Gujarat High Court
Pitamberdas vs Girishkumar on 29 March, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/844/2010 20/ 22 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 844 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD Sd/-
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
YES
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ?
NO
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PITAMBERDAS
RAMCHANDRA VATWANI - Petitioner(s)
Versus
GIRISHKUMAR
TULSIBHAI MAKWANA & 24 - Respondent(s)
=========================================================
Appearance
:
MR
PRABHAKAR UPADYAY for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
25.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 29/03/2010
ORAL
JUDGMENT
1. Heard learned advocate Mr. Prabhakar Upadhyay appearing on behalf of petitioner.
2. The petitioner has challenged order passed by Controlling Authority dated 25th June 2008 in Gratuity Case No.125 of 2007 to 149 of 2007 and order passed by Controlling Authority dated 6th July 2009 and order passed by Appellate Authority dated 29th July 2009 before this Court in present petition.
3. Learned advocate Mr. Upadhyay raised contentions before this Court that on 26th august 2008, the settlement was arrived at between present petitioner and representative of present respondents by way of full and final settlement and representative of present respondents collected the amount from the present petitioner. The present petitioner preferred Review Application before Controlling Authority and Controlling Authority without registering the Review Application on record rejected the same on 6th July 2009. Against which, appeal which was preferred by petitioner has been also rejected because appeal was not preferred in time. Thereafter, Recovery Certificate has been issued by Controlling Authority and Recovery Officer has issued notice under Section 154 of Bombay Land Revenue Code on 3rd August 2009. Therefore, he submitted that respondents employees have filed application before Controlling Authority under the provisions of Payment of Gratuity Act on 5th October 2007 giving details about working period of service and salary and date of termination. The Controlling Authority has decided all applications on 25th June 2008 in Gratuity Case No.125 of 2007 to 149 of 2007, where, hearing was taken place between the parties before Controlling Authority between 19th November 2007 to 16th June 2008, where, on behalf of Union, one Mr. R.G. Jogi and Assistant Secretary Jayantibhai Patel was remained present, but, on behalf of petitioner, no one remained present and no reply was filed by petitioner, therefore, Controlling Authority has directed to present petitioner to pay amount of gratuity claimed by workmen by order dated 25th June 2008. The Controlling Authority has noted that though notice has been served to petitioner and workmen has sent Form - 'I' to petitioner establishment, but, no reply is filed by petitioner and application was also not submitted before Controlling Authority for requesting time and no objection raised against gratuity application filed by workmen, therefore, ex-parte order has been passed against present petitioner.
4. Thereafter, petitioner has filed Review Application before Controlling Authority with a prayer to set aside ex-parte order in 9th June 2009. This Application has been rejected on 6th July 2009 by Controlling Authority after period of limitation and therefore, Review Application has been rejected.
5. This Court has asked specific question to learned advocate Mr. Upadhyay that is there any provisions made in Payment of Gratuity Act which gives power to Controlling Authority to review the order or to set aside its ex-parte order ? He is not able to point out any provisions from the Payment of Gratuity Act which gives power to Controlling Authority to review its own order or to set aside its ex-parte order. Therefore, contentions raised by learned advocate Mr. Upadhyay cannot be accepted, because, there is no provision pointed out by him that Controlling Authority has power to review its own order or to set aside ex-parte order. Thereafter, appeals have been preferred by petitioner against order passed in Review Application as well as ex-parte order passed by Controlling Authority on 25th June 2008 and 6th July, 2009. These appeals have been rejected on the ground of delay under Sec.7(7) of Payment of Gratuity Act, wherein, appeal is required to be filed by petitioner within a period of 120 days from date of order passed by Controlling Authority 30th June 2008. Therefore, Appellate Authority has rejected appeal on the ground of delay, for which, Appellate Authority has no power to condone delay beyond period of 120 days under provisions of Sec.7(7) of Payment of Gratuity Act.
6. Thereafter, Recovery Certificate has been issued by Controlling Authority to recover the amount from petitioner under the provisions of Bombay Land Revenue Code which notice under Sec.152 dated 8th April 2009 has been received by petitioner on 4th May 2009. Thereafter, on number of occasions, amount has been demanded by Recovering Authority, but, that amount is not deposited by petitioner. Therefore, warning was given to petitioner for attaching his movable properties under Sec.154 of Bombay Land Revenue Code.
