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Madras High CourtWP/24097/2016disposed of

The Managing Director, v. The Joint Commissioner Of

2016-08-19Honourable Mr Justice N. Kirubakaran5 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 19.08.2016

CORAM

THE HONOURABLE Mr. JUSTICE N.K.KIRUBAKARAN W.P.No.24097 of 2016 and W.M.P.No.20624 of 2016 The Managing Director, The Kancheepuram Central Co.op.Bank Ltd., 15G, Sheikpet North Street, Kancheepuram 631 501.

.. Petitioner vs.

1. Joint Commissioner of Labour (Appellate Authority Under the payment of Gratuity Act, 1972), D.M.S.Compound, Teynampet, Chennai 600 006.

2. The Controlling Authority (Under the Payment of Gratuity Act, 1972) The Assistant Commissioner of Labour - II, D.M.S.Compound, Teynampet, Chennai 600 006.

3. K.Perumal Manager (retired) Plot No.23, Sadasivam Nagar, Patel Road, Guduvancherry, Kancheepuram District 603 202 .. Respondents Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, directing the first respondent to take the statutory appeal filed on 01.04.2015 against the order of the second respondent dated 20.01.2015 received by the petitioner on 26.02.2015 in P.G. Case No.180/2013 and pass appropriate orders on merit and in accordance with law within a time frame to be fixed. For Petitioner : Ms.G.Thilakvathi For Respondents : Mr.V.Jayaprakash Narayanan, Special Govt. Pleader [R1 & R2]] Mr.B.Haribabu [R3]

ORDER

The petitioner is a Central Cooperative Bank Limited, in which the third respondent was employed and on attainment of age of superannuation, he retired in the year 2011. However, surcharge proceedings were initiated against him, due to the loss suffered to the bank on account of forgery committed by

him, by placing fake jewels instead of real jewels and the loss was determined at Rs.70,58,502/- and ordered to be paid the same jointly by the third respondent along with four other officials of the bank. Since there is liability under surcharge proceedings, the bank did not pay the gratuity amount as he forfeited the gratuity amount due to the loss sustained to the bank on account of his misconduct.

2. When things stand so, the third respondent moved the second respondent under the Payment of Gratuity Act seeking direction to the petitioner bank to pay the gratuity amountpayable to him. After contest, the second respondent determined the gratuity payable to the third respondent at Rs.11,70,317/- rejecting the contentions of the petitioner by order dated 20.01.2015.

3. Since the order is against the interest of the petitioner bank, the petitioner bank desired to file an appeal in P.G.Case No.180 of 2013 before the first respondent, which is the appellate authority. Though the order was passed on 20.01.2015, the order was received only on 26.02.2015. As per the provisions of Payment of Gratuity Act, sixty days time is available to the petitioner to file an appeal against the order of the second respondent and the said period ended on 26.04.2015. Even before that the petitioner deposited the determined amount as gratuity amount with the second respondent on 23.03.2015 and filed an appeal on 01.04.2015 even before the expiry of limitation on 26.04.2015. However the deposit receipt was issued by the second respondent only on 17.06.2015. The appeal papers were represented on 21.07.

2015 along with the Certificate of Deposit issued by the second respondent. However, the Registry of the first respondent returned the appeal papers stating that the appeal has been filed beyond the limitation with a delay and therefore, directed the petitioner to file the appeal papers along with condone delay petitions and the same is indicated through a communication dated 03.06.2016. The said communication dated 03.06.2016 is challenged before this court.

4. Heard Mrs.Thilakavathy, learned counsel for the petitioner, Mr.V.Jayaprakash Narayanan, learned Special Government Pleader appearing for the respondents 1 and 2 and Mr.B.Haribabu, learned counsel appearing for the third respondent.

5. It is seen from the records that the first respondent passed the order in P.G.Case No.180 of 2013 filed by the third respondent on 20.01.2015 and the same was received on 26.02.2015. The time limitation for filing appeal is sixty days and the said date expired on 26.04.2015. Even as per the communication dated 18.05.2015 issued by the first respondent, the date of appeal filed by the petitioner has been mentioned in the reference as 31.03.2015. Therefore it can be understood that the appeal has been filed in time.

6. As far as the question of deposit of amount as per the order passed by the second respondent is concerned, the certificate dated 17.06.2015 issued by the second respondent,

with whom the deposit has to be paid would show that a sum of R.9,00,000/- (Rupees Nine Lakhs only) vide Cheque No.000648 dated 23.03.2015 and Rs.2,70,317/- (Rupees Two Lakhs Seventy Thousand Three Hundred and Seventeen only) vide Cheque No.000649 dated 23.03.2015 drawn at Kancheepuram Central Co-operative Bank Limited, Kancheepuram were deposited by the petitioner on 23.03.2015. The said certificate issued by the second respondent would undoubtedly prove that even before the expiry of limitation period on 26.04.2015, the amount has been deposited on 23.03.2015 itself. Therefore the appeal is in time.

