Gujarat High Court
Gujarat vs Dr.R on 26 March, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/12192/2009 14/ 14 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12192 of 2009
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GUJARAT
STATE ROAD TRANSPORT CORPORATION - Petitioner(s)
Versus
DR.R
D RATHOD - Respondent(s)
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Appearance
:
MR
HARDIK C RAWAL for
Petitioner(s) : 1,
MR MUKESH B DAVE for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 26/03/2010
ORAL
ORDER
Heard learned Advocate Mr. Hardik C. Rawal for petitioner GSRTC. Petitioner Corporation has challenged order passed by Controlling Authority dated 24th May, 2007 wherein Controlling Authority under the Payment of Gratuity Act has directed petitioner to pay Rs.11538.00 with 10 per cent simple interest, amount of gratuity to respondent. Order passed by Controlling Authority was challenged by petitioner by filing an appeal No. 41 of 2009 before Appellate Authority which has been rejected by appellate authority on 29th July, 2009 on the ground that the appeal was preferred beyond 120 days by petitioner and appellate authority has no power to condone delay beyond 120 days in filing of an appeal before appellate authority under the Payment of Gratuity Act. Before appellate authority, order passed by Controlling Authority dated 24th May, 2007 was challenged by petitioner. According to appellant means present petitioner, order passed by Controlling Authority was received by appellant but appeal was preferred on 20.4.2009 which was received by office of appellate authority on 21.4.2009 and, therefore, appellate authority hascommitted error in coming to conclusion that there is no power to condone delay beyond period of 120 days and, therefore, appeal has been dismissed accordingly.
Learned Advocate Mr. Hardik C. Raval appearing for petitioner corporation has submitted that Controlling Authority has committed gross error in granting amount of gratuity in favour of respondent who was serving as honourary panel doctor on part time basis one hour per day on contract basis which was being renewed from time to time. On attaining age of superannuation, contract was not extended and, therefore, respondent is not entitled for any amount of gratuity and yet claim was made before Controlling Authority which has been wrongly granted by Controlling Authority and appellate authority has also wrongly rejected appeal while not condoning delay beyond period of 120 days. He submitted that specific contention was raised before controlling authority that respondent being Doctor,is not covered by definition of employee given under section 2(e) of the Payment of Gratuity Act. He submitted that this contention has not been properly examined by controlling authority and, therefore, present petition is filed by petitioner before this Court.
Before controlling authority, there is no dispute in respect to facts of date of joining, date of superannuation and last salary which was received by respondent. Only dispute or contention raised by petitioner is that respondent is not covered by definition of employee given under sec. 2(e) of Payment of Gratuity Act. As per section 2(e) of the Payment of Gratuity Act, 1972, 'employee' means any person other than an apprentice employed on wages in any establishment to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied and whether or not such person is employed in a managerial or administrative capacity but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity. Considering aforesaid definition of employee, it squarely covers respondent who was an employee on wages in petitioner corporation for doing skilled/semi-skilled managerial work which is considered to be technical as well as clerical work and, therefore, controlling authority has relied upon decision of this Court given in Special Civil Application No. 16329 of 2003 and 17606 of 2003 to 17612 of 2003 decided on 25.2.2004. Controlling Authority has pointed out difference between two definitions, one is under the provisions of Industrial Disputes Act, 1947, section 2(s) where definition of 'workman' has been given and another section 2(e), definition of employee given under the provisions of Payment of Gratuity Act. The only difference which has been found is that in Industrial Disputes Act, 1947, apprentice is covered and in Payment of Gratuity Act, 1972, apprentice is not covered and workman who is working in supervisory capacity is not covered under the definition of workman under section 2(s) of ID Act, 1947 but this aspect is not necessary to be considered while considering definition of employee given under section 2(e) of the Payment of Gratuity Act. Honorary wages are covered by definition given under the provisions of the Payment of Gratuity Act. As per section 2(s) of the Payment of Gratuity Act, 1972, wages means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, over time wages and any other allowance. Therefore, even incentives are also included in the definition of wages given under section 2(s) of the Payment of Gratuity Act, 1972 as per decision of Madras High Court in