{"id":211886,"date":"2010-03-29T00:00:00","date_gmt":"2010-03-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pitamberdas-vs-girishkumar-on-29-march-2010"},"modified":"2015-12-11T07:39:14","modified_gmt":"2015-12-11T02:09:14","slug":"pitamberdas-vs-girishkumar-on-29-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pitamberdas-vs-girishkumar-on-29-march-2010","title":{"rendered":"Pitamberdas vs Girishkumar on 29 March, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Pitamberdas vs Girishkumar on 29 March, 2010<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/844\/2010\t 20\/ 22\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 844 of 2010\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE H.K.RATHOD   Sd\/-\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?    \n\t\t\t                 YES\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?   YES\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?       \n\t\t\t                  YES\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?                               NO\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?                       \n\t\t\t                  NO\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nPITAMBERDAS\nRAMCHANDRA VATWANI - Petitioner(s)\n \n\nVersus\n \n\nGIRISHKUMAR\nTULSIBHAI MAKWANA & 24 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nPRABHAKAR UPADYAY for\nPetitioner(s) : 1, \nNone for Respondent(s) : 1 -\n25. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 29\/03\/2010 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
1.\tHeard
\nlearned advocate Mr. Prabhakar Upadhyay appearing on behalf of
\npetitioner.\n<\/p>\n
2.\tThe
\npetitioner has challenged order passed by Controlling Authority dated
\n25th June 2008 in Gratuity Case No.125 of 2007 to 149 of
\n2007 and order passed by Controlling Authority dated 6th
\nJuly 2009 and order passed by Appellate Authority dated 29th
\nJuly 2009 before this Court in present petition.\n<\/p>\n
3.\tLearned
\nadvocate Mr. Upadhyay raised contentions before this Court that on
\n26th august 2008, the settlement was arrived at between
\npresent petitioner and representative of present respondents by way
\nof full and final settlement and representative of present
\nrespondents collected the amount from the present petitioner. The
\npresent petitioner preferred Review Application before Controlling
\nAuthority and Controlling Authority without registering the Review
\nApplication on record rejected the same on 6th July 2009.
\nAgainst which, appeal which was preferred by petitioner has been also
\nrejected because appeal was not preferred in time. Thereafter,
\nRecovery Certificate has been issued by Controlling Authority and
\nRecovery Officer has issued notice under Section 154 of Bombay Land
\nRevenue Code on 3rd August 2009. Therefore, he submitted
\nthat respondents employees have filed application before Controlling
\nAuthority under the provisions of Payment of Gratuity Act on 5th
\nOctober 2007 giving details about working period of service and
\nsalary and date of termination. The Controlling Authority has decided
\nall applications on 25th June 2008 in Gratuity Case No.125
\nof 2007 to 149 of 2007, where, hearing was taken place between the
\nparties before Controlling Authority between 19th November
\n2007 to 16th June 2008, where, on behalf of Union, one Mr.
\nR.G. Jogi and Assistant Secretary Jayantibhai Patel was remained
\npresent, but, on behalf of petitioner, no one remained present and no
\nreply was filed by petitioner, therefore, Controlling Authority has
\ndirected to present petitioner to pay amount of gratuity claimed by
\nworkmen by order dated 25th June 2008. The Controlling
\nAuthority has noted that though notice has been served to petitioner
\nand workmen has sent Form – ‘I’ to petitioner establishment, but, no
\nreply is filed by petitioner and application was also not submitted
\nbefore Controlling Authority for requesting time and no objection
\nraised against gratuity application filed by workmen, therefore,
\nex-parte order has been passed against present petitioner.\n<\/p>\n
4.\tThereafter,
\npetitioner has filed Review Application before Controlling Authority
\nwith a prayer to set aside ex-parte order in 9th June
\n2009. This Application has been rejected on 6th July 2009
\nby Controlling Authority after period of limitation and therefore,
\nReview Application has been rejected.\n<\/p>\n
5.\tThis
\nCourt has asked specific question to learned advocate Mr. Upadhyay
\nthat is there any provisions made in Payment of Gratuity Act which
\ngives power to Controlling Authority to review the order or to set
\naside its ex-parte order ? He is not able to point out any provisions
\nfrom the Payment of Gratuity Act which gives power to Controlling
\nAuthority to review its own order or to set aside its ex-parte order.
