IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34020 of 2009()
1. THE SECRETARY, KERALA STATE
... Petitioner
Vs
1. SMT. ELSY PAUL, W/O. LATE M.V.PAUL,
... Respondent
2. THE DISTRICT LABOUR OFFICER,
3. THE REGIONAL JOINT LABOUR COMMISSIONER
For Petitioner :SRI.N.N.SUGUNAPALAN(SR.)SC,KSEB
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :26/11/2009
O R D E R
S. Siri Jagan, J.
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W. P (C) No. 34020 of 2009
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Dated this, the 26th November, 2009.
J U D G M E N T
The petitioner in this writ petition is the Kerala State Electricity
Board. They are challenging Exts.P6 and P7 orders of the controlling
authority and the appellate authority under the Payment of Gratuity
Act. The 1st respondent herein, namely, the widow of a retired
employee of the Kerala State Electricity Board, filed an application
for balance gratuity payable to her late husband under the Payment of
Gratuity Act. That application itself was filed on the basis of a
judgment of this Court holding that employees of the Kerala State
Electricity Board are entitled to full amount of gratuity as calculated
under the Payment of Gratuity Act. That application was filed
belatedly by about 5 years. But the controlling authority chose to
condone the delay in filing the same and to allow the gratuity
application filed by the 1st respondent based on a Division Bench
decision of this Court holding that the Payment of Gratuity Act is
applicable to employees of the Board.
2. Ext. P6 order is dated 28-6-2005. The petitioner filed the
appeal against that order in 2007 along with a petition to condone
delay. That was dismissed by the appellate authority refusing to
condone delay in filing the same. That order is dated 25-11-2008.
The petitioner has filed this writ petition, after a period of one year,
challenging that order, on the ground that the 1st respondent is guilty
of unexplained delay and laches and the Controlling Authority ought
not to have therefore condoned the delay.
3. I have considered the contentions of the learned counsel for
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the petitioner.
4. Fist of all, it ill fits the petitioner who themselves are guilty
of laches not only in filing the appeal before the appellate authority
late, but also in challenging the order of the appellate authority before
this Court, to contend that the 1st respondent was guilty of delay and
laches in filing the gratuity claim. In any event, under the proviso to
Section 7(7) of the Payment of Gratuity Act, the appellate authority
has power to condone delay only up to 60 days. Section 7(7) reads
thus:
“7. Determination of the amount of gratuity:-
xx xx xx
(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 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, 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 the appellate authority such amount.”
It is settled law that when the statute prescribes an upper time limit
for condonation of delay, this Court cannot, in exercise of powers
under Article 226 of the Constitution of India, enlarge that period
and condone the delay.
5. In Commissioner of Sales-tax, U.P. v. Parson Tools and
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Plants, Kanpur, (1995) 35 STC 413, the Supreme Court held thus:
“Thus the principle that emerges is that if the legislature in
a special statute prescribes a certain period of limitation for filing
a particular application thereunder and provides in clear terms
that such period on sufficient cause being shown, may be
extended, in the maximum only up to a specified time limit and no
further then the Tribunal concerned has no jurisdiction to treat
within limitation an application filed before it beyond such
maximum time limit specified in the statute, by excluding the time
spent in prosecuting in good faith and due diligence any prior
proceeding on the analogy of Section 14(2) of the Limitation Act.”
Relying on the said decision, this Court has, in Asst. Commr. of
Central Excise v. Krishna Poduval, 2005(4) KLT 947, held thus in
paragraph 7:
“At the outset we may state that in so far as the
respondents have not taken up the original orders imposing
penalty in appeals before the appellate authority within the
maximum period prescribed under Section 85(3) of the Finance
Act, 1994 they cannot get the appeal revived and heard on merits
by resorting to the discretionary remedy before this Court under
Article 226 of the Constitution of India. Once the period of
limitation has run itself out and the appellate authority does not
have power to condone the delay in filing the appeals beyond the
maximum period prescribed under the Act, the remedies of the
appellants come to an end just like in the case of a time barred
suit and the respondents cannot, by invoking the discretionary
remedy under the extraordinary jurisdiction of this Court under
Article 226 of the Constitution of India, resurrect their
unenforceable cause of action and require this Court to consider
their contentions against the original orders on merit. That would
amount to defeating the very law of limitation which we are not
expected to do under Art. 226. If we are to entertain the
contentions of the respondents on merits, that would amount to
negating the law of limitation which we have no jurisdiction to do
under Article 226 and which may even lead no anomalous results.
We are not satisfied that the jurisdiction of this Court under
Art.226 of the Constitution of India is so wide as to resurrect a
cause of action which has become unenforceable on account of
the law of limitation. Further, we are of the firm opinion that the
jurisdiction under Art. 226 of the Constitution of India cannot beW.P.C. No. 34020/09 -: 4 :-
invoked against express statutory provisions, however harsh the
effect of the provisions may be on an assessee or litigant.”
The ratio of those decisions apply on all fours to the facts of this case.
In the above circumstances, this writ petition is without any
merit and accordingly the same is dismissed.
Sd/- S. Siri Jagan, Judge.
Tds/
[True copy]
P.S to Judge.