District Ayurvedic Officer vs Unknown
2022 Latest Caselaw 3658 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                    ON THE 23rd DAY OF MAY 2022




                                                           .

                             BEFORE
             HON'BLE MS. JUSTICE JYOTSNA REWAL DUA





         CIVIL WRIT PETITION NOs. 1757, 1787 & 1795 OF 2018

            Between:-





    1.      CWP NO. 1757 OF 2018

            DISTRICT AYURVEDIC OFFICER,

            DISTRICT SIRMOUR AT NAHAN,
            DISTRICT SIRMOUR (H.P.).

                                       .....PETITIONER

            (BY SH. RAMAKANT SHARMA, ADVOCATE)



            AND

    1.      JOINT LABOUR COMMISSIONER-CUM-




            APPELLATE AUTHORITY,
            HIMACHAL PRADESH,





            SHIMLA-171001.

    2.      LABOUR OFFICER-CUM-





            CONTROLLING AUTHORITY,
            DISTRICT SIRMOUR AT NAHAN,
            DISTRICT SIRMOUR (H.P.).

    3.      SOM DUTT,
            S/O LATE SHRI MATHA RAM,
            RESIDENT OF VILLAGE & POST OFFICE
            DAHAN, TEHSIL RAJGARH,
            DISTRICT SIRMOUR, H.P.
                                   .....RESPONDENTS

            (SH. NARENDER THAKUR, DEPUTY
            ADVOCATE GENERAL, FOR R-1 & R-2,




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         SHRI MALAY KAUSHAL, ADVOCATE,
         AS LEGAL AID COUNSEL, FOR R-3)




                                                       .

    2.   CWP NO. 1787 OF 2018

    1.   DIRECTOR OF AYURVEDA,





         HIMACHAL PRADESH, KASUMPTI,
         SHIMLA-9.

    2.   DISTRICT AYURVEDIC OFFICER,




         BILASPUR, DISTRICT BILASPUR, H.P.
                                    .....PETITIONERS

         (BY SH. RAMAKANT SHARMA, ADVOCATE)


         AND

    1.   JOINT LABOUR COMMISSIONER-CUM-
         APPELLATE AUTHORITY,



         HIMACHAL PRADESH,
         SHIMLA-171001.




    2.   LABOUR COMMISSIONER-CUM-
         CONTROLLING AUTHORITY,





         DISTRICT SIRMOUR AT NAHAN,
         DISTRICT SIRMOUR (H.P.).





    3.   RAM LAL,
         S/O SH. DHANI RAM,
         RESIDENT OF VILLAGE & POST OFFICE
         BANDLA, TEHSIL SADAR,
         DISTRICT BILASPUR, H.P.
                                 .....RESPONDENTS

         (SH. NARENDER THAKUR, DEPUTY
         ADVOCATE GENERAL, FOR R-1 & R-2,

         NEMO FOR R-3, THROUGH SERVED)




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    3.   CWP NO. 1795 OF 2018




                                                            .

    1.   DIRECTOR OF AYURVEDA,
         HIMACHAL PRADESH, KASUMPTI,
         SHIMLA-9.





    2.   DISTRICT AYURVEDIC OFFICER,
         BILASPUR, DISTRICT BILASPUR, H.P.
                                    .....PETITIONERS





         (BY SH. RAMAKANT SHARMA, ADVOCATE)

         AND


    1.   JOINT LABOUR COMMISSIONER-CUM-
         APPELLATE AUTHORITY,
         HIMACHAL PRADESH,
         SHIMLA-171001.



    2.   LABOUR OFFICER-CUM-
         CONTROLLING AUTHORITY,
         DISTRICT SIRMOUR AT NAHAN,




         DISTRICT SIRMOUR (H.P.).





    3.   LEKH RAM S/O SH. DHANI RAM,
         RESIDENTTOF VILLAGE JANED (GLAUR),
         P.O. SIKROHA, TEHSIL SADAR,





         DISTRICT BILASPUR, H.P.
                                 .....RESPONDENTS

         (SH. NARENDER THAKUR, DEPUTY
         ADVOCATE GENERAL, FOR R-1 & R-2,

         SHRI MEHAR CHAN, FOR R-3)
    _______________________________________________________

               This petition coming on for hearing this day, the

    Court passed the following:




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                              ORDER

Whether Section 7(7) of the Payment of Gratuity Act,

.

1972 permits condoning the delay in filing the appeal beyond period

of 60 days from the date of expiry of available statutory period of 60

days against an order passed under Section 7(4) of the Act, is the

question to be adjudicated in all these petitions.

Involving common questions of law and facts, all these

petitions are taken up together for disposal. For convenience, facts

of lead case i.e. CWP No. 1757 of 2018 have been considered

hereinafter.

