Gujarat High Court
Ahmedabad District Panchayat ... vs Viththalbhai Sagrambhai Raval on 4 February, 2021
Bench: Nirzar S. Desai
C/SCA/2136/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2136 of 2021
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AHMEDABAD DISTRICT PANCHAYAT THROUGH EXECUTIVE ENGINEER
Versus
VITHTHALBHAI SAGRAMBHAI RAVAL
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1,2,3
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CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 04/02/2021
ORAL ORDER
1. By way of this petition, the petitioners
herein have challenged the order dated 03.06.2019
passed by the respondent No.3 herein
Controlling Authority under the Payment of
Gratuity Act, 1972 (for short "the Act, 1972"),
in Gratuity Case No.118 of 2018 and the order
dated 02.11.2020 passed by the respondent No.2
herein Appellate Authority under the payment of
"the Act, 1972", in Gratuity Appeal No.22 of
2020, whereby, the Appellate Authority declined
to entertain the Appeal on the ground that the
limitation period of 120 days for filing the
Appeal is already over.
2. Heard learned advocate Mr. H.S.Munshaw
for the petitioners through Video Conference.
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3. It is the case of the petitioners that
the respondent No.1 was offered the work between
1989 and 1999 as a daily wager under the
petitioners. Upon his termination, the respondent
No.1 - workman raised an industrial dispute by
filing Reference No.1179 of 2000 alleging that he
was wrongly and illegally terminated and there
was a breach of the provisions of Sections 25(f),
25(g) and 25(h) of the Industrial Disputes Act,
1947 (for short "the Act, 1947") and he prayed
for his reinstatement with continuity of service
and with full back wages.
4. The aforesaid Reference was partly
allowed and the Labour Court, Ahmedabad, vide
award dated 21.05.2010 directed the petitioners
to reinstate the respondent No.1 workman with
20% back wages.
5. The aforesaid Award was challenged by
the petitioners herein before this Court by
filing Special Civil Application No.13346 of
2010. This Court allowed the aforesaid Special
Civil Application vide judgment dated 04.09.2012
and held that there was no breach of the
provisions of Sections 25(f), 25(g) and 25(h) of
"the Act, 1947", and ultimately, the Award was
quashed and set aside.
C/SCA/2136/2021 ORDER
6. After almost more than 18 years of the
termination of service of the respondent -
workman and after almost 8 years from the
judgment delivered by this Court in Special Civil
Application No. 13346 of 2010 dated 04.09.2012,
the respondent No.1 herein preferred a Gratuity
Case No.118 of 2018 before the Controlling
Authority, Ahmedabad, under "the Act, 1972".
7. In the said proceedings as observed by
the Controlling Authority under "the Act, 1972",
the petitioners never remain present and
accordingly, the Controlling Authority under "the
Act, 1972" passed an order dated 03.06.2019 in
Gratuity Case No. 118 of 2018 and directed the
present petitioners to pay a sum of Rs.11,700/
(Rupees Eleven Thousand Seven Hundred Only)
towards gratuity within a period of 30 days from
11.9.2018 alongwith the interest @ 10% p.a. till
the date of payment.
8. The petitioners herein have challenged
the aforesaid order by preferring an Appeal being
Appeal No.22 of 2020 before the Appellate
Authority - respondent No.2 herein. The said
Appeal was not accepted by the Appellate
Authority vide order dated 02.11.2020 by stating
that against the order dated 03.06.2019, the
Appeal preferred by the present petitioners was
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presented before the Authority on 28.10.2020, and
therefore, since the Appeal was presented after
more than a period of 120 days, as per the
statutory provisions of Section 7(7) of "the Act,
1972", the limitation for preferring an appeal
has already been expired and hence, the Appeal
was not admitted by the Appellate Authority under
"the Act, 1972" vide order dated 02.11.2020.
These two orders are under challenged by way of
the present petition.
