Authority Under Gratuity Act Cannot Condone Delay In Filing Appeal By Entertaining An Application U/S 5 Of Limitation Act: Kerala High Court
The Kerala High Court recently held that the authority under the Payment of Gratuity Act cannot condone the delay in filing an appeal by entertaining an application under Section 5 of the Limitation Act.
Justice Amit Rawal, interpreted Sections 5 and 29 of the Limitation Act, as well as Section 7(7) of the Payment of Gratuity Act. The Court noted that as per Section 7(7) of the Payment of Gratuity Act, limitation to file an appeal against the order of the authority is 60 days, condonable by another 60 days subject to the explanation of prevention by giving a sufficient cause and not beyond.
"...it is evident that the legislature while enacting sub Section 7 of Section 7 specifically excluded the application of limitation Act by providing the limitation of appeal for a period of 60+60 days. Otherwise, the limitation to file an appeal under the schedule of the limitation Act is thirty (30) days. Thus for all intends and purposes, there cannot be any condonation of delay by taking the aid of the aforementioned provisions by entertaining an application under Section 5 of the Limitation Act", it observed.
An application for payment of gratuity was filed by a workman under Section 7(4) of the Payment of Gratuity Act on the ground that he had been working as a Senior Computer Operator with effect from October 5, 1998 and sought voluntary voluntary retirement on March 16, 2018. As he had been drawing a salary of Rs.26,725/- at the time of retirement, he claimed an amount of Rs.3,80,831/- as gratuity.
The Controlling Authority vide its order assessed the gratuity to the tune of Rs.2,92,947/- by considering 19 years of service and taking into consideration of the last drawn salary of the applicant, and served the notice of payment of the same on the petitioner herein. The petitioner on its part however, replied that there was no scheme of gratuity or any fund when the respondent workman left the society, and added that it was a charitable institution performing its functions without any financial assistance either from Government or Government agencies and thus requested the order to be reviewed.
Before the High Court, it was argued by Advocate R.S. Sarat on behalf of the petitioner that under Section 7 of the Act, an appeal would have to be preferred within a period of 60 days from the date of receipt of the order with a further condonation of 60 days in case it could not be filed within the initial 60 days. It was contended by the counsel that there was no exclusion of the applicability of the Limitation Act, and thus, Section 29(2) of the statute would be applicable.
On the other hand, it was argued by Advocates B. Ananthu and Sunil Kumar Kuriakose on behalf of the respondents that the provisions of the Act did not exclude the applicability of the Limitation Act, and it was thus that Section 29(2) was 'pressed into service'. The counsels contended that on plain reading of Section 7(7) of the Payment of the Gratuity Act, it would be revealed that the applicability of limitation had been specifically excluded, since the limitation to file an appeal in the first instance is sixty days, and on explanation of sufficient ground, it could be preferred within a further period of sixty days, but not beyond that.
The Court in this case perused Section 7(7) of the Payment of Gratuity Act and discerned that as per the provision, limitation to file an appeal against the order of the authority has been specified as sixty days condonable by a further period of sixty days subject to the explanation of prevention by giving a sufficient cause and not beyond.
The Court also perused Sections 5 and 29 of the Limitation Act apart from the other provisions in the said statute, and observed that,
"As per the provisions of sub Section 2 of Section 29 of the Act 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 in so far as, and to the extent to which, they are not expressly excluded by such special and local law".
It is on this basis that it arrived at the conclusion that there could not be any further condonation of delay by taking the aid of the aforementioned provisions by entertaining an application under Section 5 of the Limitation Act.
The Court thus found that no ground for interference could be made out against the impugned order, and thus dismissed the writ petition.
Case Title: The Secretary, Sree Avittom Thirunal Hospital v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 51