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2015 DIGILAW 147 (MP)

Chief Engineer (GR) MPKMKVV Co. Ltd. v. Bhagirath

2015-02-04

SUSHIL KUMAR GUPTA, U.C.MAHESHWARI

body2015
ORDER : 1. Heard on the question of maintainability. 2. In the available circumstances of this appeal, hearing of this appeal on the question of maintainability, is hereby deferred till adjudication of IA No.6955/2014, appellants' application under section 5 of the Limitation Act for condoning the delay in filing of this appeal and subject to outcome of the same till hearing on admission. 3. Aforesaid IA No.6955/2014 is taken up for consideration. The same is filed for condoning the delay in filing of this appeal as the same is filed barred by 33 days. The IA is supported by an affidavit of OIC, O. P. Gupta. 4. The averments of the aforesaid IA have been seriously opposed by the respondent's counsel, saying that whatsoever cause is stated in it, the same could not be treated to be sufficient cause for condoning the alleged delay as per requirement of section 5 of the Limitation Act. In addition, he argued that this appeal being filed against the order passed by the writ Court in the writ petition filed under Article 227 of the Constitution of India, the same is not maintainable. So, in such premises, also the aforesaid IA could neither be entertained nor allowed. 5. Having heard learned counsel, keeping in view their arguments advanced, after perusing the averments of the IA, so also till some extent the record of the writ Court to examine the stage of litigation, after perusing of the same, in the available circumstances, in view of the principle laid down by the apex Court on various occasions that while dealing with the matter relating to the application under section 5 of the Limitation Act, the sufficient cause should be construed liberally with justice-oriented approach, instead to dismiss the appeal on technical ground of limitation, we deem fit to hear the same on admission on merits. Consequently, for the reasons stated in the IA, we are satisfied that sufficient cause is made out to condone the aforesaid alleged delay in filing of this appeal. Hence, by allowing the IA, the same is hereby condoned. 6. At the request of appellants' counsel, IA No.190/2015 is taken up for consideration. The same is filed for taking the annexed notification dated 10th December, 2014 (Annexure A-5) published in the Gazette of State of M.P. on 19th December, 2014, on record. 7. Hence, by allowing the IA, the same is hereby condoned. 6. At the request of appellants' counsel, IA No.190/2015 is taken up for consideration. The same is filed for taking the annexed notification dated 10th December, 2014 (Annexure A-5) published in the Gazette of State of M.P. on 19th December, 2014, on record. 7. We are of the considered view that the Gazette notification being a public document, could be taken on record even without application, therefore, such document (Annexure A-5) is taken on record and accordingly, the IA is disposed of. 8. Heard on the question of admission. 9. On behalf of the authorities of the appellants this intra-Court appeal is preferred under section 2 (i) of the Madhya Pradesh Khand Nyayapeeth Ko Appeal Adhiniyam, 2005, being aggrieved by the order dated 16.7.2014 passed by the Single Bench of this Court in Writ Petition No.412/2014, whereby the petition filed on behalf of the appellants for quashment of the order dated 20.8.2013 (Annexure P-1) passed by the Appellate Authority under Payment of Gratuity Act, 1972 in Gratuity Appeal No.25/2013, dismissing such appeal filed against the order dated 24.8.2012 (Annexure P-2) passed by the Controlling Authority in Gratuity Case No. 34/2011 under Payment of Gratuity Act, 1972, holding that the respondent is entitled to get benefit of gratuity under Payment of Gratuity Act, 1972 (hereinafter, referred to as the “Act”) with directions to the authorities to pay the same accordingly, has been dismissed. 10. Appellants' counsel after taking us through the writ petition as well as annexed documents and the appeal memo, so also the impugned order argued that in the available circumstances, the respondent was entitled to get gratuity and pensionary benefits as per the provisions of Madhya Pradesh Civil Services (Pension), Rules, 1976 (in short, the “Rules”), and not under the provisions of the Act, as such, in the lack of giving any appropriate option at the appropriate time, the respondent was not entitled to get gratuity/pensionary benefit under the Act, and, such aspects had not been considered by the controlling authority as well as the appellate authority constituted under the Act, and on in filing writ petition the same has been dismissed by the impugned order under wrong premises. In continuation, he, by referring to aforesaid placed notification dated 10th December, 2014 promulgated by the State of M.P. and published in the State Gazette on 19th December 2014, argued that in the light of such Gazette notification, the respondent is not entitled to get the alleged benefit of gratuity under the Act because by such notification, the authorities of the appellants have been given benefit of exemption from the aforesaid Act with retrospective effect, and, in such premises, he stated that on examining the matter in the light of the aforesaid notification, the impugned order of the writ Court as well as the controlling authority and the appellate authority deserve to be quashed and, the impugned petition deserves to be allowed. He also pointed out that at the time of passing of the impugned order by the writ Court, the aforesaid notification published in the Gazette on 19.12.2014, being not in existence was not before the writ Court by either of the parties, thus, the same could not be considered. 11. In view of the aforesaid arguments, on asking the appellants' counsel when the writ was not considered by the writ Court taking into consideration aforesaid notification, how at the first instance such aspect could be considered by this Court in this appeal even if the appeal is entertained because while deciding this appeal this Court has to consider the matter on the basis of the available record whether on the basis of available record the impugned order was correctly passed by the writ Court or not, and on account of non-filing of aforesaid notification before the writ Court the writ petition was decided by the Single Bench on the basis of other available record and in such premises, this argument raised in the light of said notification could be considered by the writ Court on appropriate petition and not by this Bench in appeal at the first instance. On which instead to argue further, appellants' counsel seeks permission to withdraw this writ appeal as not pressed with liberty to file appropriate petition on the basis of aforesaid notification to review the impugned order before the writ Court. 12. On which instead to argue further, appellants' counsel seeks permission to withdraw this writ appeal as not pressed with liberty to file appropriate petition on the basis of aforesaid notification to review the impugned order before the writ Court. 12. In the available circumstances, considering the aforesaid prayer, without expressing any opinion on the merits of the matter, this writ appeal is hereby dismissed as withdrawn and not pressed with liberty to the appellants to file appropriate petition on the basis of aforesaid notification before the writ Court to review the impugned order. 13. There shall be no order as to costs.