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State Of U.P. And Another vs Controlling Authority And 2 … on 19 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 59

Case :- WRIT – C No. – 36251 of 2019

Petitioner :- State Of U.P. And Another

Respondent :- Controlling Authority And 2 Others

Counsel for Petitioner :- Shreeprakash Singh

Hon’ble Piyush Agrawal,J.

1. By means of the present writ petition, the petitioner is challenging the order dated 17.6.2019 passed by the controlling authority, respondent no.1 under Payment of Gratuity Act, 1972 (hereinafter referred to as ‘the Act, 1972’) in P.G. Appeal No. 1/2019 as well as the impugned order dated 6.7.2019 and 29.11.2017 passed by respondent-2 in P.G. Case No. 09 of 2016.

2. Brief case are that respondent no. 3 (herein after referred to as ‘the workman’) was initially engaged on 1.2.1998 as Beldar in Work Charge Establishment by the petitioners and continuously worked till 12.10.2011 in the office of petitioner no. 2 in the same status. Thereafter by the order of Executive Engineer, Tone Pump Canal, Prayagraj, the workman was relieved on 13.10.2011 and directed to join in regular establishment. In pursuance thereof the workman joined in regular establishment on 14.10.2011, on the pay Scale of Rs. 5200-20200/- Grade Pay Rs. 1800/-.

3. Subsequently, on 31.1.2015, the workman was made permanent and after completion of age of 60 years, he was superannuated on 29.2.2016. The workman had worked 13 years 08 months and 13 days as work charge employee and thereafter regularized and had discharged total 04 years, 04 months and 16 days of service as permanent employee. Accordingly at the time of superannuation, the workman had not completed 05 years service as regular/permanent employee as such he was paid gratuity of Rs. 1,11,663/- against the service of work charge employee.

4. On 24.12.2016, the workman set up his claim before the concerned authority under Section 4 of the Act, 1972, claiming gratuity of Rs. 4,56,600/- along with 12% interest for a period of 1.6.1975 to 29.2.2016, for about 40 years of his service. The petitioners filed objection in which it was stated that the workman was employee on work charge in the establishment on 1.2.1998 to 13.10.2011. Moreover, there was no case of payment of gratuity. The gratuity which was admitted by the petitioners, had been paid of Rs. 1,11,663/- to the workman. The stand was taken that the workman has not completed minimum 05 years of service as regular employee as per sub Rule 4 of the Rules, 1972, therefore, there was no question of payment of gratuity under the Act, 1972.

5. Thereafter the order dated 16.7.2017 was passed accepting the claim of the workman and direction was issued for payment of gratuity of sum of Rs. 3,44,937/- along with interest at the rate of 8% after deducting Rs. 1,11,663/-. The petitioners moved recall application on 26.8.2017, which was rejected on 29.11.2017 on the ground that the petitioners have alternative remedy of filing of statutory appeal which could be preferred under the Act, 1972 as per sub-section 7 of Section 7.

6. Thereafter, the petitioners preferred an appeal on 15.11.2018 before the appellate authority under sub Section 7 of Section 7 of the Act, 1972. The said appeal was filed along with the application under Section 5 of the Limitation Act, which was supported by the affidavit. The appeal was filed for payment of requisite amount as prescribed under the Act,1972. The workman filed his objection opposing the maintainability of the appeal as has been filed beyond the period of limitation provided under sub Section 7 of Section 7 of the Act, 1972. The workman has submitted that the appeal was highly belated and should be rejected on this ground alone. The appellate authority by the impugned order dated 17.6.2018 had dismissed the appeal of the petitioner holding that the appeal is beyond the period prescribed under sub Section 7 of Section 7 of the Act. Against the order dated 17.6.2018, the petitioners preferred the present writ petition.

7. Heard learned counsel for the parties and perused the records.

8. The contention of the petitioners’ counsel is that the appeal has been rejected solely on the ground that it has been filed beyond the period of limitation prescribed under sub section 7 of section 7 of the Act, 1972, and in the interest of justice, same ought to have been condoned. The question of law which falls for determination in the present writ petition is with regard to whether in filing the appeal under sub section 7 of section 7 of the Act 1972, the provisions of Section 5 of Limitation Act, would be applicable so that period beyond the limitation can be extended or not ?

9. The only ground and question raised in the present writ petition is whether the time granted in terms of statutory provisions under the Act, 1972 to file an appeal, can be extended beyond the period prescribed under the Act by granting benefit of the provisions of Section 5 of Limitation Act.

10. Before adverting to the contention of the petitioner, it is necessary to extract the relevant part sub-section 7 of Section 7 of the Act, 1972 as under:

7. Determination of the amount of gratuity -(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 subsection (4), or deposits with the appellate authority such amount.]

11. On bare perusal of the aforesaid sub-section, it is very clear that any person aggrieved by the order passed under sub-section 4 of section 7 may file an appeal within 60 days from the date of receipt of the order as may be specified therein. In case the aggrieved person was prevented by sufficient cause from preferring the appeal within the said period then the same period can be extended by further period of 60 days. In other words an appeal can be preferred within 60 days which can be extended for another period of 60 days only when there is sufficient cause and not otherwise.

12. The case in hand, the petitioner against the order dated 6.7.2017 moved a recall application which was rejected on 29.11.2017 and thereafter the petitioner preferred an appeal under sub-section 7 of Section 7 of the Act, 1972 on 15.11.2018, almost after a year.

13. The issue came before the Supreme Court as to whether period of limitation can be extended in the case of Commissioner of Sales Tax, UP Lucknow Vs. M/s Parson Tools and Plants, Kanpur, (1975) 4 SCC 22. Relevant part of the judgement is extracted below:

12. ….. The third is that the Revising Authority has no discretion to extend this period beyond a further period of six months, even on sufficient cause shown. As rightly pointed out in the minority judgment of the High Court, pendency of proceedings of the nature contemplated by s. 14(2) of the Limitation Act, may amount to a sufficient cause for condoning the delay and extending the limitation for filing a revision application, but s. 10 (3-B) of the Sales-tax Act, gives no jurisdiction to the Revising Authority to extend the limitation, even in such a case, for a further period of more than six months.

13. The three star features of the scheme and language of the above provision, unmistakably show that the legislature has deliberately excluded the application of the principles underlying ss. 5 and. 14 of the Limitation Act, except to the extent and in the truncated form embodied in sub-s. (3- B) of Section 10 of the Sales-tax Act. Delay in disposal of revenue matters adversely affects the steady inflow of reve- nues and the financial stability of the State. Section 10 is therefore designed to, ensure speedy and final determination of fiscal matters within a reasonably certain time-schedule.

