Smt. Nirmala Bai v. State Of Chhattisgarh
AFR HIGH COURT OF CHHATTISGARH, BILASPUR Writ Appeal No.349 of 2016 Kirtan Ram Thakur, S/o Dayal Ram Thakur, aged about 65 years, R/o Village and Post Nipani, P.S. Balod, Tahsil and District Balod (CG).
---- Appellant
Versus
1.
State of Chhattisgarh, through the Secretary, Water Resources Department, Mahanadi Bhawan, Mantralaya, Naya Raipur (CG). 2.
The Executive Engineer E/M, Light Machinery, Tubewell and Gates Division Durg, Tahsil and District Durg (CG). 3.
The Appellate Authority, under the Payment of Gratuity Act, & Deputy Labour Commissioner, Office of the Labour Commissioner, Chhattisgarh, Indrawati Bhawan, Naya Raipur (CG).
4.
The Controlling Authority, under the Payment of Gratuity Act, 1972 & Assistant Labour Commissioner, Durg, District Durg (CG). ---- Respondents AND Writ Appeal No.350 of 2016 Mannu Lal Joshi, S/o. Shri Ramcharan Joshi, aged about 67 years, R/o Village and Post Biretara (Bhathagaon), P.S. Balod, Tahsil and District Balod (CG).
---- Appellant
Versus
1.
State of Chhattisgarh, through the Secretary, Water Resources Department, Mahanadi Bhawan, Mantralaya, Naya Raipur (CG). 2.
The Executive Engineer E/M, Light Machinery, Tubewell and Gates Division Durg, Tahsil and District Durg (CG). 3.
The Appellate Authority, under the Payment of Gratuity Act, & Deputy Labour Commissioner, Office of the Labour Commissioner, Chhattisgarh, Indrawati Bhawan, Naya Raipur (CG).
4.
The Controlling Authority, under the Payment of Gratuity Act, 1972 & Assistant Labour Commissioner, Durg, District Durg (CG). ---- Respondents AND
Writ Appeal No.373 of 2016 Jagdish Prasad Sahu, S/o. Shri Samaru Ram Sahu, aged about 66 years, R/o. Village and Post Fagudah, P.S. Balod, Tahsil and District Balod (CG).
- --- Appellant
Versus
1.
State of Chhattisgarh, through the Secretary, Water Resources Department, Mahanadi Bhawan, Mantralaya, Naya Raipur (CG). 2.
The Executive Engineer E/M, Light Machinery, Tubewell and Gates Division Durg, Tahsil and District Durg (CG). 3.
The Appellate Authority, under the Payment of Gratuity Act, & Deputy Labour Commissioner, Office of the Labour Commissioner, Chhattisgarh, Indrawati Bhawan, Naya Raipur (CG).
4.
The Controlling Authority, under the Payment of Gratuity Act, 1972 & Assistant Labour Commissioner, Durg, District Durg (CG). ---- Respondents AND Writ Appeal No.318 of 2016 Manohar Lal Deshmukh, S/o late Shri Tej Ram Deshmukh, aged about 72 years, R/o Village Pirid, Post Chaurel, P.S. Gunderdehi, Tahsil Gunderdehi, District Balod (CG).
---- Appellant
Versus
1.
State of Chhattisgarh, through the Secretary, Water Resources Department, Mahanadi Bhawan, Mantralaya, Naya Raipur (CG). 2.
The Executive Engineer E/M, Light Machinery, Tubewell and Gates Division Durg, Tahsil and District Durg (CG). 3.
The Appellate Authority, under the Payment of Gratuity Act, & Deputy Labour Commissioner, Office of the Labour Commissioner, Chhattisgarh, Indrawati Bhawan, Naya Raipur (CG).
4.
The Controlling Authority, under the Payment of Gratuity Act, 1972 & Assistant Labour Commissioner, Durg, District Durg (CG).
......Respondents AND Writ Appeal No.320 of 2016 Arjun Singh Sahu, S/o Shri Uttam Singh Sahu, aged about 68 years, R/o Village Tekri, Post Arjunda, P.S. Arjunda, Tahsil and District Balod (CG).