9. Heard the learned advocate Mr.
H.S.Munshaw for the petitioners. He submitted
that as such the respondent No.1 - workman has
preferred the application before the Controlling
Authority almost after more than 18 years of the
termination of the respondent workman and after
about 8 years from the date of passing of the
judgment delivered by this Court on 04.09.2012 in
Special Civil Application No.13346 of 2010. He,
further, submits that after such a gross delay,
the application of the respondent No.1 workman
ought not to have entertained by the Controlling
Authority. He, further, submits that ultimately
by allowing such application, the Controlling
Authority has directed the petitioners to pay a
sum of Rs.11,700/ towards gratuity with interest
@ 10% p.a. from 11.09.2018 till the date of
payment, would ultimately amount to a burden on
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the public exchequer. He also submitted that,
this Court has the power to condone the delay
caused in filing the Appeal before the Appellate
Authority in exercise of powers under Article 226
of the Constitution and this is a fit case for
exercising those powers and therefore, he urged
that considering the fact that the impugned order
dated 03.06.2019 passed by the Controlling
Authority and order dated 02.11.2020 passed by
the Appellate Authority are bad in law and are
deserves to be quashed and set aside and
interference of this Court is very much
warranted.
10. As per Section 7(7) of the Payment of
Gratuity Act, 1972, against the order passed by
the Controlling Authority, an appeal lies before
the Appellate Authority and for that limitation
prescribed is of 60 days and the Appellate
Authority has power to condone delay of 60 more
days on canvassing sufficient cause before it and
the Appellate Authority is not empowered to
condone the delay beyond the period of 60 days
after the initial period of 60 days gets over
[120 days in all]. Meaning thereby, after the
order passed by the Controlling Authority, an
appeal must be filed maximum within a period of
60 days. The Appellate Authority does not have
C/SCA/2136/2021 ORDER
any power to condone the delay beyond the period
of 60 days after the limitation of 60 days before
it gets over and, therefore, the Appellate
Authority has dismissed the appeal preferred by
the petitioner. Law is well settled in respect of
the aforesaid provision and this Court has, in
catena of decisions, taken view that after the
expiry of period of 120 days, the Appellate
Authority is not empowered to condone the delay.
10.1. The Division Bench of this Court
has, while deciding Special Civil Application
No.2799 of 2004, on July 18th, 2014, observed
thus:
"So far the Special Civil Application No.2799 of
2004 preferred against the order of the appellate
authority in Appeal No.7 of 2004 is concerned, we
find that the appellate authority rightly refused
to condone the delay in view of the fact that the
order impugned therein was passed on 6th August,
2001, whereas the appeal was preferred on 16th
February 2004 beyond the period of limitation.
It appears from the provisions contained in
section 7[7] of the aforesaid Act that, any
person aggrieved by an order under subsection [4]
may, within sixty days from the date of 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. The first proviso to subsection [7]
further provides that the appropriate Government
or the appellate authority, as the case may be,
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.
Thus, the aforesaid statutory provision does not
C/SCA/2136/2021 ORDER
authorize the appellate authority to condone more
than 60 days' delay in preferring the appeal
beyond the period of limitation.
In case before us, the appeal has been preferred
by the employer after more than three years from
the date of passing of the original order. In our
opinion, the appellate authority rightly refused
to condone the delay and dismissed the appeal as
the appellate authority has no power of
condonation of more than 60 days' delay.
We, thus, find no substance in the Special Civil
Application No.2799 of 2004 challenging the order
of the appellate authority refusing to condone
the delay. The Special Civil Application No.2799
of 2004 is, thus, devoid of any merit and is
dismissed accordingly.
10.2. Similarly, while dismissing Special
Civil Application No.13532 of 2015 and allied
matters, learned Single Judge of this Court
decided on 25.08.2015, observed in para:10
onwards as under:
"10. In order to consider the contention raised
by learned A.G.P. that the appellate authority
has not provided an opportunity of hearing to
the petitioners and without assigning any reason
the appeal filed by the petitioners is dismissed
on the ground of delay, certain provisions of
law and the decisions rendered by this Court are
required to be considered.
11. Section 7 of Payment of Gratuity Act, 1972
provides for determination of the amount of
gratuity. Section 7 reads as under:
"7. Determination of the amount of gratuity.--
(1) A person who is eligible for payment of
gratuity under this Act or any person
authorised, in writing to act on his behalf
shall send a written application to the
C/SCA/2136/2021 ORDER
employer, within such time and in such form, as
may be prescribed, for payment of such gratuity.
(2) As soon as gratuity becomes payable, the
employer shall, whether an application referred
to in subsection (1) has been made or not,
determine the amount of gratuity and give notice
in writing to the person to whom the gratuity is
payable and also to the controlling authority
specifying the amount of gratuity so determined.
