ORDER : 1. Heard learned Assistant Government Pleader Mr. Soaham Joshi for the petitioner-State through video conference. 2. By this petition, the petitioner-State has prayed for the following reliefs: “(A) The Hon'ble Court may be pleased to admit and allow the present Appeal. (B) The Hon'ble Court may be pleased to quash and set aside the impugned order dated 18.02.2020 passed by the appellate authority. (C) The Hon'ble Court may be pleased to quash and set aside the order passed in Gratuity Application No 46 of 2019 passed by Controlling Authority under The Payment of Gratuity Act. (D) The Hon'ble Court may be pleased to grant stay against the order passed in Gratuity Application No. 46 of 2019 passed by Controlling Authority under The Payment of Gratuity Act and order dated 18.02.2020 passed pass by the appellant authority under The Payment of Gratuity Act till the final disposal of this petition. (E) Your Lordship may be pleased to grant any other and further reliefs as may be deemed just and proper in the interest of justice and fitness of things, in favour of the appellants.” 3. The brief facts of the present case are as under: 3.1 The husband of the present respondent has joined the service as a daily wager in the year 1989 with the petitioner. It is the case of the petitioner that the husband of the respondent i.e. late Badarsang Thakor did not come for work from 1999 to 2008-2009. 3.2. Late Badarsang Thakor has filed the reference before the Labour Court, for reinstatement and back wages. The Labour Court passed the award dated 23.1.2004. Against the award passed by the learned Labour Court, late Badarsang Thakor filed the Special Civil Application No. 8316/2008. 3.3. The husband of the present respondent expired on 19.09.2017 and therefore, the respondent no. 1 herein made an application before Deputy Executive Engineer, Dharoi Irrigation department, Division seeking the benefits of gratuity. 3.4. The respondent filed application for recovery of gratuity for the period between 27.06.1984 to 19.09.2017. The application of respondent was opposed by petitioner by filing written statement. 3.5. It is the case of the petitioner that though the petitioner has produced details of attendance and payment as per the record, the controlling authority has not considered the same and vide order dated 30.09.2019 allowed the application and directed the petitioner to pay an amount of Rs. 3.5. It is the case of the petitioner that though the petitioner has produced details of attendance and payment as per the record, the controlling authority has not considered the same and vide order dated 30.09.2019 allowed the application and directed the petitioner to pay an amount of Rs. 35,808/- with 10% cumulative interest. 3.6. Against the order passed in Gratuity Application No. 46/2019 by the controlling authority, the petitioner filed an appeal on 17.02.2020 before the Appellant Authority, Ahmedabad. The Appellate Authority vide order dated 18.02.2020 rejected the appeal on the ground of delay of 120 days in preferring the appeal even though the petitioner produced the copy of procedure sheet and explained the cause of delay, but without granting the hearing and without considering to condone the delay the appeal was dismissed. 4. Learned AGP Mr. Joshi appearing for the petitioner-State submitted that both the authorities below erred in not considering the fact that the respondent has approached the authority after a delay of almost two years without filing any application for condonation of delay. It was submitted that in absence of any reason for condonation of delay put-forth by the respondent, the controlling authority ought not to have accepted the application filed by the respondent. 5. Learned AGP Mr. Joshi further submitted that the appellate authority on the other hand committed an error without considering the cause for delay by not condoning the delay of 120 days in preferring the appeal against the order passed by the controlling authority. 6. Learned AGP further submitted that both the authorities have failed to consider the provisions of the Gratuity Act, as the same are not applicable in the facts of the case of the respondent, as there is a distinction between the daily wager employee and permanent employee. It was submitted that the respondent was not a permanent employee and hence the provisions of the Payment of Gratuity Act, 1972 would not apply to the respondent and therefore, the orders passed by both the authorities are without jurisdiction and accordingly the same may be quashed and set aside. 7. Learned AGP Mr. Joshi also submitted that the authorities have failed to consider and appreciate the government resolutions dated 17.10.1988 and 24.03.2006. 7. Learned AGP Mr. Joshi also submitted that the authorities have failed to consider and appreciate the government resolutions dated 17.10.1988 and 24.03.2006. It was submitted that both the authorities have therefore passed the impugned orders for payment of gratuity to the respondent are contrary to the law and deserves to be quashed and set aside. 