14. It cannot be said that-by excluding the unrestricted application of the principles of ss. 5 and 14 of the Limitation Act, the Legislature has made. the provisions of s. 10, unduly oppressive. In most cases, the discretion to extend limitation, on sufficient cause being shown for a further period of six months only, given by sub-s. ( 3_B) would be enough to afford relief. Cases are no doubt conceivable where an aggrieved party, despite sufficient cause, is unable to make an application for revision within this maximum period of 18 months. Such harsh cases would be rare. Even, in such exceptional cases of extreme hardship, the Revising Authoritly may, on its own motion, entertain revision and grant relief.

15. Be that as it may, from the scheme and language of Section 10, the intention of the Legislature to exclude the unrestricted application of the principles of Sections 5 and 10 of the Limitation Act is manifestly clear. These provisions of the Limitation Act which the Legislature did not, after due application of mind, incorporate in the Sales-tax Act, cannot be imported into it by analogy. An enactment being the will of the legislature, the paramount rule of interpretation, which overrides all others,- is that a statute is to be expounded “according to the intent of them that made it”. “The will of ‘the legislature is the supreme law of the land, and demands perfect obdience”.(1) “Judicial power is never exercised” said Marshall C. J. of the United States, “for the purpose of giving effect to the will of the Judges; always for the purpose of giving effect to the will of the Legislature; or in other words, to the will of the law”.

16. If the legislature wilfully omits to incorporate something of an ‘analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so would be entrenching upon the preserves of Legislatures, ‘The primary function of a court of law being jus dicere and not jus dare.’

17. In the light of what has been said above, we are of the opinion that the High Court was in error in importing whole hog the principle of Section 14(2) of the Limitation Act into Section. 10 (3-B) of the Sales-tax Act.

18. The ratio of the Privy Council decision in Ramdutt Ramkissen Dass v. E. D. Sasson Co. (Supra) relied upon by the High Court is not on speaking terms with the clear language of s. 10 (3-B) of the Sales-tax Act. That decision was rendered long before the passage of the Indian Arbitration Act, 1940. It lost its efficacy after the enactment of the Arbitration Act which contained a specific provision in regard to exclusion of time from computation of limitation.

19. The case in point is Purshottam Dass Hussaram v. Index (India) Ltd. (supra). In this Bombay case, the question was, whether the suit was barred by limitation. It was not disputed that Article 115 of the Limitation Act governed the limitation and if no other factor was to be taken into consideration, the suit was filed beyond time. But what was relied upon by the plaintiff for the purpose of saving limitation was the fact that there were certain infructuous arbitration,, Proceedings and if the time taken in prosecuting those proceedings was eXcluded under Section 14, the suit would be within limitation. It was held that if Section 14 were to be construed strictly, the plaintiff would not be entitled to exclude the period in question.

20. On the authority of Ramdutt Ramkissen’s case (supra), it was then contended that. the time taken in arbitration proceedings should be excluded on the analogy of s. 14. This contention was also negatived on the ground that since the decision of the Privy Council, the legislature had in s. 37(5) of the Arbitration Act, 1940, provided as to what extent the provisions of the Limitation Act would be applicable to the proceedings before the arbitrator. Section 37(5) was as follows :

“Where the cow orders that an award be set aside or orders, after the commencement of an arbitration, that the arbitration agreement shall cease to have effect with respect to the difference referred, the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Indian Limitation Act, 1908, for the commencement of the proceedings (including arbitration) with respect to the difference referred.”

The reasons advanced, the observations made and the rule enunciated by Chagla C.J., who spoke for the Bench in that case, are opposite and may be extracted with advantage:

….we have now a statutory provision for exclusion of time taken up in arbitration Pr when a suit Is filed, and the question arises of computing the period of limitation with regard to that suit, and the time that has got to be excluded is only that time which is taken up as provided in s. 37(5). There must be an order of the Court setting aside an award or there must be an order of the Court declaring that the arbitration agreement shall cease to have effect, and the period between the commencement of the arbitration and the date of this order is the period that has got to be excluded.

It is therefore no longer open to the Court to rely on s. 14 Limitation Act as applying by analogy to arbitration proceedings. If the Legislature intended that s. 14 should apply and. that all the time taken up in arbitration proceedings should be excluded, then there was no reason to enact s. 37(5)., The very fact that s. 37(5) has been enacted clearly shows- that the whole period referred to in…a, 49 Limitation Act is not to be excluded but the limited’.. indicated in s. 37(5).

* * * * * *

“it may seem rather curious-and it may also in certain cases result in hardship-as to why the legislature should not have excluded all time taken up in good faith before an arbitrator just as the time taken up in prosecuting a suit or an appeal in good faith is excluded. But obviously the Legislature did no t intend that parties should waste time infructuous proceedings before arbitrators. The Iegisla- ture has clearly indicated that limitation having once begun to run, no time could be excluded merely because parties chose to go before an arbitrator without getting an award or without coming to Court to get the necessary order indicated in s. 37(5).”

21. What the learned Chief Justice said about the inapplicability of s. 14, Limitation Act, in the context of s. 37(5) of the Arbitration Act, holds good with added force with reference to s. 10 (3-B) of the Sales-tax Act.

22. 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 upto a specified time-limit and no further, than the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limk specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of s. 14(2) of the Limitation Act.

23. We have said enough and we may say it again that where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the court to give full effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the law-giver; more so if the statute is a taxing statute. We will close the discussion by recalling what Lord Hailsham (1) has said recently, in regard to importation of the principles of natural justice into a statute which is a clear and complete Code, by itself :

“It is true of course that the courts will lean heavily ,against any construction of a statute which would be manifestly fair. But they have no power to amend or supplement the language of a statute merely because in one view (1)At P. 11 in Pearl Berg v. Varty [1972] 2 All E. R. 6, of the matter a subject feels himself entitled to a larger degree of say in the making of a decision than a statute accords him. Still less is it the functioning of the courts to form first a judgment on the fairness of an Act of Parliament and theft to amend or supplement it with new provisions so as to make it conform to that judgment.”

24. For all the reasons aforesaid, we are of the opinion that the object, the scheme and language of s.10 of the Sales-tax Act do not permit the invocation of s.14(2) of the Limitation Act, either, in terms, or, in principle, for excluding the time spent in prosecuting proceedings for setting aside the dismissal of appeals in default, from com- putation of the period of limitation prescribed for filing a revision under the Sales-tax. Accordingly, we answer the question referred, in the negative.

The Apex Court has observed that where the special statute prescribes a certain period, the limitation for filing an appeal, may be extended only upto a specified time limit.

