Madras High Court
The Superintending Engineer vs The Joint Commissioner Of Labour on 5 July, 2023
Author: M.Dhandapani
Bench: M. Dhandapani
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.07.2023
CORAM :
THE HONOURABLE MR. JUSTICE M. DHANDAPANI
W.P.Nos.5925, 5926, 5928, 5927 and 5929 of 2016
and
W.M.P.Nos.5290, 5292 5294, 5295 of 2016
The Superintending Engineer,
Tamil Nadu Electricity Board,
Erode Generation Circle,
Uratchikottai,
Bhavani Taluk,
Erode District. ... Petitioner in all the petitions
Vs.
1. The Joint Commissioner of Labour,
Labour Commissioner Office,
Coimbatore-18.
2. The Assistant Commissioner of Labour,
Office of the Assistant Commissioner of Labour,
Salem.
... Respondents 1 & 2 in all the petitions
D.Shanmugam
....3rd respondent in W.P.No.5925 of 2006
M.Subramani
....3rd respondent in W.P.No.5926 of 2006
P.Subramanian
....3rd respondent in W.P.No.5927 of 2006
C.Palanisamy
....3rd respondent in W.P.No.5928 of 2006
N.Palanisamy
....3rd respondent in W.P.No.5929 of 2006
https://www.mhc.tn.gov.in/judis
1/8
COMMON PRAYER: Writ Petitions filed under Article 226 of the
Constitution of India for issuance of a Writ of Certiorari Mandamus call for the
records relating to the order passed by the first respondent in E/4373/2012
dated 27.10.2012 and quash the same and also direct the first respondent to
consider the appeal on merits and dispose of the same.
For Petitioner : Mr.K.Rajkumar, TANGEDCO
(in all the petitions)
For Respondents : Mr.K.V.Shanmuganathan R3
(in all the petitions)
COMMON ORDER
Since the issue involved in all the cases are one and the same and hence, all the writ petitions are disposed of by way of this common order.
2. The petition has been filed seeking to quash the order passed by the first respondent in E/4373/2012 dated 27.10.2012 and also direct the first respondent to consider the appeal on merits and dispose of the same.
3. It is the case of the petitioner that the third respondents were working as temporary labourer before the second respondent and there is no direct employer-employee relationship between the Board and the contract labourers, https://www.mhc.tn.gov.in/judis 2/8 the Board has decided to absorb the contract laboureres as permanent employee of the Board based on calculating the total number of days that they have worked and hence, the 3rd respondent was absorbed as helper in the Board. Due to their age of superannuation, the third respondents have retired from service. That being the situation, the second respondent passed an order directing the Board to provide Gratuity benefits to the third respondents during the respective period when they worked as Labour. It is pertinent to notice that the Board has rightly calculated the service of the third respondent and paid the amount toward Death cum Retirement Gratuity and Service Gratuity and the third respondents have also received the same. Without considering these facts, the second respondent passed an order dated 10.08.2010 directing the petitioner to pay the Gratuity to the third respondent with 10% interest. Aggrieved over the same, the Board has filed an appeal before the first respondent. Without going into the merits of the case, the first respondent rejected the petitioner Board appeal on 27.10.2012 stating that the appeal is not maintainable. Challenging the same, the petitions have been filed.
4. The learned counsel for the petitioner submitted that the petitioner has filed appeal before the first respondent within a period of 120 days from https://www.mhc.tn.gov.in/judis 3/8 the date of receipt of the order passed by the second respondent, whereas to the contrary, the first respondent stated that the petitioner filed the appeal beyond the period of limitation. In this regard the petitioner Board have filed an interlocutary application for explaining the delay for the administrative reasons. Without considering the same, the first respondent has mechanically passed the impugned order, which is not sustainable one.
5. The learned counsel for the third respondent submitted that admittedly the original authority passed an order on 10.08.2010 and the same was received by the petitioner on 19.11.2011. However, the appeal was filed on 30.08.2012, which was filed beyond the period of one year and the same could not be entertained. In support of his contention, the learned counsel relied upon the decisions of the High Courts reported in CWP-21545-2018 in the case of HSMITC Ltd., Vs. M.RArora and others and W.P.(C) 5209 of 2012 in the case of Krishnan Kumar Kashyap Vs.the Appeallate Authority under payment of Gratuity Act and another in W.P.(C).5289 of 2012. The relevant portions of the above said orders are extracted hereunder:-
(i) CWP-21545-2018 in the case of HSMITC Ltd., Vs. M.RArora and https://www.mhc.tn.gov.in/judis 4/8 others:
'' .............19.Thus, it is held that the provisions of the Limitation Act, 1963 would not be applicable to the appeal filed under Sub-section (7) of Section 7 of the Payment of Gratuity Act, 1972 as the special Act will have precedence and would apply over the General Act. The Appellate Authority cannot entertain an appeal filed under Section 7(7) under the Paument of Gratuity Act, 1972, by condoning the delay beyond the maximum specified permissible period provided therein.''
(ii) W.P.(C).5289 of 2012 in the case of Krishnan Kumar Kashyap Vs.the Appeallate Authority under payment of Gratuity Act and another:
''20. In the instant case, the Controlling authority passed an order under Section 7(4) of the PG Act on 22.12.2011. The petitioner preferred an appeal under Section 7(7) of the said Act alongwith an application for condonation of delay of 139 days in filing the appeal. Admittedly, the appeal under Section 7(7) of the PG Act was not filed within a period of 120 days from the date of receipt of the order under Sub-Section 4 of Section 7 of the Act. Therefore, the Appellate Authority/Controlling Authority under the PG Act was not empowered to condone the delay beyond the total period of 120 days from the date of receipt of the order.'' https://www.mhc.tn.gov.in/judis 5/8
6. Heard the learned counsel for the petitioner and the learned Counsel for the respondents and perused the materials available on record.
7. The facts of the case are not in dispute. Admittedly, the third respondent filed a Gratuity Application before the second respondent and the same was allowed in their favour on 10.08.2010. In this regard, the petitioner Management also received an order on 19.11.2011. However, the petitioner preferred appeal before the first respondent on on 30.08.2012 under Section 7(7) of the Payment of Gratuity Act.
8. In view of the settled position of law as stated above, it is clearly seen that the petitioner management has not been preferred the appeal within the time limit prescribed. The original authority passed an order on 10.08.2010 and the petitioner received a copy of the order on 19.11.2011 and preferred an appeal on 30.08.2012 with a delay of more than one year. The original authority passed an order under Section 7(4) of the PG Act and aggrieved over the same, the petitioner preferred appeal under Section 7(7) of the PG Act before the appellate authority along with an application for condoning the delay. However, the appellate authority has not empowered to condone the https://www.mhc.tn.gov.in/judis 6/8 delay beyond the period of 120 days from the date of receipt of the order of the original authority.
9. Thus, there is no infirmity or illegality in the impugned order passed by the first respondent dated 27.10.2012 and accordingly, all the writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are also closed.
12.07.2023
Index : Yes / No
Speaking order / Non speaking order
Netrual Citation Case : Yes / No
rli
M.DHANDAPANI, J.
rli
https://www.mhc.tn.gov.in/judis
7/8
To
1. The Joint Commissioner of Labour,
Labour Commissioner Office,
Coimbatore-18.
2. The Assistant Commissioner of Labour,
Office of the Assistant Commissioner of Labour, Salem.
W.P.Nos.5925, 5926, 5928, 5927 and 5929 of 2016 12.07.2023 https://www.mhc.tn.gov.in/judis 8/8