7. It is necessary to note that a letter Page 58 Annexure 'H' dated 1st July 2007 has been given by one Trilokchand Mulchand Vatvani addressed to petitioner to pay amount of gratuity to concerned workmen, otherwise, necessary action will be taken against petitioner by Union Representative. Annexure 'H' Page 62 is a Settlement arrived at between Trilokchand Mulchand Vatvani being a Union Representative of 25 workmen and Pitamberdas Ramchand Vatvani the petitioner owner of establishment on 26th August 2008 before Notary Advocate. In the said Settlement, Union Representative has agreed for lump-sum amount of Rs.75,000/- on behalf of 25 workmen which is contrary to order passed by Controlling Authority and Union Representative has agreed that total amount has been received by him Rs.1,50,000/- and in view of that, workmen will not claim any Earned Leave and amount of Gratuity. Relying upon this Settlement arrived at between Union Representative and petitioner against claim of gratuity and Earned Leave of workmen, according to order passed by Controlling Authority in favour of 25 workmen, total amount of gratuity comes to Rs.12,20,940/-. Against which, a Union Representative has settled the matter on behalf of 25 workmen in Rs.75,000/- only, which is contrary to Sec.14 of the Payment of Gratuity Act, which having overriding effect to other enactment or any instrument or contract having effect by virtue of any enactment other than this Act. So, any contract or settlement which is found to be contrary to provisions of Payment of Gratuity Act where less amount has been paid to workman against the claim of workman for more amount, then, such contract is contrary to provisions of Payment of Gratuity Act.
8. The right to receive an amount of gratuity as per provisions made in Payment of Gratuity Act; any curtailment of benefits by management or deprivation of any existing benefits available to workman under provisions of Payment of Gratuity Act cannot be inferred without a provision to that effect either express or implied. Therefore, such alleged settlement with Union Representative which apparently found contrary to order passed by Controlling Authority against interest of present respondent workmen. No deduction or reduction in amount of gratuity is permissible contrary to provisions of Payment of Gratuity Act, 1972.
9. Therefore, the settlement which has been relied upon by learned advocate Mr. Upadhyay is not helpful to petitioner, because, amount which has been accepted for claim of 25 workmen only Rs.75,000/- against total claim of workmen to receive amount of gratuity which comes to Rs.12,20,940/- as per order passed by Controlling Authority. Therefore, such settlement itself is null and void, illegal and contrary to provisions of Payment of Gratuity Act.
10. It is also necessary to note that this settlement does not bare the signature of any workman. This settlement has not been accepted by any workman and not produced on relevant record by petitioner before Controlling Authority and Appellate Authority. In present case, petitioner has not filed any affidavit of Union Representative Shri Trilokchand Mulchand Vatvani. The employer petitioner Pitamberdas Ramchandra Vatvani and Union Representative, both, belong to same caste and therefore, it is apparently found that there is a clear collusion between parties who have settled the matter in absence of workmen against the claim of workmen of gratuity which apparently contrary to the Payment of Gratuity Act. The employer petitioner is under legal obligation to pay complete amount of gratuity to concerned employees who are entitled as per law and when any amount less than it means contrary to provisions of Payment of Gratuity Act is to be paid, then, no such settlement or contract is permissible under the Payment of Gratuity Act. Therefore, this alleged settlement is not binding to 25 workmen those who are employees of petitioner and in whose favour, Controlling Authority has passed the order against the petitioner on 4th July 2008. Therefore, contentions raised by learned advocate Mr. Upadhyay relying upon aforesaid settlement with only Union Representative cannot be accepted, because, it is contrary to provisions of Payment of Gratuity Act as well as prima facie it is found to be a collusion with Union Representative and employer both belong to one caste. The Union Representative has not filed any affidavit before either of Authority that workmen have authorised him and payments were made to concerned employees as per alleged settlement dated 26th August 2008.
11. The Appellate Authority has rejected the appeal by order dated 29th July 2009 while considering provisions of Sec.7(7) of Payment of Gratuity Act. The appeal is required to be preferred by employer against order passed by Controlling Authority within a period of 60 days from date of receiving copy of order passed by Controlling Authority and thereafter, further 60 days, for which, Appellate Authority can condone it in filing appeal and second condition is that along with appeal, there is a precondition to deposit an amount directed by Controlling Authority either before Controlling Authority or before Appellate Authority. The present petitioner has not filed appeal within 120 days from date of receiving copy of order passed by Controlling Authority. The Appellate Authority has no power to condone delay beyond period of 120 days in all. The order passed by Controlling Authority dated 30th June 2008 and petitioner on 14th July 2009 means after a period of more than one year had preferred an appeal, therefore, it has been rejected.
