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State Of Gujarat vs Valjibhai Purshottambhai … on 14 June, 2019

C/SCA/10417/2017 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 10417 of 2017

STATE OF GUJARAT
Versus
VALJIBHAI PURSHOTTAMBHAI RAIYANI 2 other(s)

Appearance:
MR KRUTHIK PARIKH, AGP(1) for the Petitioner(s) No. 1
MR SAMIR B GOHIL(5718) for the Respondent(s) No. 1
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 3

CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

Date : 14/06/2019

ORAL ORDER

1. By this petition, the petitioner­State of Gujarat has prayed
for the following reliefs :

“(A) Your Lordship may be pleased to admit and allow this
petition.

(B) Your Lordship may be pleased to issue a writ of
certiorari and/or any other appropriate writ, direction or
order for quashing and setting aside the impugned order
passed by the appellate authority dated 26.02.2016 passed
in Appeal No.122 of 2015 by the appellate authority and
order passed in Gratuity Case No.27 of 2014 dated
25.08.2014 by the Controlling Authority in the interest of
justice.

(C) Pending hearing and final disposal of the present
petition, Your Lordship may be pleased to stay the
implementation, execution and operation of the impugned
order passed by the appellate authority and order passed
by the Controlling Authority dated 25.08.2014 in Gratuity
Case No. 27 of 2014.

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(D) Such other and further relief as may be just, expedient
and proper in the interest of justice.”

2. Brief facts of the case are that the respondent workman
was working as a daily­wager from 1976 in the irrigation
department. Thereafter, the respondent workman retired
on 31.7.2013 on attaining superannuation rendering 38
years of service. As the respondent workman did not get
the payment of gratuity, a claim was filed in Form­I to get
the entire amount of gratuity with interest. However, as no
gratuity amount was paid with interest, the respondent
workman filed application in Form­N under the SectionPayment of
Gratuity Act, 1972 (“the Act” for short). The Controlling
authority under the Act by order dated 25.8.2014 allowed
the Gratuity Case No.27/2014 directing the petitioner to
make payment of Rs.93,438/­ towards the gratuity with
interest of 10% per annum from 1.10.2013 till the date of
payment.

3. The petitioner filed an appeal against the aforesaid order
on 27.11.2015 which was received by the appellate
authority under the Act at Rajkot on 30.11.2015 raising
various grounds of appeal.

4. The appellate authority under the Act by order dated
26.2.2016 rejected the aforesaid appeal as the same was
not filed within prescribed period of limitation of 120 days
by the petitioner as per sub­section (7) of Sectionsection 7 of the
Act.

5. Heard learned Assistant Government Pleader Mr. Kruthik
Parikh for the petitioner and learned advocate Mr. S.B.

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C/SCA/10417/2017 ORDER

Gohil for respondent no.1. Respondent No.2 and 3 are the
appellate authority and the controlling authority
respectively under the Act.

6. Learned Assistant Government Pleader relied upon the
decision of this Court in Letters Patent Appeal No156/2017
and other allied matters in case of SectionState of Gujarat and
others v. Kirtisinh Dhirubha Jadeja and others and
contended that on merits, as per decision of this court, the
respondent no.1 is entitled to get the gratuity under the
provisions of the Act as no distinction between the regular
employee and daily wager can be made for payment of
gratuity. This Court in the aforesaid decision held that
there is no specific provision that daily wagers are not
entitled to payment of gratuity. Considering the provisions
of the Act, more particularly, Sectionsections 3 to Section5 and Section14, the
provisions of the Act shall have effect notwithstanding
anything inconsistent with any other enactments. The
Court rejected the contention that once having earned
gratuity under the relevant provisions of Gujarat Civil
Service (Pension) Rules 2002, the period rendered prior to
such regularization and claimed under such rules would
dis­entitle such employee from claiming gratuity under the
Act. The Court therefore, confirmed the judgment rendered
in Special Civil Application No.1573/2016.

7. Learned advocate Mr. S .B. Gohil on the other hand
submitted that the appellate authority has rejected the
appeal only on the ground that the same was not filed
within statutory period of limitation as provided in sub­
section(7) of Sectionsection 7 of the Act. He relied upon the

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decision of this Court in case of Bhairavnath Industries
Pvt. Ltd v. Nacinchandra Kashinath Badgujar reported
in 2017(3) GLR 1801, wherein the Court relied upon the
decision of Apex Court in case of Chhattisgarh SEB v.
Central Electricity Regulatory Commission reported in
2010(5) SCC 23 as under :

