JUDGMENT : RULE. Learned advocate Mr.Yogen Pandya waives service of notice of rule on behalf of the respondent No.1. 1. The instant petition is directed against the order dated 25.10.2019 passed by the Appellate Authority under the Payment of Gratuity Act, 1972, Jamnagar in Gratuity Appeal No.35 of 2019 preferred by the petitioner, whereby the appeal has been rejected. 2. Learned advocate for the petitioner has submitted that the appellate authority has misdirected itself in rejecting the appeal of the petitioner on the ground that the petitioner had not deposited the amount awarded by the controlling Authority. It is submitted that the Controlling Authority passed the order dated 15.04.2019 and a certified copy of the same was received on 25.04.2019. He has submitted that within a period 60 days, the petitioner had filed an appeal before the Appellate Authority on 20.06.2019 however, he was unable to deposit the amount awarded by the Controlling Authority as per the provision of Sub-section (7) of section 7 of the Payment of Gratuity Act, 1947. It is submitted that subsequently, petitioner deposited the amount awarded by the Controlling Authority on 08.07.2019 and a certificate of the same was issued on 06.08.2019. He has submitted that it is not in dispute that the amount has been deposited within a period of 120 days from 25.04.2019 i.e. the date of obtaining the certified copy of the order dated 15.04.2019. however, the certificate was issued by the Controlling authority on 06.08.2019 i.e. after a period of one month from the deposit of the amount. It is submitted that since the amount is deposited within 120 days, the Appellate authority should have considered all the said aspect before rejecting the appeal of the petitioner on the ground of non-depositing of the pre-deposit. 2.1 While referring to the provision of Subsection (7) of section 7 of the Payment of Gratuity Act, learned advocate has submitted that the same stipulates about filing of the appeal first within a period of 60 days and, if sufficient cause for preferring appeal is established, a period of preferring the appeal can be further extended for 60 days. 2.1 While referring to the provision of Subsection (7) of section 7 of the Payment of Gratuity Act, learned advocate has submitted that the same stipulates about filing of the appeal first within a period of 60 days and, if sufficient cause for preferring appeal is established, a period of preferring the appeal can be further extended for 60 days. It is submitted that as per the second Proviso, the petitioner had in fact deposited the amount as ordered by the Controlling authority within a period of 60 days and hence, as per the second proviso of Sub-section (7) of section 7 of the Payment of Gratuity Act, the appellant, after preferring the appeal, can deposit such amount. He has submitted that the petitioner cannot be put in adverse position only because he has deposited such amount, after a period of 60 days of filing of the appeal since the statute itself provides further extension of a period of 60 days. In support of his submissions, he has placed reliance on the judgement of the Madhya Pradesh High Court in the case of Janpad Panchayat Masturi Vs. Appellate Authority and Dy. Labour Comm., (1994) (68) FLR 281 and the decision of the Allahabad High Court in the case of Sahkari Ganna Vikas Samiti Ltd. Vs. Controlling Authority, 1993 (II) LLJ 1108 . Thus, he has submitted that the order of the Appellate Authority may be set aside since the petitioner had already deposited the amount awarded by the Controlling Authority and the Appellate Authority may be directed to hear the appeal on merits. 3. In response to the aforesaid submissions, learned advocate Mr.Yogen Pandya appearing for the respondent has placed reliance on the judgement of this Court in the case of Nadiad Nagarpalika Vs. Hasmukhlal Motilal Soni and Ors., 2010 (2) GLH 250 and has submitted that the statute provides for mandatory deposit of the amount awarded by the Controlling authority before preferring the appeal against its order, and no relaxation is available to the petitioner only because subsequently such amount has been deposited. It is submitted that the provision of Section 7(7) of the Payment of Gratuity Act does not stipulate any such relaxation and since the statute does not provide such deposit of amount after preferring the appeal, the order passed by the Appellate authority may not be disturbed. 4. It is submitted that the provision of Section 7(7) of the Payment of Gratuity Act does not stipulate any such relaxation and since the statute does not provide such deposit of amount after preferring the appeal, the order passed by the Appellate authority may not be disturbed. 4. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them. 5. The facts as narrated herein above are not in dispute. The order passed by the Controlling authority ordering the amount of Rs.3,96,000/- in favour of the respondent employee was passed on 15.04.2019. The certified copy of the same was received by the petitioner on 25.04.2019. Within a period of 60 days, the petitioner preferred the appeal before the Appellate authority on 20.06.2019 however, he did not deposit any amount as awarded by the Controlling authority before preferring the appeal, and the amount was deposited on 08.07.2019 however, the certificate of the same was issued by the Controlling authority on 06.08.2019. Thus, the entire exercise of filing the appeal till the deposit of the amount, except the issuance of certificate, is within the period of 120 days. 6. The issue, which falls for consideration before this Court is whether the appeal of the petitioner has been precisely rejected by the Appellate authority on the ground of subsequent deposit of the amount awarded by the Controlling authority. 7. In order to appreciate the issue raised in the present writ petition, it would be apposite to incorporate the provision of Section 7(7) of the Payment of Gratuity Act. Section 7(7) of the Payment of Gratuity Act reads as under: “7. 