State Of Gujarat vs Jethabhai Muljibhai Parmar Since ...
2021 Latest Caselaw 16216 Guj

      C/SCA/11843/2020                              ORDER DATED: 14/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 11843 of 2020

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                        STATE OF GUJARAT
                              Versus
     JETHABHAI MULJIBHAI PARMAR SINCE DECEASED THROUGH HIS
                WIFE AMRUTABEN JETHABHAI PARMAR
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Appearance:
MR SAHIL TRIVEDI, AGP for the Petitioner(s) No. 1,2
MR YOGEN N PANDYA(5766) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                              Date : 14/10/2021

                               ORAL ORDER

1. The present writ petition has been filed challenging the order dated 09.03.2020 passed by the Appellate Authority in Gratuity Appeal No. 117 of 2019 confirming the order dated 10.01.2019 passed by the Controlling Authority in Gratuity Application No. 105 of 2018.

2. Mr. Sahil Trivedi, learned Assistant Government Pleader has submitted that the Appellate Authority has erred in observing and rejecting the appeal on the ground of delay and they should have appreciated the provisions of Government Resolutions dated 17.10.1988 and 24.03.2006 that initial service of ten years completed by the respondents, should have been considered by determining the gratuity case.

3. In response to the aforesaid submissions, learned advocate Mr. Yogen Pandya, appearing for respondent No.1

C/SCA/11843/2020 ORDER DATED: 14/10/2021

has submitted that the respondent No.1 had put his continuous service from 29.05.1985 to 30.04.2018 and the Controlling Authority has precisely passed the order under the Payment of Gratuity with 10% wages. Thereafter, the petitioner - State has preferred an appeal. However, the same was beyond limitation period of 120 days. He has submitted that the appeal was filed after delay of 296 days, which was rejected by the Appellate Court. By placing the reliance on the judgment of this Court reported in 2017 3 GLR 1801 in the case of Bhairavnath Industries Pvt. Ltd. versus Navinchandra Kashinath Badgujar and others (page-64), wherein the Co- ordinate Bench has held that the Appellate Court cannot entertain the appeal after period of 120 days, nor it has powers to condone the delay caused in filing the appeal. Hence, he has submitted that the writ petition may not be entertained.

4. I have heard the learned advocates appearing for the respective parties. The fact, which is not in dispute, is that after the Controlling Authority passed the order dated 10.01.2019 in Gratuity Case No. 105 of 2018, directing the petitioner to pay an amount of Rs. 2,19,894/- within a period of 30 days, the State Authority has challenged the said order after delay of 296 days. The provisions of Section 7(7) of the Payment of Gratuity Act stipulates that such appeal has to be preferred at the most within a period of 120 days. Unquestionably, the appeal has been filed after a period of 296 days. This Court in the decision of Bhairavnath Industries Pvt. Ltd. (supra), while examining the identical issue after survey of judgment of this Court as well as of the Apex Court, has held thus:-

C/SCA/11843/2020 ORDER DATED: 14/10/2021

"9.4 In this context reference may also be had to the observation in the decision in case of Panoli Intermediate (India) Pvt.Ltd. V/s Union of India and others, AIR 2015 Gujarat 97 wherein the Court has held in paragraph 31 that:-

"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."

9.5 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. It was held that delay in filing appeal beyond 120 days cannot be condoned. 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)

The Apex Court emphasized the object underlying the provision and observed that:

"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

C/SCA/11843/2020 ORDER DATED: 14/10/2021

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)

"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)"

9.6 In the aforesaid judgment, it was finally held,

"As specific period of limitation is provided with prescription of outer limit there under Section 7(7) of the Payment of Gratuity Act, which is a special statute, the same would prevail and reign. The writ jurisdiction cannot be exercised to grant any relief to the petitioner when the appeal before the Appellate Authority was beyond the maximum period of limitation statutorily fixed, as entertaining the petition and granting any relief would amount to breaching and circumventing the statutory provision."

9.7 What is finally held in Chhattisgarh SEB (supra) is equally and fully applicable to interpretation of sec.7 (7) of the Gratuity Act.

10. When the decision of the appellate authority is considered in light of above mentioned decisions it becomes clear that the appellate authority has not committed error in rejecting the appeal on the ground that the appeal is barred by limitation prescribed under the Act."

5. Thus, the aforesaid judgments stipulate that the Appellate Authority has no power to condone the delay under

C/SCA/11843/2020 ORDER DATED: 14/10/2021

the provisions of Section 7(7) of the Gratuity Act and hence, no interference is required in the order of the Appellate Authority since the same is passed in consonance with the provisions of the Act. This petition therefore fails and is dismissed. Notice is discharged.

6. Since the writ petition is rejected. It will be open for the respondent to file appropriate application for implementation of the order passed by the Controlling Authority.

(A. S. SUPEHIA, J) SALIM/