S. RATHNAKUMAR S/O LATE SWAMINATHAN v. DIVISIONAL CONTROLLER B. M. T. C.
2020-03-19
G.NARENDAR
body2020
DigiLaw.ai
ORDER : Heard the learned counsel for the petitioner. 2. The petitioner is calling in question the order of the appellate authority and prays to quash the same. On perusal of the order impugned, it is seen that the appeal to the controlling authority i.e. the second respondent under the Payment of Gratuity Act came to be rejected on the ground that the appeal is preferred beyond the permitted period of 120 days as prescribed under Section 7(7) of the Act. The issue is no more resintegra in the light of the law laid down by the Hon’ble Apex Court and this court. 3. This court has placed reliance on the ruling of the Hon’ble Apex Court while dismissing a similar writ petition and in paragraph Nos.10 and 11 has held as under: 10. Learned Counsel for the respondent has also placed reliance on the ruling of the Apex Court rendered in the case of WARANGAL DISTRICT CO OPERATIVE SOCIETY LTD. VS APPELLATE AUTHORITY UNDER PAYMENT OF GRATUITY ACT, 1972 & OTHERS – (2002) 3 LLJ 616, wherein at paragraphs 8 & 9, the Apex Court has examined the applicability of Limitation Act in the light of the provision contained under Section 29 of the Limitation Act itself. The Apex Court has observed in paragraph 9 & 11 as under: “9. Looking at the scheme of the Limitation Act, Section 3 of the Act declares that every suit instituted, appeal preferred and application made after the period prescribed for such institution, preference, etc., shall be dismissed. However, Section 5 stipulates that any appeal or application, except the application under Order 21 of the Code of Civil Procedure, if filed beyond the period of limitation prescribed under the Limitation Act could still be admitted by the Court, if the Court is satisfied that such an appellant or applicant had sufficient cause for not preferring the appeal or not making the application within the prescribed period of limitation. From the above two Sections, it appears that a suit filed beyond the prescribed period of limitation is absolutely barred, but an appeal preferred beyond the period of limitation prescribed could still be considered if the appellate Court is satisfied that such delay is by virtue of a cause which was not within the control of the appellant.
From the above two Sections, it appears that a suit filed beyond the prescribed period of limitation is absolutely barred, but an appeal preferred beyond the period of limitation prescribed could still be considered if the appellate Court is satisfied that such delay is by virtue of a cause which was not within the control of the appellant. Section 29(2) of the Limitation Act reads as follows: Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. An analysis of the above subsection shows that where a special period of limitation different from the one prescribed in the Schedule to the Limitation Act, 1963, is prescribed by any special or local law for the purpose of filing the suit, appeal, or application, the bar contained under Section 3 shall apply and such a suit or application is required to be dismissed as if that such a special limitation is prescribed under the Schedule to the Limitation Act. It is further provided in the subsection that provisions contained in Sections 4 to 24 of the Limitation Act shall apply to the cases where a special limitation is prescribed as mentioned above, to the extent to which they have not expressly excluded by such special local law. Interpreting the scope of Section 29(2), the Supreme Court in Shantilal M.Bhayaniv.Shanti Bai,(supra), held that as there was no specific exclusion of application of the Limitation Act in the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the appellate authority under the Act was entitled to invoke the powers under Section 5 of the Limitation Act and condone the delay in preferring the appeal was preferred beyond the period of special limitation prescribed under the Tamil Nadu Buildings (Lease and Rent Control) Act.
Obviously, their Lordships while deciding the case had in mind the last clause of Section 29 of subsection (2) … “they are not expressly excluded …” 10. xxx xxx 11. However, the difficulty in this case is that the limitation prescribed under the Payment of Gratuity Act, once again an enactment made by Parliament is only 60 days for the purpose of preferring an appeal. Under the proviso to Section 7, subsection (7), the appellate authority is empowered to “extend the period” of limitation by another sixty days. In other words, the appellate authority is empowered to condone the delay to upper limit of another sixty days beyond the prescribed period of limitation. No doubt, the Payment of Gratuity Act does not expressly exclude the operation of the Limitation Act, but the fact remains that the Payment of Gratuity Act is of the year 1972 where the Limitation Act is of the year 1963. The settled principle of interpretation of statutes is that if there are two mandates by the Sovereign Legislature, the later of the two shall prevail. Therefore, the fact that there was no express exclusion of Section 5 of the limitation under the Payment of Gratuity Act makes no difference while construing the scope of the power of the appellate authority constituted under the Payment of Gratuity Act, to condone the delay in preferring the appeals. The legal position enunciated by the Supreme Court in Shantilal M.Bhayani v. Shanti Bai (supra), in my view, must be understood in the context of the Limitation Act, 1963, and the special period of limitation, prescribed in any other special or local law prior to the date of the enactment of the Limitation Act. It is worthwhile mentioning that the Tamil Nadu Buildings (Lease and Rent Control) Act, which is the subject matter of the issue before the Supreme Court in the above case was of the year 1960.” 11. This Court after having examined the language employed in the proviso to subsection (7) of Section 7 of the Act, is of the considered opinion that the application of Section 29 of the Limitation Act stands excluded. Hence, in the opinion of this Court, the order of the appellate authority cannot be found fault with, and accordingly, petition stands dismissed.
This Court after having examined the language employed in the proviso to subsection (7) of Section 7 of the Act, is of the considered opinion that the application of Section 29 of the Limitation Act stands excluded. Hence, in the opinion of this Court, the order of the appellate authority cannot be found fault with, and accordingly, petition stands dismissed. No opinion is expressed on the merits of the matter and the petition is disposed off on the short ground of limitation alone.” The said issue is no more resinstegra and the order impugned by which the appeal by the petitioner came to be rejected as being time barred does not call for any interference, petition being devoid of merits stands dismissed.