Kerala High Court: While deciding the petition, the bench of Amit Rawal, J. held that when the application of Limitation Act, 1963 is excluded by Payment of Gratuity Act, 1972, then there can be no condonation of delay in filing appeal under Payment of Gratuity Act, by taking the aid of the Limitation Act.
In the present case, an application under Section 7(4) of Payment of Gratuity Act, 1972 (“Act, 1971”), was filed by the respondent for payment of gratuity. Thereafter notice was issued to the petitioner, but the petitioner remained absent, and case was proceeded ex-parte. The notice of payment of gratuity was served to the petitioner by the controlling authority. The petitioner appealed against this order of authority, which was rejected by the Regional Joint Labour Commissioner on ground of being barred by limitation. The petitioner has challenged this order before the Court.
The counsel of the petitioner contended that the remedy of appeal is to be availed under Section 7(7) of the Act, 1972 within a period of 60 days from the date of receipt of the order with a further condonation of 60 days. There is no exclusion of the applicability of the Limitation Act and therefore Section 29(2) of the Limitation Act, 1963 would be applicable.
The Court took note of Section 29(2) of the Limitation Act which provides that:
“where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special and local law”.
The Court said that it is evident that the legislature while enacting Section 7(7) of the Act, 1972 has specifically excluded the application of Limitation Act by providing the limitation of appeal for a period of 60 days condonable by another 60 days. Otherwise, the limitation to file an appeal under the schedule of the Limitation Act is 30 days.
Thus, the Court held that there cannot be any condonation of delay by taking the aid of the provisions of the Limitation Act and entertaining an application under Section 5 of the Limitation Act.
Hence, the Court dismissed the petition.
[The Secretary, Sree Avittom Thirunal Hospital v. State of Kerala, 2023 SCC OnLine Ker 595, decided on 23-01-2023]
Judgment authored by: Justice Amit Rawal
Advocates who appeared in this case :
Counsel for Petitioner:- Advocate R.S.Sarat
Counsel for Respondent:- Advocate B. Ananthu, Advocate Sunil Kumar Kuriakose