Canara Motor Transport Company, Koppa, Chickmagalur Vs. K.M. Aboobakker and ors. - Court Judgment

Excerpt:
- karnataka official language act, 1963[k.a. no. 26/1963].sections 2,4 & 5: [n.kumar, j] kannada as the official language of the state held, the karnataka official language act, 1963 was enacted to provide for the adoption of kannada as the language to be used for the official purposes of the state and for continuance of the use of english for transaction of business of the state legislature. it is unfortunate that even after 50 years of the state re-organisation on the basis of language and nearly 45 years after the passing of state official languages act, 1961, the state still relies on english language for issuing simple notifications. it only shows the lack of will on the part of the government in implementing the legislative mandate and the aspirations of the people of the state. even the notifications issued by the departmental heads continue to be in english contrary to the legislative intent. the government is not sincere in implementing the provisions of the act. the government should take steps to ensure that this act is implemented in letter and spirit throughout the state of karnataka and kannada shall be the language for the official purposes of the state. if only an attempt is made to issue such notifications in kannada language, these glaring mistakes could be avoided and the purpose of the enactment is achieved and the state reorganisation based on language would have a meaning. in spite of this enactment, if still the departmental heads continue to have official business in english language, action has to be taken against such persons. - to be more precise, the learned judges have stated thus :it is an axiomatic principle of law well recognised in judicial proceedings that the statutory authorities entrusted with the task of determining the rights of parties, before an adjudication on the merits of a claim is made, should see that a valid proceeding is instituted and entertained or pending before that forum which it could consider on merits. the appellate authority constituted under section 7(7) of the payment of gratuity act, is competent enough to decide the question as well.orderv.p. mohan kumar, j.1. the petitioner challenges annexure-a order passed by the 6th respondent herein in a proceeding initiated by the 1st respondent. the 1st respondent alleged that he was employed by the 2nd respondent and his services have been terminated with effect from march 20, 1992. he, therefore, filed an application under section 7 of the payment of gratuity act, 1972, seeking payment of gratuity. the petitioner herein appeared and raised various contentions. in view of the fact that the proceedings under the i.d. act is pending, i do not want to pronounce one way or the other on the merits of the case. the controlling authority, 6th respondent herein, considered the objections and held that the 1st respondent is entitled to payment of gratuity as claimed by him. the said order is challenged by the employer in this writ petition.2. mr. v. h. upadhyaya, learned counsel appearing for the 1st respondent, raised a preliminary objection as regards the maintainability of the writ petition in view of the existence of an efficacious alternative remedy of appeal as provided under section 7(7) of the payment of gratuity act.3. on this issue mr. harikrishna s. holla learned counsel for the petitioner, submitted that the order impugned is patently illegal and non est and as such there is no need for him to prosecute an appellate remedy. according to him, the statutes prescribes a period of 3 months' time to make an application under the payment of'gratuity act. any application made beyond the period of 3 months should be accompanied by an application to condone the delay. when such an application is made, the authority is bound to entertain the same, deal with the application and after considering the respective contentions, pass an appropriate order disposing of the application to condone the delay. it is only after the delay is condoned that the authority gets jurisdiction to entertain the application for payment of gratuity. in this behalf, he has relied upon the decision of the madras high court reported in 1994 lic 1598. therein their lordships have stated that what the statute contemplates in the case is an order condoning the delay in filing the application. it is thereafter alone it gets jurisdiction to entertain the application. to be more precise, the learned judges have stated thus :'.... it is an axiomatic principle of law well recognised in judicial proceedings that the statutory authorities entrusted with the task of determining the rights of parties, before an adjudication on the merits of a claim is made, should see that a valid proceeding is instituted and entertained or pending before that forum which it could consider on merits. in cases, where the