8. Having considered the above submissions, it appears that the issues raised in this petition are squarely covered by the decision in the case of the State of Gujarat v. Appellate Authority rendered in Special Civil Application No. 9740 of 2015 to 9743 of 2015 on 07.03.2018 passed by this Court (Coram: Hon'ble Mr. Justice K.M. Thaker) wherein, it is held as under: “14. When the said details are taken into account then it clearly emerges that even if some period as grace period is granted so as to take into account the date of receipt of the order by the controlling authority then also the fact stares in the face of the petitioner that it filed appeal after expiry of 120 days. 15. The petitioner herein i.e. appellate before appellate authority was conscious of the fact that the appeal was filed after prescribed period of limitation. 15.1 Therefore, along with the appeal the appellate also filed application with the request to condone delay. 15.2 However, the provision under Section 7(7) of the Act makes it clear that the appeal against the order of controlling authority should be filed within 60 days. 15.3 The said provision confers power to the appellate authority to condone delay, if sufficient cause is made out, however said power/authority to condone delay is circumscribed by virtue of proviso to sub-section (7) of Section 7 of the Act which prescribes, that the appellate authority can condone delay upto to 60 days. 15.4 Differently put, the appellate authority does not have power to entertain appeal which is filed after expiry of 120 days. 16. In present case it becomes clear that even if some period is granted as grace period and delay in filing the appeal is computed after taking into account the date on which the order was served/might have been served to the appellant, then also the total period exceeds prescribed limitation of 120 days. 17. 16. In present case it becomes clear that even if some period is granted as grace period and delay in filing the appeal is computed after taking into account the date on which the order was served/might have been served to the appellant, then also the total period exceeds prescribed limitation of 120 days. 17. In this context reference may be had to the decision in Special Civil Application No. 17821 of 2013 wherein the Court has observed, inter-alia, that: 5.1 From the reading of above provision, it is 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 precondition 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. (Emphasis supplied) 5.2 Thus as provided in section 7(7) of the Gratuity Act, in respect of preferring appeal before the appellate authority, the outer limit of limitation is 120 days. 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. 5.3 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. 5.3 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 vs. Babubhai Lallubhai, 1981 GLH 5 , it was observed: In Town Municipal Council, Athani vs. Presiding Officer, Labour Court, Hubli and Others, AIR 1969 SC 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 Sec. 5 of the Limitation Act, 1963, do not apply to the instant case. (Para 5) 5.4 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 Sec. 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 Sec. 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) We find that there is inconsistency between Sec. 5 of the Limitation Act, 1963 and sub-section (7) of Sec. 7 of the payment of Gratuity Act, 1972. Whereas Sec. 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 Sec. 7 of the Payment of Gratuity Act, 1972, is inconsistent with the provisions of Sec. 5 of the Limitation Act, 1963, and since Sec. 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 Sec. 29, application of the provisions of Sec. 5 of the Limitation Act, 1963 is excluded by Sec. 14. (Para 4) 5.5 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. vs. 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) 5.6 The Madhya Pradesh High Court relied on Supreme Court decision in Officer on Special Duty (Land Acquisition) vs. 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 sub-section (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 sub-section (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)” 18. In this context, it is relevant to take into account the provision under Section 7(7) of the Payment of Gratuity Act. 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)” 18. In this context, it is relevant to take into account the provision under Section 7(7) of the Payment of Gratuity Act. The said provision reads thus: “(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. 19. It becomes clear that according to section 7(7), any person aggrieved by an order of Controlling Authority can file appeal within 60 days from the date of receipt of the order. 19.1 Thus, period of limitation shall start to run from the date when order is served. 