(3) The employer shall arrange to pay the
amount of gratuity within thirty days from the
date it becomes payable to the person to whom
the gratuity is payable.
(3A) If the amount of gratuity payable under
subsection (3) is not paid by the employer
within the period specified in subsection (3),
the employer shall pay, from the date on which
the gratuity becomes payable to the date on
which it is paid, simple interest at such rate,
not exceeding the rate notified by the Central
Government from time to time for repayment of
longterm deposits, as that Government may, by
notification specify:
Provided that no such interest shall be payable
if the delay in the payment is due to the fault
of the employee and the employer has obtained
permission in writing from the controlling
authority for the delayed payment on this
ground.
(a) If there is any dispute to the amount of
gratuity payable to an employee under this Act
or as to the admissibility of any claim of, or
in relation to, an employee for payment of
gratuity, or as to the person entitled to
receive the gratuity, the employer shall deposit
with the controlling authority such amount as he
admits to be payable by him as gratuity.
(b) Where there is a dispute with regard to any
matter or matters specified in clause (a), the
employer or employee or any other person raising
C/SCA/2136/2021 ORDER
the dispute may make an application to the
controlling authority for deciding the dispute.
(c) The controlling authority shall, after due
inquiry and after giving the parties to the
dispute a reasonable opportunity of being heard,
determine the matter or matters in dispute and
if, as a result of such inquiry any amount is
found to be payable to the employee, the
controlling authority shall direct the employer
to pay such amount or, as the case may be, such
amount as reduced by the amount already
deposited by the employer.
(d) The controlling authority shall pay the
amount deposited, including the excess amount,
if any, deposited by the employer, to the person
entitled thereto.
(e) As soon as may be after a deposit is made
under clause (a), the
controlling authority shall pay the amount of
the deposit--
(i) to the applicant where he is the employee;
or
(ii) where the applicant is not the employee, to
the nominee or, as the case may be, the guardian
of such nominee or heir of the employee if the
controlling authority is satisfied that there is
no dispute as to the right of the applicant to
receive the amount of gratuity.
(5) For the purpose of conducting an inquiry
under subsection (4), the controlling authority
shall have the same powers as are vested in a
court, while trying a suit, under the Code of
Civil Procedure, 1908 (5 of 1908), in respect of
the following matters, namely:--
(a) enforcing the attendance of any person or
examining him on oath;
(b) requiring the discovery and production of
documents;
C/SCA/2136/2021 ORDER
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of
witnesses.
(6) Any inquiry under this section shall be a
judicial proceeding within the meaning of
sections 193 and 228, and for the purpose of
section 196, of the Indian Penal Code (45 of
1860).
(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 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.
(8) The appropriate Government or the appellate
authority, as the case may be, may, after giving
the parties to the appeal a reasonable
opportunity of being heard, confirm, modify, or
reverse the decision of the controlling
authority."
As per SubSection (7) of Section 7, any person
aggrieved by an order passed by the Controlling
Authority under SubSection (4) may file an
appeal within a period of 60 days from the date
of the receipt of the order before the
appropriate Government or before the authority
specified by the appropriate Government.
However, in the said SubSection itself, the
C/SCA/2136/2021 ORDER
appellate authority is empowered to condone the
delay if the appeal is filed after a period of
60 days but within a period of 60 days
thereafter, i.e. 61 to 120 days from the date of
receipt of the order provided the appellate
authority is satisfied that the appellant was
prevented by sufficient cause from preferring
the appeal within the stipulated time limit.
Further, proviso to SubSection (7) of Section 7
of the said Act specifically provides that no
appeal by an employer shall be admitted unless
at the time of preferring the appeal, a
certificate of the controlling authority is
produced to the effect that the appellant has
deposited the amount of gratuity as provided in
SubSection (4) or the appellant deposits the
said amount before the appellate authority.
12. This Court in the case of Petlad
Municipality Vs. Jadav Ramabhai Bhaijibhai
reported in (2014) 3 GLR 2065 considered the
provisions contained in the Payment of Gratuity
Act as well as the Limitation Act, 1963 and
observed as under:
"5.1 From the reading of above provision, it is
clear that the period provided to prefer appeal
before the appropriate government or such other
appellate authority which may be specified,
against the order of the controlling authority,
is 60 days from the date of receipt of the order
of controlling authority. The First Proviso
permits preferring of appeal within further 60
days provided sufficient cause for not
preferring the appeal within first 60 days is
shown. The Second Proviso imposes a precondition
of depositing the gratuity amount for admission
of appeal by an employer. In other words,
maximum period made available by the legislature
is total 120 days for preferring the appeal
against controlling authority's order. It would
not be gainsaid that this is in nature of
special period of limitation.
