Executive Engineer, Public Health Engineering vs Farooq Ahmad Lone

Gh. Hasnain Massodi, J.—Whether Section 5 of the J&K Limitation Act can be pressed into service to extend limitation period prescribed

under special or local law?

The question reflects the short controversy involved in the instant Civil Revision. The background facts need to be noticed in the first instance.

The Petitioner on 5.8.2006 assailed the order dated 26.6.2006 under payment of wages Act, through medium of an appeal before learned

Addl. District judge, Baramulla. The appeal was dismissed on 23.5.2007 as not maintainable on the grounds that the memo of appeal was not

accompanied by certificate of the authority to the effect that the Petitioner had deposited the amount payable under the order appealed against.

The Petitioner thereafter deposited the amount as required u/s 17 of the Act and filed a fresh appeal on 18.08.2007. The appeal being time barred

and having been filed after delay of 392 days, the Petitioner filed an application for condonation of delay u/s 5 of the J&K Limitation Act. The

Petitioner's case was that the Petitioner was prevented by a sufficient cause ""within the meaning of Section 5 J&K Limitation Act' from filing the

appeal within the period prescribed under law. The court found the application to have been filed in most casual manner and the Petitioner not to

have spelt out the cause that prevented the Petitioner from approaching the appellate court within the prescribed time. Though the Appellate Court

found the application not to disclose any sufficient cause so as to attract Section 5 of the J&K Limitation Act, yet the Appellate Court proceeded

to dismiss the application on a different ground. It was noticed that period of Limitation prescribed u/s 17(1) of the Act for filing an appeal against

the order under the Act was 30 days commencing from date on which the order under appeal was made and that in terms of Section 29 (2) of the

J&K Limitation Act, Section 5 of J&K Limitation Act were not attracted where the period of Limitation was prescribed under special or local law.

Learned Addl. District Judge Baramulla was of the opinion that sections of J&K Limitation Act was not available to the Petitioner and could not be

pressed into service to ask for condonation of delay. The application preferred by the Petitioner was held to be not maintainable and accordingly

dismissed, so was the appeal on the ground of being barred by limitation.

The order dated 29.06.2009 is assailed herein on the ground that the Appellate court erroneously held that Section 5 of the Limitation Act had

no application to the case. It is averred that the appeal assailed the very jurisdiction of Authority under the Act to pass the order impugned before

the Appellate Court and in that background the appellate court ought to have condoned the delay and decided the appeal on merits. It is reiterated

that the delay in filing the appeal was neither deliberate nor intentional and that initial order of dismissal was a consequence of legal advice rendered

by the counsel.

Heard.

Section 15 of the Act empowers the Government to appoint any officer from amongst the officers enumerated in Section 15(1) Clause (a, b, c, d

and e) as the authority under the Act to hear and decide inter-alia claims arising out of delay in payment of wages. The Authority so appointed, is

empowered to either accept or decline the prayer made by an aggrieved employee and pass an order/direction accordingly. Section 17 of the Act

provides for an appeal against an order passed accepting or dismissing an application u/s 15 of the Act. The appeal in terms of Section 17 is to be

preferred within 30 days of the date on which the order or direction is made, subject to conditions laid down therein. It follows that an appeal

against the order like one in question, is to be filed within 30 days. The only question that calls for an answer is whether Section 5 of the J&K

Limitation Act or for that matter other provisions of the J&K Limitation Act, can be employed by the employer or employee aggrieved of the order

of the Authority under the Act to ask for condonation of the delay or extension of period of Limitation prescribed under law. The controversy

takes us to Section 29 of the J&K Limitation Act which reads as under:

(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 sui 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.

A bare perusal of Section 29 of the J&K Limitation Act reveals that whenever the period of limitation is prescribed under special or local law

and the conditions laid down in the section are fulfilled, it is the period of limitation prescribed under special or local law that is to prevail and the

provisions of limitation Act except the provisions referred in the section, cannot be made use of to condone the delay or seek extension in the

Limitation period. However, in case requirements of the Act are satisfied the provisions contained in Sections 4, 9 to 18 and Section 20 shall apply

only in so far as, and to the extent to which they are not expressly excluded by some special or local law. The remaining provisions of the J&K

Limitation Act including Section 5 shall have no application. It follows that the special or local law may even exclude application of the provisions

of J&K Limitation Act or make these applicable with modifications, that are enumerated in Section 29 of the Act and otherwise applicable.

It is pertinent to point out that whereas law makers in case of an application u/s 15 of the Payment of Wages Act 1936 have made room for

condonation of delay on the ground of ""Sufficient Cause"" in terms of Section 15(2) IInd proviso, no such provision has been made in respect of

appeal u/s 17 of the Act.

In case of appeal arising out of an order made by the Authority under the Act, the period prescribed u/s 17 is 30 days from the date of order,

(article 152) The first schedule to the Limitation Act prescribes 90 days as the period of limitation for a. appeal. The period prescribed under the

Payment of Wages Act Section 17 is thus different from the period of limitation prescribed in schedule (1) of the Limitation Act. Thus Section 29 is

attracted and in terms of the said provisions, the period of limitation is to be taken as 30 days. Furthermore Section 5 of the J&K Limitation Act

has no application and cannot be pressed into service to seek condonation of delay. The case in hand thus squarely falls within the ambit of Section

29 of the J&K Limitation Act and the application for condonation of delay on the ground of the Appellant having been prevented by a sufficient

cause in terms of Section 5 of the Limitation Act, is not maintainable. Learned Additional District Judge Baramulla - Appellate Court thus was right

in declining the prayer for condonation of delay and dismissing the application. So viewed there is no reason to interfere with the order impugned in

the Civil Revision. The Civil Revision being devoid of any merit is hereby dismissed.