12. Learned advocate Mr. Prabhakar Upadhyay has not made any submission in respect of merits of the matter as to whether workmen are entitled amount of gratuity as claimed or not. Learned advocate Mr. Upadhyay is also not able to point out as to why petitioner remained absent before Controlling Authority. He is also not able to justify by giving sufficient cause for remaining absent before Controlling Authority and there is no submission at all made that workmen are not entitled at all amount of gratuity from petitioner as directed by Controlling Authority. There is no submissions made on merits by Learned Advocate Mr. Upadhyay.
13. I have considered submissions made by learned advocate Mr. Prabhakar Upadhyay appearing on behalf of petitioner and I have also scanned the entire papers annexed to this petition.
14. The procedure for filing appeal is prescribed in Rule 18 of Payment of Gratuity (Central) Rules, 1972. Employer's appeal must be accompanied by certificate of deposit. Deposit of gratuity amount either before Controlling Authority or before Appellate Authority is mandatory for filing of appeal against order of Controlling Authority. [See : 1990 LLR 28 (Madras High Court) Onward Trading Co., Madras v. Dy. Commissioner of Labour, Madras].
Employer preferred the appeal within time but without producing the certificate of deposit of gratuity amount, issued by the Controlling Authority under Sec.7(4) of the Act, Appellate Authority ordered the appeal to be consigned as it was not in accordance with law. The appeal against order of Controlling Authority after the prescribed period of limitation will not be maintainable. [See : 1994 LLR 894 (Bombay High Court) Gurudeo Ayurved Mahavidyalaya Gurukul Ashram v. Madhav].
At the time of preferring an appeal and if there is no deposit of the amount, there is no valid appeal. In case when amount is not deposited as ordered by Controlling Authority within limitation of 120 days, then, appeal is barred by limitation and untenable. [See : 2006 (II) CLR 572 : 2006 LLR (SN) 874 : 2006 (III) LLJ 686 : 2006 (III) FLR 466 (Bombay High Court) Metal Box India Ltd. v. B.R. Rangari, Addl. Commissioner of Labour].
The Appellate Authority has no power to condone the delay beyond 120 days. The Payment of Gratuity Act is a special statute and there is provision for condonation of delay by extending period of 60 days by another 60 days. There is no provision for further condonation of delay. In the absence of conferment of jurisdiction to condone further delay, the statutory authority which is a quasi-judicial authority cannot condone delay or extend the period of limitation. [ See : 2000 (86) FLR312 (Madhya Pradesh High Court) Western Coalfields Ltd. v. Controlling Authority].
15. Earlier, the Calcutta High Court has also held that Appellate Authority under Sec.7 of Payment of Gratuity Act is not a Court but an Executing Authority who has been vested with quasi-judicial powers in order to enable it to act as Appellate Authority and therefore, Section 5 of the Limitation Act cannot be invoked and provisions of Limitation Act do not apply to personal designate or administrative authorities. [See : (1987) 1 LLJ 41 (Calcutta High Court) City College v. State of West Bengal].
The Payment of Gratuity Act prevails over Limitation Act. The appeal filed after lapse of 13 months from that date of original order was already barred by the time even after allowing the time spent in unsuccessfully pursuing writ petition. As such the order of Controlling Authority directing payment of gratuity is to be held final. [See : (I) 2007 (1) CLR 984 (Karnataka High Court) K.V. Rama Rao v. Prashant Theatre, Tumkar (ii) 2003 LLR 242 (AP High Court) Liquidator, Warangal Distt. Co-op. Society Ltd., Warangal v. Appellate Authority under Payment of Gratuity Act, 1972/Dy. Commissioner of Labour, Warangal (iii) 2000 LLR 881 (Madhya Pradesh High Court) Western Coalfields Limited v. Controlling Authority (iv) 2003 LLR 61 (AP High Court) Warangal Distt. Co-operative Society Ltd. v. Appellate Authority under Payment of Gratuity Act, 1972].
16. Right of appeal under Sec.7(7) becomes vested right only when precondition of deposit is complied with. The Appellate Authority is not to admit appeal unless at the time of preferring appeal, the appellant either produces a certificate of the Controlling Authority to the effect that the Appellant has deposited with the Authority amount of gratuity required to be deposited under Section 7(4) or deposit such amount with the Appellate Authority. In such circumstances, Appellate Authority has no discretion to admit/accept the appeal unless condition incorporated is satisfied by appellant. It is not the case of petitioner before this Court that precondition of deposit the amounts as per order passed by Controlling Authority was deposited by petitioner either before Controlling Authority or before Appellate Authority.