7. In order to appreciate the issue raised in the present writ petition, it would be apposite to incorporate the provision of Section 7(7) of the Payment of Gratuity Act. Section 7(7) of the Payment of Gratuity Act reads as under: “7. Determination of the amount of gratuity.— (7)Any person aggrieved by an order under subsection (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.]” 7.1 A plain and simple reading of the provision of Section 7(7) of the Payment of Gratuity Act indicates that any person, who is aggrieved by an order passed by the Controlling authority may prefer an appeal within a period of 60 days, and if the appellant is prevented by sufficient cause from preferring the appeal, the period can be extended till 60 days. Thus, the total period prescribed for preferring an appeal is 120 days. Sub-section (7) of section 7 of the Payment of Gratuity Act specifically uses the expression “prefer the appeal to the appropriate Government” and second Proviso also uses the expression “no appeal by an employer shall be admitted unless at the time of preferring the appeal.” The expression “at the time of preferring the appeal” cannot be construed as “after filing/preferring of the appeal” or “at any time within 120 days after filing of the appeal”. The legislature in its wisdom has specifically inserted the words “at the time of“ in order to protect the interest of the employee in whose favour the Controlling authority has determined the amount. 8. The legislature in its wisdom has specifically inserted the words “at the time of“ in order to protect the interest of the employee in whose favour the Controlling authority has determined the amount. 8. It is fundamental rule of interpretation that courts would not fill up the gaps in statute, their function being jus discre non facere i.e. to declare and decide law. The aforementioned provisions can not be interpreted in the manner suitable to the petitioner. The mandate of section 7(7) of the Payment of Gratuity Act does not stipulate that the appellant at his leisure can deposit the amount awarded by the Controlling authority within the period of 120 days. Such construction of the Proviso will dilute the mandate of second proviso of Section 7(7) of the Payment of Gratuity Act. Thus, it is mandatory for any person/appellant to deposit the amount at the time of preferring the appeal as the reading of second Proviso to Section 7(7) of the Payment of Gratuity Act suggests that no relaxation can be inserted in the statute either by the High Court or by the Appellate authority by interpreting the proviso that the appellant who prefers the appeal against the order of the Controlling authority can deposit the amount awarded within a period of 120 days. The true import and nature of the second proviso of Section 7(7) of the Payment of Gratuity Act is that such amount has to be deposited at the time when the appeal is preferred and not subsequently. 9. The Coordinate Bench of this Court, while dealing with an analogous issue in the case of Hasmukhlal Motilal Soni and Ors.(supra) has held thus: “6.1 Therefore, unless and until the petitioner Nagarpalika exempted by State Government while exercising powers under Section 5 of the Act, the provisions of the Act are applicable to petitioner - Nagarpalika. Therefore, employees those who are working, no doubt receiving benefits under BCSR Rules for other service benefits, but for gratuity amount employees are entitled the benefits of the Act because there is a specific provisions made in Section 4(5) of the Act which provides that nothing in this Section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer. Therefore, if any amount to be received as per award which is a better terms of gratuity, then concerned employee is entitled to receive it better terms of gratuity from employer as per award passed by the Industrial Tribunal. Therefore, claiming amount of gratuity in terms of award passed by Industrial Tribunal in Reference (IT) No. 174 of 1974 cannot be considered to be illegal or unauthorized claimed beyond the scope of the Act. The petitioner - Nagarpalika is not exempted under Section 5 of the Gratuity Act, 1972. The right to gratuity is a statutory right. Similarly, if any amount granted by Controlling Authority is not deposited before Controlling Authority as per Section 7(4) while filing appeal, it is a legal obligation upon employer while filing appeal under proviso to Section 7(7) that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant produced a certificate of the controlling Authority to the effect that appellant has deposited with him an amount equal to the amount of gratuity required to be deposited in Sub-Section-4 or deposit with the Appellate Authority such amount. Therefore, Appellate Authority has rightly not entertained appeal because the amount granted by Controlling Authority under Section 7(4) has not been deposited by petitioner Nagarpalika before the Controlling Authority or Appellate Authority. Therefore, subsequent payment or deposit has no legal consequence. The pre-condition of deposit is mandatory. The appeal preferred without deposit is not a valid appeal.” 9.1 The Coordinate Bench of this Court has held that it is not open for the appellant to deposit the amount awarded by the Controlling authority subsequently after preferring the appeal and subsequent payment or such deposit has no legal consequences. Thus, the pre-deposit of the amount awarded by the Controlling authority at the time of preferring an appeal is sine qua non for the hearing of the appeal by the Appellate authority under the provisions of section 7(7) of the Payment of Gratuity Act. The judgments, which are cited by the learned advocate for the petitioner in support of his case will not rescue the petitioner in view of the judgment of the Coordinate Bench of this Court. 10. In view of the aforenoted observations, this Court does not find any error in the order passed by the Appellate authority. 11. Hence, the writ petition fails. Rule discharged.