(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. By way of this intra court Letters Patent Appeal, the appellant-original petitioner has challenged the judgment and order dated 11.10.2011 passed by the learned Single Judge in Special Civil Application No. 8071 of 2011.
2. The facts of the case in brief are as under:
One Boghabhai Vinubhai Baraya was working as Safai Kamdar with Bhavnagar Municipal Corporation. He passed away on 23.5.2002. Respondent No.1 filed Gratuity Application No.46 of 2005 before respondent No.3 praying for gratuity amounting to Rs. 68, 653/- which was disposed of by order dated 23.2.2002 by respondent No.3 ordering to pay the gratuity amount with interest @ 10% per annum with effect from 23.5.2002. Being aggrieved by that order, respondent No.1 preferred Gratuity Appeal No.58 of 2007 before respondent No.2 which was allowed and the matter was remanded to respondent No.3 for reconsideration. Respondent No.3 passed order dated 13.10.2009 to pay an amount of Rs. 68,653/- with 10% interest with effect from 6.8.2005. This order was challenged before respondent No.2 by filing Appeal No.46 of 2010. As there was a delay in filing the said appeal, application for condonation of delay and appeal was filed on 21.9.2010. As the appeal was not preferred within 120 days, the appeal was rejected by order dated 15.1.2011 stating that the court has no power to condone the delay. This order was challenged by filing Special Civil Application which was rejected by the learned Single Judge by order dated 11.10.2011 whereby order dated 15.1.2011 passed in Appeal No.46 of 2010 by respondent No.2 was confirmed. Hence the present appeal.
3. Learned counsel for the appellant vehemently argued that the impugned order passed by the learned Single Judge is not only erroneous but contrary to the facts and materials on record under the provisions of Payment of Gratuity Act, 1972. He submitted that respondent No.1 was not entitled to the amount awarded by respondent No.3 as no record was produced by respondent No.1 to substantiate her case. He argued that the learned Single Judge ought to have appreciated that there was a delay of three years at the end of respondent No.1 in filing Gratuity Application and only on that ground the application of the respondent No.1 should have been rejected. He, therefore, requested the court to quash and set aside the order dated 11.10.2011 passed by the learned Single Judge in Special Civil Application No.8071 of 2011 confirming the orders dated 15.1.2011 passed in Appeal No.46 of 2010 passed by respondent No.2 and the order dated 13.10.2009 passed in Gratuity Application No.46 of 2005 by respondent No.3.
4. Learned counsel Mr Y V Shah for the respondent No.1 submitted that the impugned orders are passed in accordance with law after hearing the parties and they do not deserve any interference by this court and the appeal may be dismissed. In support of his submissions, Mr Shah placed reliance on the following decisions in the case of:
(i) Pitamberdas Ramchandra Vatwani vs. Girishkumar Tulsibhai Makwana and Ors. [2010 (2) GLH 146]
(ii) Commissioner of Customs and Central Excise v. Hongo India Private Limited and Anr. [(2009) 5 SCC 791]
In Pitamberdas Ramchandra Vatwani's case (supra), the court held that whenever statutory provision is made to file an appeal within particular period then in such cases, provisions of Limitation Act is not applicable. The court also held that a right of appeal under section 7 (7) becomes vested right only when precondition to deposit is complied with and employer's appeal must be accompanied by certificate of deposit under section 7 (4) of the Act. While dealing with the above issue the learned Single Judge has placed reliance on para 9 of the decision of Division Bench of Bombay High Court reported in 2009-II-LLJ 458 (Bombay). Relevant discussion is made in para 9 to 12 which are reproduced as under:
“9. Having heard the learned counsel appearing for the respective parties and having gone through the impugned order and Petition along with the annexures thereto and the case laws cited by the learned counsel in this regard, we are of the considered opinion that there is no merit in the Appeal. Sub-Clause 7 of the Section 7 reads as follows :
“(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 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 appellate authority such amount.
10. The plain reading of above said proviso will reveal that any person aggrieved by an order, under sub-clause 4 of section 7, may within 60 days from the receipt of the order, prefer an Appeal to the Appellate Authority. However, the Appellate Authority is at liberty, if a sufficient cause is shown, to extend the period of 60 days for further period of 60 days. The Second proviso of Section 7(7) provides that no Appeal by an employer shall be admitted unless, at the time of preferring an appeal, the Appellant either produce a certificate of 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 Section 7(4) with the Appellate Authority or deposit with the Appellate Authority such amount. Thus, this proviso has imposed fetter on the employers right to file an Appeal. It is amply clear, that employer is obliged to deposit the amount or produce the certificate of the controlling authority as the case may be at the time of preferring an Appeal.