17. The provisions of Order XLI Rule 3A of the Code of Civil Procedure in relation to appeals, for that, there is no express provision or there is no indication made in the Payment of Gratuity Act that said provision be read into the Act.
18. In view of aforesaid law laid down by various High Courts and recent decision of Apex Court that whenever statutory provision is made to file appeal within particular period, then, in such cases, provisions of Limitation Act is not made applicable as decided by Apex Court in case of Commissioner of Customs and Excise v.
Hongo India Pvt. Ltd., and Another reported in (2009) 5 SCC 791.
The relevant discussion is made in Para 10 to 15 are quoted as under :
10. Admittedly in all these matters, the Commissioner of Customs & Central Excise approached the High Court by way of reference application beyond the prescribed period of 180 days. The High Court of Allahabad, with reference to the scheme of the Act and in the absence of specific provision for applying Section 5 of the Limitation Act, took note of other provisions i.e., Sections 35, 35B and 35EE, which enable the other authorities to condone the delay if sufficient cause was shown, accordingly, dismissed the reference application filed by the Commissioner of Central Excise on the ground of limitation.
11) Now let us consider whether Section 5 of the Limitation Act is applicable in respect of reference application filed in the High Court under Section 35H of the unamended Act.
12) Mr. Parag P. Tripathi, learned Additional Solicitor General, appearing for the appellant contended that in view of the fact that the High Court has all inherent and plenary power, is competent to consider the delay even after the prescribed period under the Act. He further contended that in the absence of specific prohibition in the Act for condoning delay particularly in Section 35H in lieu of Section 29(2) of the Limitation Act, Section 5 of the Limitation Act is applicable and the High Court ought to have exercised its power by condoning the delay. He initially contended that since Section 35H speaks about the substantial question of public importance, even the delay, if any, has to be condoned.
13) On the other hand, learned counsel appearing for the respondents supporting the stand taken by the High Court submitted that the Central Excise Act is a self-contained Act and a Code by itself and in the absence of specific provision enabling the High Court to exercise its power by condoning the delay, the High Court is justified in refusing to entertain the reference application of the Excise Department filed beyond the prescribed period. He also contended that in the light of the scheme of the Act and of the fact that sufficient period, i.e, 180 days, has been provided for the Commissioner as well as the other party for making reference to the High Court, the legislative intent has to be respected.
14) Article 214 of the Constitution of India makes it clear that there shall be a High Court for each State and Art. 215 states that every High Court shall be a court of record and shall have all the powers including the power to punish for contempt of itself. Though we have adverted to Section 35H in the earlier part of our order, it is better to extract sub-section (1) which is relevant and we are concerned with in these appeals :
"35H.
Application to High Court - (1) The Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under section 35C passed before the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal."
Except providing a period of 180 days for filing reference application to the High Court, there is no other clause for condoning the delay if reference is made beyond the said prescribed period.
15) We have already pointed out that in the case of appeal to the Commissioner, Section 35 provides 60 days time and in addition to the same, Commissioner has power to condone the delay up to 30 days, if sufficient cause is shown. Likewise, Section 35B provides 90 days time for filing appeal to the Appellate Tribunal and sub-section (5) therein enables the Appellate Tribunal to condone the delay irrespective of the number of days, if sufficient cause is shown. Likewise, Section 35EE which provides 90 days time for filing revision by the Central Government and, proviso to the same enables the revisional authority to condone the delay for a further period of 90 days, if sufficient cause is shown, whereas in the case of appeal to the High Court under Section 35G and reference to the High Court under Section 35H of the Act, total period of 180 days has been provided for availing the remedy of appeal and the reference. However, there is no further clause empowering the High Court to condone the delay after the period of 180 days.
19. Recently, the Division of Bombay High Court has also considered similar question in case of Pharma Base India Pvt. Ltd., Mumbai v. State of Maharashtra and Another reported in 2009-II-LLJ 458 (Bombay).
The relevant discussion is made in Para 9 to 12, which are quoted as under :
9. Having heard the learned counsel appearing for the respective parties and having gone through the impugned order and Petition along with the annexures thereto and the case laws cited by the learned counsel in this regard, we are of the considered opinion that there is no merit in the Appeal. Sub-Clause 7 of the Section 7 reads as follows :
(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 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, extend 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 appellate authority such amount.