---- Appellant
Versus
1.
State of Chhattisgarh, through the Secretary, Water Resources Department, Mahanadi Bhawan, Mantralaya, Naya Raipur (CG). 2.
The Executive Engineer E/M, Light Machinery, Tubewell and Gates Division Durg, Tahsil and District Durg (CG). 3.
The Appellate Authority, under the Payment of Gratuity Act, 1972 & Deputy Labour Commissioner, Office of the Labour Commissioner, Chhattisgarh, Indrawati Bhawan, Naya Raipur (CG).
4.
The Controlling Authority, under the Payment of Gratuity Act, 1972 & Assistant Labour Commissioner, Durg, District Durg (CG). ---- Respondents AND Writ Appeal No.383 of 2016 Murha Ram Nishad, S/o late Ramcharan Nishad, aged about 66 years, R/o Village and Post Baghmara, P.S. Balod, Tahsil and District Balod (CG).
---- Appellant
Versus
1.
State of Chhattisgarh, through the Secretary, Water Resources Department, Mahanadi Bhawan, Mantralaya, Naya Raipur (CG). 2.
The Executive Engineer E/M, Light Machinery, Tubewell and Gates Division Durg, Tahsil and District Durg (CG). 3.
The Appellate Authority, under the Payment of Gratuity Act, & Deputy Labour Commissioner, Office of the Labour Commissioner, Chhattisgarh, Indrawati Bhawan, Naya Raipur (CG).
4.
The Controlling Authority, under the Payment of Gratuity Act, 1972 & Assistant Labour Commissioner, Office of the Labour Commissioner, Durg, District Durg (CG).
---- Respondents
AND Writ Appeal No.385 of 2016 Smt. Champa Bai, W/o late Deendayal, aged about 50 years, R/o Village and Post Nahanda, P.S. and Tahsil Dundilohara, District Balod (CG).
---- Appellant
Versus
1.
State of Chhattisgarh, through the Secretary, Water Resources Department, Mahanadi Bhawan, Mantralaya, Naya Raipur (CG). 2.
The Executive Engineer E/M, Light Machinery, Tubewell and Gates Division Durg, Tahsil and District Durg (CG). 3.
The Appellate Authority, under the Payment of Gratuity Act, & Deputy Labour Commissioner, Office of the Labour Commissioner, Chhattisgarh, Indrawati Bhawan, Naya Raipur (CG).
4.
The Controlling Authority, under the Payment of Gratuity Act, 1972 & Assistant Labour Commissioner, Durg, District Durg (CG). ---- Respondents AND Writ Appeal No.351 of 2016 Ramkishun Sahu, S/o Johan Ram Sahu, aged about 67 years, R/o Village and Post Baghmara, Tahsil Balod, District Balod (CG). -- Appellant
Versus
1.
State of Chhattisgarh, through the Secretary, Water Resources Department, Mahanadi Bhawan, Mantralaya, Naya Raipur (CG). 2.
The Executive Engineer E/M, Light Machinery, Tubewell and Gates Division Durg, Tahsil and District Durg (CG). 3.
The Appellate Authority, under the Payment of Gratuity Act, & Deputy Labour Commissioner, Office of the Labour Commissioner, Chhattisgarh, Indrawati Bhawan, Naya Raipur (CG).
4.
The Controlling Authority, under the Payment of Gratuity Act, 1972 & Assistant Labour Commissioner, Durg, District Durg (CG). ---- Respondents AND Writ Appeal No.352 of 2016 Yugal Kishore Sahu, S/o Shri Bishesar Sahu, aged about 45 years, R/o Village and Post Newarikala, P.S. Balod, Tahsil and
District Balod (CG).
---- Appellant
Versus
1.
State of Chhattisgarh, through the Secretary, Water Resources Department, Mahanadi Bhawan, Mantralaya, Naya Raipur (CG). 2.
The Executive Engineer E/M, Light Machinery, Tubewell and Gates Division Durg, Tahsil and District Durg (CG). 3.
