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2006 DIGILAW 1037 (KAR)

RAMA RAO K. v. VS PRASHANTH THEATRE, TUMKUR

2006-12-12

SUBHASH B.ADI

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( 1 ) THIS writ petition is filed challenging the order dated February 28, 2006 passed by the appellate Authority under the Payment of gratuity Act, 1972 (hereinafter referred to as 'the Act') produced at Annexure-J. ( 2 ) PETITIONER herein had filed an application for payment of gratuity under the provisions of Section 7 of the Act. The assistant Labour Commissioner and controlling Authority for Payment of Gratuity, division I, Bangalore by order dated november 10, 2004 directed the respondent to pay gratuity as determined within 30 days failing which pay 10% interest on the same. ( 3 ) THE order of the Assistant Labour commissioner and Controlling Authority for payment of gratuity was called in question in w. P. No. 18690/2005 on July 26, 2005. This court by order dated December 8, 2005 dismissed the said writ petition on the ground that an appeal is provided under Section 7 (7) of the Act. However, this Court gave liberty to the respondent to file an appeal and observed that the time spent in prosecuting the writ petition be excluded in computing the limitation. ( 4 ) RESPONDENT filed an appeal before the appellate Authority and the Appellate authority by its order dated February 28, 2006 remanded the matter to the Assistant Labour commissioner to adjudicate the same within 30 days. It is this order passed by the Appellate authority that has been called in question by the petitioner. ( 5 ) SMT. S. N. Sudha, learned counsel appearing for the petitioners, submitted that the appeal is hopelessly barred by time and is not maintainable in law under Section 7 (7) of the act and submitted that an appeal against the order at Annexure-A is required to be filed within 60 days from the date of receipt of the copy of the order and the Appellate Authority has only jurisdiction to extend the limitation period by another 60 days, beyond which there is no provision for condoning the delay. She submitted that the order of the Assistant Labour commissioner was passed on November 10, 2004 and the appeal filed by the petitioner is on december 20, 2005. She further stated that even excluding the time taken for prosecuting writ Petition No. 18690/2005 the appeal is beyond the limitation prescribed under Section 7 (7) of the Act. She submitted that the order of the Assistant Labour commissioner was passed on November 10, 2004 and the appeal filed by the petitioner is on december 20, 2005. She further stated that even excluding the time taken for prosecuting writ Petition No. 18690/2005 the appeal is beyond the limitation prescribed under Section 7 (7) of the Act. ( 6 ) LEARNED counsel for the respondent submitted that he has already paid the entire gratuity amount and the respondent had no notice by the Assistant Labour commissioner/the Authority under the payment of Gratuity Act. Further submitted that this Hon'ble Court has given liberty to file an appeal and in the light of the liberty given respondent has filed the appeal. In this petition the question arises for consideration is as to whether the Appellate Authority has power to condone the delay in filing the appeal beyond the limitation prescribed under Section 7 (7) of the Act. ( 7 ) ADMITTEDLY, in this case the Assistant labour Commissioner has passed order for payment or gratuity on November 10, 2004. The writ petition challenging the order dated november 10, 2004 of the Assistant Labour commissioner was filed on July 26, 2005. By the time when the writ petition was filed, the 60 days + 60 days has already been over. Even excluding the time taken by the petitioner for prosecuting the writ petition the appeal filed by the respondent was barred by time under section 7 (7) of the Act. The Gratuity Act being a subsequent Act to the Limitation Act, 1963, it prevails over the Limitation Act and Section 5 of the Limitation Act is not applicable, as section 7 (7) of the Act itself provides for a period of limitation and also power to condone the delay vis-a-vis the appeal is required to be filed within 60 days from the date of receipt of the order and the Appellate Authority has power to extend the said limitation by another 60 days and not beyond that period. This is the well-settled position in law and in a similar case the Kerala High Court in the judgment in the case of Commanding Officer, Naval Base v. Appellate Authority under the Payment of gratuity Act and Others, 2005-I-LLJ-256 (Ker.) has held that the provisions of the limitation Act are not applicable. This is the well-settled position in law and in a similar case the Kerala High Court in the judgment in the case of Commanding Officer, Naval Base v. Appellate Authority under the Payment of gratuity Act and Others, 2005-I-LLJ-256 (Ker.) has held that the provisions of the limitation Act are not applicable. It, also held that the period of limitation prescribed under section 7 (7) of the Act cannot be extended. Even assuming that in the writ petition, this court had given liberty for exclusion of limitation taken for prosecuting the writ petition, the limitation period had already expired. As such the appeal could not have been entertained by the Appellate Authority. The appellate Authority has not considered the limitation even though objection was raised by the petitioner. The Appellate Authority has mechanically remanded the matter to the assistant Labour Commissioner. Hence, in the light of provision of Section 7 (7) of the Act and the judgment of the Kerala High Court referred to above the order of the Appellate Authority is not sustainable in law. ( 8 ) ACCORDINGLY writ petition is allowed. The order dated February 28, 2006 passed by the Appellate Authority under Payment of gratuity Act in No. DLCI/pga/cro-19/ 2004-05, Annexure-J is hereby quashed.