Digvijay Singh vs The Appellate Authority & Ors.

KIRTI SINGH, J. (ORAL)

The present writ petition has been filed by the petitioner seeking issuance of a writ in the nature of certiorari for quashing of order dated 27.12.2021 (Annexure P-7) passed by the Appellate Authority under the Payment of Gratuity Act, 1972 for Faridabad, and order dated 09.02.2021 (Annexure P-6) passed by the Controlling Authority under the Payment of Gratuity Act, Circle-I, Faridabad, whereby the application filed by the petitioner for setting aside the order dismissing his claim petition in default and for restoration of proceedings has been dismissed; and further for issuance of a writ in the nature of mandamus directing respondent No.2 to restore the petition filed by the petitioner under the Payment of Gratuity Act and to decide the same on merits.

Briefly stated, as per the pleaded case, the petitioner was engaged with respondent No.3-M/s Alfa Automobiles, a division of respondent No.4-Continental Device India Ltd., and continued in service till September, 2007, when he left the job. Alleging that he was entitled to gratuity for the period of his service, the petitioner preferred an application under the Payment of Gratuity Act, 1972 before the Controlling Authority, Circle-I, Faridabad on 30.10.2009. In the interregnum, at the instance of respondent No.3, FIR No.240 dated 09.10.2007 came to be registered against the petitioner and his co-employees under Sections 420, 406, 467 and 120-B IPC, alleging fraud, falsification of accounts and misappropriation of the funds and stock of the company; charges under Sections 406, 467 and 120-B IPC were initially framed on 04.03.2010, and additional charges under Sections 408 and 477-A IPC came to be framed on 06.03.2017. It is the petitioner's own case that on account of his preoccupation with the said criminal trial, he could not appear before the Controlling Authority, resulting in his gratuity application being dismissed in default. The petitioner was ultimately acquitted, along with his co-accused, of the criminal charge vide judgment dated 08.10.2018 passed by the learned Judicial Magistrate 1st Class, Faridabad, the prosecution having failed to prove its case beyond reasonable doubt. It is the petitioner's further case that after his acquittal, he approached respondent No.3 for release of gratuity, and upon receiving no response, got issued a legal notice dated 04.01.2020. Thereafter, on 28.01.2020, the petitioner moved an application before the Controlling Authority for setting aside the order dismissing his gratuity claim in default and for restoration of the proceedings. The said application was contested by the respondents, who took up the specific stand that no order dated either 12.01.2011 or 21.02.2011 existed on the record; that the application (Application No.7 of 2009) was, in fact, finally dismissed in default on 16.08.2013; that the restoration application, filed nearly nine years thereafter, was hopelessly barred by time and unaccompanied by any application seeking condonation of the delay on sufficient or justified grounds; that the petitioner, who stood departmentally charge-sheeted, had deliberately evaded the proceedings with full knowledge of the pendency of the charge-sheet and the criminal case; and that the plea of an assurance said to have been held out by the since-deceased Managing Director was unsubstantiated and irrelevant to the question of setting aside a non-existent order. The Controlling Authority, vide order dated 09.02.2021 (Annexure P-6), dismissed the restoration application. It was held that the petitioner had mentioned incorrect and mutually inconsistent dates, i.e., 12.01.2011 and 21.02.2011, of the order alleged to have been passed in default, whereas the record disclosed that the application was in fact dismissed in default on 16.08.2013; that the plea of an assurance by the Managing Director to clear the dues after conclusion of the criminal case was not a reliable explanation for a lapse of over a decade, more particularly when the criminal case itself was pending at the time the gratuity application was, as recorded by the Controlling Authority, filed on 30.10.2009, i.e., after registration of the FIR, so that the petitioner did not even await the outcome of the criminal proceedings before invoking the jurisdiction of the Controlling Authority in the first instance; and that the petitioner, having been grossly negligent in prosecuting his own claim and having failed to remain vigilant, could not be permitted to take advantage of his own default after a delay of nearly nine years.

