City College Vs. State of West Bengal and ors. - Court Judgment

Mookerjee, J.

1. By the order complained of in this application under Article 227 of the Constitution of India, the Deputy Secretary, Government of West Bengal, Labour Department acting as the Appellate Authority under the Payment of Gratuity Act, 1972 has rejected the prayer of the appellant, who is the petitioner before us for condonation of delay in filing its appeal under Section 7(7) of the said Act and has also dismissed the said appeal as time, barred. The Appellate Authority has not thereby committed any error jurisdiction and therefore we are unable to interfere under Article 227 of the Constitution with the said decision of the Appellate Authority under the Payment of Gratuity Act, 1972.

2. Manindra Kishore Chakraborty, the opposite party No. 3 in the Revisional Application, was a Lecturer of Philosophy in the City College. On 13th May, 1974 he had finally retired at the end of extended period of his service. On 15th June, 1981 he had purported to make an application under Rule 10(a) of the Payment of Gratuity Scheme before the Controlling 'Authority, West Bengal under the Payment of Gratuity Act, 1972. On 1st February, 1983 the Controlling Authority, the apposite party No. 2 herein, has passed his order under Section 7(4) of the said Act holding that the applicant, Manindra Kishore Chakraborty, was entitled to gratuity amounting to Rs. 10153.85 P from his erstwhile employer and the latter was liable to pay the amount determined above within the prescribed time. Direction for payment of gratuity was issued. On 9th February, 1984 the present petitioner had moved this Court under Article 226 of the Constitution of India an application challenging the order of the Controlling Authority under the Payment of Gratuity Act, 1972 passed in favour of the opposite party No. 3, Manindra Kishore Chakraborty. On 20th June, 1984, Borooah, J disposed of the said application under Article 226 of the Constitution giving the petitioner liberty to file an appeal before the Appellate Authority within a fortnight from date together with an application for condonation of delay. The learned Judge had observed that the Appellate Authority might sympathetically consider the application for condonaton of delay. If within the period of two weeks the appeal was not filed, the sum of Rs. 10000/- which has been deposited be handed over to the said Manindra Kishore Chakraborty, the respondent No. 3, or his learned advocate.

3. On 2nd July, 1984 the petitioner filed the instant appeal under Section 7(7) of the Payment of Gratuity Act before the Appellate Authority against the order of the Controlling Authority, the opposite party No. 2 dated 1st February, 1983. As already stated, the petitioner had also filed an application under Section 5 of the Limitation Act, 1963 for condonaton of delay in filing the said appeal before the Appellate Authority. The opposite party No. 3 had opposed the said application under Section 5 of the Limitation Act and has also contested the appeal. The main point in this Revisional Application is whether the Appellate Authority has failed to exercise the jurisdiction vested in him by holding that the provisions of Section 5 of the Limitation Act were not applicable to the said appeal filed under Sub-section (7) of Section 7 of Payment of Gratuity Act, 1972 and that the Appellate Authority had no scope under the Payment of Gratuity Act to condone the delay of more than 120 days in filing an appeal before it. Mr. Pal, learned advocate for the appellant, submitted that Sub-section (2) of Section 29 of the Limitation Act, 1963 makes Sections 4 to 24 of the Act applicable to appeals provided under Section 7(7) of the Payment of Gratuity Act, 1972 which is Special Law prescribing a period of limitation different from the period prescribed by the Schedule to the Limitation Act. We are unable to accept this submission of Mr. Pal.

4. V. Balakrishna Eradi and Sabyasachi Mukharji, JJ. in the case of Sakuru v. Tanaji A.I.R. 1985 S.C. 1271 affirmed a decision of Andhra Pradesh High Court holding that the Limitation Act, 1963 applied only to proceedings before a civil or criminal Court. Therefore, Section 5 of the Limitation Act was not applicable to the Andra Pradesh Telengana Area Tenancy of Agricultural Areas Act. 1950. The learned Judges of the Supreme Court observed:

After hearing both sides we have unhesitatingly come to the conclusion that there is no substance in this appeal and that the view taken by the Division Bench in Venkaidh's case is perfectly correct and sound. It is well settled by the decision of this Court in Town Municipal Council Athani v. Presiding Officer, Labour Court, 1969 (18) F.L.R. 373, Hubli (2) Nityanda M. Joshi v. Life Insurance Corporation of India 1970 (20) F.L.R. 153 and Sushila Devi v. Ramanandan Prasad : [1976]2SCR845 that the provisions of the Limitation Act, 1963 apply only to the proceedings in 'Courts' and not to appeals or applications before the bodies other than Courts such as quasi judicial Tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the Codes of Civil or Criminal Procedure.

5. Their Lordships had proceeded to examine whether the statute applicable in the case before the Supreme Court contained any provision conferring on the appellate authority power to extend the prescribed period of limitation by invoking the provisions of Section 5 of the Limitation Act. Their Lordships referred to Section 93 of the said Act and held that there was no provisions making Section 5 of the Limitation Act applicable to proceedings before the Collector.

6. The appropriate Government under Section 3 of the Payment of Gratuity Act appoints the Controlling Authority for administration of the provisions of the said Act. In holding any enquiry under Sub-section (4) of Section 7 of the said Act, the Controlling Authority does not function as a regular Court. The Sub-section (5) of Section 7 of the Act makes some and not ail the provisions of the Civil Procedure Code applicable to enquiries under Sub-section (4) of Section 7 of the Payment of Gratuity Act for any person aggrieved by the order, prescribed period of limitation for preferring an appeal under Section 7 of the Act being sixty days. The proviso to Section 7(7) of the Act lays down 'provided that the appropriate Government or the Appellate Authority, as the case may be, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days'. The appellate authority under Sub-section (7) of Section 7 of the Payment of Gratuity Act is not a Court but an executive authority who has been vested under Section 7(7) of the said Act with quasi judicial powers. Therefore, on the authority of the Supreme Court decision in the case of Sakuru v. Tanajt (supra) we are bound to hold of that the Appellate Authority under Section 7(7) of the said Act which is not a Court has no jurisdiction to invoke Section 5 of the Limitation Act 1963 and to condone delay in preferring an appeal more than one hundred twenty days from the date of the receipt of the order passed under Section 7(4) of the Payment of Gratuity Act, 1972. The decision in the case of Sakuru v. Tanaji (supra) being binding upon us, we need not consider the scope and effect of Sub-section (2) of Section 29 of the Limitation Act, 1963.

7. In his impugned order the Appellate Authority has rightly pointed out that in view of 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 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 7 of the said Act.

8. For the forgoing 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 judicial 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(2) 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 law be 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.

Let the operation of this order be stayed for a period of eight weeks.

Sushanta Chatterji, J.

I agree.