The petitioner is aggrieved with Ext.P3 order, which is an order passed by the Appellate authority under the Payment of Gratuity Act, 1972, dismissing the appeal for reason of delay . The Payment of Gratuity Act, 1972 by sub-section (7) of Section 7 provides for an appeal from an order under sub-section (4) which appeal has to be filed within sixty days from the date of receipt of the order. Proviso of sub-section(7) also confers power on the appellate authority to condone the delay, provided the delay is only 60 days. Admittedly, the appeal was filed with a delay of 157 days. The petitioner's contention is that the limitation has to be computed from the date of service of notice and in that event, the appeal should be deemed to have been filed within time. There can be no dispute on that count. 2. There was a delay of 157 days in filing the appeal. The petitioner's contention before the appellate authority was that the order in gratuity case No.80/07 was received by registered post in the office of the petitioner on 23.03.2013 and the appeal was filed on 27.08.2013, after 157 days as the petitioner was out of India during this period. Admittedly, the petitioner received the notice on 23.03.2013 and the delay could be computed only from that date. The petitioner's contention with respect to deemed service is on the basis that he was abroad. But the order admittedly was served on the petitioner's office. Date of knowledge cannot be extended to the date when the petitioner is enabled to see the order; by reason only of a foray outside the country. Nothing prevented the petitioner in making arrangements to file an appeal, especially since the petitioner does not have a contention that the petitioner's office was not working. In such circumstance, the fact of the petitioner's presence within the country would be of no consequence.
3. Two Division Benches of this Court have held that the delay caused in approaching the statutory authority cannot be extended under Article 226. if the statute provides for a period within which appeal has to be filed and also provides for a period in which the appellate authority would have powers to condone the delay. Assistant Commissioner of Central Excise v. Krishna Poduval [2005(4) KLT 947] and Panopharam v. Union of India [2010(3) KLT 149] held unequivocally that when an assessee has not availed of the statutory remedy within the time provided or within the time provided for filing an appeal with delay; there cannot be any invocation of Article 226 to condone the delay, which even as per the statute was not condonable. Nor can the issue be then examined under Article 226.
4. Further, it is to be seen that on a reading of the order of the controlling authority under Section 4 produced at Ext.P1, it is clear that the petitioner had contested the matter initially before the authority. The petitioner who was the opposite party had filed objections before the authority and refuted the claim of gratuity made by the applicant. However, after the applicant's evidence was taken, the opposite party remained continuously absent. On 18.04.2012, the petitioner filed a petition to re-open the evidence. Again, the petitioner remained absent and hence, the application filed by the petitioner to re-open the evidence, was dismissed and an order was passed directing payment of an amount of Rs.34,650/-.
5. The conduct of the petitioner does not commend invocation of a discretionary remedy. Neither is the Order of the original authority vitiated by any jurisdictional error, prima facie illegality or abuse of process of law nor a violation of principles of natural justice; which grounds alone would warrant exercise of an extraordinary, discretionary power.
The writ petition, for all the above reasons would stand dismissed in limine.
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(K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge