Research › Search › Judgment

Gujarat High Court · body

2014 DIGILAW 119 (GUJ)

Sharda Education Trust v. Appellate Authority

2014-01-27

N.V.ANJARIA

body2014
JUDGMENT : N.V. Anjaria, J. What is challenged in this petition is order dated 31st December, 2013 passed by the Appellate Authority under the Payment of Gratuity Act, 1972 in Appeal No.120 of 2013. The appeal was directed against order dated 30th April, 2012 passed by the Controlling Authority, whereby it was directed to pay to the respondent gratuity of Rs. 76,425/- with interest at 10% from 01st May, 2012 till the payment. It is also prayed to quash and set aside the said order of the Controlling Authority. 2. The Appellate Authority dismissed the appeal on the ground that the same was preferred beyond the total period of 120 days provided for under subsection (7) of Section 7 of the Payment of Gratuity Act, 1972 (hereinafter referred to as 'the Act'). 3. The basic and relevant facts may be usefully noted. Respondent was appointed as Tedagar (Peon) under the school run by the petitioner-trust. The said employee retired upon reaching the age of superannuation on 30th April, 2012. She approached the Controlling Authority claiming gratuity for the services of 24 years, stating that his last pay drawn was Rs. 2,200/-. In support of her claim she produced certified copies of Certificate dated 19th July, 1988 and 29th July, 2007 showing the date of entry in the service to be 29th March, 1987, and also the identity card given by the institution. The employer produced application dated 01st March, 1999-appointment order and the acceptance letter wanting to suggest that the date of entry in service of the employee was 01st March, 1999. 3.1. On the basis of appreciation of said documentary evidence produced by the two sides, the Controlling Authority concluded that the certificate dated 19th July, 1988 produced by the employee was duly certified and certificate dated 29th March, 2007 was also certified, and was on the letter-head of the School bearing seal and signature of the Principal. The Controlling Authority found that in the certificate dated 19th July, 1988 it was mentioned that the employee was working as Tedagar in the Balvarg. It was held that the employer could not rebut the said documents and the factum of the date from which the employee was serving could not be shown to be incorrect. The Controlling Authority did not accept the documents produced by the employer as they were not authenticated or certified. It was held that the employer could not rebut the said documents and the factum of the date from which the employee was serving could not be shown to be incorrect. The Controlling Authority did not accept the documents produced by the employer as they were not authenticated or certified. It further observed that the employer had produced confidential remarks even though such remarks are not maintained in respect of the category of the respondent-employee. 3.2. Furthermore, case of the employer that the institution had paid amounts towards gratuity and other dues to the extent of Rs. 35,000/- and the further claim that the employee was required to return Rs. 15,000/- were not believed. Controlling Authority's order was challenged by the petitioner-trust by filing Special Civil Application No.18317 of 2013 before this Court which came to be dismissed on the ground that statutory appeal was available to challenge the order. 3.3. The order of the Controlling Authority was dated 30th April, 2012. The period of limitation for challenging the same is total 120 days. Previously the petitioner had filed writ petition being Special Civil Application No.18317 of 2013 wherein the order passed by the Controlling Authority was sought to be challenged, which petition came to be dismissed by this Court on 20th December, 2013 on the ground that statutory appeal, which was available, was not availed of. The dates would show that when the challenge to the order of the Controlling Authority was made in the above petition, at that time also the limitation period to prefer the appeal was over. The petitioner preferred appeal before the Appellate Authority, which resulted into the impugned order of dismissal of appeal on the ground that the appeal was beyond the period of limitation. 4. Heard learned advocate Mr. N.V. Gandhi. 5. Under sub-section (4) of Section 7 of the Act, an application for gratuity lies. Sub-section (7) provides for appeal against the order of the Controlling Authority. 4. Heard learned advocate Mr. N.V. Gandhi. 5. Under sub-section (4) of Section 7 of the Act, an application for gratuity lies. Sub-section (7) provides for appeal against the order of the Controlling Authority. The said provision 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 the appellate authority such amount." 5.1. Reading of the aforesaid provision makes it clear that the period provided to prefer appeal before the appropriate Government or such other appellate authority which may be specified, against the order of the controlling authority, is 60 days from the date of receipt of the order of controlling authority. The First Proviso permits preferring of appeal within further 60 days provided sufficient cause for not preferring the appeal within first 60 days is shown. The Second Proviso imposes a pre-condition of depositing the gratuity amount for admission of appeal by an employer. In other words, maximum period made available by the legislature is total 120 days for preferring the appeal against controlling authority's order. It would not be gainsaid that this is in nature of special period of limitation. Thus the statute does not confer powers to entertain the appeal after 120 days. The power to condon the delay is available within the sixty days contemplated in the First Proviso for which sufficient cause has to be shown so as to explain delay beyond sixty days. 5.2. The authorities appointed under the Payment of Gratuity Act, 1972 are not judicial officers. Nor these authorities have the trappings of the court. The power to condon the delay is available within the sixty days contemplated in the First Proviso for which sufficient cause has to be shown so as to explain delay beyond sixty days. 5.2. The authorities appointed under the Payment of Gratuity Act, 1972 are not judicial officers. Nor these authorities have the trappings of the court. They cannot be treated as courts. The provisions of the Limitation Act do not apply to the proceedings before these authorities. In Van and Co; Sole Proprietary concern, through its sole proprietor Mrs. Ketty Hosang Vandrawala v. Babubhai Lallubhai [ 1981 GLH 5 ], it was observed, "In Town Municipal Council. Athani v. Presiding Officer, Labour Court, Hubli and others, AIR 1969 S.C. 1335 , it has been held by the Supreme Court that the Limitation Act applies to 'Courts' and not to bodies other than Courts such as quasi-judicial tribunals or executive authorities. It has also been observed in that, decision that an Industrial Tribunal or a Labour Court dealing with applications or references under the Industrial Disputes Act, 1947 is not a Court for the purpose of Limitation Act because it is not governed either by the Code of Civil Procedure or the Code of Criminal Procedure. For these two reasons, we are of the opinion that the provisions of Section 5 of the Limitation Act, 1963, do not apply to the instant case. " (Para 5) 5.3. The court held that the appellate authority has no jurisdiction to entertain the appeal after expiry of 120 days from the date of order of the controlling authority. Taking note of Section 14 of the Gratuity Act, which expressly excludes application of any other law which is in consistent with the Act, the Division Bench held that Section 29(2) of the Limitation Act, 1963 has no application, it was observed and held, "The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act." (Para 4) 5.3.1. It was stated, "We find that there is inconsistency between Section 5 of the Limitation Act, 1963, and sub-Section (7) of Section 7 of the payment of Gratuity Act, 1972. It was stated, "We find that there is inconsistency between Section 5 of the Limitation Act, 1963, and sub-Section (7) of Section 7 of the payment of Gratuity Act, 1972. Whereas Section 5 enables a Court to entertain an appeal at any time after the expiry of the period of limitation prescribed for it, if there is a sufficient cause, sub-Section (7) of Sec- 7 enables the Appellate Authority to entertain appeal only within sixty days after the expiry of the period of limitation prescribed for it under the said sub-section. In view of the fact that the proviso to sub-section (7) of Section 7 of the Payment of Gratuity Act, 1972, is inconsistent with the provisions of Section 5 of the Limitation Act, 1963, and since Section 14 of the Payment of Gratuity Act, 1972, gives overriding effect to the provisions of that Act over all other Acts, within the meaning of sub-Section (2) of Section 29, application of the provisions of Section 5 of the Limitation Act, 1963 is excluded by Section 14." (Para 4) 5.4. The question whether the appeal can be maintained after 120 days, is no longer res integra in view of decision of this court in Van and Co. (supra). Again in Western Coalfields Ltd. v. Controlling Authority under Payment of Gratuity Act, 1972, Jabalpur [2000 LAB.I.C. 3458 (M.P)] the Madhya Pradesh High Court has taken similar view, "On a plain reading of the aforesaid provision it becomes luminously clear that the appellate authority has jurisdiction to condone the delay beyond the period of sixty days if sufficient cause is shown, by extending the said period by a further period of sixty days. It is to be borne in mind that the Payment of Gratuity Act is a special statute and there is provision for condonation of delay. Once the limitation period has been provided and there is further provision conferring the power on authority to condone the delay of 60 days beyond the specified period if sufficient cause is shown, the authority cannot travel beyond it. It is well settled in law that in absence of conferment of jurisdiction to condone delay the statutory authority which is a quasi judicial authority cannot condone delay or extend the period of limitation. It is well settled in law that in absence of conferment of jurisdiction to condone delay the statutory authority which is a quasi judicial authority cannot condone delay or extend the period of limitation. (Para 5) 5.5 The Madhya Pradesh High Court relied on Supreme Court decision in Officer on Special Duty (land Acquisition) v. Shah Manilal Chandulal, [1996 AIR SCW 941] wherein the Apex Court while considering whether the Land Acquisition Officer under the Land Acquisition Act is Court or not and can condone the delay under Section. 18 of said Act, has held as under- "It is to remember that the Land Acquisition (Amendment) Act (68 of 1984) was enacted prescribing the limitation to exercise the power under Sections 4,6 and 11 and also excluded the time occupied due to stay granted by the Courts. Taking cognizance of the limitation prescribed in proviso to subsection (2) of Section 18 the provisions of the Limitation Act were not expressly extended. Though Section 29(2) of the Limitation Act is available, and the limitation in proviso to sub-section (2) of Section 18 may be treated to be special law, in the absence of such an application by Land Acquisition (Amendment) Act (68 of 1984), the Act specifically maintains distinction between the Collector and the Court and the Collector/LAO performs only statutory duties under the Act, including one while making reference under Section 18. It is difficult to construe that the Collector/LAO while making reference under Section 18, as statutory authority still acts as a Court for the purpose of Section 5 of the Limitation Act." (Para 17) "Though hard it may be, in view of the specific limitation provided under proviso to Section 18(2) of the Act, we are of the consider view that sub-section (2) of Section 29 cannot be applied to the proviso to subsection (2) of Section 18. The Collector/LAO, therefore is not a Court when he acts as a statutory authority under Section 18(1). Therefore, Section 5 of the Limitation Act cannot be applied for extension of the period of limitation prescribed under proviso to sub-section (2) of Section 18..." (Para 18) 5.6. The Collector/LAO, therefore is not a Court when he acts as a statutory authority under Section 18(1). Therefore, Section 5 of the Limitation Act cannot be applied for extension of the period of limitation prescribed under proviso to sub-section (2) of Section 18..." (Para 18) 5.6. Hon'ble the Supreme Court in Chhattisgarh SEB v. Central Electricity Regulatory Commission, [ (2010) 5 SCC 23 ], considered similar provision under Section 125, proviso under Electricity Act, 2003, providing period of limitation for appeal to the Supreme Court against order of Appellate Tribunal for Electricity. Section 125 provided for normal period of be days which under the proviso to Section 125, was extendable for further 60 days, as is the provision under Section 7(7) of Gratuity Act also. It was held that delay in filing appeal beyond 120 days cannot be condoned by the Supreme Court. The apex court stated, "The use of the expression "within a further period of not exceeding 60 days" in the proviso to Section 125 makes it clear that the outer limit for filing an appeal is 120 days. There is no provision in the Act under which this Court can entertain an appeal filed against the decision or order of the Tribunal after more than 120 days." (Para 25) 5.6.1. The object underlying was highlighted thus: "The object underlying establishment of a special adjudicatory forum i.e. the Tribunal to deal with the grievance of any person who may be aggrieved by an order of an adjudicating officer or by an appropriate Commission with a provision for further appeal to this Court and prescription of special limitation for filing appeals under Sections 111 and 125 is to ensure that disputes emanating from the operation and implementation of different provisions of the Electricity Act are expeditiously decided by an expert body and no court, except this Court, may entertain challenge to the decision or order of the Tribunal. The exclusion of the jurisdiction of the civil courts (Section 145) qua an order made by an adjudicating officer is also a pointer in that direction." (Para 26) 5.6.2. The exclusion of the jurisdiction of the civil courts (Section 145) qua an order made by an adjudicating officer is also a pointer in that direction." (Para 26) 5.6.2. The Court proceeded to state, "It is thus evident that the Electricity Act is a special legislation within the meaning of Section 29(2) of the Limitation Act, which lays down that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the one prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and provisions contained in Sections 4 to 24 (inclusive) shall apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application unless they are not expressly excluded by the special or local law." (Para 27) 5.6.3. What is finally held in Chhattisgarh SEB (supra) is equally and fully applicable to interpretation of Section 7 (7) of the Gratuity Act. "In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract the applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory." (Para 32) 6. Learned advocate for the petitioner submitted that independent challenge has also been addressed to the order of the Controlling Authority. According to him, the employee had acted fraudulently by stating incorrect date of entry in service before the Controlling Authority for claiming gratuity. Furthering his submission, learned advocate urged that, therefore, notwithstanding the fact that the appeal was preferred beyond the maximum period permissible, this Court is required to exercise writ jurisdiction and set aside the orders. He relied on decision in Ganpatbhai Mahijibhai Solanki v. State of Gujarat and another [2008 AIR SCW 6816]. Furthering his submission, learned advocate urged that, therefore, notwithstanding the fact that the appeal was preferred beyond the maximum period permissible, this Court is required to exercise writ jurisdiction and set aside the orders. He relied on decision in Ganpatbhai Mahijibhai Solanki v. State of Gujarat and another [2008 AIR SCW 6816]. On the basis of the said judgment it was submitted that when an order is obtained by fraud or suppression or material facts, the same is liable to be recalled and further that such an order would be recalled even if the application was made after inordinate delay. Another decision in Hamza Haji v. State of Kerala [ AIR 2006 SC 3028 ] was also pressed into service to buttress the very contention that the employee had produced misleading document to show date of his entry in service, which was false and thereby obtained the order from the Controlling Authority by practicing fraud. 6.1. The above contention by learned advocate for the petitioner is over-pitched and unacceptable on merits. The Controlling Authority appreciated the documentary evidence produced by the rival sides to show the date of entry of service, and upon such appreciation, it concluded that the documents produced by the employee showing the date of entry in service to be 19th July, 1988 were reliable and believable, as against that, the other side had failed to dislodge the same. The Controlling Authority did not accept the material produced by the employer holding that thereby the date shown by the employee was not rebutted nor the employer could prove, nor could authentically establish the date stated by it was correct. In other words, the Controlling Authority arrived at conclusion accepting the case of the employee on the basis of one set of documents pitted against the other set of documents. The order of the Controlling Authority ending in favour of the employee could not be termed as one actuated by practicing fraud on part of the respondent-employee. The principle that fraud vitiates everything has no applicability in the facts of the case. The submission on this count was wholly misconceived on facts and in law. 6.2. Once the order of the Controlling Authority was subjected to appeal before the Appellate Authority and the Appellate Authority passed the order dismissing the appeal, the Controlling Authority's order merged with the appellate order. The submission on this count was wholly misconceived on facts and in law. 6.2. Once the order of the Controlling Authority was subjected to appeal before the Appellate Authority and the Appellate Authority passed the order dismissing the appeal, the Controlling Authority's order merged with the appellate order. As highlighted above, the appeal before the Appellate Authority preferred beyond 120 days was not competent. 6.3. As specific period of limitation is provided with prescription of outer limit there under Section 7(7) of the Payment of Gratuity Act, which is a special statute, the same would prevail and reign. The writ jurisdiction cannot be exercised to grant any relief to the petitioner when the appeal before the Appellate Authority was beyond the maximum period of limitation statutorily fixed, as entertaining the petition and granting any relief would amount to breaching and circumventing the statutory provision. 7. The petition is, therefore, liable to be dismissed. Accordingly it is dismissed. Petition dismissed.