14. A similar view has been reiterated by Supreme Court in the case of Commissioner of Customs Central Excise Vs. M/s Hongo India (P) Ltd. Anr.(2009) 5 SCC, 791, in which the Apex Court has held herein below:-

14. Article 214 of the Constitution of India makes it clear that there shall be a High Court for each State and Article 215 states that every High Court shall be a court of record and shall have all the powers including the power to punish for contempt of itself. Though we have adverted to Section 35 H in the earlier part of our order, it is better to extract sub- section (1) which is relevant and we are concerned with in these appeals :

“35H. Application to High Court – (1) The Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under section 35C passed before the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal.”

Except providing a period of 180 days for filing reference application to the High Court, there is no other clause for condoning the delay if reference is made beyond the said prescribed period.

15. We have already pointed out that in the case of appeal to the Commissioner, Section 35 provides 60 days time and in addition to the same, Commissioner has power to condone the delay up to 30 days, if sufficient cause is shown. Likewise, Section 35B provides 90 days time for filing appeal to the Appellate Tribunal and sub-section (5) therein enables the Appellate Tribunal to condone the delay irrespective of the number of days, if sufficient cause is shown. Likewise, Section 35EE which provides 90 days time for filing revision by the Central Government and, proviso to the same enables the revisional authority to condone the delay for a further period of 90 days, if sufficient cause is shown, whereas in the case of appeal to the High Court under Section 35G and reference to the High Court under Section 35H of the Act, total period of 180 days has been provided for availing the remedy of appeal and the reference. However, there is no further clause empowering the High Court to condone the delay after the period of 180 days. …

27. The other decision relied on by the counsel for the appellant is M.V. Elisabeth and Others vs. Harwan Investment and Trading Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa, 1993 Supp (2) SCC

The learned ASG heavily relied on the following observations:

“66. The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of this Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own powers…..”

Here again, there is no dispute about the above proposition. The High Courts in India are having inherent and plenary powers and as a Court of Record the High Courts have unlimited jurisdiction including the jurisdiction to determine their own powers. However, the said principle has to be decided with the specific provisions in the enactment and in the light of the scheme of the Act, particularly in this case, Sections 35, 35B, 35EE, 35G and 35H of the unamended Central Excise Act, it would not be possible to hold that in spite of the above-mentioned statutory provisions, the High Court is free to entertain reference application even after expiry of the prescribed period of 180 days.

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.

37. In the light of the above discussion, we hold that the High Court has no power to condone the delay in filing the “reference application” filed by the Commissioner under unamended Section 35H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismissed the reference on the ground of limitation.

15. Similar observations were made by the Supreme Court in the case of Patel Brothers Vs. State of Assam and others, (2017) 2 SCC 350 in which the Apex Court has held as follows:-

6. In the first instance, he referred to Section 79 of the VAT Act which is a provision relating to appeals to the Appellate Authority. As per Section 79(1) of the VAT Act, appeal against the order of the taxing authority can be filed with the appellate authority within 60 days from the date of receipt of such order of the taxing authority. Sub- section (2) of Section 79 of the VAT Act empowers the appellate authority to entertain the appeal even beyond 60 days, provided it is presented within a further period of 180 days, if the appellate authority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the stipulated period of 60 days[1].

7. The learned counsel next referred to Section 80 of the VAT Act[2] which deals with appeals to the Appellate Tribunal inter alia against the orders of the Appellate Authority. Here also, period of 60 days for preferring such an appeal is provided under sub-section (3) of Section 80 of the VAT Act and proviso to sub-section (3) empowers the Appellate Tribunal to condone the delay, if the appeal is preferred within a further period of 120 days, on sufficient cause being shown for not filing the appeal within 60 days of limitation prescribed. The learned counsel contrasted the aforesaid provisions of Sections 79 and 80 with Section 81[3] of the VAT Act and pointed out that whereas there was specific provision for condonation of delay in filing appeals under Sections 79 and 80 of the VAT Act, no such equivalent provision was made in Section 81 of the VAT Act. As per Section 81 of the VAT Act, revision can be preferred to the High Court against the order of the Appellate Tribunal within 60 days. However, there is no provision giving specific power to the High Court to condone the delay if the revision is preferred beyond 60 days. As per the learned counsel, the reason for not providing such a provision was that provisions of Limitation Act, 1963 including Section 5 thereof were applicable.

8. Insofar as Section 84 of the VAT Act[4] is concerned, it was submitted that Sections 4 and 12 of the Limitation Act, 1963 were made applicable for specific purpose of computing the period of limitation under the said Chapter and High Court committed a grave error while holding that because of the aforesaid provision only Sections 4 and 12 of the Limitation Act, 1963 were made applicable to the VAT Act thereby excluding other provisions of the Act.

9. For this purpose, the learned counsel relied upon Section 29(2) of the Limitation Act, 1963[5] which makes provisions contained in Sections 4 to 24 (inclusive) of the Limitation Act, 1963 applicable in case of suit, appeal or application under any special or local law, where these provisions are not expressly excluded by such special or local law.

10. It was argued that in the absence of any provision expressly excluding the applicability of Sections 4 to 24 of the Limitation Act, 1963, those Sections were applicable qua revision petitions filed under Section 81 of the VAT Act and, therefore, Section 5 of the Limitation Act, 1963 was also applicable to such proceedings. To placate his aforesaid submissions, the learned counsel relied upon the judgment of this Court in the case of Mangu Ram v. Municipal Corporation of Delhi Anr.[6]. In that case, special leave petitions were filed against the condonation of delay to the application for grant of special leave under Section 417, Cr.P.C., 1898 against acquittal of the petitioners by the trial court, in spite of the mandatory period of limitation provided in sub-section (4) of Section 417. Question arose whether in the case of Kaushalya Rani v. Gopal Singh[7], which held Section 417, Cr.P.C., 1898 a special law and excluded application of Section 5 on a construction of Section 29(2)(b) of the old Act of 1908 applied under the corresponding provision of Limitation Act, 1963 which governed the case. The Court held that since the case was governed by Limitation Act, 1963, judgment in Kaushalya Rani case did not apply. For applicability of the Limitation Act, 1963 to such proceedings, the Court referred to Section 29(2) of the Limitation Act, 1963 holding that there is an important departure made by the Limitation Act, 1963 insofar as the provision contained in Section 29, sub-section (2), is concerned. Under the Indian Limitation Act, 1908, clause (b) to sub- section (2) of Section 29 provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the application of Section 5 was in clear and specific terms excluded. But under Section 29(2) of Act, the provisions of Section 5 shall apply in case of special or local law to the extent to which they are not expressly excluded by such special or local law. Since under the Limitation Act, 1963, Section 5 is specifically made applicable by Section 29 (2), it is only if the special or local law expressly excludes the applicability of Section 5 that it would stand displaced. The Court held that there is nothing in Section 417(4), Cr.P.C., which excludes the application of Section 5 of Limitation Act, 1963.

