Block Development Officer Poonch vs Mohd Sharief and Others

Permod Kohli, J.—These revisions are directed against order dated 19.7.2003 passed by learned Principal District Judge, Poonch, in

appeals preferred by the petitioners herein against award dated 20.5.2003 passed by the Assistant Labour Commissioner, Poonch, under

Payment of Wages Act 1936. On the basis of claim lodged by the respondents, authority under Payments of Wages Act passed an award in

respect to their claim on 20.5.2003. These awards came to be challenged before Principal District Judge, Poonch. Appeals were instituted on

16.7.2003. Petitioners also preferred application u/s 5 of the Limitation Act seeking condonation of delay in filing the appeals. It is stated that

appeals could not be preferred within period of limitation prescribed under the statute on account of civil vacations which commenced from

15.6.2003. Appellate authority though noticed this fact but dismissed the condonation application along with appeals vide impugned order dated

19.7.2003 on the ground that provision of Limitation Act are not applicable and therefore, Section 5 of the Limitation Act (mentioned Section 6 in

the impugned judgment) is not attracted. Appellate court relied upon judgment of this Court reported in 1974 KLJ 148 where under proposition

was laid that where a special statute provide different period of limitation, certain provisions of the Limitation Act have no application. Section 5

being one of the such provisions which does not apply in such situation.

I have heard learned Counsel for the parties and perused the impugned judgment. Court below has failed to appreciate legal proposition.

Appeal lie against the order passed by authority under the Payment of Wages Act to District Court u/s 17 of the Payment of Wages Act within 30

days of the date on which order or direction was made. Admittedly there is no provision for condonation of delay under the aforesaid Act. In the

present case award was passed on 20.5.2003. Period of limitation expired on 19.6.2003. Petitioners were also entitled to exclusion of period

spent for obtaining certified copy of the impugned order in terms of Section 12 of J&K Limitation Act. Appeals were instituted before appellate

court on 16.7.2003. There were civil vacations from 15.6.2003 up to 15.7.2003. Civil Court reopened on 16.7.2003. Appeals were preferred on

the date of opening of civil court. Question which requires consideration is whether petitioners were entitled to benefit of exclusion of period during

which civil court remained close and whether appeals preferred by the petitioners on opening of civil court are within time. Appellate court while

passing impugned judgment has returned finding that provision of Limitation Act has no application where a different period of limitation is provided

under local/special statute. I must observe that court below has not cared to go through Limitation Act and without appreciating legal position

returned such finding. Section 29 of the Limitation Act deals with application of Limitation Act which reads:

Savings -- (1) Nothing in this Act shall affect Section 25 of the Contract Act (IX of 1977)

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore

by the first Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefore in that Schedule and for the purpose of

determining any period of limitation prescribed for any suit, appeal or application by any special or local law-

(a) the provisions contained in Section 4, Section 9 to 18 and Section 22 shall apply only in so far as and to the extent to which, they are not

expressly excluded by such special or local law: and

(b) the remaining provisions of this Act shall not apply.

From the perusal of the aforesaid section, it is apparent that where distinct period of limitation is prescribed under any special or local statute

other than the period as laid down in the Schedule to the Limitation Act, all the provisions of the Limitation Act are not applicable. However, under

Sub-section 2(a), the provisions contained in Section 4, Sections 9 to 18 are applicable. Admittedly Section-5 of the Limitation Act is not

applicable for the purpose of seeking condonation of delay in filing the appeal where period of limitation is prescribed under any special statute.

Section-4 of the Limitation Act deal with exclusion of period when court is closed, which reads as under:

Where Court is closed when period expires- Where the period of limitation prescribed for any suit, appeal or application expires on a day when

the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.

Even Section 12 also exclude period spent for obtaining copy of the impugned judgment. Section 12 is also noticed hereunder:

Exclusion of time in legal proceedings -- (1) In computing the period of limitation prescribed for any suit, appeal or application, the day from

which such period is to be reckoned shall be excluded.

At the first place, period spent by the petitioners for obtaining copy of judgment was required to be excluded. Even this aspect has not been

considered by the appellate court. As far period of civil vacations in civil court is concerned, it was also required to be excluded in terms of

Section 4 as noticed above. Period of 30 days prescribed u/s 17 of Payment of Wages Act for filing appeal expired on 19.6.2003. If period spent

for obtaining certified copy is added to it another seven days are required to be excluded. Meaning thereby that period of limitation expired on

26.6.2003. However, there were civil vacations from 15.6.2003 and court reopened on 16.7.2003. Appeals were filed on 16.7.2003. Period of

civil vacations is also required to be excluded in terms of Section 4. This aspect of the matter has not been considered by the appellate court

rendering the judgment unsustainable in law. In view of the above, revisions petitions are allowed. Judgments impugned are set aside. As a

consequence thereof, appeals be transmitted to Principal District Judge Poonch for decision on merit. Mr. Sherkhan submits that money deposited

before appellate court has been disbursed to the respondents. Appellate court shall decide whether amount already disbursed is recoverable or not

and district court shall initiated proper proceedings accordingly.