10. The plain reading of above said proviso will reveal that any person aggrieved by an order, under sub-clause 4 of section 7, may within 60 days from the receipt of the order, prefer an Appeal to the Appellate Authority. However, the Appellate Authority is at liberty, if a sufficient cause is shown, to extend the period of 60 days for further period of 60 days. The Second proviso of Section 7(7) provides that no Appeal by an employer shall be admitted unless, at the time of preferring an appeal, the Appellant either produce a certificate of 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 Section 7(4) with the Appellate Authority or deposit with the Appellate Authority such amount. Thus, this proviso has imposed fetter on the employers right to file an Appeal. It is amply clear, that employer is obliged to deposit the amount or produce the certificate of the controlling authority as the case may be at the time of preferring an Appeal.
11. In the background of above legal provisions, now let us consider the facts of the present case. There is no dispute of the fact that the Petitioner received copy of the order of controlling authority on 27/10/2006. There is also no dispute that Petitioner applied for the certified copy and received the same on 10/11/2006. In view of the provisions of Sub-Section 7 of Section 7, limitation would start to run from the date of receipt of the order and in this case limitation would start from 27/10/2007. We do not find any substances in the contention of the learned counsel appearing for the Petitioner that limitation would start to run from the date of receipt of the certified copy. The Petitioner from 27/10/2006 to 10/11/2006 did not apply for certified copy. For the first time the Certified Copy was applied on 10/11/2006 and the same was delivered to him on the same day. Therefore, at the most one day can be excluded which required to obtain Certified Copy while computing of period of limitation of either 60 days or further extended period of 60 days. The Petitioner sent Appeal by speed post which was received by the office of the Appellate Authority on 13/12/2006. However, along with this Appeal, Petitioner neither produced the certificate of the controlling authority to the effect that they have deposited with them an amount equal to the gratuity required to be deposited under sub-Section 4 of Section 7 nor deposited such amount with the Appellate Authority. In our view, if the Petitioner wanted to challenge the order of controlling authority, in that case, he was duty bound to produce the certificate or deposit the amount as the case may be, at the time of preferring an Appeal. Though the above dates show that the Petitioners preferred an appeal within a period of 120 days, mandatory deposit as contemplated under second proviso of Section 7(7) was not made within a period of 120 days. There is no dispute that this deposit was made by the Petitioner on 12/03/2007. Precondition of deposit at the time of preferring an Appeal being mandatory, we are of the view that it is to be presumed that the Petitioner filed Appeal only on 12/03/2007.
12. Since the Petitioner received order of the controlling authority on 27/10/2006, his appeal is beyond the period of 120 days, even if it granted the benefit of exclusion of time required for obtaining certified copies. The issue before the Division Bench in J.L. Morrison India Ltd.(supra) was whether the Appellate Authority under the payment of Gratuity Act, 1972 can entertain the Appeal beyond 120 days from the date of receipt of the order?. After examining several judgments including that of Apex Court, Division Bench concluded that the Appellate authority under the said Act cannot entertain the Appeal beyond 120 days from the date of receipt of the order. The Division Bench also held that Section 5 of the Limitation Act would have no Application, in this regard. In the facts and circumstances mentioned above, we are of the clear view that the Appellate Authority as well as the learned Single Judge of this Court rightly upheld the Respondent No.2 s preliminary objection regarding maintainability of the Appeal and there is no reason to interfere in the said findings.
20. In view of fact that absence of petitioner after receiving notice not explained by petitioner or sufficient cause shown by petitioner. There is no provision in Act which gives power to authority to review earlier order or to set aside ex-parte order and appeal preferred by petitioner beyond 120 days time barred and Appellate Authority has not power to condone delay. The precondition to deposit amount as per order of Controlling Authority not deposited by petitioner being undisputed facts as well as in that view of aforesaid decision made by this Court on the subject, the contentions raised by learned advocate Mr. Prabhakar Upadhyay cannot be accepted. The order passed by Controlling Authority in Gratuity Application, in Review Application and by Appellate Authority in Appeal cannot consider to be erroneous decision and Authorities concerned has not committed any error which requires interference by this Court while exercising the powers under Article 227 of the Constitution of India.
21. Therefore, there is no substance in present petition, accordingly, present petition is dismissed.
Sd/-
[H.K. RATHOD, J.] #Dave Top