case of Anglo French Textiles Ltd. v. Labour Court, reported in 1981-58-FJR page 258 (Madras). Considering definition of wages given under section 2(s) of the Payment of Gratuity Act, 1972, honorarium wages received by respondent is also covered by definition of wages and looking to definition as it is, honorary wages are also included, therefore, controlling authority has rightly considered definition of employee under section 2(e) relying upon decision of controlling authority, Ahmedabad and appellate authority, Ahmedabad in Application No. 50 of 2004 and appeal no.15 of 2005 where it has been held that Medical Officers are performing technical work and has rightly held that respondent medical officer is covered by definition of employee given under section 2(e) of the Payment of Gratuity Act, 1972 and wages received by him are also satisfying ingredients of section 2(s) of Payment of Gratuity Act and Controlling Authority has rightly granted amount of gratuity in favour of respondent. Dispute was raised by honorary part time medical officer working in ST Corporation in respect of challenging age of superannuation where this Court has held that medical officer working as honorary part time in ST Corporation is covered by definition given under section 2(s) of Industrial Disputes Act, 1947 where arguments advanced by advocate for ST Corporation in para 7 in case of GSRTC versus Dr. Pravinchandra C. Nayak, reported in 2004 (3) GLH page 291 is relevant and, therefore, para 7 of said judgment is quoted as under:
7. Mr. Rawal has relied on the decision of this Court in the case of ARUN MILLS LIMITED V/S. DR. CHANDRAPRASAD C. TRIVEDI, 17 G.L.R. 291 wherein it is held that "if a person is employed in an industry to discharge his duties as a medical man, he would be a person doing a technical work for the said industry and he would squarely fall within the definition of the word "workman" given in Section 2(s) of the Industrial Disputes Act, and he would therefore, be entitled to bonus as may be declared by the Company." If the doctors are to be treated as workman under the I.D. Act for the purpose of getting benefits such as Bonus, D.A. etc. on the same analogy, the Doctor can also be treated as workman for the purpose of determining the date of retirement and if the date of retirement is 58 years in all other cases, same would equally apply to the doctors and hence, on completion of the retirement age, the doctors have no legal right to continue on the said post and no notice is required to discharge them from service. The petitioners are not entitled to any relief claimed in the petition and petitions are therefore, required to be dismissed and the present Letters Patent Appeals filed against the interim order of the learned Single Judge are required to be allowed.
In view of above submissions as referred to in paragraph 7, specific contention was raised by Corporation before this Court in aforesaid decision that honorary medical officer is to be considered as workman within the meaning of section 2(s) of ID Act, 1947, now, it is not open for petitioner to raise contention which is contrary to contention raised by corporation in aforesaid decision and, therefore, contention which is contrary to the same cannot be accepted. According to my opinion, controlling authority has rightly considered claim of respondent and has rightly granted amount of gratuity as respondent was an employee of petitioner establishment within meaning of section 2(e) of the Payment of Gratuity Act, 1972 and wages received by respondent are covered within the definition given under section 2(s) of the Payment of Gratuity Act, 1972.
Appellate authority has also considered section 7(7) where appeal is to be preferred within 60 days and if it is not preferred within 60 days, then, further 60 days can be granted by appellate authority while condoning delay but in case of delay beyond 120 days, appellate authority has no jurisdiction to condone further period beyond 120 days. This aspect has been considered by appellate authority relying upon decisions referred to in para (A), (B) and (C) at internal page 3 of order. Therefore, para (A), (B), (C) and (D) at page 3 of order of appellate authority dated 29.7.2009 are quoted as under:
(A) 2003 (1) LLN 976 IN THE HIGH COURT JUDICATURE ANDHRA PRADESH (Writ Petition No.10504 of 1991, decided on 22 March 2002) between Liquidator, Warangal District Cooperative Society Ltd., Warangal and appellate authority under Payment of Gratuity Act, 1972/Deputy Commissioner of Labour Court, Warangal and others Payment of Gratuity Act, 1972 S. 7(7) Proviso Limitation Act, 1963. S. 5 Delay of more than 120 days in filing appeal under Gratuity Act cannot be condoned by appellate authority invoking S.5 of Limitation Act. Limitation prescribed in Special Act (Payment of Gratuity Act) subsequent to enactment of Limitation Act, 1963, prevails even though operation of Limitation Act, 1963 is not expressly excluded by Special Act (Gratuity Act).
(B) 2004 I CLR 342 In the High Court of Gujarat Special Civil Application Nos. 10611 and 10612 of 1993. Indian Red Cross Society v. Vidyaben H. Vyas.
