High Court in the matter of GSRTC, through Divisional

Controller Vs. Anwarhussain Mamhadbhai Kadri [2009-III-LLJ-442]. He

has also relied upon the judgment of the same Court in the matter of

Backbone Project limited Vs. Yogesh Bhavchandbhai Gadhiya and

others [2009-IV-LLJ- 782].

9. The judgment in the matter of Backbone Project is delivered

by the same Court (Coram : K.M. Thakar,J.), which delivered the

earlier judgment in the matter of GSRTC (supra).

10. Section 7(7) and the proviso thereunder reads as below:-

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"Section 7 - Determination of the amount of gratuity.

(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."

11. It was concluded in GSRTC case (supra) that Section 5 of the

Limitation Act, enacted by the Parliament would be applicable and

the delay caused beyond 60 days can be condoned.

12. A similar provision is found in Section 34 of the Arbitration and

Conciliation Act, 1996 reads as under:-

"Section 34 - Application for setting aside arbitral award.

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(1) Recourse to a Court against an arbitral award may be

made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).

(2) An arbitral award may be set aside by the Court only if-

(a) the party making the application furnishes proof

that--

                               (i)     a party was under some incapacity, or
                               (ii)    law to which the parties have subjected

it or, failing any indication thereon, under the

law for the time being in force; or

(iii) the party making the application was not given proper notice of the appointment of an

arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iv) the arbitral award deals with a dispute

not contemplated by or not falling within the

terms of the submission to arbitration, or it contains decisions on matter beyond the scope of the submission to arbitration:

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on

matters not submitted to arbitration may be set aside; or

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of

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this Part from which the parties cannot

derogate, or, failing such agreement, was not in accordance with this Past; or

(b) the Court finds that--

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time

being in force, or

(ii) the arbitral award is in conflict with the public policy of India.

Explanation 1.-- For the avoidance of any doubt,

it is clarified that an award is in conflict with the public policy of India, only if,--

(i) the making of the award was induced or

affected by fraud or corruption or was in violation of section 75 or section 81; or

(ii) it is in contravention with the fundamental

policy of Indian law; or

(iii) it is in conflict with the most basic notions of morality or justice.

Explanation 2.-- For the avoidance of doubt, the

test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.

(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award:

Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by re-

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appreciation of evidence.

(3) An application for setting aside may not be made after

three months have elapsed from the date on which the party making that application had received the arbitral award, or, if a request had been made under section 33, from the date

on which that request had been disposed of by the arbitral tribunal:

Provided that if the Court is satisfied that the

applicant was prevented by sufficient cause from making the application within the said period of three months it may

entertain the application within a further period of thirty days, but not thereafter.

(4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a

party, adjourn the proceedings for a period of time

determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will

eliminate the grounds for setting aside the arbitral award.

(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and

such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.

(6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section

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(5) is served upon the other party."

13. Sub-section (3) below Section 34 provides for setting aside of

an order on an application which is to be made within three months

from the date on which the party making that application had

received the arbitral award. The proviso thereunder permits

entertaining of the application beyond three months provided the

said application is filed within 30 days, but not thereafter.

14.

The Honourable Apex Court in the matter of Consolidated

Engineering Enterprises Vs. Principal Secretary, Irrigation Department

and Ors. [(2008) 7 SCC 169 ], has concluded that the words "but not

thereafter" would lead to a meaning that any application seeking

condonation of delay beyond 30 days cannot be entertained.

15. In order to scrutinize as to whether the Legislature intended

the entertaining of an appeal u/s 7(7) beyond the 120 days

prescribed, the scheme under the Payment of Gratuity Act needs to

be gone into. Rule 7(5) of the Payment of Gratuity (Central) Rules,

1972 reads as under :-

"7. Application for gratuity -

(5) An application for payment of gratuity filed after the expiry of the periods specified in this Rule shall also be entertained by the employer, if the

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applicant adduces sufficient cause for the delay in

preferring his claim, and no claim for gratuity under the Act shall be invalid merely because the claimant

failed to present his application within the specified period. Any dispute in this regard shall be referred to the Controlling Authority for his decision."

