Bangalore Metropolitan Transport Corporation vs The Deputy Labour Commissioner and the Appelate Authority Under the Payment of Gratuity Act, Region II and Others

Ram Mohan Reddy, J.—The petitioner - Road Transport Corporation, appointed Ramegowda as an Assistant Traffic Inspector, for short ''workman'', on 25-07-1977 and dismissed him from service on 17-06-1980, which when referred to the Labour Court, was directed to be reinstated by award dated 1-3-1993, in Reference No. 22/1991. That award when questioned in writ petition, this Court by order dated 1-12-1995 directed the services of the workman to commence as a fresher from 1-3-1993, the date of award. It appears that the workman died on 3-3-1998 whence it was noticed that he was paid Rs. 1,45,479/- in excess of the wages, and when a notice was issued to the 3rd respondent, the widow of the workman, to refund the amount, an application was filed on 11-09-2003 claiming Rs. 1,69,869/- as unpaid gratuity. The Controlling authority having held an enquiry in exercise of jurisdiction u/s 7(4) of the Payment of Gratuity Act, 1972 (for short ''Act''), allowed the claim by order dated 18-05-2005 and directed the petitioner to pay Rs. 1,37,530/-. The petitioner secured a copy of the order on 20-09-2005 and though required to file the appeal within sixty days therefrom, as prescribed by Sub-section (7) of Section 7 of the ''Act'' and on its expiry, to file an application to extend the period by another sixty days, therefrom, as provided in the proviso thereto, nevertheless filed the appeal on 14-02-2006, after expiry of 120 days occasioning a delay of 25 days in filing the appeal and sought condonation by filing an application invoking Section 5 of the Limitation Act, 1963. The Appellate Authority, having regard to its jurisdiction in extending the period for filing the appeal by 60 days prescribed by the proviso to Sub-section (7) of Section 7 of the Act and noticing that it had no jurisdiction to condone the delay of 25 days, rejected the application and consequently dismissed the appeal by order dated 31-07-2006 Annexure-''E''.. Hence, this writ petition.

The contention of the learned Counsel for the petitioner that the Appellate Authority fell in error in not condoning the delay of 25 days in preferring the appeal in my considered opinion, is but a specious plea. Sub-section (7) of Section 7 of the Act reads thus:

(7) Any person aggrieved by an order under Sub-section (4), may, within sixty days from the date of receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf:

Provided that the appropriate Government or the appellate authority, as the case may be, may, 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.

Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under Sub-section (4), or deposits with the appellate authority such amount.

A bare reading of the aforesaid provision discloses that the appeal against an order of the Controlling Authority under Sub-section (4) is required to be filed within 60 days from the date of receipt of the order and if not done within the said period, the Appellate Authority is empowered to extend the said period by 60 days, provided the appellant was prevented by sufficient cause in preferring the appeal. The payment of gratuity rules, do not invest the Appellate Authority with the jurisdiction to extend time beyond the period, prescribed by the proviso to Sub-section (7) of Section 7 of the Act. The legislature having willfully omitted to incorporate the applicability of Section 5 of the Limitation Act, in respect of appeals filed beyond the extended period prescribed by the proviso to Sub-section (7) of Section 7, of the ''Act'', the Appellate Authority was fully justified in not deploying Section 5 of the limitation Act to condone the delay of 25 days in preferring the appeal. The Legislature having prescribed a certain period of limitation for filing an appeal while the proviso in clear terms permits extending the period by 60 days, in filing of appeal subject to the appellant showing sufficient cause, in my considered opinion, the appeal preferred by the petitioner occasioning a delay of 25 days, was correctly and justifiably dismissed by the order impugned.

The observations of the Apex Court, in identical circumstances, though under the provisions of the U.P. Sales Tax, in the case of The Commissioner of Sales Tax, U.P., Lucknow Vs. Parson Tools and Plants, Kanpur, , is apposite:

These provisions of the Limitation Act cannot be imported into the U.P. Sales Tax Act even by analogy. An enactment being the will of the legislature, the paramount rule of interpretation which overrides all others, is that a statute is to be expounded according to the intent of them that made it.

If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so, would be entrenching upon the preserves of the Legislature, the primary function of a Court of law being jus dicere and not jus dare. The High Court therefore was in error in importing whole hog the principle of Section 14(2) of the Limitation Act into Section 10(3-B) of the Jagannath Prasad Vs. The State of Uttar Pradesh, and AIR 1962 SC 1921. Prem Nath L. Ganesh Dass Vs. Prem Nath L. Ram Nath and Others, : Purshottamdas Hassaram Sabnani Vs. Impex (India) Ltd., Approved. AIR 1929 P.C. 103 held no longer good law. Commissioner of Sales Tax, U.P., Lucknow Vs. Parson Tools and Plants, Kanpur,

If the legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only upto a specified time-limit and no further, then the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in prosecuting in good faith and with due diligence any prior proceeding on the analogy of Section 14(2) of the Limitation Act.

Where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the Court to give effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the law-giver, more so if the statute is a taxing statute.

In the light of the authoritative pronouncement of the Apex Court and the provisions of Sub-section (7) of Section 7 of the Act, being a Special statute, prescribing a period of limitation for filing an appeal, no exception can be taken to the rejection of the application to condone the delay and as a consequence dismissal of the appeal filed by the petitioner, beyond the period of limitation.

Writ petition is without merit and is accordingly, rejected.