The Appellate Authority, under the Payment of Gratuity Act, & Deputy Labour Commissioner, Office of the Labour Commissioner, Chhattisgarh, Indrawati Bhawan, Naya Raipur (CG).
4.
The Controlling Authority, under the Payment of Gratuity Act, 1972 & Assistant Labour Commissioner, Durg, District Durg (CG). ---- Respondents AND Writ Appeal No.353 of 2016 Smt. Nirmala Bai, W/o. Late Amar Singh Sahu, aged about 55 years, R/o. Village Faundah, Post Gurur, P.S. and Tahsil Gurur, District Durg (CG).
---- Appellant
Versus
1.
State of Chhattisgarh, through the Secretary, Water Resources Department, Mahanadi Bhawan, Mantralaya, Naya Raipur (CG). 2.
The Executive Engineer E/M, Light Machinery, Tubewell and Gates Division Durg, Tahsil and District Durg (CG). 3.
The Appellate Authority, under the Payment of Gratuity Act, & Deputy Labour Commissioner, Office of the Labour Commissioner, Chhattisgarh, Indrawati Bhawan, Naya Raipur (CG).
4.
The Controlling Authority, under the Payment of Gratuity Act, 1972 & Assistant Labour Commissioner, Durg, District Durg (CG). ---- Respondents AND Writ Appeal No.354 of 2016 Jagdish Ram Nirmalkar, S/o Faguawa Ram, aged about 66 years, R/o Village Pirid, Post Chaurel, P.S. Gunderdehi, Tahsil Gunderdehi, District Balod (CG).
---- Appellant
Versus
1.
State of Chhattisgarh, through the Secretary, Water Resources Department, Mahanadi Bhawan, Mantralaya, Naya Raipur (CG). 2.
The Executive Engineer E/M, Light Machinery, Tubewell and
Gates Division Durg, Tahsil and District Durg (CG). 3.
The Appellate Authority, under the Payment of Gratuity Act, & Deputy Labour Commissioner, Office of the Labour Commissioner, Chhattisgarh, Indrawati Bhawan, Naya Raipur (CG).
4.
The Controlling Authority, under the Payment of Gratuity Act, 1972 & Assistant Labour Commissioner, Durg, District Durg (CG). ---- Respondents AND Writ Appeal No.355 of 2016 Baburam Kamal, S/o Kartik Ram Kamal, aged about 67 years, R/o Village and Post Balod Mararpara, Tahsil and District Balod (CG). ---- Appellant
Versus
1.
State of Chhattisgarh, through the Secretary, Water Resources Department, Mahanadi Bhawan, Mantralaya, Naya Raipur (CG). 2.
The Executive Engineer E/M, Light Machinery, Tubewell and Gates Division Durg, Tahsil and District Durg (CG). 3.
The Appellate Authority, under the Payment of Gratuity Act, & Deputy Labour Commissioner, Office of the Labour Commissioner, Chhattisgarh, Indrawati Bhawan, Naya Raipur (CG).
4.
The Controlling Authority, under the Payment of Gratuity Act, 1972 & Assistant Labour Commissioner, Durg, District Durg (CG). ---- Respondents AND Writ Appeal No.356 of 2016 Dadu Ram Yadav, S/o Bhagoli Ram Yadav, aged about 67 years, R/o Village Padaki Bhath, Post Tekapur, P.S. Balod, Tahsil and District Balod (CG).
---- Appellant
Versus
1.
State of Chhattisgarh, through the Secretary, Water Resources Department, Mahanadi Bhawan, Mantralaya, Naya Raipur (CG). 2.
The Executive Engineer E/M, Light Machinery, Tubewell and Gates Division Durg, Tahsil and District Durg (CG). 3.
The Appellate Authority, under the Payment of Gratuity Act, & Deputy Labour Commissioner, Office of the Labour Commissioner, Chhattisgarh, Indrawati Bhawan, Naya Raipur (CG).
4.