institution of any proceeding is conditioned upon any time limit and when a proceeding is instituted beyond the time limit and is accompanied by an application for condonation of the delay in presenting such a claim or petition, unless such a delay is condoned after hearing the parties before it, it could not be legitimately stated that a valid proceeding had been instituted before that forum, to enable it to enter into an adjudication of the claim on merits. till the delay is condoned by a specific order for that purpose under the signature and authority of the presiding officer of the forum concerned, in law, it should be taken that there is no proceeding, as such before it. a similar issue had arisen before a learned single judge of this court in madura coats ltd. tuticorin v. assistant commissioner of labour palayamkottai, 1988 ii clr 513, under the very same provision of law, where, nainar sundaram, j., as the learned judge then was, has held that before the main claim petition could be considered on merits, the delay should first be considered and condoned and orders passed thereon and only thereafter, the legality of the claim on its merits has to be taken up'.4. the grievance of the petitioner is that there was no separate order passed by the authority condoning the delay. in this case, a composite order has been passed by the authority dealing with the delay application as also the case on merits. according to him, the disposal of the main application should preceded with an order condoning the delay. if that is not done, it is illegal.5. i do not think that this contention can be advanced in this case. the power conferred under section 7 of the act is to deal with an application for payment of gratuity. in doing so, the rules impose certain period of limitation. if there is a delay in the matter of making the application, it is essential that the delay has to be condoned. then alone it gets jurisdiction. it is not necessary that independent separate orders should be passed, one condoning the delay and another dealing with the case on merits. it is always open to the authority to pass consolidated orders disclosing the reason to condone the delay and entertaining the case on merits. it does not furnish any purpose for making separate orders. proviso to rule 10 of the payment of gratuity (central) rules, 1972 reads as follows :'provided that the controlling authority may accept any application under this sub-rule on sufficient cause being shown by the applicant, after the expiry of the specified period'.6. this means an application for payment of gratuity can be received by the authority after the expiry of the specific period if the applicant shows sufficient cause. it does not contemplate at all a separate considered order being passed as to why there was sufficient cause existed for enlarging the period of limitation i am informed that the practice followed in all such cases, a separate order passed. there is no defect if a composite order is also passed. there is substantial compliance of the requirement of law if the order impugned discloses as to why the period has been enlarged. a composite order will satisfy the requirement of law.7. even assuming that there was necessity of separate order, it is also a ground which can be raised by the petitioner while impugning the order before the appellate authority. the appellate authority constituted under section 7(7) of the payment of gratuity act, is competent enough to decide the question as well. i am of the view that if there is an error committed by the controlling officer while passing the order, it can certainly be interfered with by the appellate authority. but i do not think that question will arise in this case. the rule says, as noticed earlier, that the controlling officer may entertain an application for payment of gratuity after the period of limitation if sufficient cause is shown. therefore, what has been done by the controlling officer is that he has entertained the application beyond the period of limitation and he has shown the reason why it was done, and what was the sufficient cause that weighed with the authority in doing so. the order as stated earlier is a composite order and it is not vitiated for this reason.8. in this case the order impugned was passed on november 15, 1995. the petitioner has moved the writ petition on february 2, 1996. the writ petition has been pending till this day. therefore, the period of pendency can be excluded in computing the period of limitation to file the appeal. the remedy of the petitioner, as stated earlier, is to pursue under section 7(7) of the act. the alleged violation of rule. 10 of the rules framed under the payment of gratuity act does not go to the root of the matter as alleged by the petitioner. it is also a matter which can be examined by the appellate., authority. without prejudice to the rights of the petitioner, the writ petition is dismissed.