5.2 Thus as provided in section 7(7) of the
Gratuity Act, in respect of preferring appeal
before the appellate authority, the outer limit
of limitation is 120 days. The statute does not
confer powers to entertain the appeal after 120
days. The power to condone the delay is
C/SCA/2136/2021 ORDER
available within the sixty days contemplated in
the First Proviso for which sufficient cause has
to be shown so as to explain delay beyond sixty
days.
5.3 The authorities appointed under the Payment
of Gratuity Act, 1972 are not judicial officers.
Nor these authorities have the trappings of the
court. They cannot be treated as courts. The
provisions of the Limitation Act do not apply to
the proceedings before these authorities. In Van
and Co; Sole Proprietary concern, through its
sole proprietor Mrs. Ketty Hosang Vandrawala Vs.
Babubhai Lallubhai [1981 GLH 5], it was
observed,
"In Town Municipal Council. Athani v. Presiding
Officer, Labour Court, Hubli and others, AIR
1969 S.C. 1335, it has been held by the Supreme
Court that the Limitation Act applies to
`Courts' and not to bodies other than Courts
such as quasijudicial tribunals or executive
authorities. It has also been observed in that,
decision that an Industrial Tribunal or a Labour
Court dealing with applications or references
under the Industrial Disputes Act, 1947 is not a
Court for the purpose of Limitation Act. because
it is not governed either by the Code of Civil
Procedure or the Code of Criminal Procedure. For
these two reasons, we are of the opinion that
the provisions of Sec. 5 of the Limitation Act,
1963, do not apply to the instant case." (Para
5)
5.4 The court held that the appellate authority
has no jurisdiction to entertain the appeal
after expiry of 120 days from the date of order
of the controlling authority. Taking note of
Sec.14 of the Gratuity Act, which expressly
excludes application of any other law which is
in consistent with the Act, the Division Bench
held that Sec. 29(2) of the Limitation Act, 1963
has no application, it was observed and held,
"The provisions of this Act or any rule made
thereunder shall have effect notwithstanding
anything inconsistent therewith contained in any
enactment other than this Act or in any
instrument or contract having effect by virtue
of any enactment other than this Act." (Para 4)
C/SCA/2136/2021 ORDER
"We find that there is inconsistency between
Sec. 5 of the Limitation Act, 1963, and subsec.
(7) of Sec. 7 of the payment of Gratuity Act,
1972. Whereas Sec. 5 enables a Court to
entertain an appeal at any time after the expiry
of the period of limitation prescribed for it,
if there is a sufficient cause, subsec. (7) of
Sec 7 enables the Appellate Authority to
entertain appeal only within sixty days after
the expiry of the period of limitation
prescribed for it under the said subsection. In
view of the fact that the proviso to subsec.
(7) of Sec. 7 of the Payment of Gratuity Act,
1972, is inconsistent with the provisions of
Sec. 5 of the Limitation Act, 1963, and
since Sec. 14 of the Payment of Gratuity Act,
1972, gives overriding effect to the provisions
of that Act over all other Acts, within I the
meaning of subsec. (2) of Sec. 29, application
of the provisions of Sec. 5 of the Limitation
Act, 1963 is excluded by Sec. 14." (Para 4)
5.5 The question whether the appeal can be
maintained after 120 days, is no longer res
integra in view of decision of this court in Van
and Co.(supra). Again in Western Coalfields Ltd.
Vs. Controlling Authority under Payment of
Gratuity Act, 1972, Jabalpur [2000 LAB. I. C.