The Controlling Authority, under the Payment of Gratuity Act, 1972 & Assistant Labour Commissioner, Durg, District Durg (CG). ---- Respondents AND Writ Appeal No.358 of 2016 Ghanshyam Gautam, S/o Shri Brijlal Gautam, aged about 66 years, R/o Village and Post Devari Bangala, P.S. Doundilohara, Tahsil Doundilohara, District Balod (CG).
---- Appellant
Versus
1.
State of Chhattisgarh, through the Secretary, Water Resources Department, Mahanadi Bhawan, Mantralaya, Naya Raipur (CG). 2.
The Executive Engineer E/M, Light Machinery, Tubewell and Gates Division Durg, Tahsil and District Durg (CG). 3.
The Appellate Authority, under the Payment of Gratuity Act, & Deputy Labour Commissioner, Office of the Labour Commissioner, Chhattisgarh, Indrawati Bhawan, Naya Raipur (CG).
4.
The Controlling Authority, under the Payment of Gratuity Act, 1972 & Assistant Labour Commissioner, Office of the Labour Commissioner, Durg, District Durg (CG).
---- Respondents AND Writ Appeal No.359 of 2016 Ranchhor Singh Chandel, S/o late Ram Singh Chandel, aged about 66 years, R/o Village Surra, Post Pipani, P.S. Balod, Tahsil and District Balod (CG).
---- Appellant
Versus
1.
State of Chhattisgarh, through the Secretary, Water Resources Department, Mahanadi Bhawan, Mantralaya, Naya Raipur (CG). 2.
The Executive Engineer E/M, Light Machinery, Tubewell and Gates Division Durg, Tahsil and District Durg (CG). 3.
The Appellate Authority, under the Payment of Gratuity Act, & Deputy Labour Commissioner, Office of the Labour Commissioner, Chhattisgarh, Indrawati Bhawan, Naya Raipur (CG).
4.
The Controlling Authority, under the Payment of Gratuity Act, 1972 & Assistant Labour Commissioner, Office of the Labour Commissioner, Durg, District Durg (CG).
---- Respondents
For Appellants :
Mr. P.P. Sahu, Advocate.
For Respondents/State :
Mr. Y. S. Thakur, Dy. Advocate General Hon'ble Shri Deepak Gupta, Chief Justice Hon'ble Shri Justice Sanjay K. Agrawal Order on Board Per Deepak Gupta, Chief Justice 22/08/2016 (1) Defaults pointed out by the Registry in Writ Appeal No. 351/2016, 352/2016, 353/2016, 354/2016, 355/2016, 356/2016, 358/2016 & 359/2016 are overruled.
(2) Heard on the applications for condonation of delay in filing the appels in W.A. Nos. 349/2016, 350/2016, 373/2016, 383/2016 & 385/2016. (3) On due consideration, we are satisfied that the appellants have succeeded in showing sufficient cause for delay in filing the appeals, therefore, the delay in filing the appeal is condoned. (4) Heard the appeals at the admission stage with the consent of the parties.
(5) The short question which arises for consideration in these writ appeals is whether the Appellate Authority exercising jurisdiction under Section 7(7) of the Payment of Gratuity Act, 1972 (hereinafter referred to as 'PG Act") is empowered to condone the delay of more than sixty days in filing the appeal.
(6) To appreciate the issue in hand, it would be apposite to refer to Section 7(7) of the PG Act, which reads as follows:- "7. Determination of the amount of gratuity.- (1) xx xx
(2) xxx xxx xxx xxx
(3) xxx xxx xxx xxx
(7) Any person aggrieved by an order under sub-section (4), may, within sixty days from the date of 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.
(7) The opening portion of Section 7(7) of the PG Act clearly lays down that any person aggrieved by an order of authority passed under Section 7(4) may prefer appeal to the appropriate Government or authority. The Limitation prescribed for filing such appeal is sixty days starting from the date of receipt of order from which the appeal is preferred. Proviso to this Section lays down that the appellate authority, may, if it is satisfied that the appellant was prevented by sufficient cause for preferring the appeal within the said period of sixty days, may extend the period for a further period of sixty days. (8) It is thus clear that the limitation for filing an appeal is sixty days and the limitation starts to run from the date of receipt of the order of the appropriate authority. If the appeal is not filed within sixty days, then
appellant shall have to satisfy the Appellate Authority that there was sufficient cause for delay in filing the appeal. However, the legislature in its wisdom has clearly laid down in the proviso to Section 7(7) of the PG Act that the appellate authority cannot extend the period beyond another sixty days, which means the outer limitation is 60 + 60 = 120 days. If the appeal is filed on 121st days, then the appellate authority cannot condone the delay.