“9.5 Hon’ble the Supreme Court in Chhattisgarh SEB
Vs. Central Electricity Regulatory Commission,
[(2010) 5 SCC 23], considered similar provision under
Sec.125, proviso under SectionElectricity Act, 2003,
providing period of limitation for appeal to the
Supreme Court against order of Appellate Tribunal
for Electricity. It was held that delay in filing appeal
beyond 120 days cannot be condoned. The Apex
Court stated,

“The use of the expression within a further period of
not exceeding 60 days in the proviso to Section 125
makes it clear that the outer limit for filing an appeal
is 120 days. There is no provision in the Act under
which this Court can entertain an appeal filed
against the decision or order of the Tribunal after
more than 120 days.” (Para 25)

The Apex Court emphasized the object underlying the
provision and observed that:

“The object underlying establishment of a special
adjudicatory forum i.e. the Tribunal to deal with the
grievance of any person who may be aggrieved by an
order of an adjudicating officer or by an appropriate
Commission with a provision for further appeal to
this Court and prescription of special limitation for
filing appeals under Sections 111 and Section125 is to
ensure that disputes emanating from the operation
and implementation of different provisions of the
SectionElectricity Act are expeditiously decided by an expert
body and no court, except this Court, may entertain
challenge to the decision or order of the Tribunal. The
exclusion of the jurisdiction of the civil courts

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C/SCA/10417/2017 ORDER

(Section 145) qua an order made by an adjudicating
officer is also a pointer in that direction.” (Para 26)

“It is thus evident that the SectionElectricity Act is a special
legislation within the meaning of Section 29(2) of the
Limitation Act, which lays down that where any
special or local law prescribes for any suit, appeal or
application a period of limitation different from the
one prescribed by the Schedule, the provisions of
Section 3 shall apply as if such period were the
period prescribed by the Schedule and provisions
contained in Sections 4 to Section24 (inclusive) shall apply
for the purpose of determining any period of
limitation prescribed for any suit, appeal or
application unless they are not expressly excluded by
the special or local law.” (Para 27)

“In view of the above discussion, we hold that Section
5 of the Limitation Act cannot be invoked by this
Court for entertaining an appeal filed against the
decision or order of the Tribunal beyond the period of
120 days specified in Section 125 of the Electricity
Act and its proviso. Any interpretation of Section 125
of the Electricity Act which may attract the
applicability of Section 5 of the Limitation Act read
with Section 29(2) thereof will defeat the object of the
legislation, namely, to provide special limitation for
filing an appeal against the decision or order of the
Tribunal and proviso to Section 125 will become
nugatory. (Para32)”

9.6 In the aforesaid judgment, it was finally held,

“As specific period of limitation is provided with
prescription of outer limit there under Section 7(7) of
the Payment of Gratuity Act, which is a special
statute, the same would prevail and reign. The writ
jurisdiction cannot be exercised to grant any relief to
the petitioner when the appeal before the Appellate
Authority was beyond the maximum period of
limitation statutorily fixed, as entertaining the
petition and granting any relief would amount to
breaching and circumventing the statutory
provision.”

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9.7 What is finally held in Chhattisgarh SEB (supra)
is equally and fully applicable to interpretation of
sec.7 (7) of the SectionGratuity Act.”

8. In the aforesaid decision, the Court also referred to the
decision in case of SectionJayminbhai Navinbhai Doshi v. State
of Gujarat reported in 2015(1)GLH 167 wherein the Court
considered the provisions under Bombay (Gujarat) Stamp
Act as under :

“9.3 In this context it would be appropriate to take
into account observations by the full bench in the
decision in case of SectionJayminbhai Navinbhai Doshi vs
State of Gujarat 2015 (1) GLH 167 wherein the Court
considered provision under Bombay (Gujarat) Stamp
Act. In the said decision Hon’ble full bench observed
that:­

13. In view of the above observations of the Supreme
Court, where even the High Court’s jurisdiction under
the Act was found to be excluded by operation of
Sectionsection 35H of the Central Excise Act, by applying the
same principle, it must be concluded that by
providing no power of condonation under Section 53
and by giving power of condonation only to the
limited extent to the proceedings under Sectionsection
54(1A), the Legislature has made its intention clear
that so far the present cases are concerned, the
authority under Section 53(1) had no power of
condonation. However, in the present cases, since the
reference has also been made on the question as to
the power of condonation of delay by High Court in
exercise of the power conferred under SectionArticle 226 of
the Constitution of India, we also propose to answer
the said question.

14. It is now settled law that the SectionLimitation Act has
no application to a proceeding under SectionArticle 226 of
the Constitution and consequently, no period of
limitation is prescribed either under the Limitation

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C/SCA/10417/2017 SectionORDER

Act or in the Constitution of India for moving an
application under SectionArticle 226 and thus, there is no
scope of taking aid of Section 29(2) of the Limitation
Act in a proceeding under SectionArticle 226 of the
Constitution.

