Calcutta High Court (Appellete Side)
Eastern Coalfields Limited vs Union Of India & Ors on 16 August, 2018
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
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1 16.8.18 M.A.T. 2176 of 2017
sn With
C.A.N. 12262 of 2017
THE AGENT, KALIPAHIRI GROUP OF MINES,
EASTERN COALFIELDS LIMITED.
VS.
UNION OF INDIA & ORS.
Mr. Bijoy Kumar
..for the applicant/
appellant
Mr. Raj Kumar Gaurisaria
Mr. Ram Chandra Agarwal
..for the respdts 1-3
The application for stay of
operation of the order dated November 9, 2017
and an intra Court appeal has been filed
challenging the said order dated November 9,
2017 passed in W.P.26433(W) of 2017.
The appellant as the writ petitioner
filed an application under Article 226 of the
Constitution of India, being aggrieved by the
order dated July 25, 2017 passed by the
Appellate Authority under the Payment of
Gratuity Act, 1972 and Chief Labour
Commissioner (Central) Assansol.
By the said order, the appellate
authority rejected the appeal filed by the
writ petitioner impugning the findings of the
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controlling authority dated January 27, 2017
which had been issued on February 6, 2017.
The appeal being Case No.PG-17/2017-E was
dismissed by the appellate authority on the
ground that the said authority did not have
the jurisdiction to condone the delay in
preferring the appeal beyond 120 days from
the date of receipt of the order of the
controlling authority.
The appellate authority expressed
its inability to admit the time barred
appeal. The controlling authority passed an
order dated January 31, 2017 in Application
No. 48(05)/2013/E-3, holding that Sri Ram
Pravesh Mishra(the respondent no.4) was
entitled to receive the gratuity amount of Rs. 3,50,000/-. The writ petitioner was directed to make payment to the respondent no.4 within 60 days from the date of receipt of the order.
Aggrieved by the order of the controlling authority, the writ petitioner
filed a statutory appeal before the Regional 3 Labour Commissioner (Central) Assansol-I on March 29, 2017. The said appeal was returned to the writ petitioner along with the Demand Draft of Rs.3,50,000/- on the ground that the Deputy Chief Labour Commissioner was the appellate authority and not the Regional Labour Commissioner(Central)Assansol before whom the appeal was wrongly filed.
The writ petitioner was further asked to get the order of the controlling authority certified by the said authority, which had not been done and was further instructed to draw the Demand Draft in favour of the controlling authority and Assistant Labour Commissioner (Central), which was deposited before the controlling authority. The writ petitioner had wrongly drawn the Demand Draft in favour of the Regional Labour Commissioner (Central) Assansol. The appeal and the Demand Draft were returned to the writ petitioner by an order dated April 10/19, 2017.
Thereafter, the writ petitioner 4 deposited the Demand Draft, as directed in favour of the Assistant Labour Commissioner(central), on May 12/13, 2017. The certificate regarding deposition was issued by the controlling authority on July 12, 2017. By a letter dated June 14, 2017 the writ petitioner was informed that the certified copy of the order of the controlling authority had not been enclosed, nor was the certificate of deposition of the awarded amount by the controlling authority enclosed with the Memorandum of Appeal, although, those were mandatory requirements to be complied with at the time of filing of the Memorandum of Appeal and the said Memorandum of Appeal was returned once again. By a letter dated July 13/14,2017, the writ petitioner deposited the above mentioned documents.
The appeal came up for hearing before the appellate authority on July 25, 2017 and the appellate authority came to a conclusion that certain documents which were 5 mandatorily required to be filed with the Memorandum of Appeal were not filed on time and Rule 18 of the relevant rules had not been complied with. The period of limitation of 60 days + 60 days with an application for condonation of delay, i.e. 120 days in total, had already expired. The appellate authority, thus, did not admit the appeal, as the same was time barred.
Aggrieved by the aforementioned order, the writ petitioner was filed for setting aside the order of the appellate authority as also the order of disbursement dated August 14, 2017. The writ petitioner also challenged the order of the controlling authority dated January 31, 2017 in the proceeding which are impugned before us.
The learned Single judge came to a finding that under the Payment of Gratuity Act, 1972 (hereinafter referred to as the said Act) in order to prefer the statutory appeal, certain provisions were required to be complied with, which the writ petitioner 6 failed to comply with and the non-compliance was entirely ascribable to the failure on the part of the writ petitioner to act in terms of the rules prescribed.
The learned Single judge also held that the relevant documents as prescribed by Sub-section(7) of Section 7 of the said Act read with Rule 18 of the Payment of Gratuity (Central) Rules, 1972 had not been complied with and under such circumstances, the learned Single judge held that the Appellate Authority was justified in dismissing the appeal of the writ petitioner which was time barred, in view of the fact that there was no appeal in the eye of law within the period of limitation prescribed as the Memorandum of Appeal was not filed along with the documents as required by law within the time prescribed.