Aggrieved thereby, the petitioner preferred an appeal under Section 7(7) of the Payment of Gratuity Act, 1972, registered as Case No.05 of 2021, before the Appellate Authority. The Appellate Authority, vide order dated 27.12.2021 (Annexure P-7), concurred with the view taken by the Controlling Authority and dismissed the appeal, holding that the petitioner had, in his own restoration application, failed to correctly record the date of the order of dismissal in default, and that the Controlling Authority had rightly passed the order impugned before it.

Learned counsel for the petitioner contends that the petitioner could not diligently pursue his gratuity claim only because he was facing a criminal prosecution, launched at the instance of his own employer, which continued for about eleven years and culminated in his honourable acquittal; that once acquitted, the petitioner lost no time in approaching the authorities for restoration; that the delay, if any, stood sufficiently explained by the pendency of the criminal proceedings and ought to have been condoned in the interest of substantial justice; that the impugned orders are non-speaking and were passed without appreciating the totality of facts and circumstances; and that the same are, therefore, arbitrary, contrary to the principles of natural justice, and violative of Articles 14 and 16 of the Constitution of India, warranting interference by this Court.

Per contra, learned counsel for the respondent no.1 supports the impugned orders and submits that the concurrent findings recorded by both the Controlling Authority and the Appellate Authority are findings of fact, based on a correct appreciation of the record, and call for no interference in writ jurisdiction; that the petitioner's own application for restoration did not correctly disclose the date of the order sought to be set aside, a discrepancy going to the very root of the application and left unexplained throughout; that mere pendency of a criminal trial did not disable the petitioner from prosecuting his civil claim for gratuity with reasonable diligence, particularly since the original claim itself came to be filed only after registration of the FIR and was not even pursued to its logical end before the criminal case attained finality; that the plea of an oral assurance by a since deceased Managing Director is incapable of verification and cannot furnish sufficient cause for condonation of a delay of nearly nine years; and that, in any event, the respondents had averred sending a reply dated 25.01.2020 refuting the claim, belying the assertion that the notice remained unanswered.

I have heard learned counsel for the petitioner as well as respondent No.1 and perused the relevant material on record.

It is well settled that a writ court, exercising jurisdiction under Articles 226/227 of the Constitution of India, does not sit in appeal over the findings of fact recorded by a statutory authority functioning under a special enactment such as the Payment of Gratuity Act, 1972, and would ordinarily decline to interfere unless the order under challenge is shown to suffer from want of jurisdiction, is vitiated by a violation of the principles of natural justice, or is otherwise perverse in the sense of being based on no evidence or a view no reasonable authority could have taken. The Hon'ble Supreme Court in Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477, while delineating the limits of certiorari jurisdiction, held that a finding of fact recorded by a tribunal cannot be reopened in writ proceedings merely on the ground that the evidence was insufficient or inadequate to sustain it, the adequacy and appreciation of evidence being matters entirely within the domain of the fact-finding authority; interference is permissible only where the finding is based on no evidence, where admissible evidence has been wrongly excluded or inadmissible evidence wrongly relied upon, or where the error is one of law apparent on the face of the record. Tested on this well-settled touchstone, no case for interference is made out.

A perusal of the record shows that the petitioner's application dated 28.01.2020 for restoration of the gratuity proceedings described the order sought to be set aside inconsistently, the heading bearing the date 12.01.2011 and the body, at Para No.6, bearing the date 21.02.2011 - a discrepancy that weighed with the Controlling Authority in declining to entertain the application, more so since the respondents took the specific stand that the application had, as a matter of fact, been finally dismissed in default only on 16.08.2013.

