1. Heard Shri Ved Prakash, learned counsel for the petitioner representing the Union of India.
2. Even after revision of list, none appeared from the side of opposite party no.3.
3. This writ petition has been filed by the Union of India challenging the order dated 20.11.1999 by which application for condoning the delay has been rejected.
4. It was submitted by learned counsel for the petitioner Union of India Shri Ved Prakash submitted that though Section 17 of the Payment of Wages Act provides only 30 days for filing of appeal but it nowhere excludes the jurisdiction of the Court to condone the delay under Section 5 of the Limitation Act. It was further submitted that it was a central act. Karnataka and Madhya Pradesh have added a provision under Section 17 and made provisions of Section 5 of the Limitation Act applicable to appeals under this section.. It was further submitted that a full bench of this court 1990 (8) LCD, 253 Ram Swaroop versus Board of Revenue, this court has held that Indian Limitation Act will apply before any court of law and Section 5 of the Limitation Act is applicable. It was further submitted that the appellate court u/s 17 of the Act is also a 'Court' and hence Section 5 of the Limitation Act is applicable.
5. Before dealing with the matter, it is necessary to have a glance for the provision of Section 17 of the Payment of Wages Act, 1936 which is produced below:-
17. Appeal-(1) [An appeal against an order dismissing either wholly or in part an application made under sub-section (2) of section 15, or against a direction made under sub-section (3) or sub-section (4) of that section] may be preferred, within thirty days of the date on which [the order or direction] was made, in a Presidency-town before the Court of Small Causes and elsewhere before the District Court-
(a) by the employer or other person responsible for the payment of wages under section 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees 1[or such direction has the effect of imposing on the employer or the other person a financial liability exceeding one thousand rupees], or [(b) by an employed person or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf or any Inspector under this Act, or any other person permitted by the authority to make an application under sub-section (2) of section 15, if the total amount of wages claimed to have been withheld from the employed person exceeds twenty rupees or from the unpaid group to which the employed person belongs or belonged exceeds fifty rupees, or] (C) by any person directed to pay a penalty under [sub sec-section (4)] of Section 15.
6. The words "the order or direction" occurring after the words "within thirty days of the date on which" was inserted in the Act on 1.4.1998.
7. It is also appropriate to refer to the second proviso of Section 15(2) of the Payment of Wages Act which is reproduced below:-
"Provided further that any application may be admitted after the said period of 1[twelve months] when the applicant satisfies the authority that he had sufficient cause for not making the application within such period."
8. The issue that whether Section 5 of Limitation Act is applicable to the provisions of Section 17 of the Payment of Wages Act was decided by this court in Case of Vijai Kumar Bhalla versus District Judtge, Bharaich and another reported in 1998 (3) AWC 2216 All, in that case it was held in paras 9, 10, 11, 12 and 13 as under:
"9. In the Hyderabad Chemicals and Fertilizers v. Mohammad Basheer Hahan and another, 1970 LAB 1C 1982 (Vol. 3 CN 235), a Division Bench of Andhra Pradesh High Court observed that Section 5 of the Limitation Act does not apply to the appeals preferred under Section 17. It was further observed that-
"If it is found that special law provides a different period of limitation for an appeal then not only Section 3 of the Limitation Act will apply because of Section 29(2) but Sections 4, 9 to 18 and 22 would also apply unless their application Is expressly excluded by the special Act. Clause (b) of Section 29(2). however, makes the other provisions of the Limitation Act inapplicable. It cannot be in doubt that the special Act by itself or under a valid rule can make, anyone of the provisions Including Section 5 of the Limitation Act which are excluded by virtue of Section 29(2)(b), applicable. However, Section 5 of the Limitation Act is not made applicable by the Payment of Wages Act or the Rules made thereunder."
"It cannot, further, be said that since the primary authority under the Payment of Wages Act exercises certain powers under the Civil Procedure Code, the appeals from the order of such an authority should be deemed to be an appeal under Section 96 of the Civil Code and thus attracts the provisions of Section 5."