Sub-section (7) of Section 7 of the Payment of Gratuity Act, 1972 stipulates as follows :-
"Any person aggrieved by an order under sub-section(4) may, within sixty days from the date of receipt of 7 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."
Rule 18 of the Payment of Gratuity (Central) Rules, 1972 stipulates as follows :-
"18. Appeal - (1) The Memorandum of appeal under sub-section (7) of Section 7 of the Act shall be submitted to the appellate authority with a copy thereof to the opposite party and the controlling authority either through delivery in person or under registered post acknowledgement due.
(2)The Memorandum of appeal shall contain the facts of the case, the decision of the controlling authority, the grounds of appeal and the relief sought.
(3)There shall be appended to the Memorandum of appeal a certified copy of the finding of the controlling authority and direction for payment of gratuity.
(4)On receipt of the copy of Memorandum o appeal, the controlling authority shall forward records of the case to the appellate authority.
(5)Within 14 days of the receipt of the copy of the Memorandum of appeal, the opposite party shall submit his comments of each paragraph of the Memorandum with additional pleas, if any, to the appellate authority with a copy to 8 the appellant.
(6)The appellate authority shall record its decision after giving the parties to the appeal a reasonable opportunity being heard. A copy of the decision shall be given to the parties to the appeal and a copy thereof shall be sent to the controlling authority returning his records of the case.
(7)The controlling authority shall, on receipt of the decision of the appellate authority, make necessary entry in the records of the case maintained in Form 'Q' under sub-rule(1) of rule 16.
(8)On receipt of the decision of the appellate authority, the controlling authority shall, if required under that decision, modify his direction for payment of gratuity and issue a notice to the employer concerned in Form 'S' specifying the modified amount payable and directing payment thereof to the appellant, under intimation to the controlling authority within fifteen days of the receipt of the notice by the employer. A copy of the notice be endorsed to the appellant employee, nominee or legal heir, as the case may be and to the appellate authority."
The conjoint reading of the provisions of sub-section (7) of Section 7 of the Payment of Gratuity Act and Rule 18 of the Payment of Gratuity Rules (Central), 1972 will indicate that unless the Memorandum of Appeal is accompanied with documents showing service upon the opposite party and the controlling authority and without the 9 certified copy of the finding of the controlling authority and direction for payment, there shall be no appeal in the eye of law.
Sub-section (7) of Section 7 of the Payment of Gratuity Act, 1972 prescribes the period of limitation of 60 days from the date of receipt of the order, however, the appellate authority has been vested with the power to condone the delay for a further period of 60 days, provided the appellate authority is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of 60 days.
It will not be out of context to mention that the appellate authority being the creature of a statute is vested with jurisdiction to condone the delay beyond the permissible period as provided under the statute. The period up to which the prayer for condonation of delay can be accepted is statutorily provided in this case, as 60 days with further period of 60 days upon 10 condonation of delay as per sub-section (7) of Section 7 of the Payment of Gratuity Act, 1972. Reliance may be placed in the decision of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur & Ors. reported in (2008)3 SCC 70 and the relevant portions of the above decision is quoted below :-
"The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of Limitation Act, 1963 (in short "the Limitation Act") can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him to the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to Sub-section(1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days.11
That language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by codoning the delay only up 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period."
(Emphasis supplied) It is also noteworthy to mention that in Calcutta Electric Supply Corporation Limited & Another Vs. Kalavanti Doshi Trust & Ors. reported in 2011(1)CHN 182, A Division Bench of this Court held that the Writ Court should not by invoking the writ jurisdiction under Article 226 of the Constitution of India revive a time barred remedy. The relevant portion of the above decision is quoted below:-
" As pointed out by the Supreme Court in the case of Chattisgarh State Electricity Board V. Central Electricity Regularity Commission and Ors., MANU/SC/0252/2010: 2010(5) SCC 23), in this type of cases, there is even no scope of application of Section 5 of the Limitation Act by taking aid of Section 29(2) of the Limitation Act and as such, it is apparent that on the date of presentation of the writ application, the remedy of the writ Petitioners was 12 totally barred. It is now settled law that a Writ Court should not by invoking jurisdiction under Article 226 of the Constitution of India revive a barred remedy."
The learned Advocate appearing for the respondents submits that the Payments of Gratuity Act, 1972 and the rules are very clear on the point of limitation. Neither the appellate authority nor the Writ Court can condone the delay beyond the prescribed period of limitation.
In view of the above, we do not find any irregularity or infirmity with the order of the learned Single judge. The order of the learned Single judge is hereby affirmed.
The authorities are directed to comply with the direction of the controlling authority regarding payment of Gratuity amount of Rs. 3,50,000/- within a period of four weeks from the date of communication of this order.
In view of the dismissal of the application for stay, no further point needs to be discussed in the appeal.
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The appeal and the application for stay are dismissed.
There will be, however, no order as to costs.
Later A prayer is made on behalf of the appellant for stay of operation of the order. The prayer stands rejected.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Debasish Kar Gupta, J.) (Shampa Sarkar, J.) 14 15 16