7. The first respondent office merely meant by the date of the certificate issued by the second respondent viz., 17.06.2015 and the office has not gone into the contents of the certificate, where it is correctly revealed that the amount has been deposited on 23.03.2015. Since the certificate is belatedly issued by the second respondent, the default of the second respondent cannot be employed against the petitioner and unnecessarily the petitioner is driven to this court to file the Writ Petition even for the delay caused by the second respondent and wrong interpretation given by the office of the first respondent and returning the appeal papers without any justification.

8. It seems that even on an earlier occasion also, the respondents office have committed the same kind of blenders and in W.P.No.1932 to 19353 of 2014 dated 05.08.2014, the Hon'ble Justice Mr.R.S.Ramanathan went into detail and gave a direction to number the appeal and the relevant paragraph of the said judgment is extracted as follows:

"4. I am unable to accept the contention of the learned Special Government Pleader. As per Section 7(7) of the Payment of Gratuity Act, any person aggrieved by an order under sub-Section (4), may prefer an appeal within sixty days from the date of receipt of the order to the appropriate Government or such other authority and as per proviso to Sub-Section (7), the Appellate Authority has got discretion to extend the said period of 60 days by further period of 60 days if sufficient cause is shown in not preferring the appeal as prescribed under Sub-section (7).

Further, it is seen from the second proviso to sub-Section (7) of Section 7 of the Payment of Gratuity Act that no appeal by an employer shall be admitted unless at the time of admission, the appellant produces the proof to the effect that the appellant has deposited with him an amount equal to the gratuity required to be deposited under sub-section (4) or deposits with the appellate authority such amount. Therefore, as per Section 7(7) of the Payment of Gratuity Act, the appeal can be filed within 60 days from the date of receipt of copy of the order and discretion is given to the Appellate Authority to extend the period by 60 days if sufficient cause is shown.

has to deposit the amount with the authority which passed the order or before the Appellate Authority. The date on which the appeal was filed before the Appellate Authority must be taken into consideration for computing the period of limitation and it is not depending upon the deposit as contemplated as per second proviso Section 7(7) of the Payment of Gratuity Act. In other words, the appeal has to be filed within sixty days from date of receipt of the copy of the order and even though the second proviso has not been complied with and deposit was made later and the date of deposit on a subsequent date cannot be considered as the date of filing of the appeal. In this case, admittedly the appeal was filed on 22.10.

2013 and according to the learned counsel for the petitioner even on that date the deposit was made before the second respondent and the receipt was not enclosed with the appeal papers as the same was not issued by the second respondent. According to him, even assuming that the deposit was not made before 60 days from the date of receipt of copy of the order, the date of filing of the appeal must be taken into consideration for computing the period of limitation and not the date on which the deposit was made. In other words, if a person files an appeal without depositing the amount, that amounts to defective presentation and that would not make the appeal time barred provided the appeal is filed within the time.

5. In this case, as stated supra, the appeal was filed on 22.10.2013 and that day must be taken into consideration for the purpose of limitation and if so calculated, the appeal was filed within 60 days from the date of receipt of copy of the order. Hence, the first respondent is not justified in returning the papers holding that the appeal was filed beyond the period of 120 days as per Section 7(7) and hence, the order of the first respondent is set aside and I hold that the appeal was filed in time and the petitioner is directed to re-present the appeal, papers which were returned by the first respondent and the first respondent is directed to issue notice on the appeal filed by the petitioner if it is otherwise in order and pass orders in accordance with law after giving sufficient opportunity to the third respondent.

As the writ petitions are filed against the return of the appeal papers, there is no need to issue notice to the third respondent." In spite of that, the respondents are not implementing the directions given by this Court. If any matter is brought to this Court for violation, this Court will suo-motu take contempt petition and other remedial directions in this regard.

9. Therefore this court holds that

1. The appeal has been filed in time on 31.03.2015 and the deposit was made on 23.03.2015 as admitted by the second respondent in the certificate dated 17.06.2015;

2. When the appeal is in time there is no question of any condone delay petition;

3. Without understanding the contens of the certificate, the first respondent office committed mistake in returning the papers and

4. The petitioner is unnecessarily driven to file this case spending money.

Therefore, a sum of Rs.10,000/- is directed to be paid by the officer, who returned the papers unnecessarily, within a period of two weeks from the date of receipt of a copy of this order to the petitioner, failing which, the first respondent is directed to deduct a sum Rs.10,000/- from the salary of the said officer and pay the same to the petitioner within a period of two weeks thereafter and file a report before this court stating that the order of the court has been complied with.

10. With the above directions, this Writ Petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.

Post the matter after two weeks for reporting compliance. Sd/- Asst.Registrar (CS VI ) /true copy/ Sub Asst. Registrar To

1. Joint Commissioner of Labour (Appellate Authority Under the payment of Gratuity Act, 1972), D.M.S.Compound, Teynampet, Chennai 600 006.

2. The Controlling Authority (Under the Payment of Gratuity Act, 1972) The Assistant Commissioner of Labour - II, D.M.S.Compound, Teynampet, Chennai 600 006.

+1 cc to M/s.G.thilakavathi,advocate,sr.47739 +1 cc to Mr.B.Haribabu,advocate,sr.47915.

rv(co) krd 9/9 W.P.No.24097 of 2016