No doubt, in the present petition, the petitioner has sought to explain this discrepancy as an inadvertent typographical slip in the body of the application, asserting that the heading correctly bore the date 12.01.2011, in support of which the petitioner has also placed on record, as Annexure P-2, what purports to be an order of that very date recording that the original claim petition stood dismissed in default. This Court does not consider it necessary, for the purposes of the present petition, to record any final opinion on which of the two dates 12.01.2011 or 16.08.2013 -correctly represents the date on which Application No.7 of 2009 came to be dismissed in default, for the difficulty confronting the petitioner survives either way. Whether the delay in seeking restoration is reckoned from 12.01.2011 or from 16.08.2013, it remains, on any view, a delay of several years: ranging from about six-and-a-half to about nine years - for which, as noticed below, no sufficient explanation has been furnished. It is this inordinate and unexplained delay, and not the confusion over dates by itself, that lies at the heart of the impugned orders and that this Court finds to be determinative.

So far as the plea of condonation of delay is concerned, learned counsel for the petitioner has sought to invoke the liberal, justice-oriented approach enunciated by the Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag v. Katiji, (1987) 2 SCC 107, wherein it was observed that the expression 'sufficient cause' is adequately elastic to enable courts to advance substantial justice, and that refusing to condone delay can result in a meritorious matter being thrown out at the threshold. That liberal approach, however, is not unqualified. The Hon'ble Supreme Court, in Basawaraj v. Special Land Acquisition Officer, (2013) 14 SCC 81, has clarified that the expression 'sufficient cause' can be given a liberal interpretation only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned; where a party is found to have acted negligently, or to have remained inactive, or is otherwise wanting in bona fides, no court would be justified in condoning an inordinate delay, and the law of limitation, harsh as it may be in a given case, has to be applied with all its rigour once the statute so prescribes, since courts possess no power to enlarge the period of limitation on equitable considerations de hors a satisfactory explanation. The present case falls squarely within the latter category. It is true that the accompanying affidavit does carry a general prayer that the delay in filing the application may be condoned, but that prayer is not supported by any disclosure of grounds constituting sufficient cause; the delay of several years is sought to be explained, if at all, only by the plea that the then Managing Director had orally assured the petitioner that his dues would be cleared after conclusion of the criminal case. That plea is incapable of independent verification, more so since the Managing Director in question is stated to be deceased, and no contemporaneous document has been placed on record in support of any such assurance. Further, and more fundamentally, the petitioner's own explanation is belied by the sequence of events on record: the gratuity claim came to be filed, on the petitioner's own showing, after registration of the FIR on 09.10.2007, and the petitioner did not await the conclusion of the criminal trial before invoking the jurisdiction of the Controlling Authority in the first instance. Having chosen to set the civil proceedings in motion despite the pendency of the criminal case, it does not lie in the petitioner's mouth to now contend, years later, that the very same criminal case rendered him unable to prosecute those proceedings with due diligence.

The contention that the impugned orders are non-speaking and violative of the principles of natural justice is equally without substance. The order of the Controlling Authority dated 09.02.2021 (Annexure P-6) records cogent reasons dealing with the incorrect and inconsistent dates furnished by the petitioner, the inordinate and unexplained delay, and the want of bona fides in the plea of assurance; the Appellate Authority, in its order dated 27.12.2021 (Annexure P-7), independently applied its mind to the record and concurred with the said findings. Both orders, therefore, reflect due application of mind, and the plea of violation of natural justice is not made out. The invocation of Articles 14 and 16 of the Constitution of India, which are primarily attracted to State action in matters of public employment, is, in any event, misconceived in the facts of the present case, which concerns a claim for gratuity against a private employer adjudicated under a special statute providing its own complete machinery.

For the reasons recorded above, this Court finds no illegality, perversity or jurisdictional infirmity in the impugned orders dated 09.02.2021 (Annexure P-6) and 27.12.2021 (Annexure P-7) warranting interference under Articles 226/227 of the Constitution of India.

The writ petition, being devoid of merit, is accordingly dismissed.

Civil miscellaneous application(s) pending, if any, are also disposed of.