\nTherefore, contentions raised by learned advocate Mr. Upadhyay cannot
\nbe accepted, because, there is no provision pointed out by him that
\nControlling Authority has power to review its own order or to set
\naside ex-parte order. Thereafter, appeals have been preferred by
\npetitioner against order passed in Review Application as well as
\nex-parte order passed by Controlling Authority on 25th
\nJune 2008 and 6th July, 2009. These appeals have been
\nrejected on the ground of delay under Sec.7(7) of Payment of Gratuity
\nAct, wherein, appeal is required to be filed by petitioner within a
\nperiod of 120 days from date of order passed by Controlling Authority
\n30th June 2008. Therefore, Appellate Authority has
\nrejected appeal on the ground of delay, for which, Appellate
\nAuthority has no power to condone delay beyond period of 120 days
\nunder provisions of Sec.7(7) of Payment of Gratuity Act.\n<\/p>\n
6.\tThereafter,
\nRecovery Certificate has been issued by Controlling Authority to
\nrecover the amount from petitioner under the provisions of Bombay
\nLand Revenue Code which notice under Sec.152 dated 8th
\nApril 2009 has been received by petitioner on 4th May
\n2009. Thereafter, on number of occasions, amount has been demanded by
\nRecovering Authority, but, that amount is not deposited by
\npetitioner. Therefore, warning was given to petitioner for attaching
\nhis movable properties under Sec.154 of Bombay Land Revenue Code.\n<\/p>\n
7.\tIt
\nis necessary to note that a letter Page 58   Annexure ‘H’ dated 1st
\nJuly 2007 has been given by one Trilokchand Mulchand Vatvani
\naddressed to petitioner to pay amount of gratuity to concerned
\nworkmen, otherwise, necessary action will be taken against petitioner
\nby Union Representative. Annexure ‘H’   Page 62 is a Settlement
\narrived at between Trilokchand Mulchand Vatvani being a Union
\nRepresentative of 25 workmen and Pitamberdas Ramchand Vatvani   the
\npetitioner   owner of establishment on 26th August 2008
\nbefore Notary Advocate. In the said Settlement, Union Representative
\nhas agreed for lump-sum amount of Rs.75,000\/- on behalf of 25 workmen
\nwhich is contrary to order passed by Controlling Authority and Union
\nRepresentative has agreed that total amount has been received by him
\nRs.1,50,000\/- and in view of that, workmen will not claim any Earned
\nLeave and amount of Gratuity. Relying upon this Settlement arrived at
\nbetween Union Representative and petitioner against claim of gratuity
\nand Earned Leave of workmen, according to order passed by Controlling
\nAuthority in favour of 25 workmen, total amount of gratuity comes to
\nRs.12,20,940\/-. Against which, a Union Representative has settled the
\nmatter on behalf of 25 workmen in Rs.75,000\/- only, which is contrary
\nto Sec.14 of the Payment of Gratuity Act, which having overriding
\neffect to other enactment or any instrument or contract having effect
\nby virtue of any enactment other than this Act. So, any contract or
\nsettlement which is found to be contrary to provisions of Payment of
\nGratuity Act where less amount has been paid to workman against the
\nclaim of workman for more amount, then, such contract is contrary to
\nprovisions of Payment of Gratuity Act.\n<\/p>\n
8.\tThe
\nright to receive an amount of gratuity as per provisions made in
\nPayment of Gratuity Act; any curtailment of benefits by management or
\ndeprivation of any existing benefits available to workman under
\nprovisions of Payment of Gratuity Act cannot be inferred without a
\nprovision to that effect either express or implied. Therefore, such
\nalleged settlement with Union Representative which apparently found
\ncontrary to order passed by Controlling Authority against interest of
\npresent respondent workmen. No deduction or reduction in amount of
\ngratuity is permissible contrary to provisions of Payment of Gratuity
\nAct, 1972.\n<\/p>\n
9.\tTherefore,
\nthe settlement which has been relied upon by learned advocate Mr.
\nUpadhyay is not helpful to petitioner, because, amount which has been
\naccepted for claim of 25 workmen only Rs.75,000\/- against total claim
\nof workmen to receive amount of gratuity which comes to
\nRs.12,20,940\/- as per order passed by Controlling Authority.