Judgment:
ORDER

V.P. Mohan Kumar, J.

1. The petitioner challenges Annexure-A order passed by the 6th respondent herein in a proceeding initiated by the 1st respondent. The 1st respondent alleged that he was employed by the 2nd respondent and his services have been terminated with effect from March 20, 1992. He, therefore, filed an application under Section 7 of the Payment of Gratuity Act, 1972, seeking payment of gratuity. The petitioner herein appeared and raised various contentions. In view of the fact that the proceedings under the I.D. Act is pending, I do not want to pronounce one way or the other on the merits of the case. The Controlling Authority, 6th respondent herein, considered the objections and held that the 1st respondent is entitled to payment of gratuity as claimed by him. The said order is challenged by the employer in this writ petition.

2. Mr. V. H. Upadhyaya, learned counsel appearing for the 1st respondent, raised a preliminary objection as regards the maintainability of the writ petition in view of the existence of an efficacious alternative remedy of appeal as provided under Section 7(7) of the Payment of Gratuity Act.

3. On this issue Mr. Harikrishna S. Holla learned counsel for the petitioner, submitted that the order impugned is patently illegal and non est and as such there is no need for him to prosecute an appellate remedy. According to him, the statutes prescribes a period of 3 months' time to make an application under the Payment of'Gratuity Act. Any application made beyond the period of 3 months should be accompanied by an application to condone the delay. When such an application is made, the authority is bound to entertain the same, deal with the application and after considering the respective contentions, pass an appropriate order disposing of the application to condone the delay. It is only after the delay is condoned that the authority gets jurisdiction to entertain the application for payment of gratuity. In this behalf, he has relied upon the decision of the Madras High Court reported in 1994 LIC 1598. Therein their Lordships have stated that what the statute contemplates in the case is an order condoning the delay in filing the application. It is thereafter alone it gets jurisdiction to entertain the application. To be more precise, the learned Judges have stated thus :

'.... It is an axiomatic principle of law well recognised in judicial proceedings that the Statutory Authorities entrusted with the task of determining the rights of parties, before an adjudication on the merits of a claim is made, should see that a valid proceeding is instituted and entertained or pending before that forum which it could consider on merits. In cases, where the institution of any proceeding is conditioned upon any time limit and when a proceeding is instituted beyond the time limit and is accompanied by an application for condonation of the delay in presenting such a claim or petition, unless such a delay is condoned after hearing the parties before it, it could not be legitimately stated that a valid proceeding had been instituted before that forum, to enable it to enter into an adjudication of the claim on merits. Till the delay is condoned by a specific order for that purpose under the signature and authority of the Presiding Officer of the forum concerned, in law, it should be taken that there is no proceeding, as such before it. A similar issue had arisen before a learned single Judge of this Court in Madura Coats Ltd. Tuticorin v. Assistant Commissioner of Labour Palayamkottai, 1988 II CLR 513, under the very same provision of law, where, Nainar Sundaram, J., as the learned Judge then was, has held that before the main claim petition could be considered on merits, the delay should first be considered and condoned and orders passed thereon and only thereafter, the legality of the claim on its merits has to be taken up'.

4. The grievance of the petitioner is that there was no separate order passed by the authority condoning the delay. In this case, a composite order has been passed by the authority dealing with the delay application as also the case on merits. According to him, the disposal of the main application should preceded with an order condoning the delay. If that is not done, it is illegal.

5. I do not think that this contention can be advanced in this case. The power conferred under Section 7 of the Act is to deal with an application for payment of gratuity. In doing so, the rules impose certain period of limitation. If there is a delay in the matter of making the application, it is essential that the delay has to be condoned. Then alone it gets jurisdiction. It is not necessary that independent separate orders should be passed, one condoning the delay and another dealing with the case on merits. It is always open to the authority to pass consolidated orders disclosing the reason to condone the delay and entertaining the case on merits. It does not furnish any purpose for making separate orders. Proviso to Rule 10 of the Payment of Gratuity (Central) Rules, 1972 reads as follows :

'Provided that the Controlling Authority may accept any application under this sub-rule on sufficient cause being shown by the applicant, after the expiry of the specified period'.

6. This means an application for payment of gratuity can be received by the authority after the expiry of the specific period if the applicant shows sufficient cause. It does not contemplate at all a separate considered order being passed as to why there was sufficient cause existed for enlarging the period of limitation I am informed that the practice followed in all such cases, a separate order passed. There is no defect if a composite order is also passed. There is substantial compliance of the requirement of law if the order impugned discloses as to why the period has been enlarged. A composite order will satisfy the requirement of law.

7. Even assuming that there was necessity of separate order, it is also a ground which can be raised by the petitioner while impugning the order before the Appellate Authority. The Appellate Authority constituted under Section 7(7) of the Payment of Gratuity Act, is competent enough to decide the question as well. I am of the view that if there is an error committed by the Controlling Officer while passing the order, it can certainly be interfered with by the Appellate Authority. But I do not think that question will arise in this case. The rule says, as noticed earlier, that the Controlling Officer may entertain an application for payment of gratuity after the period of limitation if sufficient cause is shown. Therefore, what has been done by the Controlling Officer is that he has entertained the application beyond the period of limitation and he has shown the reason why it was done, and what was the sufficient cause that weighed with the authority in doing so. The order as stated earlier is a composite order and it is not vitiated for this reason.

8. In this case the order impugned was passed on November 15, 1995. The petitioner has moved the writ petition on February 2, 1996. The writ petition has been pending till this day. Therefore, the period of pendency can be excluded in computing the period of limitation to file the appeal. The remedy of the petitioner, as stated earlier, is to pursue under Section 7(7) of the Act. The alleged violation of Rule. 10 of the rules framed under the Payment of Gratuity Act does not go to the root of the matter as alleged by the petitioner. It is also a matter which can be examined by the Appellate., Authority. Without prejudice to the rights of the petitioner, the writ petition is dismissed.