10. The Andhra Pradesh High Court while indicating the aforesaid observations followed AIR 1964 SC 1099, where it was observed that :
"The words "period prescribed therefor" in Section 29(2) mean prescribed for that particular appeal. Consequently, it cannot be said that since the period of 30 days prescribed by Section 17 happens to be the same as is provided in Article 152 of the Limitation Act for an appeal under the Civil Code the other provisions of Limitation Act, including Section 5 would automatically apply to an appeal under Section 17. There is no justification for any such construction of Section 29(2).
It may be that Section 3 says that subject to Sections 4 to 25 the question has to be considered whether a particular appeal is barred by limitation. It can only mean wherever these sections are made applicable to cases arising under the special law. Section 3 is not an enabling provision which automatically makes Sections 4 to 25 applicable to a case where Section 3 is applied. Whether the other provisions of the Limitation Act are excluded under Section 29(2)(a) or are made applicable to an appeal arising under a special or local law will have to be determined keeping in view not the provisions of Section 3 of the Limitation Act but the second part of Section 29(2).
It cannot, further, be said that since the primary authority under the Payment of Wages Act exercises certain powers under the Civil Procedure Code, the appeals from the order of such an authority should be deemed to be an appeal under Section 96 of the Civil Code and thus attracts the provisions of Section 5."
11. In Anwari Basavaraj Patil and others v. Siddaramaiah and others, AIR 1994 SC 512, where the question of Limitation Act to a recrimination notes given under Section 97 of the-Representation of People Act, 1951 was involved, Hon'ble Supreme Court observed in para 8 of the report :--
8. In H. N. Yadav, L.N. Misra, (1974) 3 SCR 31 : AIR 1974 SC 480, this Court held that the words "expressly excluded" occurring in Section 29(2) of the Limitation Act do not mean that there must necessarily be express reference in the special or local law to the specific provisions of the Limitation Act, the operation of which is sought to be excluded. It was held that if on an examination of the relevant provisions of the Special Act, it is clear that the provisions of the Limitation Act are necessarily excluded then the benefits conferred by the Limitation Act cannot be called in aid to supplement the provisions of the Special Act. That too was a case arising under the Representation of the People Act and the question was whether Section 5 of the Limitation Act is applicable to the filing of the election petition. The test to determine whether the provisions of the Limitation Act applied to proceedings under Representation of People Act by virtue of Section 29(2) was stated in the following words :
"The applicability of these provisions has, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Act relating to the filing of election petitions and their trial to ascertain whether it is a complete code in itself which does not admit of the application of any of the provisions of the Limitation Act mentioned in Section 29(2) of that Act."
12. It was next observed in para 10 of the Act that :
"10. This decision, in our view, practically concludes the question before us inasmuch as the Act equates a recrimination notice to an election petition. The language of Section 97 makes the said fact abundantly clear. The relevant words are : "the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election." The proviso to subsection (1) applies the provisions of Sections 117 and 118 to such a recrimination notice. It may be noticed that for non-compliance with the requirement of Section 117 an election petition is liable to be dismissed by virtue of sub-section (1) of Section 86. Sub-section (2) of Section 97 further says that the "notice referred to in sub-section (1) shall be accompanied by the statement and particulars required by Section 83 in the case of an election petition and shall be signed and verified in like manner". We may also say that the proviso to sub-section (1) of Section 97 which requires such a notice to be given to the High Court within fourteen days of the "date fixed for the respondents to appear before the High Court to answer the claim or claims" (reading the definition of "commencement of trial" into it) has also a particular meaning and object behind it. The idea is that the recrimination notice, if any, should be filed at the earliest possible time so that both the election petition and the recrimination notice are tried at the same time. The recrimination notice is thus comparable to an election petition. If Section 5 does not apply to the filing of an election petition, it does not equally apply to the filing of the recrimination notice."