16. The above reproduced rule would indicate that the Legislature

indicated that an application for payment of gratuity could be

entertained beyond 30 days as prescribed in Rule 7(1).

ig The

phraseology in Rule 7(5) leads to a meaning that if sufficient cause

for delay is adduced, no claim for gratuity would be invalid merely

because it is filed beyond the specified period. Rule 18 under the

Central Rules with regard to entertaining of an appeal however does

not enlarge the limitation period of 60 days and the additional 60

days provided under the proviso to Section 7(7).

17. Form 'U' containing an abstract of the Act and the Rules under

the Central Rules indicates from clause (10) that beyond 60 days as is

prescribed for preferring an appeal, an appeal filed delayedly could

be entertained within the further 60 days as prescribed u/s 7(7). The

Payment of Gratuity Maharashtra Rules, 1972 does not prescribe the

enlargement of the limitation period of 120 days as is provided u/s

7(7) of the Act.

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18. In the matter of Commanding Officer, Naval Base V. Appellate

Authority under the Payment of Gratuity Act, [(2004) 103 FLR 398], it

was held that the maximum period allowed for filing an appeal u/s

7(7) of the Act was 120 days and Section 5 of the Limitation Act

would not have any application in enlarging the said period. The

rejection of the appeal owing to it being filed beyond 120 days was

sustained.

19.

The Kerala High Court therefore, in the Commanding Officer,

Naval Base judgment (supra), while interpreting Section 7(7) has

observed as under :-

" A reading of the above provision would reveal that an appeal has to be filed within 60 days and if it is not filed

within 60 days, the Appellate Authority has jurisdiction to condone the delay of 60 days when sufficient cause is shown. The learned counsel for the 3rd respondent submitted that

when a period has been prescribed in a special statute for filing an appeal, the same will have to be filed within that time and the provisions of the Limitation Act cannot have any application in condoning the delay in filing the appeal.

Reliance was placed on the decision of the Supreme Court in Commissioner of Sales Tax v. Parson Tools and Plants, Kanpur AIR 1975 SC 1039 : 1975 (4) SCC 22. In the judgment it was held:

"17. Thus the principle that emerges is that if the legislature in a special statute prescribes a certain

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period of limitation for filing a particular application

thereunder and provides in clear terms that such period on sufficient cause being shown, may be

extended, in the maximum, only upto a specified time- limit and no further, than the tribunal concerned has no jurisdiction to treat within limitation, an

application filed before it beyond such maximum time- limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any

prior proceeding on the analogy of Section 14(2) of the Limitation Act.

18. We have said enough and we may say it again

that where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the court to give full effect to the same without

scanning its wisdom or policy, and without en-grafting, adding or implying anything which is not congenial to or

consistent with such expressed intent of the law-giver; more so if the statute is a taxing statute........."

20. The Andhra Pradesh High Court, in the matter of Warangal

District Co-operative Society Ltd., Vs. Appellate Authority under

Payment of Gratuity Act, 1972 and others, [2002-III-LLJ 616] has

observed in paragraph Nos. 8 to 12 as under :-

"8. The question would be whether the special period of limitation is prescribed under any particular enactment for regulating the proceedings under the said enactment?

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Whether the provisions of the Limitation Act, 1963,

could still be invoked while dealing with the proceedings under the said special enactment?

9. Looking at the scheme of the Limitation Act, Section 3 of the Act declares that every suit instituted, appeal

preferred and application made after the period prescribed for such institution, preference, etc., shall be dismissed. However, Section 5 stipulates that any appeal" or application,

except the application under Order 21 of the Code of Civil Procedure, if filed beyond the period of limitation prescribed

under the Limitation Act could still be admitted by the Court, if the Court is satisfied that such an appellant or applicant

had sufficient cause for not preferring the appeal or not making the application within the prescribed period of limitation. From the above two Sections, it appears that a

suit filed beyond the prescribed period of limitation is absolutely barred, but an appeal preferred beyond the period

of limitation prescribed could still be considered if the appellate Court is satisfied that such delay is by virtue of a cause which was not within the control of the appellant.

Section 29(2) of the Limitation Act reads as follows:

Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the

provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as,

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and to the extent to which, they are not expressly

excluded by such special or local law." An analysis of the above sub-section shows that where a

special period of limitation different from the one prescribed in the Schedule to the Limitation Act, 1963, is prescribed by any special or local law for the purpose of filing the suit,

appeal, or application, the bar contained under Section 3 shall apply and such a suit or application is required to be dismissed as if that such a special limitation is prescribed

under the Schedule to the Limitation Act. It is further provided in the sub-section that provisions contained in

Sections 4 to 24 of the Limitation Act shall apply to the cases where a special limitation is prescribed as mentioned above,

to the extent to which they have not expressly excluded by such special local law. Interpreting the scope of Section 29(2), the Supreme Court in Shantilal M. Bhayani v. Shanti Bai,

(supra), held that as there was no specific exclusion of application of the Limitation Act in the Tamil Nadu Buildings

(Lease and Rent Control) Act, 1960, the appellate authority under the Act was entitled to invoke the powers under Section 5 of the Limitation Act and condone the delay in preferring

the appeal under the said Act, though the said appeal was preferred beyond the period of special limitation prescribed under the Tamil Nadu Buildings (Lease and Rent Control) Act. Obviously, their Lordships while deciding the case had in mind

the last clause of Section 29 of Sub-section (2) ... ''they are not expressly excluded...

10. Sovereign Legislature (Parliament) is competent to create such legal fictitious as the one created under Section 29(2) of the Limitation Act and also competent to prescribe

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the limitation of such fictions.

11. However, the difficulty in this case is that the

limitation prescribed under the Payment of Gratuity Act, once again an enactment made by Parliament is only 60 days for the purpose of preferring an appeal. Under the proviso to

Section 7, Sub-section (7), the appellate authority is empowered to "extend the period" of limitation by another sixty days. In other words, the appellate authority is

empowered to condone the delay to upper limit of another sixty days beyond the prescribed period of limitation. No

doubt, the Payment of Gratuity Act does not expressly exclude the operation of the Limitation Act, but the fact

remains that the Payment of Gratuity Act is of the year 1972 where the Limitation Act is of the year 1963. The settled principle of interpretation of statutes is that if there are two

mandates by the Sovereign Legislature, the later of the two shall prevail. Therefore, the fact that there was no express

exclusion of Section 5 of the limitation under the Payment of Gratuity Act makes no difference while construing the scope of the power of the appellate authority constituted under the

Payment of Gratuity Act, to condone the delay in preferring the appeals. The legal position enunciated by the Supreme Court in Shantilal M. Bhayani v. Shanti Bai (supra), in my view, must be understood in the context of the Limitation

Act, 1963, and the special period of limitation, prescribed in any other special or local law prior to the date of the enactment of the Limitation Act. It is worthwhile mentioning that that the Tamil Nadu Buildings (Lease and Rent Control) Act, which is the subject matter of the issue before the Supreme Court in the above case was of the year 1960.

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12. In view of my conclusion on this, I do not wish to examine the question whether the appellate authority under

the Payment of Gratuity Act is a Court or not though a Division Bench of the Calcutta High Court in a decision in City College. Calcutta v. State of West Bengal 1987-I-LLJ-41,

dealing with the identical situation held that the appellate authority under the Payment of Gratuity Act could not condone the delay beyond 120 days on the ground it is not a

Court. "

21.

The Madras High Court, in the matter of Special Officer, Salem

Co-operative Primary Land Development Bank, Salem Vs. Deputy

Commissioner of Labour and another [1998(3) LLJ 1168] has

concluded in paragraph No.9 as under :-

"9. In AIR 1975 SC 1039 corresponding to Commissioner of Sales Tax v. Parson Tools & Plants it has been held as follows :

Thus the principle that emerges is that if the

Legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being

shown, may be extended, in the maximum, only upto a specified time limit and no further then the Tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time limit specified in the statute, by excluding the time spent in

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prosecuting in good faith and due diligence any

prior proceeding on the analogy of Section 14(2) of the Limitation Act."