19.2 Further, the said provision confers power to the Appellate Authority to condone delay for further 60 days. 19.3 Therefore, an appeal filed on or before expiry of 120 days can be entertained by the Appellate Authority, provided the Appellate Authority is satisfied with the explanation offered by the appellant and provided the Appellate Authority is convinced that the period of delay deserves to be condoned (within limit of 60 days). However the appellate authority does not have power to condone delay beyond 120 days and the authority cannot entertain appeal which is filed after expiry of 120 days. 20. In this context, reference can also be had to the observations in the decision in case of Bhairavnath Industries Pvt. Ltd. vs. Navinchandra Kashinath Badgujar and Another, 2017 (3) GLR 1801 . 20. In this context, reference can also be had to the observations in the decision in case of Bhairavnath Industries Pvt. Ltd. vs. Navinchandra Kashinath Badgujar and Another, 2017 (3) GLR 1801 . In the said decision, this Court observed, inter-alia, that: “9.1 It is pertinent that after withdrawing the petition on 29.1.2010 for about 1 month the petitioner did not take any action and filed appeal after more than 1 month on or around 9.3.2010. Thus, by any standard, appeal was filed after expiry of more than 120 days from the date of initial order i.e. from 26.9.2008 as well as from the date of subsequent order i.e. 10.6.2009. 9.2 Sub-Section (4) of Section 7 of the Act prescribes that a person aggrieved by the order of the controlling authority can file appeal before the appellate authority within 60 days from the date of receipt of the order. The said sub-section (4) of Section 7 of the Act also confers power on the appellate authority to entertain appeal even if it is filed after expiry of 60 days provided concerned party offers explanation and makes out sufficient cause for delay in filing appeal. The Act confers power on the appellate authority to condone delay, however subject to the restriction prescribed by the proviso of Section (4) of Section 7. According to the said proviso the appellate authority can condone delay for maximum 60 days. Thus, the appellate authority cannot entertain appeal which is filed after expiry of 120 days and it does not have power to condone delay beyond the restriction prescribed by the Act. The appellate authority under the Act cannot exercise inherent power or cannot act dehors the limitation prescribed under the Act or cannot exercise the power which is not conferred to it by the legislature. 9.3 In this context it would be appropriate to take into account observations by the full bench in the decision in case of Jayminbhai Navinbhai Doshi vs. State of Gujarat, 2015 (1) GLH 167 wherein the Court considered provision under Bombay (Gujarat) Stamp Act. In the said decision Hon'ble full bench observed that:- 13. 9.3 In this context it would be appropriate to take into account observations by the full bench in the decision in case of Jayminbhai Navinbhai Doshi vs. State of Gujarat, 2015 (1) GLH 167 wherein the Court considered provision under Bombay (Gujarat) Stamp Act. In the said decision Hon'ble full bench observed that:- 13. In view of the above observations of the Supreme Court, where even the High Courts jurisdiction under the Act was found to be excluded by operation of section 35H of the Central Excise Act, by applying the same principle, it must be concluded that by providing no power of condonation under Section 53 and by giving power of condonation only to the limited extent to the proceedings under section 54(1A), the Legislature has made its intention clear that so far the present cases are concerned, the authority under Section 53(1) had no power of condonation. However, in the present cases, since the reference has also been made on the question as to the power of condonation of delay by High Court in exercise of the power conferred under Article 226 of the Constitution of India, we also propose to answer the said question. 14. It is now settled law that the Limitation Act has no application to a proceeding under Article 226 of the Constitution and consequently, no period of limitation is prescribed either under the Limitation Act or in the Constitution of India for moving an application under Article 226 and thus, there is no scope of taking aid of Section 29(2) of the Limitation Act in a proceeding under Article 226 of the Constitution. 15. A person is entitled to move High Court under Article 226 of the Constitution when by the illegal action or inaction on the part of a State within the meaning of Article 12 of the Constitution, any of his legal or fundamental rights is infringed. In the Special Civil Applications out of which the present References arise, the petitioners have alleged violation of their legal rights accrued by virtue of the provisions contained in the Act itself. In the Special Civil Applications out of which the present References arise, the petitioners have alleged violation of their legal rights accrued by virtue of the provisions contained in the Act itself. In view of our finding that the Chief Controlling Revenue Authority exercising power under Section 53(1) of the Act has no power of condonation of delay in filing the application beyond the period mentioned therein, for the refusal on the part of the said authority to condone delay for want of jurisdiction, none of the legal rights of the petitioners have been infringed and thus, if the Chief Controlling Authority has no power of condonation, it necessarily follows that the High Court in exercise of power under Article 226 of the Constitution against the order of the Chief Controlling Revenue Authority cannot condone the delay when the Chief Controlling Revenue Authority did not possess such power and rightly refused to condone. Thus, by taking recourse to Section 29(2) of the Limitation Act, the High Court cannot condone such delay in the proceeding under Article 226 of the Constitution. 