2. Respondent Som Dutt invoked jurisdiction of the Labour

Officer-cum-Controlling Authority, District Sirmour under Section 7(4)

of the Payment of Gratuity Act, 1972 (in short 'Act'). He presented

his gratuity claim with submissions that he was employed with the

present petitioner as part time Sweeper from 28.11.1990 to

17.2.2009, daily wager w.e.f. 18.2.2009 to 5.5.2013 and as a regular

Class-IV employee w.e.f. 6.5.2013 to 30.6.2016. On the date of his

retirement on 30.6.2016, his last drawn wages were Rs. 16159/- per

month. The competent authority vide its order dated 17.1.2017

concluded that the respondent was entitled for gratuity as per

Section 4(2) of the Act amounting to Rs.2,42,385/-. The claim

petition filed by the respondent was accordingly allowed. The

petitioner herein was directed to make payment of gratuity

amounting to Rs. 2,42,385/- alongwith interest @9% per annum

w.e.f. 31.7.2016 till the realization of the payment as per Section 7(4)

.

of the Act. The operative part of the order reads as under:-

"The respondent is, therefore, directed to make

payment of Gratuity amounting to Rs. 2,42,385/- (Rupees Two Lakh Forty Two thousand and Three hundred eighty five only), alongwith simple interest @ 9% w.e.f. 31.07.2016 till the payment is actually made, as per

Section 7(4) (c) of the Act, to the claimant.

The decision/order are subject to the provisions contained in Section 7(7) of the Act. These payments are

further subject to the provisions contained in Section 2(h)

(i) of the Act, if any change in the status of the claimant or family members takes places till the payments are actually made. The payment of gratuity claim/case is accordingly decided."

3. The petitioner challenged the above order passed under

Section 7(4) of the Act by filing an appeal under section 7(7) of the

Act. The appeal was preferred on 3.8.2017. The Joint Labour

Commissioner-cum-Appellate Authority dismissed the appeal on

11.10.2017. The Appellate Authority held that the appeal filed beyond

maximum limit of 120 days was not maintainable. Not satisfied with

this order, the petitioner has invoked extra ordinary jurisdiction of this

court.

4. Learned counsel on both sides have assisted in putting

forth applicable legal provisions on the facts involved as well as law

on the subject. On consideration of entire matrix, it becomes amply

clear that the learned Appellate Authority was justified in dismissing

the appeal holding it to be not maintainable being barred by

.

limitation. This is on following counts:-

4(i) Section 7 of the Payment of Gratuity Act, 1972 provides

for determination of the amount of gratuity. Section 7(1) permits

making of an application by an eligible person to his employer for

payment of gratuity. In terms of Section 7(2) irrespective of making

of application under Section 7(1), the employer has to determine the

amount of gratuity payable to the person as soon as it becomes

payable. This amount of gratuity as per Section 7(3), has to be paid

within 30 days from the date it becomes payable failing which the

amount has to carry interest in terms of Section 7(3A). Section 7(4)

pertains to situations where there is dispute with respect to amount

of gratuity payable to an employee, admissibility of any claim,

entitlement of the person to receive the gratuity amount etc. In such

situations, the person raising the dispute has to make an application

to the Controlling Authority for deciding the dispute. The said

Authority after due inquiry to be carried out in accordance with law

has to decide the dispute. Being relevant Section 7(4) is extracted

hereinafter:-

"7(4)(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.

(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."

4(ii) The order passed under Section 7(4) is assailable under

Section 7(7),which 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

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."

4(iii) Statutory right has been made available under Section

7(7) of the Act to a person aggrieved by an order passed under

Section 7(4) of filing an appeal within a period of 60 days from the

date of receipt of the order to the appropriate government or the

specified competent authority. The first proviso of Section 7(7) lays

down that on being satisfied that the appellant was prevented by

sufficient cause in not preferring the appeal within the statutory

period of 60 days, the Appellate Authority may extend the period of

filing the appeal by further period of 60 days. At this stage it would

be apt to notice (2016) 16 SCC 152, titled Suryachakra Power

Corporation Limited vs. Electricity Department. The case

involved interpretation of Section 125 of the Electricity Act, 2003

which provided for filing appeals to the Hon'ble Supreme Court

within 60 days from the date of communication of the decision. It

also provided that the Supreme Court on being satisfied that the

appellant was prevented by sufficient cause from filing the appeal

.

within the statutory period of 60 days, may extend the said period not

exceeding 60 days. Section 125 of the Electricity Act, 2003 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):

Provided that the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be

filed within a further period not exceeding sixty days."

The Hon'ble Apex Court held that maximum period

within which an appeal can be filed under Section 125 was 120 days

which included the discretion granted to the Hon'ble Supreme Court

for condoning the delay. It was further held that the Supreme Court

cannot condone the delay beyond further period of 60 days by

invoking Section 5 of the Limitation Act by ignoring the statutory

limitation prescribed under the Electricity Act, 2003. For so holding,

reliance was also placed on (2010) 5 SCC 23, titled Chhattisgarh

SEB vs. Central Electricity Regulatory Commission. The

germane observations of the Apex Court in this regard are as

follows:

.

