Madras High Court
Tmt. A. Aruljothi vs The Deputy Commissioner Of Labour, ... on 28 June, 2002
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Aggrieved by the order of the Deputy Commissioner of Labour, Salem dated 09.06.1995, holding that there is no provision to condone the delay in filing an appeal in Tamil Nadu Payment of Subsistence Allowance Act, 1981, the petitioner has filed the above writ petition to quash the same and to issue direction to the first respondent to entertain the application of the petitioner for condonation of delay in filing an appeal.
2. The case of the petitioner is briefly stated hereunder:
The petitioner was employed under the second respondent since 17.08.1984. While so, the second respondent placed her under suspension on 21.03.1993, pending enquiry into certain charges levelled against her. Since the amount of subsistence allowance paid to her was not in accordance with the provisions of the Tamil Nadu Payment of Subsistence Allowance Rules, 1981 (in short "the Rules"), she filed a petition before the competent authority under the said Act against the second respondent to pay the balance amount. The competent authority, taking an erroneous view of the matter, allowed her claim partly. Therefore, she preferred an appeal to the first respondent. The first respondent by the impugned order dated 09.06.1995, returned her application for condonation of delay along with the appeal saying that there is no provision in the Tamil Nadu Payment of Subsistence Allowance Rules for condonation of delay, hence the present writ petition.
3. Heard the learned counsel for the petitioner as well as the second respondent.
4. The only point for consideration in this writ petition is, whether the Deputy Commissioner of Labour, authority under the Tamil Nadu Payment of Subsistence Allowance Act has power to condone the delay in filing the appeal?
5. There is no dispute that the Assistant Commissioner of Labour, Authorised Officer under the Payment of Subsistence Allowance Act in the application filed by the petitioner in P.S.A.No.43 of 1994 has granted subsistence allowance only Rs.1,862/-, as against the claim of Rs.8,769/-. The said order was passed by the said authority on 18.11.1994. As per Rule 5A (1) of the Rules, any person aggrieved by the order passed by an authority authorised under Sub-section (1) of Section 7 of the Act, may prefer an appeal within 60 days from the date of receipt of the said order to the Deputy Commissioner of Labour within the local limits assigned to him under Sub-section (1) of Section 15 of the Payment of Wages Act, 1936. The other Sub-rules of Rule 5A speak about procedure for filing an appeal and disposal of the same. Though Sub-section (1) of Section 7 of the Act prescribes 60 days time for filing an appeal to the Deputy Commissioner of Labour, there is no provision for condonation of delay in respect of petition filed after expiry of 60 days. In the absence of specific provision to condone the delay, the first respondent rejected the appeal filed by the petitioner on the ground of delay.
6. Mr. S. Ayyathurai, learned counsel appearing for the petitioner would contend that in so far as there is no provision in Rule 5-A of the said Rules excluding the invocation of Section 5 of the Limitation Act, the first respondent has got powers under Section 5 of the Limitation Act, 1963 to entertain the application of the petitioner for condonation of delay. For this he very much relied on Section 29(2) of the Limitation Act, which reads as under.
" 29 (2). Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of S.3 shall apply as if such periods were the period prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. "
7. A reading of the said provision shows that Section 29(2) of the Limitation Act apply in so far as and to the extent to which they are not expressly excluded by such special law or local law. I have already referred to the fact that though there is no provision in the Tamil Nadu Payment of Subsistence Allowance Rules for condonation of delay, there is no specific Rule excluding the invocation of Section 5 of the Limitation Act. In the case of Vidyacharan Shukla vs. Khubchand Baghel and others , the Constitution Bench of the Supreme Court after referring the conclusion of Sinha,C.J., in the case of Kaushalya Rani vs. Gopal Singh has held that, " Section 29(2) of the Limitation Act would apply even to a case where there is a difference between the special law and the Limitation Act arose by the omission to provide for a limitation to a particular proceeding under the Limitation Act. "
8. I have already referred to the fact that there is no provision either in the Act or in the Rules for condonation of delay in filing an appeal after the period of 60 days as provided under Sub-rule (1) of Rule 5-A. Likewise, I have also stated that there is no specific exclusion of Section 5 of the Limitation Act either in the Act or Rules. Accordingly, in view of Sub-section (2) of the Section 29 of the Limitation Act, I hold that Section 5 of the Limitation Act is applicable in respect of appeals filed before the Deputy Commissioner of Labour, after the prescribed period of 60 days. Undoubtedly, the aggrieved person who intends to file an appeal has to show sufficient cause for not filing the appeal within the time prescribed. Accordingly, I am of the view that inasmuch as Rule 5-A of the Rules or any other provisions in the said Rules or in the Act do not expressly or impliedly apply to Section 5 of the Limitation Act, the first respondent ought to have entertained and considered the application of the petitioner for condonation of delay in filing the appeal. I am satisfied that the impugned order is liable to be vitiated by failure on the part of the first respondent to exercise his power and jurisdiction vested with him. As observed by the Supreme Court, in so far as the special law do not expressly exclude the application of the Limitation Act, the application for delay of condonation can be entertained by the appropriate authority under the special law.
9. In the light of what is stated above, the impugned order of the first respondent dated 09.06.1995, is quashed and the first respondent is directed to entertain the application of the petitioner for condonation of delay in filing an appeal under the Tamil Nadu Payment of Subsistence Allowance Rules, 1981 and dispose of the same in accordance with law after affording an opportunity to both parties. The writ petition is allowed. No costs.