9.4 In this context reference may also be had to the observation in the decision in case of Panoli Intermediate (India) Pvt. Ltd. vs. Union of India and Others, AIR 2015 Gujarat 97 wherein the Court has held in paragraph 31 that:- “31. We may now proceed to answer the question: (1) Question No. 1 is answered in negative by observing that the limitation provided under section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 days as provided by the proviso nor the appeal can be filed beyond the period of 90 days. (2) The second question is answered in negative to the extent that the petition under Article 226 of the Constitution would not lie for the purpose of condonation of delay in filing the appeal. (3) On the third question, the answer is in affirmative, but with the clarification that: (A) The petition under Article 226 of the Constitution can be preferred for challenging the order passed by the original adjudicating authority in following circumstances that: (A.1) The authority has passed the order without jurisdiction and by assuming jurisdiction which there exist none. (A.2) Has exercised the power in excess of the jurisdiction and by overstepping or crossing the limits of jurisdiction. (A.2) Has exercised the power in excess of the jurisdiction and by overstepping or crossing the limits of jurisdiction. (A.3) Has acted in flagrant disregard to law or rules or procedure or acted in violation of principles of natural justice where no procedure is specified. (B) Resultantly, there is a failure of justice or it has resulted into gross injustice. We may also sum up by saying that the power is there even in aforesaid circumstances, but the exercise is discretionary which will be governed solely by the dictates of the judicial conscience enriched by judicial experience and practical wisdom of the judge.” 9.5 Hon'ble the Supreme Court in Chhattisgarh SEB vs. Central Electricity Regulatory Commission, (2010) 5 SCC 23 , considered similar provision under Sec. 125, proviso under Electricity Act, 2003, providing period of limitation for appeal to the Supreme Court against order of Appellate Tribunal for Electricity. It was held that delay in filing appeal beyond 120 days cannot be condoned. 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) The Apex Court emphasized the object underlying the provision and observed that: 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. 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) 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) 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) 9.6 In the aforesaid judgment, it was finally held: 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. 9.7 What is finally held in Chhattisgarh SEB (supra) is equally and fully applicable to interpretation of Sec. 7 (7) of the Gratuity Act.” 21. From above quoted observations also it becomes clear that appellate authority cannot exercise the power conferred by Section 7(7) of the Act to condone delay beyond 120 days. 22. 9.7 What is finally held in Chhattisgarh SEB (supra) is equally and fully applicable to interpretation of Sec. 7 (7) of the Gratuity Act.” 21. From above quoted observations also it becomes clear that appellate authority cannot exercise the power conferred by Section 7(7) of the Act to condone delay beyond 120 days. 22. In light of above quoted observation it becomes clear that the appellate authority has not committed any error in rejecting the appeal. 22.1 In view of the fact that appeal was, undisputedly filed beyond period of 120 days it could not have been entertained by the appellate authority. 22.2 Therefore, there is no basis or justification for disturbing the order of appellate authority. 22.3 The petitioner has failed to convince this Court that the appellate authority's order is illegal or contrary to the provisions under the Act or perverse or arbitrary or contrary to legal position. On the contrary, above quoted observations make it clear that the appellate authority has followed the legal position explained in above mentioned decisions.” 9. In view of the above settled legal position of the law, there is no infirmity in the impugned orders passed by the authority, more particularly, the order passed by the appellate authority, whereby, the delay is not condoned, as the appellate authority has no power to condone the delay beyond the statutory prescribed period of 120 days under the provisions of the Payment of Gratuity Act, 1972 as the appeal was filed beyond the period of 120 days, it could not have been entertained by the appellate authority. 10. In that view of the matter, no interference is called for, while exercising the extraordinary powers under Article 227 of the Constitution of India. 11. The petition, therefore being devoid of any merit, is dismissed.