11. Learned counsel for the appellant also referred to the case of State of Madhya Pradesh Anr. v. Anshuman Shukla[8]. In that case, question of applicability of Section 5 of the Limitation Act arose in relation to revision petition that can be preferred under Section 19 of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 (as it stood prior to its amendment in 2005). The Court held that since unamended Section 19 did not contain any express rider on power of the High Court to entertain applications for revision after expiry of prescribed limitation thereunder, provisions of Limitation Act, 1963 would become applicable vide Section 29(2) thereof. It further held that as the High Court was conferred with suo moto power under Section 19 of Adhiniyam, 1983 to call for record of an award at any time, there was no legislative intent to exclude the applicability of Section 5 of the Limitation Act, 1963.

12. Mr. Nalin Kohli, learned senior counsel appearing for the respondents, on the other hand, submitted that the High Court had exhaustively dealt with the issue and rightly found that since Section 84 of the VAT Act confined the applicability of Limitation Act only in respect of Sections 4 and 12 thereof to the proceedings under the said Chapter, by necessary implication the other provisions of the Limitation Act, 1963 including Section 5 thereof stood excluded. He submitted that for the purpose of finding whether other provisions are excluded or not, the focus should be on the scheme of the special law as laid down in Hukumdev Narain Yadav v. Lalit Narain Mishra[9] wherein it was held that even if there exists no express exclusion in the special law, the Court has right to examine the provisions of the special law to arrive at a conclusion as to whether the legislative intent was to exclude the operation of the Limitation Act. According to him, Section 84 of the VAT Act clearly depicted such a legislative intent.

13. After examining the matter in the light of law laid down in various judgments cited by both the parties, we are of the view that the High Court has given correct interpretation to the provisions of Section 81 of the VAT Act, when this provision is read along with Section 84 thereof.

14. In the case of Commissioner of Customs and Central Excise v. Hongo India Private Limited Anr.[10], the question that fell for determination was that as to whether the High Court had power to condone the delay in presentation of the reference application under unamended Section 35-H(1) of the Central Excise Act, 1994 beyond the period prescribed by applying Section 5 of the Limitation Act. Unamended Section 35-H dealt with reference application to the High Court. Under sub-section (1) thereof, such reference application could be preferred within a period of 180 days of the date upon which the aggrieved party is served with notice of an order under Section 35-C of the Central Excise Act. There was no provision to extend the period of limitation for filing the application to the High Court beyond the said period and to condone the delay. Pertinently, under the scheme of the Central Excise Act as well, in case of appeal to the Commissioner under Section 35 of the Act, which should be filed within 60 days, there was a specific provision for condonation of delay upto 30 days if sufficient cause is shown. Likewise, appeal to the Appellate Tribunal could be filed within 90 days under Section 35-B thereof and sub-section (5) of Section 35-B gave power to the Appellate Tribunal to condone the delay irrespective of the number of days, if sufficient cause is shown. Further, Section 35-EE provided 90 days time for filing revision by the Central Government and proviso thereto empowers the revisional authority to condone the delay for a further period of 90 days. However, when it came to making reference to the High Court under Section 35-G of the Act, the provision only prescribed the limitation period of 180 days with no further clause empowering the High Court to condone the delay beyond the said period of 180 days. It was, thus, in almost similar circumstances, the judgment was rendered by this Court.

15. The categorical opinion of the Court in Hongo India (P) Ltd. Case, was that in the absence of any such power, the High Court did not have power to condone the delay. In that case also, provisions of Section 29(2) of the Limitation Act, 1963 were pressed into service. But this argument was rejected in the following manner:

30. In the earlier part of our order, we have adverted to Chapter VI- A of the Act which provides for appeals and revisions to various authorities. Though 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 the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under Section 35-G and reference application to the High Court under Section 35-H, 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. [(2008) 3 SCC 73] The Commissioner of Customs, Central Excise, Noida was 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 35-H(1) of the Act, the two-Judge Bench taking note of the said provision and the other related provisions following Singh Enterprises v. CCE [(2008) 3 SCC 70] concluded that: (Punjab Fibres Ltd. case [(2008) 3 SCC 73] , SCC p. 75, para 8)

“8. … 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, 35-B, 35-EE, 35-G and 35-H 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.”

16. In the process, the Court also explained the expression ‘expressly excluded’ appearing in Section 29(2) of the Limitation Act, 1963 in the following manner:

“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 the 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 which here in this case is the Central Excise Act. The nature of the remedy provided therein is 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, is 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.”

17. The aforesaid judgment is a complete answer to the arguments of the appellant.

18. It may be relevant to mention here that after the judgment in Hongo India Private Limited Anr., Section 35-H of the Central Excise Act, 1994 was amended by the Parliament by Act 32 of 2003 with effect from 14.05.2003 giving power to the High Court to condone the delay by inserting sub- section (2A). It is, therefore, for the legislature to set right the deficiency, if it intends to give power to the High Court to condone the delay in filing revision petition under Section 81 of the VAT Act.

19. The argument predicated on ‘no express exclusion’ loses its force having regard to the principle of law enshrined in Hukumdev Narain Yadav. Therein, the Court made following observations while examining whether the Limitation Act would be applicable to the provisions of the Representation of the People Act or not:

“17. … but what we have to see is whether the scheme of the special law, that is in this case the Act, and 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 view, 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.”

20. Thus, the approach which is to be adopted by the Court in such cases is to examine the provisions of special law to arrive at a conclusion as to whether there was legislative intent to exclude the operation of Limitation Act. In the instant case, we find that Section 84 of the VAT Act made only Sections 4 and 12 of the Limitation Act applicable to the proceedings under the VAT Act. The apparent legislative intent, which can be clearly evinced, is to exclude other provisions, including Section 5 of the Limitation Act. Section 29(2) stipulates that in the absence of any express provision in a special law, provisions of Sections 4 to 24 of the Limitation Act would apply. If the intention of the legislature was to make Section 5, or for that matter, other provisions of the Limitation Act applicable to the proceedings under the VAT Act, there was no necessity to make specific provision like Section 84 thereby making only Sections 4 and 12 of the Limitation Act applicable to such proceedings, inasmuch as these two Sections would also have become applicable by virtue of Section 29(2) of the Limitation Act. It is, thus, clear that the Legislature intended only Sections 4 and 12 of the Limitation Act, out of Sections 4 to 24 of the said Act, applicable under the VAT Act thereby excluding the applicability of the other provisions.