Finally, the Supreme Court has opined that the object, the scheme and language of Section 10 of the Sales Tax Act do not permit the invocation of Section 14(2) of the Limitation Act

either in terms or in principle. In the light of the above decision of the Supreme Court, if we consider the provisions of the Payment of Gratuity Act, I feel that there is no

justification for applying Section 5 of the Limitation Act for a belated petition before the appellate authority. "

22. The intent of the legislature in not permitting the filing of an

appeal u/s 7(7) beyond 120 days is apparent and is more conspicuous

when certain provisions for condonation of delay are provided in

other Labour Laws. The Labour Courts (Practice and Procedure)

Rules, 1975 framed under the MRTU and PULP, 1971 prescribe

limitation under Rule 61 which is 90 days. Said Rule 61 reads as

under :-

"61. If a complaint under Section 28 covers any unfair

labour practice which occurred more than 90 days before the date the complaint was filed, the complainant shall file along with the complaint a separate application, for condonation of delay. That application shall disclose separately and specifically each unfair labour practice which occurred more than 90 days after the complaint was filed and in respect of

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which condonation of delay is sought, the date of the

occurrence thereof and the reasons for condonation of delay in respect thereof. Such an application shall be

supported by an affidavit. "

23. It is, therefore, clear that the legislature intended

entertaining a complaint beyond 90 days subject to condoning the

delay for reasons which may be acceptable.

24.

A similar provision is found in Regulation 101 of the Industrial

Court Regulations, 1975. However, in so far as the revision petition

u/s 44 of The 1971 Act is concerned, neither the Act nor the Rules

prescribed any limitation.

25. Under the Employees' Provident Funds and Miscellaneous

Provisions Act, 1952, Section 7(I) permits filing of an appeal before

the Appellate Provident Fund Tribunal. Rule 7(2) and the proviso

thereunder, under the E.P.F.Appellate Tribunal (Procedure) Rules,

1997 mandates the filing of an appeal within 60 days from the date of

the order. The proviso thereunder permits filing of an appeal beyond

the limitation period of 60 days, but only within a further period of

60 days if the Tribunal is satisfied that the appellant was prevented

by sufficient cause in preferring the appeal. As such, under the Rules

framed under the 1952 Act, the limitation period of 60 days in

preferring an appeal can be enlarged only by 60 days and not there

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beyond.

26. Under Section 77 of The Employees' State Insurance Act, 1948,

a proceeding before the Employees' Insurance Court can be

commenced on an application which shall have to be filed within a

period 3 years from the date on which the cause of action arose.

Proviso to Section 77(1-A)(b) mandates that any claim shall not be

made after 5 years of the period to which the claim relates. What is

interesting is that u/s 82, an appeal shall lie to the High Court from

an order of the Employees' Insurance Court if it involves a substantial

question of law and the period of limitation is 60 days. However, u/s

82(4), it is specifically provided that Sections 5 and 12 of the

Limitation Act, 1963 shall apply to appeals under this section.

Section 82 reads as under :-

" 82. Appeal. - (1) Save as expressly provided in this Section,

no appeal shall lie from an order of an Employees' Insurance Court.

(2) An appeal shall lie to the High Court from an order of an Employees' Insurance Court, if it involves a

substantial question of law.

(3) The period of limitation for an appeal under this Section shall be sixty days.

(4) The provisions of Sections 5 and 12 of the Limitation Act, 1963 shall apply to appeals under this section."

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27. From the above, it is quite evident that wherever the

legislature intended condonation of delay beyond the limitation

period, language of the provision did indicate the intention. Where

the provisions of the Limitation Act are made applicable, it is so

provided specifically. Therefore, where the legislature did not

prescribe entertaining of an appeal or a proceeding beyond particular

number of days, the said period cannot be enlarged even by the

Court. So also, the legislature did not apply S.5 and 12 of the

Limitation Act, 1963 to the Payment of Gratuity Act, 1972.

28. Though the proviso below Section 7(7) does not use the said

words "but not thereafter", it permits extending of the period of

limitation by a further period of 60 days. In my view, if the

legislature did not intend to permit filing of an appeal under Section

7(7) beyond 60 days after the limitation period of 60 days is over, it

cannot be interpreted to conclude that the proviso setting forth the

limitation of 60 days would have no sanctity. Had the legislature

intended to permit a litigating party to file an application beyond the

said 60 days, in all beyond 120 days and if the said delay was to be

condoned by enlarging the limitation period, the legislature would

not have prescribed 60 days by the proviso to Section 7(7).

29. In the matter of Western Coalfields Vs. Presiding Officer.