\nTherefore, such settlement itself is null and void, illegal
\nand contrary to provisions of Payment of Gratuity Act.\n<\/p>\n
10.\t\tIt
\nis also necessary to note that this settlement does not bare the
\nsignature of any workman. This settlement has not been accepted by
\nany workman and not produced on relevant record by petitioner before
\nControlling Authority and Appellate Authority. In present case,
\npetitioner has not filed any affidavit of Union Representative Shri
\nTrilokchand Mulchand Vatvani. The employer petitioner Pitamberdas
\nRamchandra Vatvani and Union Representative, both, belong to same
\ncaste and therefore, it is apparently found that there is a clear
\ncollusion between parties who have settled the matter in absence of
\nworkmen against the claim of workmen of gratuity which apparently
\ncontrary to the Payment of Gratuity Act. The employer petitioner is
\nunder legal obligation to pay complete amount of gratuity to
\nconcerned employees who are entitled as per law and when any amount
\nless than it means contrary to provisions of Payment of Gratuity Act
\nis to be paid, then, no such settlement or contract is permissible
\nunder the Payment of Gratuity Act. Therefore, this alleged settlement
\nis not binding to 25 workmen those who are employees of petitioner
\nand in whose favour, Controlling Authority has passed the order
\nagainst the petitioner on 4th
\nJuly 2008. Therefore, contentions raised by learned advocate Mr.
\nUpadhyay relying upon aforesaid settlement with only Union
\nRepresentative cannot be accepted, because, it is contrary to
\nprovisions of Payment of Gratuity Act as well as prima facie it is
\nfound to be a collusion with Union Representative and employer both
\nbelong to one caste. The Union Representative has not filed any
\naffidavit before either of Authority that workmen have authorised him
\nand payments were made to concerned employees as per alleged
\nsettlement dated 26th
\nAugust 2008.\n<\/p>\n
11.\t\tThe
\nAppellate Authority has rejected the appeal by order dated 29th
\nJuly 2009 while considering provisions of Sec.7(7) of Payment of
\nGratuity Act. The appeal is required to be preferred by employer
\nagainst order passed by Controlling Authority within a period of 60
\ndays from date of receiving copy of order passed by Controlling
\nAuthority and thereafter, further 60 days, for which, Appellate
\nAuthority can condone it in filing appeal and second condition is
\nthat along with appeal, there is a precondition to deposit an amount
\ndirected by Controlling Authority either before Controlling Authority
\nor before Appellate Authority. The present petitioner has not filed
\nappeal within 120 days from date of receiving copy of order passed by
\nControlling Authority. The Appellate Authority has no power to
\ncondone delay beyond period of 120 days in all. The order passed by
\nControlling Authority dated 30th
\nJune 2008 and petitioner on 14th
\nJuly 2009 means after a period of more than one year had preferred an
\nappeal, therefore, it has been rejected.\n<\/p>\n
12.\t\tLearned
\nadvocate Mr. Prabhakar Upadhyay has not made any submission in
\nrespect of merits of the matter as to whether workmen are entitled
\namount of gratuity as claimed or not. Learned advocate Mr. Upadhyay
\nis also not able to point out as to why petitioner remained absent
\nbefore Controlling Authority. He is also not able to justify by
\ngiving sufficient cause for remaining absent before Controlling
\nAuthority and there is no submission at all made that workmen are not
\nentitled at all amount of gratuity from petitioner as directed by
\nControlling Authority. There is no submissions made on merits by
\nLearned Advocate Mr. Upadhyay.\n<\/p>\n
13.\t\tI
\nhave considered submissions made by learned advocate Mr. Prabhakar
\nUpadhyay appearing on behalf of petitioner and I have also scanned
\nthe entire papers annexed to this petition.\n<\/p>\n
14.\t\tThe
\nprocedure for filing appeal is prescribed in Rule 18 of Payment of
\nGratuity (Central) Rules, 1972. Employer’s appeal must be accompanied
\nby certificate of deposit. Deposit of gratuity amount either before
\nControlling Authority or before Appellate Authority is mandatory for
\nfiling of appeal against order of Controlling Authority. [See
\n: 1990 LLR 28 (Madras High Court)   Onward Trading Co., Madras v.
