Calcutta High Court (Appellete Side)
Ali Hossain vs M/S. Budge Budge Co. Ltd. & Ors on 13 July, 2018
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
13.07.2018
srm
F.M.A. No. 3595 of 2015
(CAN 8760 of 2015)
Ali Hossain
Versus
M/s. Budge Budge Co. Ltd. & Ors.
Mr. Rananeesh Guha Thakurta
...for the Appellant/Applicant.
Mr. Balai Chandra Paul
Ms. Ruma Sarkar
...for the Respondent No.1.
Mr. Jahar lal De
Mrs. Debarati Sen (Bose)
...for the State.
Re : CAN 8760 of 2015
This is an application arising out of an appeal preferred against a
judgment and order dated August 4, 2015 passed in the writ application.
The subject matter of challenge involved in the writ application was that
the controlling authority under the Payment of Gratuity Act, 1972 (hereinafter
referred to as the said Act, 1972) failed to take into consideration the
provisions of clause 25 of a memorandum settlement while disposing of the
claim for payment of gratuity of the appellant‐workman on March 10, 2015.
The learned Single Judge after hearing the writ petition passed an order
granting liberty to the respondent‐company to prefer an appeal before the
statutory appellate authority within August 21, 2015 on depositing of 50% of
2
the amount ordered by the controlling authority in its impugned order dated
March 10, 2015.
It is submitted by Mr. Rananeesh Guha Thakurta, learned Advocate
appearing on behalf of the appellant, that under the provisions of 2nd proviso
to sub‐section (7) of Section 7 of the said Act, 1972, 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 had 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. Therefore, granting liberty to the respondent‐company
to prefer an appeal even beyond the period of limitation as specified in sub‐
section (7) of Section 7 of the said Act, 1972 that too upon depositing of 50% of
the amount ordered by the controlling authority in its impugned order cannot
be sustained in law.
It is submitted by Mr. Balai Chandra Paul, learned Advocate appearing
on behalf of the respondent‐company, that in compliance of the order passed
in the writ application, the respondent‐company already deposited 50% of the
amount ordered by the controlling authority in its order dated March 10, 2015.
We have heard the learned Counsel appearing for the respective parties
and we have taken into consideration the facts and circumstances of this case.
3
In order to adjudicate the issue involved in this matter the provisions of
sub‐section (7) of Section 7 of the said Act, 1972 is quoted below:
"7. Determination of the amount of gratuity. -
.......................................................
(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, extended 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."
In view of the provisions of 2nd proviso, there is a statutory provision enabling the person aggrieved by an order under sub‐section (4) of Section 7 of the said Act, 1972 to prefer an appeal to the appropriate Government or such authority as may be specified by the appropriate Government in its behalf subject to production of 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) of Section 7 of the said Act, 1972, or deposits with the appellate authority such amount. The time prescribed to prefer an appeal is 60 days from the date of receipt of the order 4 passed under sub‐section (4) of Section 7 of the said Act. According to 1st proviso to sub‐section (7) of Section 7 of the said Act, 1972, the appellate authority has the power to condone the delay of a period of 60 days beyond the aforesaid period of limitation subject to its satisfaction. We are of the considered view that a Court sitting under Article 226 of the Constitution of India has no power to overreach a statutory provision. Therefore, the statutory provision either to prefer an appeal beyond the period prescribed in a Statute or relaxing the condition for depositing of any amount is not permissible under law.
In view of the above, the order impugned to this appeal is not sustainable in law on the following grounds:
(i) The order impugned to the writ application was an order passed under sub‐section (4) of Section 7 of the said Act, 1972 on March 10, 2015, the leaned Single Judge granted liberty to the respondent‐company to prefer an appeal against that order within August 21, 2015, i.e., beyond 120 days, overreaching the provisions of sub‐section (7) of Section 7 of the said Act, 1972 as also 1st proviso to the above provision;
(ii) The learned Single Judge allowed the respondent‐company to proceed with the appeal subject to depositing of 50% of the amount ordered by the controlling authority in its order dated March 10, 2015, it was 5 contrary to the provisions of 2nd proviso to sub‐section (7) of Section 7 of the said Act, 1972.
Therefore, the above order cannot be sustained in law in view of the provisions of sub‐section (7) of Section 7 of the said Act, 1972.
It will not be out of context to observe that in the event the period of limitation in initiating of a proceeding expires during the pendency of a writ proceeding there is no scope to initiate a statutory proceeding or to prefer an appeal to condone such delay on the ground of pendency of a lis before the Writ Court.
Reference may be made to the decision of City College, Calcutta vs. State of W.B. & Ors. reported in 1986(52) FLR 547 and operative portions of the above judgment is quoted below:
"7. In his impugned order of the Appellate Authority has rightly pointed out that in view of the sub‐section (7) of Section 7 of the Payment of Gratuity Act, 1972, appeals must be filed within 60 days from the date of the receipt of the order by the Controlling Authority. Under proviso to sub‐section (7) of Section 7 of the said Act the Appellate Authority may extend the said period of 60 days by a further period of 60 days if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period of 60 days. In the above view, after expiry of 120 days from the date of the receipt of the order passed by the Controlling Authority there could be no scope for further extending under Section 5 of the Limitation Act the period prescribed by the law for preferring an appeal under Section 7(7) of the Payment of Gratuity Act against the order passed under sub‐section (4) of Section of the said Act.6
8. For the foregoing reasons, we hold that the Appellate Authority did not commit any jurisdictional error by refusing to condone the delay beyond 120 days in preferring the appeal of the petitioner. The appeal provided under Section 7 of the Payment of Gratuity Act, 1972 is not before any Court. The Act has vested an executive authority with juridical quasi judicial powers in order to enable it to act as the Appellate Authority. In view of the decisions of the Supreme Court mentioned hereinbefore it is no longer open to us to consider whether or not by force of Section 29(2) of the Limitation Act, 1963, the provisions of Sections 5 to 25 of the said Act have been made applicable only in case of appeal and applications under any special presented to Courts of law and not to persoma designata or administrative authorities.
We therefore dismiss this Revisional Application without any order as to costs."
With the discussions and observations made hereinabove, the order impugned to this appeal stands quashed and set aside. Since no other issue is involved in this appeal, this appeal is treated as on day's list with the consent of the parties and the same is also taken up for hearing.
This appeal stands allowed together with the above application. There will be, however, no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties at an early date.
(Debasish Kar Gupta, J.) (Shampa Sarkar, J.)