Gujarat High Court
Subodh L Doshi vs Panchal Maheshbhai Bhagvanjibhai on 1 April, 2025
NEUTRAL CITATION
C/SCA/11870/2023 JUDGMENT DATED: 01/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11870 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 11953 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
No
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SUBODH L DOSHI
Versus
PANCHAL MAHESHBHAI BHAGVANJIBHAI & ORS.
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Appearance:
JWALIT B SONEJI(7895) for the Petitioner(s) No. 1
MR ARPIT P PATEL(5497) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 01/04/2025
COMMON ORAL JUDGMENT
1. Both the petitions are arising out of identical issues,
hence, a common judgment is passed for disposal of
these petitions. Facts of Special Civil Application
No.11870 of 2023 has been considered for the disposal
of these petitions.
2. This petition is filed by the petitioner, challenging the
order passed by the learned Appellate Authority dated
18.05.2023 under the Payment of Gratuity Act, 1972
wherein the learned Appellate Authority has returned
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the memo of the appeal on the ground that the appeal is
filed beyond the period of 120 days.
3. It is the case of the present petitioner that the
respondent workman filed the Form-N alongwith an
application which was registered and numbered as
Gratuity Application No.182 of 2021. It is alleged by the
respondent workman that he was appointed with the
petitioner since 15.11.1997 and terminated on
11.03.2020 and therefore, he is entitled for the gratuity
for the period of 23 years. It is the case of the present
petitioner that petitioner is a Contractor supplying
laborers and the respondent workman was serving with
respondent No.2. It is further contended in the petition
that the liability of statutory payment of the gratuity as
well as P.F. etc. was accepted by the respondent No.2.
It is further contended that respondent No.2 did not
appear before the learned Controlling Authority though
he was joined as a party respondent No.2. It is further
contended in the petition that the present petitioner
appeared before the learned Controlling Authority and
filed it's reply, however, learned Controlling Authority
has without referring the said reply accepted the claim
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of the respondent workman.
3.1. It is further contended that respondent No.2, against
whom the proceedings are pending before the NCLT is
liable for the payment of the gratuity as directed by the
learned Controlling Authority. It is further contended
that as the resolution professionals were appointed by
the learned NCLT, without joining them, the order was
passed by the learned Controlling Authority holding the
present petitioner and respondent No.2 as jointly and
severally liable for the payment of the gratuity of
Rs.1,38,703/- with 10% interest from 15.04.2021 till its
realization. It is further contended that petitioner was
not having the knowledge of the order, however, on
receiving the notice from the Recovery Officer the
application was filed for certified copy on 02.03.2023
which was received on 31.03.2023. Thereafter, the
appeal was filed on 10.05.2023 which is filed by delay of
10 days. It is contended that learned Appellate Authority
has returned the appeal memo on the ground that as the
appeal is filed after 120 days, the Appellate Authority
would not have jurisdiction to condone the delay, which
is the subject matter of challenge before this Court.
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4. Heard learned advocate Mr.Jwalit Soneji for the
petitioner and Mr.Arpit Patel for the respondent.
4.1. Learned advocate Mr.Soneji submits that without
joining the resolution professionals as a party
respondent and without considering the reply filed by
the present petitioner, petitioner was held jointly and
severally liable for the payment of the gratuity. Learned
advocate Mr.Soneji submits that as there was a mutual
agreement between the petitioner and the respondent
No.2, and respondent No.2 accepted all the liabilities of
the payment of statutory dues of the respondent
workman, however, without considering the same,
impugned order is passed and appeal was not accepted
on the ground of delay. Learned advocate Mr.Soneji
submits that instead of returning the appeal memo,
learned Appellate Authority could have considered the
merits of the case. However, without doing the same,
learned Appellate Authority has returned the memo vide
order dated 18.05.2023 and therefore, same order is
required to be set aside and appeal is required to be
directed, to be heard on merits.
4.2. On the other hand learned advocate Mr.Patel
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appearing for the respondent has contended that the
learned Appellate Authority would not have jurisdiction
after 120 days from the date of knowledge of the
impugned order. Learned advocate Mr.Patel has drawn
the attention of this Court with regard to the averment
made in the application for condonation of delay
wherein, no specific date has been stated regarding
receiving of the impugned order. Learned advocate
Mr.Patel submits that the only contention raised in the
delay condonation application is that, on 02.03.2023, the
application for certified copy was preferred which was
received on 31.05.2023 and the appeal was filed on
01.05.2023. Learned advocate Mr.Patel submits that as
learned Appellate Authority does not have powers to
condone the delay, no error is committed in returning
the appeal memo by the learned Appellate Authority,
therefore, same does not require any interference.
5. Having considered the arguments advanced by learned
advocates for the respective parties, this Court is of the
view that the learned Controlling Authority without
referring to any contention of the petitioner, though it is
stated that reply is received, passed impugned order
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accepting the bare words of the respondent workman.
The learned Controlling Authority has also not
considered the aspect that the respondent No.2 who was
joined before the learned Controlling Authority and the
principal employer did not appear, however, the
petitioner who appeared was also held liable alongwith
the respondent No.2.
6. This Court is of the view that instead of returning the
appeal memo on the ground of delay, the main appeal is
required to be heard on merits, hence the impugned
order deserves to be set aside. Appeal is directed to be
heard on merits. The said exercise shall be completed
within a period of 90 days from today.
7. This Court has not given any opinion on merits. Without
prejudice to the rights and contentions of both parties,
the impugned order of returning the appeal memo is set
aside.
8. It is open for both the parties to raise their contentions
before the learned Appellate Authority.
(M. K. THAKKER,J)
NIVYA A. NAIR