\nDy. Commissioner of Labour, Madras<\/a>].\n<\/p>\n
Employer
\npreferred the appeal within time but without producing the
\ncertificate of deposit of gratuity amount, issued by the Controlling
\nAuthority under Sec.7(4) of the Act, Appellate Authority ordered the
\nappeal to be consigned as it was not in accordance with law. The
\nappeal against order of Controlling Authority after the prescribed
\nperiod of limitation will not be maintainable. [See
\n: 1994 LLR 894 (Bombay High Court)   Gurudeo Ayurved Mahavidyalaya
\nGurukul Ashram v. Madhav].\n<\/p>\n
At the time of preferring an appeal and if there is no deposit of the
\namount, there is no valid appeal. In case when amount is not
\ndeposited as ordered by Controlling Authority within limitation of
\n120 days, then, appeal is
\nbarred by limitation and untenable. [See : 2006
\n(II) CLR 572 : 2006 LLR (SN) 874 : 2006 (III) LLJ 686 : 2006 (III)
\nFLR 466 (Bombay High Court)   Metal Box India Ltd. v. B.R. Rangari,
\nAddl. Commissioner of Labour].\n<\/p>\n
The Appellate Authority has no power to condone the delay beyond 120
\ndays. The Payment of Gratuity Act is a special statute and there is
\nprovision for condonation of delay by extending period of 60 days by
\nanother 60 days. There is no provision for further condonation of
\ndelay. In the absence of conferment of jurisdiction to condone
\nfurther delay, the statutory authority which is a quasi-judicial
\nauthority cannot condone delay or extend the period of limitation. [
\nSee : 2000 (86) FLR312 (Madhya Pradesh High Court)   Western
\nCoalfields Ltd. v. Controlling Authority].\n<\/p>\n
15.\t\tEarlier,
\nthe Calcutta High Court has also held that Appellate Authority under
\nSec.7 of Payment of Gratuity Act is not a Court but an Executing
\nAuthority who has been vested with quasi-judicial powers in order to
\nenable it to act as Appellate Authority and therefore, Section 5 of
\nthe Limitation Act cannot be invoked and provisions of Limitation Act
\ndo not apply to personal designate or administrative authorities.
\n[See : (1987) 1 LLJ 41 (Calcutta High Court)
\nCity College v. State of West Bengal].\n<\/p>\n
The Payment of Gratuity Act prevails over Limitation Act. The appeal
\nfiled after lapse of 13 months from that date of original order was
\nalready barred by the time even after allowing the time spent in
\nunsuccessfully pursuing writ petition. As such the order of
\nControlling Authority directing payment of gratuity is to be held
\nfinal. [See : (I) 2007 (1) CLR 984 (Karnataka
\nHigh Court)   K.V. Rama Rao v. Prashant Theatre, Tumkar (ii) 2003
\nLLR 242 (AP High Court)   Liquidator, Warangal Distt. Co-op.
\nSociety Ltd., Warangal v. Appellate Authority under Payment of
\nGratuity Act, 1972\/Dy. Commissioner of Labour, Warangal (iii) 2000
\nLLR 881 (Madhya Pradesh High Court)   Western Coalfields Limited v.
\nControlling Authority (iv) 2003 LLR 61 (AP High Court)   Warangal
\nDistt. Co-operative Society Ltd. v. Appellate Authority under Payment
\nof Gratuity Act, 1972].\n<\/p>\n
16.\t\tRight
\nof appeal under Sec.7(7) becomes vested right only when precondition
\nof deposit is complied with. The Appellate Authority is not to admit
\nappeal unless at the time of preferring appeal, the appellant either
\nproduces a certificate of the Controlling Authority to the effect
\nthat the Appellant has deposited with the Authority amount of
\ngratuity required to be deposited under Section 7(4) or deposit such
\namount with the Appellate Authority.  In such circumstances,
\nAppellate Authority has no discretion to admit\/accept the appeal
\nunless condition incorporated is satisfied by appellant. It is not
\nthe case of petitioner before this Court that precondition of deposit
\nthe amounts as per order passed by Controlling Authority was
\ndeposited by petitioner either before Controlling Authority or before
\nAppellate Authority.\n<\/p>\n
17.\t\tThe
\nprovisions of Order XLI Rule 3A of the Code of Civil Procedure in
\nrelation to appeals, for that, there is no express provision or there
\nis no indication made in the Payment of Gratuity Act that said
\nprovision be read into the Act.\n<\/p>\n
18.\t\tIn
\nview of aforesaid law laid down by various High Courts and recent
\ndecision of Apex Court that whenever statutory provision is made to
\nfile appeal within particular period, then, in such cases, provisions
\nof Limitation Act is not made applicable as decided by Apex Court in
\ncase of Commissioner of Customs and Excise v.