21. Judgment in the case of Mangu Ram would not come to the aid of the appellant as the Court found that there was no provision under the Cr.P.C. from which legislative intent to exclude Section 5 of the Limitation Act could be discerned and, therefore, Section 29(2) of the Limitation Act was taken aid of. Similar situation prevailed in Anshuman Shukla’s case. On the contrary, in the instant case, a scrutiny of the scheme of VAT Act goes to show that it is a complete code not only laying down the forum but also prescribing the time limit within which each forum would be competent to entertain the appeal or revision. The underlying object of the Act appears to be not only to shorten the length of the proceedings initiated under the different provisions contained therein, but also to ensure finality of the decision made there under. The fact that the period of limitation described therein has been equally made applicable to the assessee as well as the revenue lends ample credence to such a conclusion. We, therefore, unhesitantly hold that the application of Section 5 of the Limitation Act, 1963 to a proceeding under Section 81(1) of the VAT Act stands excluded by necessary implication, by virtue of the language employed in section 84.

22. The High Court has rightly pointed out the well settled principle of law that:

“19…….the court cannot interpret the statute the way they have developed the common law ”which in a constitutional sense means judicially developed equity’. In abrogating or modifying a rule of the common law the court exercises the same power of creation that built up the common law through its existence by the judges of the past. The court can exercise no such power in respect of statue, therefore, in the task of interpreting and applying a statue, Judges have to be conscious that in the end the statue is the master not the servant of the judgment and no judge has a choice between implementing it and disobeying it.”

What, therefore, follows is that the court cannot interpret the law in such a manner so as to read into the Act an inherent power of condoning the delay by invoking Section 5 of the Limitation Act, 1963 so as to supplement the provisions of the VAT Act which excludes the operation of Section 5 by necessary implications.

16. The Apex Court held in the above judgement that under Central Excise Act, the time limit prescribed for making a reference thereunder is absolute as it is a special law and a complete code by itself, and limitation cannot be extended by the Court taken aid of Limitation Act.

17. Similar view has been taken by the Supreme Court in the case of Bengal Chemists and Druggists Association Vs. Kalyan Chowdhury, (2018) 3 SCC 41, in which the Apex Court has held as follows:

4. A cursory reading of Section 421(3) makes it clear that the proviso provides a period of limitation different from that provided in the Limitation Act, and also provides a further period not exceeding 45 days only if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. Section 433 obviously cannot come to the aid of the appellant because the provisions of the Limitation Act only apply “as far as may be”. In a case like the present, where there is a special provision contained in Section 421(3) proviso, Section 5 of the Limitation Act obviously cannot apply.

5. Another very important aspect of the case is that 45 days is the period of limitation, and a further period not exceeding 45 days is provided only if sufficient cause is made out for filing the appeal within the extended period. According to us, this is a peremptory provision, which will otherwise be rendered completely ineffective, if we were to accept the argument of learned counsel for the appellant. If we were to accept such argument, it would mean that notwithstanding that the further period of 45 days had elapsed, the Appellate Tribunal may, if the facts so warrant, condone the delay. This would be to render otiose the second time limit of 45 days, which, as has been pointed out by us above, is peremptory in nature.

6. We are fortified in this conclusion by the judgment of this Court in Chhattisgarh SEB v. Central Electricity Regulatory Commission, 2010 (5) SCC 23. The language of Section 125 of the Electricity Act, 2003, which is similar to the language contained in Section 421 (3) of the Companies Act, 2013, came up for consideration in the aforesaid decision. The issue that arose before this Court was whether Section 5 of the Limitation Act can be invoked for allowing the aggrieved person to file an appeal beyond 60 days plus the further grace period of 60 days. This Court held that Section 5 cannot apply to Section 125 of the Electricity Act in the following terms:

“25. Section 125 lays down that any person aggrieved by any decision or order of the Tribunal can file an appeal to this Court within 60 days from the date of communication of the decision or order of the Tribunal. Proviso to Section 125 empowers this Court to entertain an appeal filed within a further period of 60 days if it is satisfied that there was sufficient cause for not filing appeal within the initial period of 60 days. This shows that the period of limitation prescribed for filing appeals under Sections 111(2) and 125 is substantially different from the period prescribed under the Limitation Act for filing suits, etc. The use of the expression “within a further period 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.”

The aforesaid judgment was reiterated and followed in ONGC v. Gujarat Energy Transmission Corporation Limited, 2017 (5) SCC 42 at Para 5.

7. It now remains to deal with the decisions cited by learned counsel appearing on behalf of the appellant. The first is the judgment in Guda Vijayalakshmi vs. Guda Ramachandra Sekhara Sastry, (1981) 2 SCC 646. In that case, a Transfer Petition was filed under Section 25, CPC, 1908 in this Court. A preliminary objection was taken stating that in view of Sections 21 and 21A of the Hindu Marriage Act, 1955, Section 25 would not be applicable. This was turned down by this Court stating that Section 21 would not apply to substantive provisions of the Code as apart from procedural provisions. Equally, Section 21A of the Hindu Marriage Act, 1955 only dealt with transfers “in certain cases”. This being so, the wide and plenary power conferred on this Court to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one Civil Court in one State to another Civil Court in any other State was held not be entrenched upon by Sections 21 and 21A of the Hindu Marriage Act. We fail to see how this judgment, in any manner, furthers the proposition sought to be canvassed on behalf of the appellant, which is that Section 5 of the Limitation Act would continue to apply even after a second period of 45 days is peremptorily laid down. This judgment, therefore, does not carry the matter any further.

8. Reliance placed on Dr. Partap Singh and Another vs. Director of Enforcement, Foreign Exchange Regulation Act and Others, (1985) 3 SCC 72 is equally misplaced. In this case, Section 37 of the Foreign Exchange Regulation Act, 1973 was involved. Section 37(2) provides that the provisions of the Code relating to searches shall, so far as may be, apply to searches directed under Section 37(1). This Court held that the expression “so far as may be” has always been construed to mean that those provisions may generally be followed to the extent possible. In the fact scenario of that case, it was held that to give full meaning to the expression ‘so far as may be’, sub-section (2) of Section 37 should be interpreted to mean that broadly the procedure relating to search as enacted in Section 165 shall be followed.

9. This case again does not take the matter any further. In fact, the ratio of the judgment as far as this case is concerned is that the expression “so far as may be” only means to the extent possible. If not possible, obviously the Limitation Act would not apply. We have already held that it is not possible for Section 5 of the Limitation Act to apply given the peremptory language of Section 421(3).

10. The third judgment is Mangu Ram vs. Municipal Corporation of Delhi, (1976) 1 SCC 392. In this judgment, Section 417 of the Code of Criminal Procedure, 1898 provided for special leave to appeal from an order of acquittal. Section 417 (4) required that the application for special leave should be made before the expiry period of 60 days from the date of the order of acquittal. Applying Section 29(2) of the Limitation Act, this Court held that Section 5 of the Limitation would not be impliedly excluded in such case despite the mandatory and peremptory language contained in Section 417(4) of the Cr.P.C. This Court held that all periods of limitation are cast in such mandatory and peremptory language and, therefore, Section 5 could not be said to be impliedly excluded.