11. In the background of above legal provisions, now let us consider the facts of the present case. There is no dispute of the fact that the Petitioner received copy of the order of controlling authority on 27/10/2006. There is also no dispute that Petitioner applied for the certified copy and received the same on 10/11/2006. In view of the provisions of Sub- Section 7 of Section 7, limitation would start to run from the date of receipt of the order and in this case limitation would start from 27/10/2007. We do not find any substances in the contention of the learned counsel appearing for the Petitioner that limitation would start to run from the date of receipt of the certified copy. The Petitioner from 27/10/2006 to 10/11/2006 did not apply for certified copy. For the first time the Certified Copy was applied on 10/11/2006 and the same was delivered to him on the same day. Therefore, at the most one day can be excluded which required to obtain Certified Copy while computing of period of limitation of either 60 days or further extended period of 60 days. The Petitioner sent Appeal by speed post which was received by the office of the Appellate Authority on 13/12/2006. However, along with this Appeal, Petitioner neither produced the certificate of the controlling authority to the effect that they have deposited with them an amount equal to the gratuity required to be deposited under sub-Section 4 of Section 7 nor deposited such amount with the Appellate Authority. In our view, if the Petitioner wanted to challenge the order of controlling authority, in that case, he was duty bound to produce the certificate or deposit the amount as the case may be, at the time of preferring an Appeal. Though the above dates show that the Petitioners preferred an appeal within a period of 120 days, mandatory deposit as contemplated under second proviso of Section 7(7) was not made within a period of 120 days. There is no dispute that this deposit was made by the Petitioner on 12/03/2007. Precondition of deposit at the time of preferring an Appeal being mandatory, we are of the view that it is to be presumed that the Petitioner filed Appeal only on 12/03/2007.
12. Since the Petitioner received order of the controlling authority on 27/10/2006, his appeal is beyond the period of 120 days, even if it granted the benefit of exclusion of time required for obtaining certified copies. The issue before the Division Bench in J.L. Morrison India Ltd.(supra) was whether the Appellate Authority under the payment of Gratuity Act, 1972 can entertain the Appeal beyond 120 days from the date of receipt of the order?. After examining several judgments including that of Apex Court, Division Bench concluded that the Appellate authority under the said Act cannot entertain the Appeal beyond 120 days from the date of receipt of the order. The Division Bench also held that Section 5 of the Limitation Act would have no Application, in this regard. In the facts and circumstances mentioned above, we are of the clear view that the Appellate Authority as well as the learned Single Judge of this Court rightly upheld the Respondent No.2’s preliminary objection regarding maintainability of the Appeal and there is no reason to interfere in the said findings.“ In the case of Commissioner of Customs and Central Excise(supra) it is held in para 15 as under:
“15. We have already pointed out that in the case of appeal to the Commissioner, Section 35 provides 60 days' time and in addition to the same, the Commissioner has power to condone the delay upto 30 days, if sufficient cause is shown. Likewise, section 35-B provides 90 days' time for filing appeal to the Appellate Tribunal and sub-section (5) therein enables the Appellate Tribunal to condone the delay irrespective of the number of days, if sufficient cause is shown. Likewise, section 35-EE which provides 90 days' time for filing revision by the Central Government and, proviso to the same enables the revisional authority to condone the delay for a further period of 90 days, if sufficient cause is shown, whereas in the case of appeal to the High Court under section 35-G and reference to the High Court under section 35-H of the Act, total period of 180 days has been provided for availing the remedy of appeal and the reference. However, there is no further clause empowering the High Court to condone the delay after the period of 180 days.”
5. Having heard the learned counsel for the parties and in the facts and circumstances of the present case, the relevant legal provisions in this regard have to be considered. Sub section (7) of section 7 of the Payment of Gratuity Act, 1972 reads as under:
“(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 appellate authority such amount.”
A plain reading of above proviso will reveal that any person aggrieved by an order, under sub clause (4) of section 7, may within 60 days from the receipt of the order, prefer an appeal to the Appellate Authority. Then the Appellate Authority is at liberty, if sufficient cause is shown, to extend the period of 60 days for further period of 60 days. The second proviso of section 7(7) provides that no appeal by an employer shall be admitted unless, at the time of preferring an appeal, the appellant either produce a certificate of 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 section 7(4) with the Appellate Authority or deposit with the Appellate Authority such amount. Thus, this proviso has imposed fetter on the employer's right to file an Appeal. It is amply clear, that employer is obliged to deposit the amount or produce the certificate of controlling authority as the case may be at the time of preferring an Appeal. The learned Single Judge has rightly dismissed the petition filed by the present appellant. In paras 1.1 and 2 of the order dated 11.10.2011, the learned Single Judge observed as under:
“1.1 Learned advocate Mr YV Shah invited attention of the Court to the award of the Industrial Tribunal dated 27.4.1999, which was published on 2.6.1999, and pursuant to that the deceased husband of the present respondent was held initially temporary and thereafter permanent and on that basis the petitioner-Corporation has paid handsome amount to the deceased workman.
2. Taking into consideration that fact, this Court is of the opinion that remitting this matter back to the Appellate Authority and asking the Authority to decide appeal afresh on merits will not serve the interest of justice. The Court finds no substance in the petition and the petition is dismissed.”
In the facts and circumstances mentioned above, we are of the view that the Appellate Authority as well as the learned Single Judge of this Court rightly upheld the preliminary objection of respondent No.2 regarding maintainability of the appeal and there is no reason to interfere in the said findings. Accordingly we find no error is committed by the learned Single Judge in dismissing the writ petition and confirming the orders passed by the Appellate Authority as well as the Controlling Authority under the Gratuity Act.
6. In the result, this appeal is dismissed being devoid of any merits. There shall be no order as to costs.
[V.M. SAHAI, J.]
[G. B. SHAH, J.]
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