13. I am definitely of the view that Payment of Wages Act, 1936 provides a complete code in itself which does not admit of the application of any of the provisions of the Limitation Act mentioned in Section 29(2) of that Act. Section 17 is very clear that the appeal may be preferred within 30 days of the day on which the order or direction was made. It does not provide that the appeal may be preferred within 30 days of the date, on which any party derived the knowledge of the order or direction made by the Prescribed Authority. Certainly in those cases where the Indian Limitation Act is applicable, the limitation shall run from the date of the knowledge of the order but where a special Act specifically contains a provision that an appeal can be filed within a specific time from the date of the order or direction, the appeal must be filed within the aforesaid period and the provisions of Section 5 of the Indian Limitation Act cannot be made applicable. '
9. The same issue came up again in another case Hind Majdoor Sabha, U.P versus State of U.P and others. 1999 (1) AWC 126 All, and this court has again held that power of condonation of delay from the Appellate Authority has been withheld by the legislature.
10. The apex court has in the case of Commissioner of Customs and Central Excise versus Hongo India Private Limited and another 2009 (5) SCC 791 while deciding the applicability of Section 5 of the Limitation Act 1963 in the proceeding under Section 35 (H) (1) of Central Excise Act held that the applicability of the provisions of Limitation Act, therefore, to be judged not from the terms of Limitation Act, but by provisions of Central Excise Act relating to filing of reference application to the High Court. The apex court has further held that high court has no power to condone the delay in filing the reference application filed by the commissioner under unamended Section 35(H)(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days.
11. Section 35(H)(1) of Central Excise Act speaks about the reference application to the high court and in this section it has been mentioned that application for reference is to be made to the high court within 180 days.
12. In the case of Union of India versus M/s Popular Construction Company, AIR 2001 SC 4010, the apex court while considering the Section 34 Arbitration Act, 1996 held that in para 15 as under:-
"Furthermore, section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award "in accordance with" sub Section 2 and sub Section 3. Sub Section 2 relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, sub section (3) would not be an application "in accordance with" that sub section. Consequently by virtue of Section 34 (1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that "where the time for making an application to set aside the arbitral award under Section 34 has expired.......the award shall be enforced and the Code of Civil Procedure, 1908 in the same manner as if it were a decree of a court". This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to "proceed to pronounce judgment according to the award and upon (he judgment so pronounced a decree shall follow". Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the Court. 5. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the Court's powers by the exclusion of the operation of Section 5 of the Limitation Act."
13. Going by the above principles, this court has again in the case of Smt. Sharda Devi versus State of U.P and others, 2013 (3) ALJ 186, followed the decision of this court in Hind Majdoor Sabha, U.P versus State of U.P and others (supra).
14. So far as the decision of full bench of this court in Ram Swaroop versus Board of Revenue and others, the sole question which was to be decided by the full bench was that whether proceedings held on application to set aside the sole irregularity etc. are judicial proceedings amenable to revisional jurisdiction of the Board of Revenue. The full bench has held that commissioner while deciding the objection under Rule 285-I of U.P. ZA&LR Rules will be a 'court' and the proceedings taken before him will deemed judicial proceedings. The issue, whether provisions of Section 5 of the Limitation Act is applicable to the provision of Section 17 of the Payment of Wages Act, has not been discussed and decided.
15. From the above discussions and reasons stated by the Supreme Court in the case of decision of Hongo India (Supra) and decision of this court in Hind Majdoor Sabha, U.P versus State of U.P and others (supra), it has to be held that provisions of Section 5 of the Limitation Act will not be applicable to the provisions of Section 17 of the Payment of Wages Act and appellate court has no power to condone the delay and except the appeal beyond limitation provided in that. The court of appeal has rightly rejected the application for condonation of delay and no interference is required in that order rejected. Hence, the petition is liable to dismissed and it is hereby by dismissed.
Order Date :- 7.7.2014 Rabindra Kumar