11. This case again is wholly distinguishable. It applies only to a period of limitation which is given beyond which nothing further is stated as to whether delay may be condoned beyond such period. In the present case, the Section 417(3) does not merely contain the initial period of 45 days, in which case the aforesaid judgment would have applied. Section 417(3) goes on to state that another period of 45 days, being a grace period given by the legislature which cannot be exceeded, alone would apply, provided sufficient cause is made out within the aforesaid grace period. As has been held by us above, it is the second period, which is a special inbuilt kind of Section 5 of the Limitation Act in the special statute, which lays down that beyond the second period of 45 days, there can be no further condonation of delay. On this ground therefore, the aforesaid judgment also stands distinguished.

12. One further thing remains – and that is that learned counsel for the appellant pointed out the difference between the expression used in the Arbitration Act as construed by Popular Construction (supra) and its absence in the proviso in Section 421(3). For the reasons given above, we are of the view that this would also make no difference in view of the language of the proviso to Section 421(3) which contains mandatory or peremptory negative language and speaks of a second period not exceeding 45 days, which would have the same effect as the expression “but not thereafter” used in Section 34(3) proviso of the Arbitration Act, 1996.

18. The Apex Court in the above case has an occasion to consider the provisions of Companies Act and held that period of limitation cannot be extended beyond prescribed period i.e. 45 days as provided in Section 421 (3) of Companies Act.

19. The issue came up before different High Courts for consideration as to whether appeal filed beyond the period of limitation under sub Section 7 of Section 7 of the Act, 1972, can be entertained and period of limitation can be condoned. In this regard, reference may be made to the judgements of different High Courts.

20. Karnataka High Court in the case of Karnataka State Road Transport Corporation Vs. Dy. Labour Commissioner and others, 2014 (143) FLR 392 has held as follows:

4. Section 7 of the Act provides for determination of the amount of gratuity. Sub-section (4)(c) of section 7 of the Act states that the Controlling Authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard, determine the matter or matters in dispute and if as a result of such inquiry any amount is found to be payable to the employee, the Controlling Authority shall direct the employer to pay such amount or, as the case may be, such amount as reduced by the amount already deposited by the employer.

5. Sub-section (7) of section 7 states 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 on this behalf. The proviso to this provision authorises the Appropriate Government of 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 said period by a further period of sixty days.

6. Rules have been framed under section 15 of the Act to effectuate the purposes of the Act. Sub-rule (4) of Rule 11 states that after completion of hearing on the date fixed under sub-rule (1), or after such further evidence, examination of documents, witnesses, hearing and enquiry, as may be deemed necessary, the Controlling Authority shall record his finding as to whether any amount is payable to the applicant under the Act. A copy of the finding shall be given to each of the parties.

7. From the aforesaid provisions, it is clear that the Controlling Authority after holding an enquiry has to pass order and the copy of the order has to be furnished to the contesting parties. If a party is aggrieved by the said order, he has to prefer an appeal within sixty days from the date of receipt of the order before the competent authority. However, the appellate authority has the power to condone the delay of 60 days if it is satisfied that the petitioner was prevented by sufficient cause in preferring the appeal within a period of 60 days.

8. In the instant case, the contention of the petitioner is that it has filed a review petition before the Controlling authority seeking review of the order at Annexure-D. There is no provision for filing of review petition before the competent authority. Therefore, an endorsement was rightly issued by the competent authority staring that it has no jurisdiction to entertain the review.

9. Admittedly, the appeal was filed beyond the period of 120 days from the date of receipt of the order of the Controlling, Authority. In Hongo India P. Ltd.’s case (supra), the Hon’ble Supreme Court has held that the provision of Limitation Act is not applicable when the special statute provides for the period of limitation. It was further held that section 5 of the Limitation Act has no application having regard to section 29(2) of the Limitation Act.

10. A Division Bench of this Court in Writ Appeal No. 2055/2008 (referred to above) has considered an identical question. It has been held that the Appellate Authority has no power to entertain an appeal beyond a period of 120 days.

21. Gujrat High Court in the case of State of Gujrat and another Vs Appellate Authority under Payment of Gratuity Act, and others, 2015(147) FLR 564 has held as follows:-

9. In view of the aforesaid statutory provision, the Appellate Authority is not empowered to condone the delay if the appeal is preferred after a period of 120 days. This Court has considered the provisions contained in section 7(7) of the Payment of Gratuity Act. In the case of Bhavnagar Municipal Corporation v. Sunderben Chhanabhai Baraiya, MANU/GJ/1296/2011 : 2011 (131) FLR 870 (Guj.) has considered the provisions contained in sub-section (7) of section 7 of the Payment of Gratuity Act. This Court held that the Appellate Authority had rightly dismissed the appeal which was filed after eleven months, and the Appellate Authority had no power to condone the delay. It was further held that if the extraordinary power conferred to this Court under Article 226 of the Constitution of India is invoked and exercised, in such type of cases, it will be nothing but amounting to miscarriage of justice, and therefore, the petition was dismissed by this Court.

10. Even thereafter, Full Bench of this Court has considered the provision contained in section 35 of the Central Excise Act of 1944. The provision contained in section 35 of the Central Excise Act are pari-materia with the provision contained in section 7(7) of the Payment of Gratuity Act. The Full Bench of this Court in the case of Panoli Intermediate (India) Pvt. Ltd. v. Union of India and others MANU/GJ/0371/2015 : AIR 2015 Guj. 97, has held in paragraph 31 as under:

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

(1) Question No. 1 is answered in negative by observing that the limitation provided under section 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 Article 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 Article 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 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.”

11. In view of the aforesaid Full Bench decision, it is clear that the Appellate Authority is not empowered to condone the delay if the appeal is filed after a period of 120 days from the date of receipt of the order by the aggrieved party. In the present case, it is admitted that the petitioners preferred the appeal after a period of limitation and, therefore, the said appeal was rightly rejected by the Appellate Authority.

12. It is also observed by the Appellate Authority that the petitioners had not deposited the amount as per the order passed by the Controlling Authority and, therefore, the said appeal is not maintainable. Further, proviso of section 7(7) provides 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. Thus, it is mandatory that the employer has to deposit the amount as per the further proviso of section 7(7) of the Payment of Gratuity Act. If such amount is not deposited, the appeal is liable to be dismissed which is rightly dismissed by the authority.

22. Hyderabad High Court in the case of Deepak Transport Agency Pvt. Ltd. Vs. Appellate Authority, Gratuity Act-cum Dy. Commissioner of Labour, 2018 (159) FLR 885 has held as under:-

8. Record discloses that Mr. M. Ashok worked as Assistant Commissioner of Labour-III and in that capacity as Controlling Authority he decided the issue on the original side. By the time appeal was preferred, the same person became Deputy Commissioner of Labour-II and was designated as the Appellate Authority under the Act. Thus, the same officer could not have entertained the appeal, consider and pass orders sitting over his own decision made in the capacity as the original authority. No doubt, a quasi-judicial authority cannot sit and decide the validity of his own decision after he became appellate authority.

