Jharkhand High Court
Bharat Coking Coal Limited vs Union Of India Through Ministry Of ... on 11 November, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 6902 of 2017
Bharat Coking Coal Limited, a Company incorporated under the
Companies Act, having its Head Office at Koyla Bhawan, P.O. & P.S.
Koyla Nagar, District Dhanbad (Jharkhand) through its Project Officer
Sri Piyush Kishore, son of Dr. Nand Kishore Sahu, residing at Qtr.
No.D-4, Havina Bagan Colony, P.O. & P.S. - Baghmara, Dumra
More, District - Dhanbad (Jharkhand). ... ... Petitioner
Versus
1. Union of India through Ministry of Labour & Employment, Shram
Shakti Bhawan, Rafi Marg, P.O. & P.S. - Rafi Marg, District -
New Delhi, PIN 110001 (New Delhi).
2. Deputy Chief Labour Commissioner (Central), Dhanbad &
Appellate Authority under the Payment of Gratuity Act, 1972,
having its office at Shram Bhawan, New Colony, Jagjivan Nagar,
P.O. & P.S. Jagjivan Nagar, District - Dhanbad, PIN 826003
(Jharkhand).
3. The Controlling Authority under the Payment of Gratuity Act,
1972 and Assistant Labour Commissioner (Central), Dhanbad- II,
having its office at Shram Bhawan, New Colony, Jagjivan Nagar,
P.O. & P.S. - Jagjivan Nagar, District - Dhanbad, PIN 826003
(Jharkhand).
4. Shyam Kishore Beldar, son of late Hari Prasad, residing at
Parasavaniya Madhuban, P.O. & P.S. - Nudkhurkee, District -
Dhanbad, PIN 828307 (Jharkhand).
5. State of Jharkhand. ... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Ms. Swati Shalini, Advocate
For the State : Mr. Abhinay Kumar, AC to GA I
For the Resp. No.4 : None
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13/11.11.2024 The learned counsel for the petitioner and the learned counsel
for the State are present.
2. In spite of substituted service of notice, nobody has entered
appearance on behalf of the private respondent (respondent no.4).
3. This writ petition has been filed for the following reliefs:
"a. For issuance of appropriate writ(s)/ order(s)/, direction(s) quashing
the order dated 13th June, 2017 passed by Deputy Chief Labour
Commissioner (Central) Dhanbad and Appellate Authority under the
Payment of Gratuity Act, 1972 in P.G. Appeal No.(10)/2017-A.7
(Annexure 5) whereby and whereunder he has been pleased to dismiss the
appeal filed by the petitioner under Section 7(7) of the Payment of
Gratuity Act, 1972 and uphold the order dated 31st July, 2015 passed by
the Controlling Authority Under the Payment of Gratuity Act, 1972 and
Assistant Labour Commissioner (Central), Dhanbad-II, (respondent No.3)
in Application No.36/(34)/2013.E.4 filed by respondent No.4.
b) For issuance of further appropriate writ(s)/ order(s)/, direction(s)
quashing the order dated 31st July, 2015 passed by respondent No.3 in
Application No.36/(34)/2013.E.4 (Annexure 2) and direct the petitioner to
pay a sum of Rs.3,52,300/- within 30 days from the date of receipt of this
order, failing which the respondent No.4 will be entitled for simple interest
@ 10% p.a. on the above amount for the period atleast from the date of
filing of Form-N before the Controlling Authority i.e. from 13.05.2013 till
actual date of payment, towards gratuity.
c. Any other relief or reliefs as Your Lordships may deem fit and proper
for which the petitioner is very much entitled under the facts and
circumstances of the case and in the interest of justice."
4. The learned counsel for the petitioner has submitted that the ex-
employee, namely late Hari Prasad, was in the employment of the
petitioner since 10.08.1979 and attained the age of superannuation on
09.05.2005. Consequently, certain post retiral benefits, including
gratuity with LLTC, were paid, and the cheque amount was received
by son of Late Hari Prasad, i.e. Shayam Kishore Baldar, on
22.08.2012, as Hari Prasad had expired in the year 2007.
5. The learned counsel submits that thereafter in the year 2013,
Shyam Kishore Baldar filed a petition before the Controlling
Authority under the Payment of Gratuity Act, 1972, which was
numbered as Application No.36 (34)/2013.E.4. In the said case, no
show cause was filed by the petitioner. Consequently, the Controlling
Authority passed an order directing payment of gratuity up till the date
of death of Hari Prasad, who died on 09.02.2007.
6. The learned counsel submits that if the date of superannuation
is taken into consideration and the payment made to Shyam Kishore
Baldar is also taken into consideration, then the applicable National
Coal Wage Agreement will also change and the ex-employee would
be governed by NCWA VII. The learned counsel has submitted that
the entire computation and payable amount will be altered if the date
of superannuation is taken as 09.05.2005. The learned counsel further
submits that said Shyam Kishore Beldar (son of the ex-employee) was
also under a legal obligation to disclose the receipt of the amount
through cheque on 22.08.2012.