III.
Appeal : Controlling Authority allowed application for gratuity Appeal challenging said order to be filed within 60 days Appellate Authority can condone delay of further 60 days Held in this case that appeal filed after expiry of 120 days cannot be entertained _ Payment of Gratuity Act, 1972 S. 7(7).
IV. Deposit of amount of Gratuity Held that as per law, Amount of gratuity as ordered by controlling Authority has to be deposited while filing Appeal Hence Appeal cannot be entertained unless the amount is deposited Payment of Gratuity Act, 1972 - S. 7(7).
(C) In the High Court of Bombay (O.O.C.J.W.P. No.46/2003 dated May 2, 2006) Between Metal Box India Ltd. And B.R. Rangari Asstt. Commissioner of Labour and Others.
Payment of Gratuity Act, 1972 Section 7(7) Appeal Against order of controlling authority Limitation Appellate Authority has no power to extend period beyond 60 days after granting extension for 60 days.
(D) In the High Court of Gujarat Special Civil Application No. 11844 of 2007, Commissioner v. Legal Heirs of deceased Meghjibhai Viraji Lilavantiben -
Under Section 7 sub section (1) of the Act, the appeal is required to be filed within 60 days from the date of receiving the copy of order and appellate authority has power to condone the delay of further 60 days which total comes to 120 days. Beyond that, appellate authority has no power to condone the delay in filing the appeal before the appellate authority.
In view of the aforesaid decisions which have been relied upon and which have supported to conclusion of appellate authority that appellate authority has no power and jurisdiction to condone delay in filing of appeal beyond period of 120 days. Recently Division Bench of Bombay High Court has also taken same view that under section 7(7) of the Payment of Gratuity Act, 1972, appellate authority has no jurisdiction to condone delay in filing appeal beyond period of 120 days, reported in 2009 II LLJ 458, Bombay.
In case of Commissioner of Customs and Central Excise versus Hongo India Private Limited (2009) 5 SCC 791, apex court has held that where ever period of limitation is prescribed in special statute, then, limitation Act is not applicable. Relevant discussion made by apex court in para 30 to 36 is quoted as under:
30.
In the earlier part of our order, we have adverted to Chapter VIA of the Act which provides appeals and revisions to various authorities.
Though the Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to Appellate Tribunal. Also an additional period of 90 days in the case of revision by Central Government has been provided. However, in the case of an appeal to the High Court under Section 35G and reference application to the High Court under Section 35H, the Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act.
31. In this regard, it is useful to refer to a recent decision of this Court in Punjab Fibres Ltd., Noida (supra). Commissioner of Customs, Central Excise, Noida is the appellant in this case. While considering the very same question, namely, whether the High Court has power to condone the delay in presentation of the reference under Section 35H(1) of the Act, the two-Judge Bench taking note of the said provision and the other related provisions following Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur and Others, (2008) 3 SCC 70 concluded that "the High Court was justified in holding that there was no power for condonation of delay in filing reference application."
32. As pointed out earlier, the language used in Sections 35, 35B, 35EE, 35G and 35H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.
33. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision.
34. Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to High Court.
35 It was contended before us that the words "expressly excluded"
would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law here in this case is Central Excise Act. The nature of the remedy provided therein are such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.
36. The scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed under Section 35H(1) to make a reference to High Court is absolute and unextendable by court under Section 5 of the Limitation Act. It is well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act.
In view of aforesaid recent decision of apex court and considering observations made by apex court,when special statute is providing limitation for filing appeal within 60 days and further period also granted by statutory provisions 60 days in all it comes to 120 days for filing appeal and if appellant is not able to file appeal within 120 days before controlling authority under the Payment of Gratuity Act, then, appellate authority has no power to condone delay beyond 120 days by invoking sec. 5 of Limitation Act, 1963 and provisions of Limitation Act are excluded because of special provisions made in special statute (Payment of Gratuity Act, 1972) and, therefore, contentions raised by learned Advocate Mr. Hardik C. Rawal cannot be accepted and hence same are rejected. According to my opinion both authorities controlling authority and appellate authority have rightly examined matter and not committed any error in deciding application as well as appeal which would require interference of this court in exercise of power under Article 227 of Constitution of India. Hence, there is no substance in this petition and therefore, same is dismissed.
(H.K. Rathod,J.) Vyas Top