Union Of India vs Jitender Kumar
2014 Latest Caselaw 4135 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 DECIDED ON : 3rd SEPTEMBER, 2014

+                           LPA 562/2014

      UNION OF INDIA                                        ....Appellant
                    Through :              Mr.Jayendra, Advocate.

                                  versus

      JITENDER KUMAR                                         ....Respondent
                   Through :               None.

       CORAM:
       HON'BLE MS. JUSTICE REVA KHETRAPAL
       HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Oral)

CM No.14030/2014 (Delay) For the reasons mentioned in the application, the delay in filing the present appeal is condoned.

The application stands disposed of.

LPA 562/2014 & CM No.14029/2014 (Stay)

1. In this intra - Court appeal, the Appellant - Union of India is aggrieved by an order dated 16.05.2014 of learned Single Judge in W.P.(C) 3050/2014, by which the writ petition preferred against the order dated 17.09.2013 passed by the Appellate Authority under the Payment of Gratuity Act, 1972 (in short „Act‟) in Appeal No. ND36(66)2013-P.A. was dismissed.

2. The facts giving rise to the writ petition before learned Single Judge were that order dated 20.03.2013 was passed by the Controlling Authority in favour of the Respondent. The Appellant received the award in the office on 25.04.2013. Appeal before the Appellate Authority was preferred on 09.09.2013. It was dismissed primarily on the ground that the appeal preferred before the Appellate Authority was beyond the prescribed period of limitation. Learned Single Judge was also of the view that Appellate Authority had no jurisdiction to condone the delay beyond the period of 120 days.

3. Learned counsel for the Appellant urged that the findings of the learned Single Judge cannot be sustained as there was sufficient reason for delay in filing the appeal after receipt of orders of the Controlling Authority on 25.04.2013. The period of 120 days ended on 21.08.2013 and there was a mere delay of 19 days in filing the appeal. He urged that provisions of Section 7(7) of the Act were directory in nature and are not applicable to the quasi judicial authorities functioning under the Act.

4. Undisputedly, order of the Controlling Authority was received in the office of the Appellant on 25.04.2013. The appeal before the Appellate Authority was preferred on 09.09.2013 beyond 120 days of the receipt of the order. Section 7(7) of the Act prescribes a period of 60 days from the date of receipt of the order to prefer an appeal to the Appellate Authority. Proviso to Section 7(7) empowers the Appellate Authority to extend the period for a further period of 60 days if he is satisfied that the Appellant was prevented by sufficient cause from preferring the appeal within the prescribed period. In the instant case,

admittedly the appeal was preferred beyond the expiry of 120 days before the Appellate Authorities. Apparently, the Appellate Authority had no jurisdiction to condone the delay beyond the extended period of 60 days. The learned Single Judge for sound reasons refrained from going into the merits of the case as the Tribunal had declined to entertain the appeal being barred by limitation.

5. The Division Bench of this Court in the case of „Assistant Regional Provident Fund Commissioner, Meerut vs. Employees‟ Provident Fund Appellate Tribunal and ors.‟, 2005 (VII) AD (Delhi) 155 relied on „Commissioner of Sales Tax, U.P., Lucknow vs. Parson Tools and Plants, Kanpur‟, AIR 1975 SC 1039, where the Supreme Court dealing with an identical fact held that when Section 5 of the Limitation Act itself was not applicable to condone the delay, the power to condone delay because of pursuing a remedy elsewhere on a principle akin to Section 14(2) of the Limitation Act, would also not be available. The Supreme Court further observed :

"23. 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, 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.

24. 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 engrafting, 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. We will close the discussion by recalling what Lord Hailsham (1) has said recently, in regard to importation of the principles of natural justice into a statute which is a clear and complete Code, by itself :

"It is true of course that the courts will lean heavily, against any construction of a statute which would be manifestly fair. But they have no power to amend or supplement the language of a statute merely because in one view of the matter a subject feels himself entitled to a larger degree of say in the making of a decision than a statute accords him. Still less is it the functioning of the courts to form first a judgment on the fairness of an Act of Parliament and theft to amend or supplement it with new provisions so as to make it conform to that judgment."

25. For all the reasons aforesaid, we are of the opinion 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, for excluding the time spent in prosecuting proceedings for setting aside the dismissal of appeals in default, from computation of the period of limitation prescribed for filing a revision under the Sales-tax. Accordingly, we answer the question referred, in the negative."

6. In „Union of India vs. M/s.Popular Construction Co.‟, AIR 2001 SC 4010, the issue therein was whether Sections 4 to 24 of the

Limitation Act would be applicable to Section 34 of the Arbitration Act, 1996. The Supreme Court observed :

"8. Had the proviso to Section 34 merely provided for a period within which the Court could exercise its discretion, that would not have been sufficient to exclude Sections 4 to 24 of the Limitation Act because "mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5." While holding that Section 5 is not applicable to Section 34(3), it was held that the presence of the words "but not thereafter" operate as an express exclusion to Section 5 of the Limitation Act.

12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are „but not thereafter‟ used in the proviso to Sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase „but not thereafter‟ wholly otiose. No principle of interpretation would justify such a result."

7. Recently, in „J.L.Morrison India Ltd. vs. Deputy Commissioner of Labour‟, 2008 ILLJ 775 Bombay, the Division Bench of Bombay High Court dealing with the provisions of Section 7 of the Payment of Gratuity Act, 1972 categorically held that the Appellate Authority under the Act cannot entertain appeal beyond 120 days from the date of receipt of the order.

8. Undisputedly, the Act is a special law within the meaning of Section 29(2) of the Limitation Act. Under the normal circumstances, the provisions of Section 29(2) would be applicable to the appellate proceedings under the said Act. However, in view of the provisions of the law comprised under Section 29(2) itself, such applicability is subject to three conditions; one of which is that the provisions of law contained in that regard in the special Act should not expressly or by necessary implication exclude the applicability of all or any of the provisions of the Sections referred to in Section 29 of the Limitation Act to the proceedings under the Special Act. Proviso to Section 7(7) of the Act prescribes restriction on the power of the appellate authority thereunder to extend the period beyond the period of 60 days after the expiry of the initial period of limitation of 60 days prescribed for filing the appeal under the Act. It specifically states that if the appellant satisfies the appellate authority that he was prevented by sufficient cause from preferring the appeal within the prescribed period of 60 days, the period can be extended by further period of 60 days. This clearly indicates an intention of the Legislature to restrict the period of extension upto the limit of 60 days beyond the prescribed period of 60 days for filing an appeal under the Act. In other words, the total period including the extended period to prefer an appeal would be upto 120 days and not more than that. Apparently, it prohibited the Appellate Authority to entertain the appeal beyond the total period of 120 days from the date of receipt of the order. This Court in LPA 533/2014 titled „Saint Soldier Modern Senior Secondary School vs. Regional Provident Fund Commissioner‟, decided on 2nd September, 2014, has taken similar view.

9. For the reasons stated above, we find no infirmity in the impugned order. The appeal is unmerited and is dismissed. Pending application also stands disposed of.

(S.P.GARG) JUDGE

(REVA KHETRAPAL) JUDGE SEPTEMBER 03, 2014 tr