Madras High Court
L. Palaniswamy vs The Appellate Authority Under The ... on 11 June, 1999
Equivalent citations: 1999(2)CTC568, (1999)IILLJ1263MAD
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
ORDER
1. This writ petition is filed on behalf of an employee, whose appeal stands dismissed by the Appellate Authority under the Payment of Gratuity. Act, 1972. The petitioner herein was an employee of the second respondent and having served for a number of years, claimed the gratuity in terms of the Payment of Gratuity Act. The Controlling Authority, after hearing the petitioner, came to the conclusion that the petitioner was entitled to the balance amount of Rs. 3,341.35. This order seems to have been passed on 10th of May, 1988. The appeal against this order under Section 7 of the Payment of Gratuity Act was filed. The Memorandum of Appeal suggests that the petitioner was aggrieved because of the refusal of the payment of balance of Rs. 2,785.45. It is apparent from the order passed by the Appellate Authority that the appeal came to be rejected straightway on account of the fact that the appeal was filed beyond the permissible limitation. The learned Counsel now challenges the said order on the ground that the appellant/petitioner should have been heard before passing the order and there ought to have been consideration of the petitioner's claim on merits also. The learned Counsel appearing for the petitioner invited my attention to the condonation of delay application which has been filed probably, along with the appeal on 12.10.1988. In this condonation of delay application, it is suggested that the appellant/petitioner got the copy of the order only on 13.6.1988 and he hence could not file the appeal in time. It is further suggested that since the Union then intervened on his behalf and tried to negotiate with the management for the balance payment of gratuity, the appeal was not filed and ultimately when the management failed to respond to the efforts made by the Union, the appeal came to be filed which was late by 54 days. According to the learned Counsel, this was a good reason for the Appellate Authority to condone the delay. The further argument is that if the limitation is held to start from 13.6.1988, the appeal would be in time and rejection of condonation of delay application without hearing the petitioner was wholly incorrect.
2. Section 7 of the Payment of Gratuity Act provides for a determination of the amount of gratuity. Sub-section (4) provides for the powers of the Controlling Authority to determine the amount of gratuity, while sub-section (7) suggests that any person aggrieved by an order passed by the Controlling Authority under sub-section (4) could prefer an appeal within 60 days from the date of receipt of the order. Now, admittedly, this order was received on 13.6.1988 and, therefore, the appeal could have been filed ordinarily within 60 days therefrom, which would be on or about 12.8.1988. However, it was not so filed and ultimately it came to be filed on 12.10.1988. The proviso to sub-section (7) provides that the Appellate Authority can entertain the appeal by extending the period by sixty days in addition to the sixty days which is a normal limitation. Therefore, taking this into consideration, the appeal had to be filed, according to the learned counsel, on 12.10.1988 on which day it was actually filed. It is the case of the learned Counsel, therefore, that considering the positive language of section 7, the appellate authority ought to have given an opportunity to the petitioner to argue on the condonation of delay application, as it was clearly pleaded by the petitioner in his condonation of delay application that he had received the copy of the order only on 13.6.1988. According to the learned Counsel, the abrupt rejection of the condonation of delay application without even hearing the petitioner was not justified at all.
3. Though there is no representation on behalf of the second respondent, the employer of the petitioner, the learned Government Advocate, who appears on behalf of the first respondent, the Appellate Authority, has very fairly stated that the hearing should have been given, particularly because there is a specific averment in the application to the effect that the copy of the order was received only on 13.6.1988 and if the limitation had been counted from that date, then, the appeal was certainly within the limitation.
4. A glance at the Appellate Authority's order suggests that the Appeal has been rejected solely on the ground that the Appeal is filed beyond 120 days. There does not appear to be any consideration of the claim by the petitioner that the copy of the order was received only on 13.6.1988. The language of the provision is very clear and the limitation would start not from the date of passing of the order, but from the date of receipt of the copy of the order. It is apparent from the foot-note of the order that the copy of this order was ordered to be sent to the appellant/petitioner by "Registered Post with Acknowledgment Due". The employer has not put in anything on record to suggest that the copy of the order was made available or became available to the petitioner earlier than on 13.6.1988.
5. In that view, it will have to be held that the assertion of the petitioner that the copy of the order was received by him only on 13.6.1988 is correct since, it has remained unchallenged. If that is so, then the language of Section 7 of the Act would have to be given the full force and in that case, the petitioner's condonation of delay application would deserve an active consideration by the Appellate Authority. Since the Appellate Authority has not given any reason and has not considered the claim of the petitioner on the question of condonation of delay, the impugned order is set aside and the matter is remitted back to the Appellate Authority. The Appellate Authority shall give a fresh notice to the petitioner and hear him on the question of condonation of delay and decide the condonation of delay application in the light of the observations made in this order. The writ petition is allowed without any costs.