3458 (M.P)] the Madhya Pradesh High Court has
taken similar view, "On a plain reading of the
aforesaid provision it becomes luminously clear
that the appellate authority has jurisdiction to
condone the delay beyond the period of sixty
days if sufficient cause is shown, by extending
the said period by a further period of sixty
days. It is to be borne in mind that the Payment
of Gratuity Act is a special statute and there
is provision for condonation of delay. Once the
limitation period has been provided and there is
further provision conferring the power on
authority to condone the delay of 60 days beyond
the specified period if sufficient cause is
shown, the authority cannot travel beyond it. It
is well settled in law that in absence of
conferment of jurisdiction to condone delay the
statutory authority which is a quasi judicial
authority cannot condone delay or extend the
period of limitation. (Para 5)
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5.6 The Madhya Pradesh High Court relied on
Supreme Court decision in Officer on Special
Duty (land Acquisition) Vs. Shah Manilal
Chandulal, [1996 AIR SCW 941] wherein the Apex
Court while considering whether the Land
Acquisition Officer under the Land Acquisition
Act is Court or not and can condone the delay
under Section.18 of said Act, has held as under
"It is to remember that the Land Acquisition
(Amendment) Act (68 of 1984) was enacted
prescribing the limitation to exercise the power
under Sections 4,6 and 11 and also excluded the
time occupied due to stay granted by the Courts.
Taking cognizance of the limitation prescribed
in proviso to subsection (2) of Section 18 the
provisions of the Limitation Act were not
expressly extended. Though Section 29(2) of the
Limitation Act is available, and the limitation
in proviso to subsection (2) of Section 18 may
be treated to be special law, in the absence of
such an application by Land Acquisition
(Amendment) Act (68 of 1984), the Act
specifically maintains distinction between the
Collector and the Court and the Collector/LAO
performs only statutory duties under the Act,
including one while making reference under
Section 18. It is difficult to construe that the
Collector/LAO while making reference under
Section 18, as statutory authority still acts as
a Court for the purpose of Section 5 of the
Limitation Act. (Para 17)
"Though hard it may be, in view of the specific
limitation provided under proviso to Section
18(2) of the Act, we are of the consider view
that subsection (2) of Section 29 cannot be
applied to the proviso to subsection (2) of
Section 18. The Collector/LAO, therefore is not
a Court when he acts as a statutory authority
under Section 18(1). Therefore, Section 5 of the
Limitation Act cannot be applied for extension
of the period of limitation prescribed under
proviso to subsection (2) of Section 18......"(Para
18)
5.7 Hon'ble the Supreme Court in Chhattisgarh
SEB Vs. Central Electricity Regulatory
Commission, [(2010) 5 SCC 23], considered
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similar provision under Sec.125, proviso under
Electricity Act, 2003, providing period of
limitation for appeal to the Supreme Court
against order of Appellate Tribunal for
Electricity. Section 125 provided for normal
period of be days which under the proviso to
Sec.125, was extendable for further 60 days, as
is the provision under sec. 7(7) of Gratuity Act
also. It was held that delay in filing appeal
beyond 120 days cannot be condoned by the
Supreme Court. The apex court stated, "The use
of the expression "within a further period of
not exceeding 60 days" in the proviso to Section
125 makes it clear that the outer limit for
filing an appeal is 120 days. There is no
provision in the Act under which this Court can
entertain an appeal filed against the decision
or order of the Tribunal after more than 120
days." (Para 25)
5.7.1 The object underlying was highlighted thus
:
"The object underlying establishment of a
special adjudicatory forum i.e. the Tribunal to
deal with the grievance of any person who may be
aggrieved by an order of an adjudicating officer
or by an appropriate Commission with a provision
for further appeal to this Court and
prescription of special limitation for filing
appeals under Sections 111 and 125 is to ensure
that disputes emanating from the operation and
implementation of different provisions of the
Electricity Act are expeditiously decided by an
expert body and no court, except this Court, may
entertain challenge to the decision or order of
the Tribunal. The exclusion of the jurisdiction
of the civil courts (Section 145) qua an order
made by an adjudicating officer is also a
pointer in that direction."(Para 26)
"It is thus evident that the Electricity Act is
a special legislation within the meaning of
Section 29(2) of the Limitation Act, which lays
down that where any special or local law
prescribes for any suit, appeal or application a
period of limitation different from the one
prescribed by the Schedule, the provisions of
Section 3 shall apply as if such period were the
period prescribed by the Schedule and provisions
contained in Sections 4 to 24 (inclusive) shall
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apply for the purpose of determining any period
of limitation prescribed for any suit, appeal or
application unless they are not expressly
excluded by the special or local law." (Para 27)
5.7.2 What is finally held in Chhattisgarh SEB
(supra) is equally and fully applicable to
interpretation of sec.7 (7) of the Gratuity Act.
