Karnataka High Court
Adichunchunagiri Institute Of ... vs Sri.C.V.Suresh on 22 December, 2020
Author: M.Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.22465/2016 (L-PG)
BETWEEN
ADICHUNCHUNAGIRI INSTITUTE
OF TECHNOLOGY
JYOTHI NAGARA
CHIKKAMAGALURU - 577 102
REPRESENTED BY ITS PRINCIPAL
SRI. C.K. SUBRAYA ... PETITIONER
[BY SRI. SOMASHEKAR, ADVOCATE FOR
SRI. S.N. MURTHY ASSOCIATES
(VIDEO CONFERENCING)]
AND
1. SRI C.V. SURESH
S/O. SRI. C.P. VEERABHADRAPPA
AGED ABOUT 52 YEARS
RESIDENT OF "CHITRA"
BEHIND PWD QUARTERS
KANADALU ROAD, FORT
CHIKKAMAGALURU - 577 102
2. THE CONTROLLING AUTHORITY
UNDER PAYMENT OF GRATUITY
ACT AND
ASSISTANT LABOUR
COMMISSIONER
DEPARTMENT OF LABOUR
2
CHIKKAMAGALURU - 577 102 ... RESPONDENTS
[BY SRI. R. SRINIVASA GOWDA, AGA FOR R2;
(PHYSICAL HEARING)
SRI. M.V. HIREMATH, ADVOCATE FOR R1]
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDER DATED 14.01.2016 PASSED BY
THE R-2 AT ANNEXURE-E.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner in this writ petition has called in question the order of the controlling authority under the Payment of Gratuity Act, 1972 (hereinafter referred to as 'the said Act' for short) allowing the application for recalling the order dismissing the case on 23.01.2015 invoking the provisions of the Limitation Act, 1963.
2. Brief facts leading to the filing of present writ petition are that, the petitioner is an Educational Institution in which respondent No.1 was appointed as a lecturer and after serving for a few years, resigned 3 from service on 26.02.2007. Later after about 6 years of his resignation and cessation of employment, made a claim before the controlling authority under the said Act on 11.01.2013 claiming gratuity for the period that he had worked with the petitioner.
3. The matter before the controlling authority was listed on various occasions and owing to continuous absence of the respondent, the controlling authority under the said Act, dismissed the claim on 23.01.2015.
4. Respondent No.1 made an application for recalling and restoration of the claim application seeking gratuity on 25.03.2015. The controlling authority accepting the cause shown, condoned the delay and restored the application to file. It is this order that is called in question by the petitioner. 4
5. Heard the learned Senior counsel, Sri.S.n. Murthy for the learned counsel, Sri. Somashekar appearing for the petitioner, the learned AGA, Sri. R. Srinivasa Gowda, appearing for respondent No.2 and the learned counsel, Sri. M.V. Hiremath, appearing for respondent No.1.
6. Learned counsel appearing for the petitioner would submit that in terms of Rule 11(5) of the Karnataka Payment of Gratuity Rules, 1973 (hereinafter referred to as 'the said Rules' for short), an application on such a cause shall be filed within 30 days and there is no provision to condone the delay and would place reliance on the judgment of a Co-ordinate Bench of this Court in the case of Sri. K.V. Rama Rao and Others Vs. M/s. Prasanth Theatre and Others reported in ILR 2007 KAR 640.
7. On the other hand, the learned counsel appearing for the respondents would seek to justify 5 the order passed by the controlling authority on the ground that it is a beneficial legislation and technicality should not override the substantive right of the respondents.
8. I have given my anxious consideration to the respective submissions made by the learned counsel and perused the material on record.
9. The facts are not in dispute.
The respondent after resignation on 26.02.2007 files an application seeking gratuity from the hands of the petitioner on 11.01.2013, 6 years after his cessation of service on resignation and remained continuously absent before the authority, which led to dismissal of the claim on 23.01.2015. Rule 11(5) of the said Rules, reads as follows:
"Rule 11(5): If the employer concerned fails to appear on the specified date of hearing after due service of notice, 6 without sufficient cause, the Controlling Authority may proceed to hear and determine the application ex-parte. If the applicant fails to appear on the specified date of hearing without sufficient cause, the Controlling Authority may dismiss the application.
Provided, that an order under this sub-rule may, on good cause being shown within thirty days of the said order, be reviewed and the application reheard after giving not less than fourteen days notice to the opposite party of the date fixed for rehearing of the application."
(emphasis supplied)
10. The limitation in terms of the said Rules as akin to limitation prescribed under Section 7(7) of the said Act, which fell for its consideration before this Court in the case of Sri. K.V. Rama Rao (supra), wherein this Court has held as follows:
"7. Admittedly in this case the Assistant Labour Commissioner has passed 7 order for payment of gratuity on 10.10.2004. The writ petition challenging the order dated 10.11.2004 of the Assistant Labour Commissioner was filed on 26.7.2005. By the time when the writ petition was filed, the 60 days + 60 days has already been over. Even excluding the time taken by the petitioner for prosecuting the writ petition the appeal filed by the respondent was barred by time under Section 7(7) of the Act. The Gratuity Act being a subsequent Act to the Limitation Act and it prevails over the Limitation Act and Section 5 of the Limitation Act is not applicable, as Section 7(7) of the Act itself provides for a period of limitation and also power to condone the limitation vis-à-vis the appeal is required to be filed within 60 days from the date of receipt of the order and the Appellate Authority has power to extend the said limitation by another 60 days and not beyond that period. This is the well settled position in law and in a similar case the Apex Court in the judgment reported in the case of 8 Commanding Officer, Naval Base And Appellate Authority Under The Payment Of Gratuity Act And Others has held that the provisions of the Limitation Act are not applicable. It also held that the period of limitation prescribed under Section 7(7) of the Act cannot be extended. Even assuming that in the writ petition, this Court had given liberty for exclusion of limitation taken for prosecuting the writ petition, the limitation period had already expired. As such the appeal could not have been entertained by the limitation even though objection was raised by the petitioner. The Appellate Authority has mechanically remanded the matter to the Assistant Labour Commissioner. Hence in the light of provision of Section 7(7) of the Act and the judgment of the Apex Court referred to above the order of the Appellate authority is not sustainable in law."
(emphasis supplied) 9
11. In light of the law laid down by the Co-ordinate Bench of this Court clearly holding that the said Act itself contains a period of limitation and the Limitation Act, 1963 would not be applicable in such cases.
12. The order of the controlling authority invoking Section 5 of the said Limitation Act, 1963 is unfounded and consequentially unsustainable.
13. Therefore the following:
ORDER i. The writ petition is allowed.
ii. The impugned order of the controlling authority dated 23.01.2015 is quashed.
Sd/-
JUDGE SJK