9. One of the facets of fair hearing in quasi-judicial proceedings also that same authority who heard original application cannot sit and decide the appeal. Ordinarily, on this aspect order of Appellate Authority is not sustainable and liable to be set aside and matter be remitted to the appellate authority for reconsideration of the issue by the officer other than the officer who decided the original complaint. Whenever, such issue comes up before writ court, writ court would not hesitate to hold such action as illegal and direct fresh consideration of appeal by a different authority. However, in the case on hand matter does not rest there. In this case the petitioner/appellant did not comply with twin conditions to prefer appeal under Section 7(7) of the Act and unless those conditions are fulfilled appeal is not maintainable. As noted above, the appellate authority has not decided the appeal on merits but only highlighted the requirements to prefer appeal and held that appellant has not fulfilled those requirements. This is an incurable defect. Thus, no useful purpose would be served by such remittance. It is a futile exercise. A breach of procedure cannot give rise to remedy unless there is something of substance which is lost by such failure. In the facts of this case it cannot be said that prejudice is caused to petitioner as his appeal suffers from incurable defect.

10. The writ remedy is an equitable remedy. Grant of relief to an aggrieved person is discretionary in the hands of writ Court. Merely because the party makes out a case to grant relief, the Court need not grant the relief prayed if granting of relief prayed is futile.

11. In Sangram Singh Vs. Election Tribunal : MANU/SC/0044/1955 : AIR 1955 SC 423, Supreme Court delineated scope of exercise of power of judicial review under Article 226 of the Constitution of India. Supreme Court held:

“14. That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as courts of appeal under Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case.”

12. Having regard to the history of litigation briefly noted above and the fact that gratuity payable as determined by the original authority was only Rs. 90,045/- and as appellant failed to comply two mandatory requirements to prefer appeal, therefore suffers from incurable defect, this Court is not inclined to relegate the matter to the appellate authority at this stage on the ground that same authority sat in appeal against his own decision.

23. Madras High Court in the case of Senior Regional Manager, TN. Civil Supplies Corporation, Vs. Joint Commissioner of Labour and others, 2019 (161) 392 has held as under:

4. The Payment of Gratuity Act, 1972, is a beneficial legislation to protect the interest of employees engaged in factories, mines, oil-fields, plantations, ports, railway companies, shops or other establishments and for matters connected therewith or incidental thereto. It is a special enactment and a social welfare legislation to prevent unfair labour practice. Always the Courts while interpreting social welfare legislation, a beneficent construction is given on the relevant provisions which furthers the purpose for which such legislation was enacted. It is settled law that the special law overrides the general law when a specific provision is available under the special law and this principle finds its origin in the latin maxim “Generalia Specialibus Non Derogant”, which means general law yields to special law, should they operate in the same field on the same subject. In the instant case, section 7(7) of the Act specifically stipulates that an appeal will have to be filed as against an order passed under section 7(4) of the Act within 60 days from the date of receipt of the order. Under the first proviso to section 7(7) of the Act, 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 60 days. Therefore, the maximum period available to challenge an order passed by the Assistant Commissioner of Labour (Gratuity), under section 7(4) of the Act is 120 days from the date of receipt of the order.

5. As per section 14 of the Act, it overrides other enactments. Section 14 of the Act reads as follows:

“14. Act to override other enactments, etc.-The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act.”

6. The applicability of the Limitation Act, 1963, including section 5 of the Limitation Act, is no where mentioned in any of the provisions under the Payment of Gratuity Act, 1972. As seen from section 14 of the Act, the Payment of Gratuity Act is a self-contained code by itself. Therefore, the intention of the legislature to prescribe a maximum period for filing an appeal is only to protect the interest of the employees as the Act itself is a beneficent legislation protecting the interest of employees and to prevent unfair labour practice.

7. The Andhra Pradesh High Court in a similar matter, while dealing with section 7(7) of the Payment of Gratuity Act, 1972, in its judgment in Deepak Transport Agency Private Limited v. Appellate Authority MANU/HY/0125/2018 : 2018 (5) ALT 631 : 2018 (159) FLR 885, has also held that the delay beyond 120 days for filing an appeal under section 7(7) of the Act is an incurable defect. The relevant paragraph of the said judgment, is reproduced hereunder:

“10. …… In this case the petitioner/appellant did not comply with twin conditions to prefer appeal under section 7(7) of the Act and unless those conditions are fulfilled appeal is not maintainable. As noted above, the Appellate Authority has not decided the appeal on merits but only highlighted the requirements to prefer appeal and held that appellant has not fulfilled those requirements. This is an incurable defect. Thus, no useful purpose would be served by such remittance. It is a futile exercise. A breach of procedure cannot give rise to remedy unless there is something of substance which is lost by such failure. In the facts of this case, it cannot be said that prejudice is caused to petitioner as his appeal suffers from incurable defect.”

8. The Gujarat High Court in the case of State of Gujarat and another v. Appellate Authority under Payment of Gratuity Act MANU/GJ/0748/2015 : 2015 (147) FLR 564 (Guj.), following the Full Bench judgment of the Gujarat High Court MANU/GJ/0371/2015 : AIR 2015 Guj. 97, has held that the Appellate Authority is not empowered to condone the delay, if the appeal is filed after a period of 120 days and the High Court cannot also condone the delay in filing the appeal exercising powers under Article 226 of the Constitution of India. The relevant paragraphs of the said Gujarat High Court judgment are reproduced hereunder:

“19. The Division Bench of this Court referred certain questions to the Full Bench. The Full Bench of this Court considered the said questions and appropriate answers were given to the said questions. The said decision is reported in MANU/GJ/0371/2015 : AIR 2015 Gujarat 97. In paragraph No. 1, of the said decision, three questions were formulated. Paragraph No. 1 of the said decision reads as under:

“1. The Division Bench of this Court has formulated the following questions and has referred the matter to the Larger Bench:

“(1) Whether the period of limitation provided of 60 days, for filing an appeal under section 35 of the Central Excise Act, 1944, could be extended only upto 30 days as provided by the proviso or the delay beyond the period of 90 days could also be condoned in filing an appeal?

(2) Where a statutory remedy or appeal is provided under section 35 of the Central Excise Act, 1944 and the delay cannot be condoned under section 35 beyond the period of 90 days, then whether writ petition under Article 226 of the Constitution of India would lie for the purpose of condoning the delay in filing the appeal?