"In view of the above discussion, we hold that
Section 5 of the Limitation Act cannot be
invoked by this Court for entertaining an appeal
filed against the decision or order of the
Tribunal beyond the period of 120 days specified
in Section 125 of the Electricity Act and its
proviso. Any interpretation of Section 125 of
the Electricity Act which may attract the
applicability of Section 5 of the Limitation Act
read with Section 29(2) thereof will defeat the
object of the legislation, namely, to provide
special limitation for filing an appeal against
the decision or order of the Tribunal
and proviso to Section 125 will become
nugatory." (Para 32)"
After discussing the various decisions rendered
by different High Courts and the Honourable
Supreme Court, this Court held that no order or
direction could be passed in exercise of powers
under Article 226 and 227 of the Constitution of
India, and no relief in any manner can be
granted to the petitioner in breach of express
statutory provision. Thus, this Court dismissed
the petition, and not even accepted the request
of the concerned petitioner to remand the matter
to the appellate authority for considering the
issue on its own merits, after condoning the
delay.
13. This Court has in various orders has taken a
similar view, i.e. in the case of Sarada
Education Trust Vs. Appellate Authority in
Special Civil Application No. 639 of 2014 dated
27.1.2014 and in the case of Kelavani Trust
Vadodara Vs. Bharatiben D. Shah reported in 2015
(1) LLJ 679.
14. This Court in the case of Bhavnagar
Municipal Corporation Vs. Sunderben Chhanabhai
Baraiya reported in 2011 (5) GLR 3681 has
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considered the provisions contained in Sub
Section (7) of Section 7 of the Payment of
Gratuity Act. This Court held that the appellate
authority had rightly dismissed the appeal which
was filed after eleven months, and the appellate
authority had no power to condone the delay. It
was further held that if the extraordinary power
conferred to this Court under Article 226 of the
Constitution of India is invoked and exercised,
in such type of cases, it will be nothing but
amounting to miscarriage of justice, and
therefore, the petition was dismissed by this
Court.
15. In the case of Chhattisgarh State
Electricity Board v. Central Electricity
Regulatory Commission and others reported in
(2010) 5 SCC 23, the Honourable Supreme Court of
considered the similar provision contained in
Section 125 of the Electricity Act of 2003.
Section 125 provides for filing of an appeal to
the Supreme Court, which reads as under:
"125. Appeal to Supreme Court.Any person
aggrieved by any decision or order of the
Appellate Tribunal, may, file an appeal to the
Supreme Court, within sixty days from the date
of communication of the decision or order of the
Appellate Tribunal, to him, on any one or more
of the grounds specified in Section 100 of the
Code of Civil Procedure, 1908 (5 of 1908)"
The Honourable Supreme Court held in paragraph
No.25 and 26 as under:
"25. Section 125 lays down any person aggrieved
by any decision or order of the Tribunal can
file an appeal to this Court within 60 days from
the date of communication of the decision or
order of the Tribunal. Proviso to Section 125
empowers this Court to entertain an appeal filed
within a further period of 60 days if it is
satisfied that there was sufficient cause for
not filing appeal within the initial period of
60 days. This shows that the period of
limitation prescribed for filing appeals under
Section 111(2) and 125 is substantially
different from the period prescribed under the
Limitation Act for filing suits, etc. The use of
the expression "within a further period of not
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exceeding 60 days" in the proviso to Section 125
makes it clear that the outer limit for filing
an appeal is 120 days.
26. The object underlying establishment of a
special adjudicatory forum i.e. the Tribunal to
deal with the grievance of any person who may be
aggrieved by an order of an adjudicating officer
or by an appropriate Commission with a provision
for further appeal to this Court and
prescription of special limitation for filing
appeals under Sections 111 and 125 is to ensure
that disputes emanating from the operation and
implementation of different provisions of the
Electricity Act are expeditiously decided by an
expert body and no court, except this Court may
entertain challenge to the decision or order of
the Tribunal. The exclusion of the jurisdiction
of the civil courts (Section 145) qua an order
made by an adjudicating officer is also a
pointer in that direction."
16. Thus, the Honourable Supreme Court held that
the Supreme Court is not having power to condone
the delay if the appeal is filed after 120 days.