(9) We must remember that the appeal is creation of statute. Law makers lay down the period of limitation. In case there was no outer limitation provided in the proviso, we could have taken recourse to the Limitation Act and held that Section 5 of the Limitation Act may be applicable. However, in the PG Act, which is a special piece of legislation, the legislature in its wisdom has clearly laid down that delay can be condoned only up to sixty days and no further delay can be condoned, therefore, the Appellate Authority is powerless to condone the delay when the delay is beyond sixty days.
(10) In this behalf we may also make a reference to the provision of Section 29(2) of the Limitation Act, 1963, which reads as follows:- "29 (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or
local law."
(11) While taking this view, we are supported by the view taken by one of us (Sanjay K. Agrawal, J.) in the matter of Zila Sahakari Kendriya Bank Maryadit Vs. Ram Briksha Singh (Dead) through L.Rs. and others1 wherein after making reference of the Calcutta High Court in the matter of City College Vs. State of West Bengal & others2 and the judgment of the Bombay High Court in the mater of Shri Gurudeo Ayurved Mahavidyalaya vs. Madhav Naraya Mahakode and others3, this Court held that the appellate authority is powerless to condone the delay beyond sixty days. The High Court of Calcutta & the High Court of Bombay have held that in view of special provision under Section 7(7) of the PG Act, the provision of Section 5 of the Limitation Act could not be invoked by the Appellate Authority under the PG Act for condoning the delay beyond 120 days.
(12) Similarly in the matter of Western Coalfields Ltd. Vs. Controlling Authorities & others4 ,the Madhya Pradesh High Court also held that the appellate authority cannot condone the delay or extend the period of limitation beyond the period prescribed under Section 7(7) of the PG Act.
(13) The Andhra Pradesh High Court took a similar view in the matter of Warangal District Co-Opeative Society Ltd. Vs. Appellate Authroity under Payment of Gratuity Ac, 19725 and held that it is settled principle of interpretation of statutes is that if there are two mandates, 1 2016 (148) FLR 789 2 (1987) 1 LLJ 41 (Cal).
3 1994 Lab.I.C. 1542 4 2000(3) MPLJ 63 5(2002) III LLJ 616
the general must give a way to the special and, therefore, it was held that Section 5 of the Limitation Act cannot apply in such cases and condonation of delay thereof shall be governed by the provisions of Section 7(7) of the PG Act.
(14) In this regard, we may make a reference of the judgment of the Supreme Court in the matter of Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department & others6 wherein the Apex Court was dealing with the provisions of Arbitration and Conciliation Act, 1996 (hereinafter referred to as ' Act,1996'). (15) Section 34(3) of the Arbitration and Conciliation Act, 1996 reads as follows: - "34(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter."
(16) Thus, under the Act of 1996, the limitation prescribed is three months and the Court is granted power to condone the delay for a period of another 30 days thereof i.e. total 3 months + 30 days. (17) The Apex Court in the above stated judgment in dealing with this 6 (2008) 7 SCC 169
provision and held as under:- "20.Section 29(2) of the Limitation Act inter alia provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period of limitation prescribed by the Schedule, the provisions of Section 3 shall apply as if such period was the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 shall apply only in sofar as, and to the extent, they are not expressly excluded by such special or local law.
When any special statute prescribes certain period of limitation as well as provision for extension up to specified time-limit, on sufficient cause being shown, then the period of limitation prescribed under the special law shall prevail and to that extent the provisions of the Limitation Act shall stand excluded.
