Housing Commissioner, Gujarat ... vs The Appellate Authority Under The ...
2021 Latest Caselaw 17351 Guj

    C/SCA/5136/2020                                    ORDER DATED: 17/11/2021



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 5136 of 2020
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   HOUSING COMMISSIONER, GUJARAT RURAL HOUSING BOARD
                          Versus
  THE APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY
                         ACT, 1972
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Appearance:
MR AR THACKER(888) for the Petitioner(s) No. 1,2
MR.HARDIK D. MEHTA, AGP for the Respondent(s) No. 1,3
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
SHRIJIT G PILLAI(7937) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                             Date : 17/11/2021
                              ORAL ORDER

[1] Rule. Learned AGP waives service of notice of rule on behalf of the respondent nos.1 and 3. Learned advocate Mr.Shrijit Pillai waives service of notice of rule on behalf of the respondent no.2.

[2] The present writ petition has been filed seeking a direction for quashing and setting aside the order dated 18.07.2019 passed by the Appellate Authority under the Payment of Gratuity Act,1972, (the Act) rejecting the application seeking condonation of delay in Appeal No.8 of 2019.

[3] The facts giving rise to the present petition are that the respondent no.2 was appointed on

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12.05.1981 as Charge Assistant in the petitioner Board and was superannuated from the service on 31.07.2015. It is further stated that at the time of superannuation, a departmental inquiry was pending against the respondent no.2 and the said inquiry was ordered to be continued as per Rules 23 and 24 of the Gujarat Civil Services Rules.

[3.1] It is stated that the respondent no.2 filed an application before the Controlling Authority, which was registered as Case No.154 of 2015. The Controlling Authority vide order dated 27.06.2016 directed the petitioner Board to pay gratuity of Rs.9,42,799/- to the respondent no.2 with 10% interest.

[3.2] It is stated that being aggrieved with the said order, the petitioner Board has preferred an appeal before the respondent no.1 - Appellate Authority under the Act and before filing appeal, the petitioner Board has deposited Rs.10,37,079/- before the Controlling Authority / Appellate Authority on 31.07.2016. The said appeal was registered as Appeal No.47 of 2016. By the order dated 09.01.2017, the respondent no.1 Appellate Authority remanded the matter to the Controlling Authority to decide the matter afresh.

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[3.3] Pursuant to the order of the Appellate Authority, the case was registered as Remand Case No.3 of 2017 before the Controlling Authority. By the order dated 05.01.2018, the Controlling Authority has confirmed its earlier order, which was passed in Case No.154 of 2015 and directed the petitioner Board to pay Rs.9,42,799/- to the respondent no.2 with 10% interest in Remand Case No.3 of 2017.

[3.4] Being aggrieved by the order dated 05.01.2018, the petitioner Board has preferred an appeal before the respondent no.1 Appellate Authority and the said case was registered as Appeal No.20 of 2018. By the order dated 12.10.2018, the Appellate Authority has once again remanded the matter to the Controlling Authority with the direction to decide the case and determine the points for determination in Appeal No.47 of 2016.

[3.5] As per the order dated 12.10.2018, the case was registered as Remand Case No.9 of 2018 before the Controlling Authority and vide order dated 22.01.2019, the Controlling Authority decided the case without deciding the case on the points for determination as directed in favour of the respondent no.2.

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[3.6] Being aggrieved by the order dated 22.01.2019, Appeal No.8 of 2019 was preferred before the Appellate Authority and since the appeal was filed beyond the period of limitation, the petitioner has also filed an application for condonation of delay along with the said appeal. It is further stated that due to inadvertent mistake of the learned advocate, in the application for condonation of delay, the number of days, for which the appeal was delayed, was kept blank. The Appellate Authority, while deciding the appeal vide order dated 18.07.2019, refused to condone the delay of 55 days caused in filing the appeal.

[4] Learned advocate Mr.Thacker appearing for the petitioners has submitted that the Appellate Authority has failed to appreciate the provision of Section 7 of the Payment of Gratuity Act, 1972. He has submitted that the petitioner had filed an appeal within a period of 120 days i.e. on 117th day, after the order passed by the Controlling Authority, and hence, the application seeking condonation of delay was required to be allowed. It is further submitted that the Appellate Authority has rejected the application seeking condonation of delay by observing that since on number of occassions the matter has been remanded, the respondent employee may lose

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confidence in law.

[5] In support of his submissions, learned advocate Mr.Thacker has placed reliance on the judgment passed by the Coordinate Bench in the case of Principal vs. Jayantilal Ramandlal Jaiswal reported in 2015 (2) CLR 139. Thus, he has submitted that the impugned order may be set aside and the matter may be remanded to the Appellate Authority to decide afresh. He has submitted that appropriate direction may also be given to the Appellate Authority to decide all the issues afresh, which are raised in the appeal.

[6] In response to the aforesaid submissions, learned advocate Mr.Shrijit Pillai for the respondent no.2 has submitted that the impugned order may not be disturbed since the respondent employee has been illegally denied the gratuity which he is entitled to. He has submitted that admittedly the application for condonation of delay was filed by seeking condonation of delay of 55 days, however, the same has been precisely rejected by the Appellate Authority. Therefore, the present petition may be rejected.

[7] Heard the learned advocates for the

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respective parties.

[8] The fact, which is not in dispute, is that the petitioner had filed an application seeking condonation of delay in filing Appeal No.8 of 2019, which was filed against the order of Controlling Authority passed on 18.07.2019. Such appeal was filed on 117th day i.e. within a period of 120 days. At this stage, it would be apposite to refer to the provision of Section 7(7) of the Payment of Gratuity Act, 1972, which reads thus:

"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 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.

5.1 From the above provision it is manifest that Appeal could be preferred within 60 days from the date of order of the Controlling Authority and it could be entertained byt eh Appellate Authority within 60 further days, on being satisfied that there existed sufficient cause. In this case it is not in dispute that Appeal was delayed by 26 days beyond initial period of 60 days. The total period of limitation available for preferring Appeal is thus 120 days. The Appeal was admittedly filed within the said total period."

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[9] The Coordinate Bench of this Court, while examining similar provision in the case of Jayantilal Ramandlal Jaiswal (supra) has held thus:-

"6. In condoning delay, a liberal approach is always advocated. And in the instant case the Appellate Authority has apparently acted out of ignorance of statutory provisions holding that the Appeal was beyond 60 days, and therefore delayed. The delay was of 26 days, beyond initial period of 60 days. Further 60 days were allowable in the total 120 days period of limitation. The Appeal was preferred within the said permissible period. The delay ought to have been condoned."

[10] In the present case, the delay is of 55 days, which is beyond the initial period of 60 days. Since the appeal is filed within a period of 120 days, the order passed by the Appellate Authority is against the statutory provision of the Act as well as settled proposition of law.

[11] The observation made by the Appellate Authority with regard to shaking of the confidence of the employee after many remands, was uncalled for since it is beyond the scope of the issues raised in the order of the Controlling Authority as well as in the earlier order passed by the Appellate Authority. The Appellate Authority is required to confine its findings only on the issues, which is raised in the

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appeal.

[12] Under the circumstances, the impugned order is hereby quashed and set aside. The matter is remanded to the Appellate Authority to decide Appeal No.8 of 2019. It is also submitted by learned advocate Mr.Thacker that the petitioner- Board has already deposited an amount, as ordered by the Controlling Authority. The aforesaid appeal shall be decided on merits after hearing the concerned parties preferably within a period of six months.

[13] The present petition is allowed. Rule is made absolute.

(A. S. SUPEHIA, J) NABILA