17. Section 35 of the Central Excise Act reads
as under:
"Section 35. Appeals to Commissioner (Appeals).
(1) Any person aggrieved by any decision or
order passed under this Act by a Central Excise
Officer, lower in rank than a Commissioner of
Central Excise, may appeal to the Commissioner
of Central Excise (Appeals) hereafter in this
Chapter referred to as the Commissioner
(Appeals) within sixty days from the date of the
communication to him of such decision or order:
Provided that the Commissioner (Appeals) may, if
he is satisfied that the appellant was prevented
by sufficient cause from presenting the appeal
within the aforesaid period of sixty days, allow
it to be presented within a further period of
thirty days.
(1A) The Commissioner (Appeals) may, if
sufficient cause is shown at any stage of
hearing of an appeal, grant time, from time to
time, to the parties or any of them and adjourn
C/SCA/2136/2021 ORDER
the hearing of the appeal for reasons to be
recorded in writing:
Provided that no such adjournment shall be
granted more than three times to a party during
hearing of the appeal. (2) Every appeal under
this section shall be in the prescribed form and
shall be verified in the prescribed manner."
18. The Division Bench of this Court referred
certain questions to the Full Bench. The Full
Bench of this Court considered the said
questions and appropriate answers were given to
the said questions. The said decision is
reported in AIR 2015 Gujarat 97. In paragraph
No.1 of the said decision, three questions were
formulated. Paragraph No.1 of the said decision
reads as under:
"1. The Division Bench of this Court has
formulated the following questions and has
referred the matter to the Larger Bench:
"(1.) Whether the period of limitation provided
of 60 days, for filing an appeal under Section
35 of the Central Excise Act, 1944, could be
extended only upto 30 days as provided by the
proviso or the delay beyond the period of 90
days could also be condoned in filing an appeal?
(2.) Where a statutory remedy or appeal is
provided under Section 35 of the Central Excise
Act, 1944 and the delay cannot be condoned under
Section 35 beyond the period of 90 days, then
whether Writ Petition under Article 226 of the
Constitution of India would lie for the purpose
of condoning the delay in filing the appeal?
(3.) When if the statutory remedy or appeal
under Section 35 is barred by the law of
limitation whether in a Writ Petition under
Article 226 of the Constitution of India, the
order passed by the original adjudicating
authority could be challenged on merits?"
The Honourable Full Bench of this Court after
considering various provisions of different Acts
and various decisions of the Honourable Supreme
Court as well as different High Courts answered
C/SCA/2136/2021 ORDER
the said questions in paragraph No.31, which
reads as under:
"31. We may now proceed to answer the question.
(1) Question No.1 is answered in negative by
observing that the limitation provided under
section 35 of the Act cannot be condoned in
filing the appeal beyond the period of 30 days
as provided by the proviso nor the appeal can be
filed beyond the period of 90 days.
(2) The second question is answered in negative
to the extent that the petition under Article
226 of the Constitution would not lie for the
purpose of condonation of delay in filing the
appeal
(3) On the third question, the answer is in
affirmative, but with the clarification that
A) The petition under Article 226 of the
Constitution can be preferred for challenging
the order passed by the original adjudicating
authority in following circumstances that
A.1) The authority has passed the order without
jurisdiction and by assuming jurisdiction which
there exist none, or
A.2) Has exercised the power in excess of the
jurisdiction and by overstepping or crossing the
limits of jurisdiction, or
A.3) Has acted in flagrant disregard to law or
rules or procedure or acted in violation of
principles of natural justice where no procedure
is specified.
B) Resultantly, there is a failure of justice or
it has resulted into gross injustice.
We may also sum up by saying that the power is
there even in aforesaid circumstances, but the
exercise is discretionary which will be governed
solely by the dictates of the judicial
conscience enriched by judicial experience and
practical wisdom of the judge."
C/SCA/2136/2021 ORDER
Therefore, it becomes clear that the provisions
of Section 35 of the Central Excise Act are in
para materia with the provisions contained in
SubSection (7) of Section 7 of the Gratuity
Act.
