Gujarat High Court

State Of Gujarat vs Bhikhubha Fatesinh Jadeja on 13 January, 2021

Bench: Nirzar S. Desai

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         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 692 of 2021
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                              STATE OF GUJARAT
                                    Versus
                          BHIKHUBHA FATESINH JADEJA
==========================================================
Appearance:
MS ASMITA PATEL AGP for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
==========================================================

 CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                Date : 13/01/2021

                                 ORAL ORDER

1. By way of this petition, the petitioner - State has

challenged the order dated 13.03.2020 passed in Gratuity

Appeal No.110 of 2019 passed by the Appellate Authority

and the order dated 13.02.2019 passed in Gratuity Case

No.52 of 2018 passed by the Controlling Authority Act, 1972

('the Act', for short).

2. Vide order dated 13.03.2020 produced at Annexure- A

to this petition, the Appellate Authority under the Payment

of Gratuity Act, Rajkot, while dismissing the appeal on the

ground of delay confirmed the order passed by the

Controlling Authority in Gratuity Case No.52 of 2018

whereby the respondent was awarded an amount of

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Rs.1,15,710/- within a period of 30 days along with 10%

simple interest with effect from 01.12.2012. The aforesaid

order of Controlling Authority was challenged before the

Appellate Authority but since the said order was challenged

after a total period of 120 days, on the ground of delay, the

Appellate Authority under the Payment of Gratuity Act,

1972, Rajkot dismissed the appeal preferred by the

petitioner on the ground of delay and hence these two

orders are under challenge before this Court.

3. Heard learned Assistant Government Pleader Ms.

Asmita Patel for the petitioner - State. Ms.Patel submitted

that it is an admitted position that delay beyond the period

of 120 days has occurred but if the delay is not condoned,

in that case, the petitioner will suffer huge financial loss

and ultimately that will be a loss to public exchequer. The

aspect of balance of convenience and hardship may also be

considered in favour of petitioner State and if delay is

condoned it will not affect adversely to the respondent and

hence she urged that delay occurred in filing the appeal

before the Appellate Authority may be condoned by this

Court by exercising jurisdiction under Articles 226 and 227

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of the Constitution of India. Ms.Patel also submitted that

the learned Appellate Authority was required to decide delay

application first and was required to pass two separate

orders in delay application and main appeal as well by

passing consolidated order. Except above submissions, no

other submissions are made by learned Assistant

Government Pleader Ms.Patel.

4. 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 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

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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.

4.1 The Division Bench of this Court has, while deciding

Special Civil Application No.2799 of 204, 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 sub-section [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

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not 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.

4.2 Similarly, while dismissing Special Civil Application

No.13532 of 2015 and allied matters, 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 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 sub-section (1) has been

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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 sub-section (3) is not paid by the employer within the period specified in sub- section (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 long- term 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 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.

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(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 sub-section (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) 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:

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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 Sub-Section (7) of Section 7, any person aggrieved by an order passed by the Controlling Authority under Sub-Section (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 Sub-Section itself, the 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 Sub-Section (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 Sub-Section (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

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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 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 quasi-judicial 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

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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)

"We find that there is inconsistency between Sec. 5 of the Limitation Act, 1963, and sub-sec. (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, sub-sec. (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 sub-section. In view of the fact that the proviso to sub-sec. (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 sub-sec. (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 sub- section (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 sub-section (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 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.

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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 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

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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 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

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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 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.

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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 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

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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 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.

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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."

Therefore, it becomes clear that the provisions of Section 35 of the Central Excise Act are in para materia with the provisions contained in Sub-Section (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.

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

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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."

4.3 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.1-appellate 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 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

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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."

5. In view of aforesaid settled propositions of law, it is

clear that if an appeal is preferred by the petitioner

challenging the order passed by the Controlling Authority

under the Payment of Gratuity Act, 1972 after a period of

120 days, the Appellate Authority is not empowered to

condone the delay and hence the appeal preferred by the

petitioner is rightly dismissed by the Appellate Authority.

6. Even otherwise, the order passed by the Controlling

Authority is in accordance with law. The authority has not

exceeded its jurisdiction nor violated the principles of

C/SCA/692/2021 ORDER

natural justice and, therefore, also no interference is