"5. The appeal under Section 125 of the Electricity Act, 2003 in the Supreme Court has to be filed within 60 days

from the date of communication of the decision or order of the Appellate Tribunal. However, the Supreme Court, if it is satisfied that the appellant was prevented by sufficient cause from filing an appeal within the said period of 60 days, may

allow it to be filed within a further period not exceeding 60 days. Thus, the maximum period within which an appeal can be filed under Section 125 is 120 days which includes the discretion granted to the Supreme Court to condone the

delay limited to 60 days. The Supreme Court cannot

condone the delay beyond 60 days by invoking Section 5 of the Limitation Act, 1963 and ignoring the special limitation prescribed under the Electricity Act, 2003. This Court, in Chhattisgarh SEB v. Central Electricity Regulatory

Commission, at paragraph-32, has settled this issue: "32. 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."

The above judgment alongwith several others were

considered again in (2017) 5 SCC 42, titled Oil and Natural Gas

Corporation Limited vs. Gujarat Energy Transmission

Corporation Limited and Others. The Apex Court held that when

there is a statutory command by the legislation regarding limitation

and where there is a postulate that delay can be condoned for a

.

further period not exceeding 60 days, then it is needless to say that

the same postulation is based on certain underlined, fundamental,

general issues of public policy. The statutory adjudicatory forum is

meant to expeditiously decide the grievances of a person aggrieved

by an order of adjudicatory officer or by an appropriate Commission.

The Act (Electricity Act therein) was a special legislation within the

meaning of Section 29(2) of the Limitation Act. Therefore, the

prescription with regard to limitation mentioned in the Special Act

has to have binding effect. The limitation prescription in the Special

Act has to be followed in view of its mandatory nature. The

observations of the Apex Court are extracted hereinafter:-

"15. From the aforesaid decisions, it is clear as crystal

that the Constitution Bench in Supreme Court Bar Assn. has ruled that there is no conflict of opinion in Antulay's case or in Union Carbide Corporation's case with the principle set

down in Prem Chand Garg vs. Excise Commr. Be it noted, when there is a statutory command by the legislation as regards limitation and there is the postulate that delay can be condoned for a further period not exceeding sixty days, needless to say, it is based on certain underlined, fundamental, general issues of public policy as has been held in Union Carbide Corporation's case. As the pronouncement in Chhattisgarh SEB lays down quite clearly that the policy behind the Act emphasizing on the constitution of a special adjudicatory forum, is meant to expeditiously decide the grievances of a person who may be aggrieved by an order of the adjudicatory officer or by an

appropriate Commission. The Act is a special legislation within the meaning of Section 29(2) of the Limitation Act and,

.

therefore, the prescription with regard to the limitation has to

be the binding effect and the same has to be followed regard being had to its mandatory nature. To put it in a different way, the prescription of limitation in a case of present nature,

when the statute commands that this Court may condone the further delay not beyond 60 days, it would come within the ambit and sweep of the provisions and policy of legislation. It is equivalent to Section 3 of the Limitation Act. Therefore, it

is uncondonable and it cannot be condoned taking recourse

to Article 142 of the Constitution."

Applying the ratio of the above judgments to the

enactment involved in the instant petition, it can be safely held that

appeal can be filed under Section 7(7) of the Payment of Gratuity Act

within 60 days from the date of receipt of the order passed under

Section 7(4) of the Act. The statutory period of 60 days can be

further extended by the Appellate Authority for a period of 60 days, in

case it is satisfied that the appellant/aggrieved person was

prevented by sufficient cause in not preferring the appeal within the

said period of 60 days. The Payment of Gratuity Act is a special

enactment. Period of 60 days is the prescribed limitation under

Section 7(7) for instituting appeal against order passed under

Section 7(4) of the Act. The Appellate Authority's discretion to

extend the limitation period is only for further period of 60 days on

showing of sufficient cause. The question is answered accordingly.

In the instant case order under Section 7(4) of the Act was passed

on 17.1.2017 and dispatched to the petitioner on 24.1.2017. The

appeal under Section 7(7) of the Act against order dated 17.1.2017

.

was instituted by the petitioner on 3.8.2017. There was delay of 198

days in filing the appeal. The petitioner had not even filed any

application for condoning the delay. The petitioner did not make out

any sufficient cause for not preferring the appeal within the statutory

period of 60 days. No case was made out even for extension of the

statutory period by further period of 60 days. The appeal was clearly

barred by limitation. Having been filed beyond maximum period of

120 days, the appeal was required to be dismissed as not

maintainable. It was accordingly dismissed as such the Appellate

Authority. No interference is called for in the order passed by the

learned Appellate Authority.

For all the aforesaid reasons, I find no merit in these writ

petitions and the same are accordingly dismissed. Pending

miscellaneous application(s), if any, shall also stand disposed of.

Jyotsna Rewal Dua Judge 23rd May, 2022 (vs)