\nHongo India Pvt. Ltd., and Another<\/a>
\nreported in (2009)
\n5 SCC 791.\n<\/p>\n
The relevant discussion is made in Para
\n10 to 15
\nare quoted as under :\n<\/p>\n
 10.\t\tAdmittedly
\nin all these matters, the Commissioner of Customs & Central
\nExcise approached the High Court by way of reference application
\nbeyond the prescribed period of 180 days. The High Court of
\nAllahabad, with reference to the scheme of the Act and in the absence
\nof specific provision for applying Section 5 of the Limitation Act,
\ntook note of other provisions i.e., Sections 35, 35B and 35EE, which
\nenable the other authorities to condone the delay if sufficient cause
\nwas shown, accordingly, dismissed the reference application filed by
\nthe Commissioner of Central Excise on the ground of limitation.\n<\/p>\n
11)\tNow
\nlet us consider whether Section 5 of the Limitation Act is applicable
\nin respect of reference application filed in the High Court under
\nSection 35H of the unamended Act.\n<\/p>\n
12)
\n  Mr. Parag P.     Tripathi,   learned   Additional Solicitor
\nGeneral, appearing for the appellant contended that in view of the
\nfact that the High Court has all inherent and plenary power, is
\ncompetent to consider the delay even after the prescribed period
\nunder the Act. He further contended that in the absence of specific
\nprohibition in the Act for condoning delay particularly in Section
\n35H in lieu of Section 29(2) of the Limitation Act, Section 5 of the
\nLimitation Act is applicable and the High Court ought to have
\nexercised its power by condoning the delay. He initially contended
\nthat since Section 35H speaks about the substantial question of
\npublic importance, even the delay, if any, has to be condoned.\n<\/p>\n
13)
\nOn the other hand, learned counsel appearing for the respondents
\nsupporting the stand taken by the High Court submitted that the
\nCentral Excise Act is a self-contained Act and a Code by itself and
\nin the absence of specific provision enabling the High Court to
\nexercise its power by condoning the delay, the High Court is
\njustified in refusing to entertain the reference application of the
\nExcise Department filed beyond the prescribed period. He also
\ncontended that in the light of the scheme of the Act and of the fact
\nthat sufficient period, i.e, 180 days, has been provided for the
\nCommissioner as well as the other party for making reference to the
\nHigh Court, the legislative intent has to be respected.\n<\/p>\n
14)
\n  Article 214 of the Constitution of India makes it clear that there
\nshall be a High Court for each State and Art. 215 states that every
\nHigh Court shall be a court of record and shall have all the powers
\nincluding the power to punish for contempt of itself. Though we have
\nadverted to Section 35H in the earlier part of our order, it is
\nbetter to extract sub-section (1) which is relevant and we are
\nconcerned with in these appeals :\n<\/p>\n
“35H.\n<\/p>\n
Application to High Court – (1) The Commissioner of Central Excise or
\nthe other party may, within one hundred and eighty days of the date
\nupon which he is served with notice of an order under section 35C
\npassed before the 1st day of July, 2003 (not being an
\norder relating, among other things, to the determination of any
\nquestion having a relation to the rate of duty of excise or to the
\nvalue of goods for purposes of assessment), by application in the
\nprescribed form, accompanied, where the application is made by the
\nother party, by a fee of two hundred rupees, apply to the High Court
\nto direct the Appellate Tribunal to refer to the High Court any
\nquestion of law arising from such order of the Tribunal.”\n<\/p>\n
Except
\nproviding a period of 180 days for filing reference application to
\nthe High Court, there is no other clause for condoning the delay if
\nreference is made beyond the said prescribed period.\n<\/p>\n
15)
\n We have already pointed out that in the case of appeal to the
\nCommissioner, Section 35 provides 60 days time and in addition to the
\nsame, Commissioner has power to condone the delay up to 30 days, if
\nsufficient cause is shown. Likewise, Section 35B provides 90 days
\ntime for filing appeal to the Appellate Tribunal and sub-section (5)
\ntherein enables the Appellate Tribunal to condone the delay
\nirrespective of the number of days, if sufficient cause is shown.
