Madras High Court
The Management Of C.S.I. Matriculation vs The Joint Commissioner Of Labour/ on 22 June, 2017
Author: M.M.Sundresh
Bench: M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.06.2017
CORAM
THE HON'BLE Mr. JUSTICE M.M.SUNDRESH
W.P.No.15715 of 2016
and
W.M.P.No.13645 of 2016
The Management of C.S.I. Matriculation
Higher Secondary School rep. by its
Principal .. Petitioner
Vs
1.The Joint Commissioner of Labour/
Appellate Authority under the
Payment of Gratuity Act,
DMS Compound, Teynampet,
Chennai - 6.
2.Assistant Commissioner of
Labour I under Payment of
Gratuity Act,
DMS Compound, Teynampet,
Chennai - 6.
3.Patricia Carolone Williams .. Respondents
Writ petition filed under Article 226 of The Constitution of India praying for the issuance of a writ of certiorarified mandamus to call for the records of the first respondent pertaining to his proceedings in No.E/902/16 and quash the order of the second respondent dated 15.03.2016 and condone the delay of 17 days in filing the appeal against the order dated 25.09.2015 made in P.G.Case No.146 of 2014 and consequently direct the first respondent to restore the said appeal for its hearing on merits.
For Petitioner .. Mr.R.Sivakumar
For Respondents .. Mr.S.Diwakar,
Spl. Govt. Pleader for R1 & R2
Mr.K.Vasu Venkat for R3
ORDER
Challenging the order of the second respondent dated 15.03.2016 and seeking condonation of delay of 17 days in filing the appeal against the order dated 25.09.2015 in P.G.Case No.146 of 2014 and for a consequential direction to the first respondent to restore the appeal, the present writ petition has been filed.
2.The petitioner was aggrieved by the decision of the second respondent dated 25.09.2015 with respect to the gratuity amount payable. A copy of the aforesaid order was served on the petitioner on 15.10.2015. Thereafter, the petitioner sought for certification by depositing the amount as per the memo dated 14.01.2016, which was granted as per the proceedings dated 12.02.2016. On receipt of the same, the petitioner filed an appeal on 01.03.2016 before the first respondent. The first respondent has rejected the said appeal being barred by limitation as per provision to Section 7(7) of the Payment of Gratuity Act (for short 'the Act').
3.Learned counsel appearing for the petitioner would submit that the Act provides for limitation of 60 days with power to condone another 60 days.
4.The petitioner filed a memo on 14.01.2016 seeking certification of payment. On deposit of Rs.1,09,055/-, it was granted only on 12.02.2016. Therefore, the aforesaid period will have to be condoned and if it is done so, then the appeal will be within the time provided for condonation.
5.Learned counsel appearing for the third respondent would submit that what the statute prescribes cannot be altered either by exercise of power under Article 226 of the Constitution of India or even under Article 142 of the Constitution of India by the Apex Court. Reliance has been made on the recent decision of the Apex Court in Oil and Natural Gas Corporation Limited Vs. Gujarat Energy Transmission Corporation Limited and Others (CDJ 2017 SC 261).
6.The facts are not in dispute. The petitioner filed a memo on 14.01.2016 asking for certification. Without the certification, which is an evidence to show the deposit of the amount ordered by the second respondent, the appeal will not be entertained. Merely because the Act provides for deposit of the aforesaid amount even before the first respondent, it cannot be stated that the petitioner is bound to follow the said procedure as alternatively it can deposit before the second respondent and get the certification. Therefore, the aforesaid period has to be excluded in the period of limitation mentioned. Even in the judgment relied upon by the learned counsel appearing for the third respondent, the applicability of Section 14 of the Limitation Act, 2005 is not excluded, though not strictly applicable to the case on hand. The question of delay or laches is one of practice and prudence. This Court is satisfied that it is a case where the petitioner is entitled for a hearing on merit. Accordingly, the order impugned stands set aside. However, taking into consideration the delay on the part of the petitioner, which has caused some prejudice to the third respondent, the writ petition stands allowed, by directing the petitioner to pay a sum of Rs.10,000/- to the learned counsel for the third respondent within a period of two weeks from the date of receipt of a copy of this order.
7.The petitioner is directed to represent the appeal papers within a period of four weeks from the date of receipt of a copy of this order after due compliance as indicated above. On receipt of the same, the first respondent shall proceed as per law and dispose of the appeal within a period of three months thereafter. No costs. Consequently, connected miscellaneous petition is closed.
22.06.2017 Index:Yes/No mmi To
1.The Joint Commissioner of Labour/ Appellate Authority under the Payment of Gratuity Act, DMS Compound, Teynampet, Chennai - 6.
2.The Assistant Commissioner of Labour I under Payment of Gratuity Act, DMS Compound, Teynampet, Chennai - 6.
M.M.SUNDRESH, J.
mmi W.P.No.15715 of 2016 22.06.2017 http://www.judis.nic.in