(3) When if the statutory remedy or appeal under section 35 is barred by the law of limitation whether in a writ petition under Article 226 of the Constitution of India, the order passed by the original adjudicating authority could be challenged on merits?”

The Hon’ble Full Bench of this Court after considering various provisions of different Acts and various decisions of the Honourable Supreme Court as well as different High Courts answered the said questions in paragraph No. 31, which reads as under:

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

(1) Question No. 1 is answered in negative by observing that the limitation provided under section 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 Article 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 Article 226 of the Constitution can be preferred for challenging the order passed by the original adjudicating authority in following circumstances that:

(A1) The authority has passed the order without jurisdiction and by assuming jurisdiction which there exist none, or

(A2) Has exercised the power in excess of the jurisdiction and by overstepping or crossing the limits of jurisdiction, or

(A3) 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 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.”

20. Therefore, it becomes clear that the provisions of section 35 of the Central Excise Act are in pari materia with the provisions contained in subsection (7) of section 7 of the Gratuity Act.

21. Thus, from the latest decision rendered by this Court in the aforesaid case, it is clear that the Appellate Authority is not empowered to condone the delay if the appeal is filed after a period of 120 days in the present case. Even this Court cannot condone the delay in filing the appeal while exercising powers under Article 226 of the Constitution of India.”

9. The issue involved in these batch of writ petitions are one and the same and this Court is in agreement with the view taken by the Andhra Pradesh and Gujarat High Courts. For the aforesaid reasons, this Court is of the considered view that the first respondent has rightly dismissed the appeals filed by the appellant under section 7(7) of the Act, on the ground that the appeal was not filed within a period of 120 days from the date of receipt of the order passed under section 7(4) of the Act by the second respondent. In the result, there is no merit in all these writ petitions.

24. Calcutta High Court in the case of Ali Hossain Vs. Budge Budge Co. Ltd. And others, 2018 (159) FLR 68 has held as follows:

9. It will not be out of context to observe that in the event the period of limitation in initiating of a proceeding expires during the pendency of a writ proceeding there is no scope to initiate a statutory proceeding or to prefer an appeal to condone such delay on the ground of pendency of a lis before the Writ Court.

10. Reference may be made to the decision of City College, Calcutta v. State of W.B. and others MANU/WB/0397/1986 : 1986 (52) FLR 547, and operative portions of the above judgment is quoted below:

“7. In his impugned order of the Appellate Authority has rightly pointed out that in view of the sub-section (7) of section 7 of the Payment of Gratuity Act, 1972, appeals must be filed within 60 days from the date of the receipt of the order by the Controlling Authority. Under proviso to sub-section (7) of section 7 of the said Act the Appellate Authority may extend the said period of 60 days by a further period of 60 days if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period of 60 days. In the above view, after expiry of 120 days from the date of the receipt of the order passed by the Controlling Authority there could be no scope for further extending under section 5 of the Limitation Act the period prescribed by the law for preferring an appeal under section 7(7) of the Payment of Gratuity Act against the order passed under sub-section (4) of section of the said Act.

8. For the foregoing reasons, we hold that the Appellate Authority did not commit any jurisdictional error by refusing to condone the delay beyond 120 days in preferring the appeal of the petitioner. The appeal provided under section 7 of the Payment of Gratuity Act, 1972 is not before any Court. The Act has vested an executive authority with juridical quasi-judicial powers in order to enable it to act as the Appellate Authority. In view of the decisions of the Supreme Court mentioned hereinbefore it is no longer open to us to consider whether or not by force of section 29 of the Limitation Act, 1963, the provisions of sections 5 to 25 of the said Act have been made applicable only in case of appeal and applications under any special presented to Courts of law and not to persona designata or administrative authorities.

We therefore dismiss this Revisional Application without any order as to costs.”

11. With the discussions and observations made hereinabove, the order impugned to this appeal stands quashed and set aside. Since no other issue is involved in this appeal, this appeal is treated as on day’s list with the consent of the parties and the same is also taken up for hearing. This appeal stands allowed together with the above application. There will be, however, no order as to costs.

25. Applying the principles enumerated herein above, the legal position which emerges that in terms of sub-section 7 of Section 7 of the Act, 1972, an appeal is to be filed in a manner within such time as provided i.e. 60 days and in the event there was sufficient cause for not filing the appeal within same period, the said period can be extended by further period of 60 days only.

26. From perusal of the above judgements of Hon’ble the Apex Court and different High Courts as well as provisions of sub-section 7 of Section 7 of the Act, 1972, which specifically provides for filing an appeal within 60 days and further provision has been made for extension of such period only for specific period of time and no further power has been given to extend the period of limitation. In other words an appeal filed beyond the period of 120 days (60 days + 60 days) cannot be condoned.

27. It is well settled principle of the statute that where a specific period has been provided in the statute then further period of limitation cannot be extended beyond what has been provided under the statute. The Act, 1972 is a special Act, which contained the specific period in which an appeal can be preferred. The provisions of the said Act is to be seen as mentioned therein which is a complete code by itself.

28. The purpose and scheme of the Act and provisions contained under the Limitation Act, would therefore, not be applicable for seeking extension of time beyond the statutory time period of 60 days, extensible by further period of 60 days by the competent authority, being satisfied that the aggrieved person was prevented by sufficient cause from preferring the appeal within the prescribed period.

29. The petitioner has taken a stand that against the order dated 6.7.2017, the petitioner on the legal advise preferred a recall application and after rejection of the recall application, the appeal was filed before the appellate authority and then same ought to have been contended, without taking the ground of limitation, is misconceived in terms of the long line of judgements of Hon’ble Apex Court and High Courts referred herein above.

30. Before parting with the judgement a reference may be made of the Supreme Court, which covers the issue on merit also. The Apex Court in the case of Netram Sahu Vs. State of Chhattisgarh and another, 2018 (157) FLR 477 had an occasion to consider as to whether the workman, who has retired after rendering 22 years of service before attaining the age of superannuation, he was regularized but the benefit of gratuity was denied on the ground that he was not completed 05 years service as regular employee. The Hon’ble Apex Court has categorically held that employee has continuously worked for 22 years then merely his regularization was done later on, not completing 05 years of service as regular employee, would not dis-entitle him for getting the benefit of gratuity.

31. In the present case, admittedly, the appeal has been preferred on 15.11.2018 after the rejection of recall application on 29.11.2017, much beyond the period of 120 days as per sub-section 7 of Section 7 of the Act, 1972. Therefore, no further extension could be provided or contemplated. The appellate authority could not have extended the period of limitation, therefore, the appellate authority was right in coming to the conclusion that the appeal has been filed beyond the period of limitation.

32. The order passed by the appellate authority does not call for any interference of this Court. Hence the present writ petition is dismissed by devoid of any merit.

Order Date :- 19.11.2019

Rahul Dwivedi/-

 

 

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