\nLikewise, Section 35EE which provides 90 days time for filing
\nrevision by the Central Government and, proviso to the same enables
\nthe revisional authority to condone the delay for a further period of
\n90 days, if sufficient cause is shown, whereas in the case of appeal
\nto the High Court under Section 35G and reference to the High Court
\nunder Section 35H of the Act, total period of 180 days has been
\nprovided for availing the remedy of appeal and the reference.
\n   However, there is no further clause empowering the High Court to
\ncondone the delay after the period of 180 days.\n<\/p>\n
19.\t\tRecently,
\nthe Division of Bombay High Court has also considered similar
\nquestion in case of Pharma
\nBase India Pvt. Ltd., Mumbai v. State of Maharashtra and Another
\nreported
\nin 2009-II-LLJ
\n458 (Bombay).\n<\/p>\n
The relevant discussion is made in Para
\n9 to 12,
\nwhich are quoted as under :\n<\/p>\n
 9.\tHaving
\nheard the learned counsel appearing for the respective parties and
\nhaving gone through the impugned order and Petition along with the
\nannexures thereto and the case laws cited by the learned counsel in
\nthis regard, we are of the considered opinion that there is no merit
\nin the Appeal. Sub-Clause 7 of the Section 7 reads as follows :\n<\/p>\n
 (7)\tAny
\nperson aggrieved by an order under sub-section (4) may, within sixty
\ndays from the date of the receipt of the order, prefer an appeal to
\nthe appropriate Government in this behalf;\n<\/p>\n
Provided
\nthat the appropriate Government or the appellate authority,
\nas the case may be, may, if it is satisfied that the appellant was
\nprevented by sufficient cause from preferring the appeal within the
\nsaid period of sixty days, extend the said period by a further period
\nof sixty days;\n<\/p>\n
Provided
\nfurther that no appeal by an employer shall be admitted unless at the
\ntime of preferring the appeal, the appellant either produces a
\ncertificate of the controlling authority to the effect that the
\nappellant has deposited with him an amount equal to the amount of
\ngratuity required to be deposited under sub-section (4), or deposits
\nwith appellate authority such amount.\n<\/p>\n
10.\tThe
\nplain reading of above said proviso will reveal that any person
\naggrieved by an order, under sub-clause 4 of section 7, may within 60
\ndays from the receipt of the order, prefer an Appeal to the Appellate
\nAuthority. However, the Appellate Authority is at liberty, if a
\nsufficient cause is shown, to extend the period of 60 days for
\nfurther period of 60 days. The Second proviso of Section 7(7)
\nprovides that no Appeal by an employer shall be admitted unless, at
\nthe time of preferring an appeal, the Appellant either produce a
\ncertificate of controlling authority to the effect that the Appellant
\nhas deposited with him an amount equal to the amount of gratuity,
\nrequired to be deposited under Section 7(4) with the Appellate
\nAuthority or deposit with the Appellate Authority such amount. Thus,
\nthis proviso has imposed fetter on the employers right to file an
\nAppeal. It is amply clear, that employer is obliged to deposit the
\namount or produce the certificate of the controlling authority as the
\ncase may be at the time of preferring an Appeal.\n<\/p>\n
11.