7. The learned counsel further submits that after passing of the
order by the Controlling Authority, an appeal was filed before the
appellate authority, who dismissed the appeal by citing that the appeal
was filed beyond the prescribed period of limitation and beyond the
period of condonable delay. The learned counsel referred to the
petition seeking condonation of delay, which was filed before the
appellate authority as contained in Annexure - 4/1, and submitted that
the order of the Controlling Authority was passed on 12.08.2015. The
petitioner subsequently searched the relevant records, verified the
payment made, and confirmed the date of retirement before filing the
appeal. She has also submitted that a petition was also filed before the
Controlling Authority intimating the said authority with respect to the
aforesaid facts.
8. The learned counsel for the State submits that the matter is
between the petitioner and the private respondent and he has nothing
much to say.
9. After hearing the learned counsel for the petitioner and the
learned counsel for the State, this Court finds that it is not in dispute
that Hari Prasad was an employee of the petitioner and he died on
09.02.2007. It is further not in dispute that his son namely Shyam
Kishore Beldar filed an application before the Controlling Authority
under the Payment of Gratuity Act, 1972 in the year 2013 claiming
gratuity.
10. It is further not in dispute that the petitioner did not file their
show cause before the Controlling Authority. Consequently, the
Controlling Authority passed an order for the payment of gratuity
from the date of initial appointment, i.e. 11.07.1973, till the date of
death of Hari Prasad i.e. 09.02.2007. The learned counsel for the
petitioner has submitted that the date of appointment has been taken
by the learned labour court as 11.07.1973, the date on which, he was
appointed as a casual employee, and he was appointed as a regular
employee on 10.08.1979.
11. After the order passed by the Controlling Authority, the
petitioner filed appeal before the appellate authority seeking
condonation of delay. The appellate authority dismissed the appeal by
observing that the period of limitation for filing the appeal is only 60
days and in addition there is a provision for condonation of delay of
further period of 60 days. The period had expired as the appeal was
filed after a lapse of more than 20 months.
12. After hearing the learned counsel for the petitioner, this Court
finds that there is no dispute that the authority under the Payment of
Gratuity Act is governed by Payment of Gratuity Act, 1972 and the
rules framed thereunder and the appellate authority does not have the
power to condone delay if the appeal is filed beyond period of 120
days. The issue is no longer res-integra. In the judgement passed by
the Hon'ble Division Bench of this Court in the case of M/s.
Nagarmal Modi Seva Sadan, Ranchi Vs. Employees' Provident
Fund Organization, Regional Office, Ranchi & Ors., reported in
2021(2) JBCJ 410 (Jhr.), after considering various judgments of the
Hon'ble Apex Court rendered on the present issue has held as under:-
"14. In view of the foregoing discussion, the legal position which
emerges that in terms of Section 7-I (2) every appeal is to be filed in
such form and manner, within such time and be accompanied by such
fees, as may be prescribed. Rule 7 (2) of the Rules, 1997 provides for
filing of the appeal within 60 days from the date of issuance of the
order. The first proviso thereunder further stipulates that the Tribunal
may, if it is satisfied that the appellant was prevented by sufficient
cause from preferring the appeal within the prescribed period, extend
the said period by a further period of 60 days.
It is thus seen that the EPF Act is a special law providing for institution
of provident funds, pension fund and deposit-linked insurance fund for
employees in factories and other establishments and in terms of the
rules framed thereunder a certain period of limitation for filing an
appeal having been provided for in clear terms and a further provision
having been made for extension of such period only upto a specified
time period and no further, the Appellate Tribunal would have no
jurisdiction to treat within limitation, an appeal filed before it beyond
such maximum time limit specified in terms of the statutory rules.
Moreover, in terms of the scheme and the intent of the provisions
contained in the EPF Act it is seen that the legislature intended it to be
a complete code by itself. As a consequence, even if the provisions of
the Limitation Act may be held to have not been expressly excluded the
principle of implied exclusion would apply in terms of the nature of the
subject matter, the purpose and the scheme of the Act. The provisions
contained under the Limitation Act, 1963 would therefore not be
applicable for seeking extension of time beyond the statutory time
period of 60 days from the date of issue of the notification/order,
extendable by a further period of 60 days, upon the Tribunal being
satisfied that the appellant was prevented by sufficient cause from
preferring the appeal within the prescribed period. The maximum
period for filing the appeal would be thus 120 (60+60) days from the
date of the issuance of the notification/order which is sought to be
challenged.
It is a well settled principle of statutory interpretation that where the
statute confers power on the authority to condone the delay only to a
limited extent the same cannot be stretched or extended beyond what
has been provided under the statute."
13. This Court finds that the appellate authority has not committed
any error in dismissing the appeal on the ground of limitation. This
Court is also of the considered view that once the appeal was to be
dismissed on the ground of limitation, there was no occasion for the
appellate authority to enter into the merit of the case.
14. This Court also finds that the petition filed seeking condonation
of delay is also sketchy in as much as even the date on which the
documents could be retrieved to file the appeal has also not been
mentioned. The petitioner is not only disputing the date till which the
ex-employee was entitled, but is also disputing the period for which
the ex-employee was entitled for gratuity and the National Coal Wage
Agreement by which he would be governed.
15. In view of the aforesaid facts and circumstances, this Court is
of the considered view that there was no cogent explanation for
condonation of delay, over and above the fact that the appeal itself
was filed beyond the condonable period of delay.
16. This Court finds no reason to interfere with the impugned order
dismissing the appeal on the point of limitation under Article 226 of
the Constitution of India.
17. Accordingly, this writ petition is dismissed.
18. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.)
Saurav/-