15. A person is entitled to move High Court under
SectionArticle 226 of the Constitution when by the illegal
action or inaction on the part of a State within the
meaning of SectionArticle 12 of the Constitution, any of his
legal or fundamental rights is infringed. In the
Special Civil Applications out of which the present
References arise, the petitioners have alleged
violation of their legal rights accrued by virtue of the
provisions contained in the Act itself. In view of our
finding that the Chief Controlling Revenue Authority
exercising power under Section 53(1) of the Act has
no power of condonation of delay in filing the
application beyond the period mentioned therein, for
the refusal on the part of the said authority to
condone delay for want of jurisdiction, none of the
legal rights of the petitioners have been infringed and
thus, if the Chief Controlling Authority has no power
of condonation, it necessarily follows that the High
Court in exercise of power under SectionArticle 226 of the
Constitution against the order of the Chief
Controlling Revenue Authority cannot condone the
delay when the Chief Controlling Revenue Authority
did not possess such power and rightly refused to
condone. Thus, by taking recourse to Section 29(2) of
the Limitation Act, the High Court cannot condone
such delay in the proceeding under SectionArticle 226 of the
Constitution.”

9. The Court also referred to decision in case of SectionPanoli
Intermediate (India) Pvt. Ltd. v. Union of India and
others reported in AIR 2015 Gujarat 97, wherein the Court
has held as under :

“9.4 In this context reference may also be had to the
observation in the decision in case of Panoli

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Intermediate (India) Pvt.Ltd. V/s Union of India and
others, AIR 2015 Gujarat 97 wherein the Court has
held in paragraph 31 that:­

“31. We may now proceed to answer the
question.

(1) Question No.1 is answered in negative by
observing that the limitation provided under
Sectionsection 35 of the Act cannot be condoned in
filing the appeal beyond the period of 30 days
as provided by the proviso nor the appeal can
be filed beyond the period of 90 days.

(2) The second question is answered in negative
to the extent that the petition under SectionArticle 226
of the Constitution would not lie for the purpose
of condonation of delay in filing the appeal.

(3) On the third question, the answer is in
affirmative, but with the clarification that

A) The petition under SectionArticle 226 of the
Constitution can be preferred for challenging
the order passed by the original adjudicating
authority in following circumstances that

A.1) The authority has passed the order without
jurisdiction and by assuming jurisdiction which
there exist none, or

A.2) Has exercised the power in excess of the
jurisdiction and by overstepping or crossing the
limits of jurisdiction, or

A.3) Has acted in flagrant disregard to law or
rules or procedure or acted in violation of
principles of natural justice where no procedure
is specified.

B) Resultantly, there is a failure of justice or it
has resulted into gross injustice.

We may also sum up by saying that the power

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is there even in aforesaid circumstances, but
the exercise is discretionary which will be
governed solely by the dictates of the judicial
conscience enriched by judicial experience and
practical wisdom of the judge.”

10. In order to see that above decisions apply in the facts
of this case it would be germane to refer to Sub­section (7)
of Sectionsection 7 of the Act reads as under :

“Any person aggrieved by an order under sub­section
(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, 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 same 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 appellant
has deposited with him an amount equal to the
amount of gratuity required to be deposited under
sub­section (4) or deposits with the appellate
authority such amount.”

11. On bare perusal of the aforesaid provision and more
particularly, the first proviso, the appellate authority is
empowered to extend the period of limitation for 60 days
beyond further period of 60 days and as such, no appeal
would be maintainable after 120 days from the date of
receipt of order passed by the Controlling Authority under

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C/SCA/10417/2017 ORDER

sub­section(4) of Sectionsection 7 of the Act. Admittedly, in facts of
the case, there is delay of 455 days in filing appeal by the
petitioner and therefore, the appellate authority has rightly
rejected the same in view of the aforesaid provisions of the
Act.

12. In view of the forgoing reasons, the appellate
authority has not committed any error in rejecting the
appeal on the ground that the appeal is barred by statutory
limitation prescribed under the Act.

13. As the appellate authority has rejected the appeal
only on the ground of limitation without going into the
merits of the case, same is not required to be interfered
there being no infirmity or error in the order passed by the
appellate authority which is in consonance with the
provisions of the Act and also in consonance with the legal
position settled in above­mentioned decisions, this court is
not inclined to interfere in exercise of powers under Articles
226 and 227 of the Constitution of India.

14. The petition is therefore, devoid of any merits and
therefore, same is dismissed. Notice is discharged with no
order as to costs.

(BHARGAV D. KARIA, J)
RAGHUNATH R NAIR

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