\nIn the background of above legal provisions, now let us consider the
\nfacts of the present case. There is no dispute of the fact that the
\nPetitioner received copy of the order of controlling authority on
\n27\/10\/2006. There is also no dispute that Petitioner applied for the
\ncertified copy and received the same on 10\/11\/2006. In view of the
\nprovisions of Sub-Section 7 of Section 7, limitation would start to
\nrun from the date of receipt of the order and in this case limitation
\nwould start from 27\/10\/2007. We do not find any substances in the
\ncontention of the learned counsel appearing for the Petitioner that
\nlimitation would start to run from the date of receipt of the
\ncertified copy. The Petitioner from 27\/10\/2006 to 10\/11\/2006 did not
\napply for certified copy. For the first time the Certified Copy was
\napplied on 10\/11\/2006 and the same was delivered to him on the same
\nday. Therefore, at the most one day can be excluded which required to
\nobtain Certified Copy while computing of period of limitation of
\neither 60 days or further extended period of 60 days. The Petitioner
\nsent Appeal by speed post which was received by the office of the
\nAppellate Authority on 13\/12\/2006. However, along with this Appeal,
\nPetitioner neither produced the certificate of the controlling
\nauthority to the effect that they have deposited with them an amount
\nequal to the gratuity required to be deposited under sub-Section 4 of
\nSection 7 nor deposited such amount with the Appellate Authority. In
\nour view, if the Petitioner wanted to challenge the order of
\ncontrolling authority, in that case, he was duty bound to produce the
\ncertificate or deposit the amount as the case may be, at the time of
\npreferring an Appeal. Though the above dates show that the
\nPetitioners preferred an appeal within a period of 120 days,
\nmandatory deposit as contemplated under second proviso of Section
\n7(7) was not made within a period of 120 days. There is no dispute
\nthat this deposit was made by the Petitioner on 12\/03\/2007.
\nPrecondition of deposit at the time of preferring an Appeal being
\nmandatory, we are of the view that it is to be presumed that the
\nPetitioner filed Appeal only on 12\/03\/2007.\n<\/p>\n
12.
\nSince the Petitioner received order of the controlling authority on
\n27\/10\/2006, his appeal is beyond the period of 120 days, even if it
\ngranted the benefit of exclusion of time required for obtaining
\ncertified copies. The issue before the Division Bench in J.L.
\nMorrison India Ltd.(supra) was whether the Appellate Authority under
\nthe payment of Gratuity Act, 1972 can entertain the Appeal beyond 120
\ndays from the date of receipt of the order?. After examining several
\njudgments including that of Apex Court, Division Bench concluded that
\nthe Appellate authority under the said Act cannot entertain the
\nAppeal beyond 120 days from the date of receipt of the order. The
\nDivision Bench also held that Section 5 of the Limitation Act would
\nhave no  Application, in this regard. In the facts and circumstances
\nmentioned above, we are of the clear view that the Appellate
\nAuthority as well as the learned Single Judge of this Court rightly
\nupheld the Respondent No.2 s preliminary objection regarding
\nmaintainability of the Appeal and there is no reason to interfere in
\nthe said findings.\n<\/p>\n
20.\t\tIn
\nview of fact that absence of petitioner after receiving notice not
\nexplained by petitioner or sufficient cause shown by petitioner.
\nThere is no provision in Act which gives power to authority to review
\nearlier order or to set aside ex-parte order and appeal preferred by
\npetitioner beyond 120 days time barred and Appellate Authority has
\nnot power to condone delay. The precondition to deposit amount as per
\norder of Controlling Authority not deposited by petitioner being
\nundisputed facts as well as in that view of aforesaid decision made
\nby this Court on the subject, the contentions raised by learned
\nadvocate Mr. Prabhakar Upadhyay cannot be accepted. The order passed
\nby Controlling Authority in Gratuity Application, in Review
\nApplication and by Appellate Authority in Appeal cannot consider to
\nbe erroneous decision and Authorities concerned has not committed any
\nerror which requires interference by this Court while exercising the
\npowers under Article 227 of the Constitution of India.\n<\/p>\n
21.\t\tTherefore,
\nthere is no substance in present petition, accordingly, present
\npetition is dismissed.\n<\/p>\n
Sd\/-\n<\/p>\n
[H.K.\n<\/p>\n
RATHOD, J.]<\/p>\n
#Dave<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Pitamberdas vs Girishkumar on 29 March, 2010 Author: H.K.Rathod,&Nbsp; 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\/- ========================================================= 1 Whether Reporters of Local Papers may be […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-211886","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nPitamberdas vs Girishkumar on 29 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pitamberdas-vs-girishkumar-on-29-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pitamberdas vs Girishkumar on 29 March, 2010 - 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