As the intention of the legislature in enacting sub-section (3) of Section 34 of the Act is that the application for setting aside the award should be made within three months and the period can be further extended on sufficient cause being shown by another period of 30 days but not thereafter, this Court is of the opinion that the provisions of Section 5 of the Limitation Act would not be applicable because the applicability of Section 5 of the Limitation Act stands excluded because of the provisions of Section 29(2) of the Limitation Act."
(18) Justice R.V. Raveendran in his concurring judgment held as under:- "53. Sub-Section (3) of Section 34 of the AC Act prescribes the period of limitation for filing an application for setting aside an award as three months from the date on which the applicant has received the arbitral award. The proviso thereto vests in the Court discretion to extend the period of limitation
by a further period not exceeding thirty days if the Court is satisfied that the applicant was prevented by sufficient cause for not making the application within three months. The use of the words " but not thereafter" in the proviso makes it clear that even if a sufficient cause is made out for a longer extension, the extension cannot be beyond thirty days. The purpose of proviso to Section 34 (3) of the AC Act is similar to that of Section 5 of the Limitation Act which also relates to extension of the period of limitation prescribed for any application or appeal. It vests a discretion in a court to extend the prescribed period of limitation if the applicant satisfies the Court that he had sufficient cause for not making the application within the prescribed period.
Section 5 of the Limitation Act does not place any outer limit in regard to the period of extension, whereas the proviso to sub-Section (3) of Section 34 of the AC Act places a limit on the period of extension of the period of limitation. Thus the proviso to Section 34 (3) of the AC Act is also a provision relating to extension of period of limitation, but differs from Section 5 of the Limitation Act, in regard to period of extension, and has the effect of excluding Section 5 alone of the Limitation Act." (19) The issue involved in the present case is identical though in the context of a different Act . Therefore, we have no hesitation in holding that the appeal under Section 7(7) of the PG Act has to be filed within sixty days and at best, the Appellate Authority can condone the delay of further sixty days i.e. total 120 days in all.
(20) In those cases where the appeals have been filed beyond 120 days, the delay cannot be condoned by the Appellate Authority. (21) As far as present cases are concerned, these were disposed of by the learned Single Judge only on the ground that in another judgment
rendered in W.P. (L) No. 178/2013 (State of Chhattisgarh & Anr. Vs. Netram Sahu & Anr.), in which the Court had held that period of service rendered as daily wages will not be counted for any purpose under the PG Act. Judgment passed by learned Single Judge in Netram Sahu's case was upheld by the Division Bench in Writ Appeal No. 240/2014 and against which SLP filed by the workmen is pending before the Apex Court.
(22) It appears that attention of the learned Single Judge was not brought to the fact that the appellate authority could not condone the delay beyond 120 days and, therefore, the Writ Court passed an order sending the matter back to the appellate authority to decide the appeal on merits. In case the appellate authority itself had no jurisdiction to condone the delay, then the writ court could not have also condoned the delay.
(23) Therefore, the only option for us is to set aside the order of the learned Single Judge where the direction has been given to the appellate authority to decide the appeal on merits, therefore, it is directed that the Appellate Authority shall examine each of the cases and where the delay is sixty days or less then the delay shall be deemed to be condoned. However, where the delay is more than sixty days, since the Appellate Authority has no jurisdiction to condone the delay beyond that period, it shall dismiss the appeal as time barred. (24) At this stage, Shri Y.S. Thakur, learned Deputy Advocate General submitted that this may result in conflicting orders inasmuch as some workmen, whose appeals are dismised on the ground of limitation may
get gratuity by counting period which they have served as daily wager whereas other workmen may not get this benefit. (25) We are afraid that we cannot help the State in this behalf, if the State delays in filing of cases, then it must suffer consequences. (26) Now, we may however clarify that merely because some appeals are dismissed as time barred will not be treated as precedent to decide the question because these appeals have not been decided on merits but only on the ground that they are time barred. (27) Accordingly, all the writ appeals are allowed with the observation made hereinabove. Order of the Single Judge remitting the matters to the Appellate Authority to decide the appeals on merits are set aside. Sd/- Sd/- (Deepak Gupta) (Sanjay K.Agrawal) Chief Justice Judge D/-