19. Thus, from the latest decision rendered by
this Court in the aforesaid case, it is clear
that the appellate authority is not empowered to
condone the delay if the appeal is filed after a
period of 120 days in the present case. Even
this Court cannot condone the delay in filing
the appeal while exercising powers under Article
226 of the Constitution of India. However, this
Court can exercise the powers under Article 226
of the Constitution and interfered with the
order passed by the original adjudicating
authority, in the present case, respondent No.2
- controlling authority, in certain
circumstances.
20. If the facts of the present case are
considered in light of various decisions
rendered by this Court under the Payment of
Gratuity Act and the decision rendered by the
Full Bench of this Court, the petitioners have
failed to demonstrate that respondent No.2
authority has passed the orders without
jurisdiction or exceeded its jurisdiction. It is
not the case of the petitioners that respondent
No.2 controlling authority has not given the
opportunity of hearing to the petitioners and
thereby violated the principles of natural
justice. Respondent No.2 has after considering
the reply filed by the petitioners as well as
the submissions canvassed on behalf of the
petitioners passed the order, and therefore, it
cannot be said that respondent No.2 has violated
the principles of natural justice. The
petitioners have also failed to demonstrate that
because of the impugned order passed by
respondent No.2, gross injustice is caused to
the petitioners. The only contention which is
taken by the Assistant Government Pleader is
that respondent No.2 ought to have considered
the length of service from the date of
regularization from 1996 and not from the date
of initial appointment as a daily wager, i.e.
from 1.1.1985.
C/SCA/2136/2021 ORDER
However, when respondent No.2 has considered the
said aspect, I am of the opinion that the said
order is just, legal and valid, and therefore,
in the present petitions, which are filed under
Articles 226 and 227 of the Constitution of
India, I am not inclined to interfere with the
same.
Accordingly, all these petitions fail and are
dismissed accordingly."
10.3. Same way, in the judgment dated
10.09.2015 delivered in Special Civil Application
No.11979 of 2015, in paras:8.9, this Court has
observed as under:
"8. With regard to the second contention taken
by the learned AGP that the order passed by
respondent no.1appellate authority is in
violation of the principles of natural justice
is also required to be rejected. It is an
admitted fact that the petitioners preferred the
appeal after a period of limitation prescribed
under Section 7 of the Payment of Gratuity Act,
1972 Under Section 7(7) of the said Act, it is
specifically provided that any person aggrieved
by an order passed by the Controlling Authority
shall prefer an appeal within a period of 60
days from the date of receipt of the order and
the appellate authority, if it is satisfied that
the appellant was prevented by sufficient cause
from preferring the appeal within said period of
60 days, extend the said period by further 60
days. Section 7(7) of the Payment of Gratuity
Act, 1972 reads as under:
"7(7) Any person aggrieved by an order under
subsection (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:
C/SCA/2136/2021 ORDER
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 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.]"
9. In view of the aforesaid statutory provision,
the appellate authority is not empowered to
condone the delay if the appeal is preferred
after a period of 120 days. This Court has
considered the provisions contained in Section
7(7) of the Payment of Gratuity Act. In the case
of Bhavnagar Municipal Corporation Vs. Sunderben
Chhanabhai Baraiya reported in 2011 (5) GLR 3681
has considered the provisions contained in Sub
Section (7) of Section 7 of the Payment of
Gratuity Act. This Court held that the appellate
authority had rightly dismissed the appeal which
was filed after eleven months, and the appellate
authority had no power to condone the delay. It
was further held that if the extraordinary power
conferred to this Court under Article 226 of the
Constitution of India is invoked and exercised,
in such type of cases, it will be nothing but
amounting to miscarriage of justice, and
therefore, the petition was dismissed by this
Court."
11. In view of the above settled legal
proposition of law, I am in complete agreement
with the view taken by the Appellate Authority
while passing the order dated 02.11.2020 in
Gratuity Appeal No.22 of 2020 and hence, no
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interference in the orders passed by the
Appellate Authority as well as the Controlling
Authority are warranted.
12. Even otherwise, the Controlling
Authority - respondent No.3 herein has awarded a
sum of Rs.11,700/ and considering the smallness
of the amount also, this Court do not propose to
interfere with the orders passed by the Appellate
Authority as well as Controlling Authority while
exercising its extraordinary jurisdiction under
Article 226 of the Constitution of India.
13. Therefore, this petition fails and is
required to be dismissed and is dismissed
accordingly, with no order as to costs.
(NIRZAR S. DESAI,J)
Pradhyuman
