Karanataka State Road Transport Corporation vs Dy. Labour Commissioner and The Appellate Authority

S. Abdul Nazeer, J.—The Karnataka State Road Transport Corporation has filed this writ petition challenging the order at Annexure-H dated 6.3.2012, whereby the 1st respondent has dismissed the appeal filed by the Corporation challenging the order of the Controlling Authority at Annexure-D dated 8.6.2009.

Learned Counsel for the petitioner would contend that determination of gratuity by the Controlling Authority on the basis of the circular dated 11.7.2007 is illegal and not sustainable in law, because the workman (husband of the 3rd respondent) had voluntarily retired on 14.1.2006. The circular dated 11.7.2007 is prospective in nature. It is applicable to the workman who would retire after the date of the said circular.

On the other hand, learned Counsel appearing for the 3rd respondent submits that the order of the Controlling Authority at Annexure-D dated 8.6.2009 was challenged by the petitioner/Corporation on 1.3.2010. There was a delay of more than six months in filing the appeal. Under the provision 6f the Payment of Gratuity Act, 1972 (for short the ''Act''), the appeal has to be preferred within 60 days from the date of receipt of the order. However, if sufficient cause is shown, the appellate authority may extend a further period of 60 days for filing the appeal. In this connection, he has relied upon the decision of the Apex Court in Commissioner of Customs and Central Excise Vs. Hongo India (P) Ltd. and Another, , and the decision of the Division Bench of this Court in Karnataka State Road Transport Corporation v. The Deputy Labour Commissioner and the Appellate Authority and two others in Writ Appeal No. 2055 of 2008 (L-KSRTC), disposed of on 15.6.2009. He pays (sic prays) for dismissal of the writ petition.

It is not in dispute that the appeal was filed by the petitioner beyond the period of 120 days from the date of receipt of the order of the Controlling Authority at Annexure-D. It is no doubt true that the petitioner filed a review petition before the Controlling Authority seeking review of the order. The said review petition was rejected on 30.12.2009 on the ground it had no jurisdiction to entertain the same. Thereafter, an appeal was filed by the petitioner/Corporation before the 1st respondent.

Section 7 of the Act provides for determination of the amount of gratuity. Sub-section (4)(c) of section 7 of the Act states that the Controlling Authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard, determine the matter or matters in dispute and if as a result of such inquiry any amount is found to be payable to the employee, the Controlling Authority shall direct the employer to pay such amount or, as the case may be, such amount as reduced by the amount already deposited by the employer.

Sub-section (7) of section 7 states any person aggrieved by an order under sub-section (4), may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government on this behalf. The proviso to this provision authorises the Appropriate Government of the Appellate Authority, as the case may be, 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.

Rules have been framed under section 15 of the Act to effectuate the purposes of the Act. Sub-rule (4) of Rule 11 states that after completion of hearing on the date fixed under sub-rule (1), or after such further evidence, examination of documents, witnesses, hearing and enquiry, as may be deemed necessary, the Controlling Authority shall record his finding as to whether any amount is payable to the applicant under the Act. A copy of the finding shall be given to each of the parties.

From the aforesaid provisions, it is clear that the Controlling Authority after holding an enquiry has to pass order and the copy of the order has to be furnished to the contesting parties. If a party is aggrieved by the said order, he has to prefer an appeal within sixty days from the date of receipt of the order before the competent authority. However, the appellate authority has the power to condone the delay of 60 days if it is satisfied that the petitioner was prevented by sufficient cause in preferring the appeal within a period of 60 days.

In the instant case, the contention of the petitioner is that it has filed a review petition before the Controlling authority seeking review of the order at Annexure-D. There is no provision for filing of review petition before the competent authority. Therefore, an endorsement was rightly issued by the competent authority staring that it has no jurisdiction to entertain the review.

Admittedly, the appeal was filed beyond the period of 120 days from the date of receipt of the order of the Controlling, Authority. In Hongo India P. Ltd.''s case (supra), the Hon''ble Supreme Court has held that the provision of Limitation Act is not applicable when the special statute provides for the period of limitation. It was further held that section 5 of the Limitation Act has no application having regard to section 29(2) of the Limitation Act.

A Division Bench of this Court in Writ Appeal No. 2055/2008 (referred to above) has considered an identical question. It has been held that the Appellate Authority has no power to entertain an appeal beyond a period of 120 days. In the instant case, the appellate authority has rightly dismissed the appeal on the ground of delay as it was filed beyond the period of 120 days from the date of receipt of copy of the order. I do not find any error in the said order. Writ petition is accordingly dismissed. No costs.