THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition Nos.775, 1188 & 1189 of 2004 COMMON ORDER: In this batch of writ petitions, the common question that arises for consideration is, as to whether Section 5 of the Limitation Act stands excluded in the context of filing of appeals under Section 7(7) of the Payment of Gratuity Act, 1972 (for short ‘the Gratuity Act’). The petitioner is an Industrial undertaking established and managed by the Government of India. The 3rd respondent in the respective writ petitions (for short, ‘the employees’) retired from service on attaining the age of superannuation. On account of the financial crises faced by the petitioner, it did not pay the gratuity to the employees at a time. The employees approached the Controlling Authority under the Gratuity Act and Assistant Labour Commissioner (Central), Hyderabad, the 2nd respondent, by filing applications under the Gratuity Act. Through separate orders, dated 31.12.2001 (in two cases) and 30.09.2002 (in one case), the 2nd respondent directed that the balance amount of about Rs.6,000/-, to each of the employees, must be paid. This included the component of interest at 10%, for the delayed payment. Aggrieved by the orders passed by the 2nd respondent in favour of the employees, the petitioner presented separate appeals before the 1st respondent under Section 7(7) of the Gratuity Act. Since the appeals were filed after the prescribed period of limitation, applications for condonation of delay were filed. The appeals were returned through common orders, dated 13.11.2003, on two grounds. The first was that the petitioner did not comply with the requirement as to deposit of the disputed amount and the second was that the appeals were presented beyond the period of limitation. The petitioner feels aggrieved by the said orders. According to it, the delay involved was not much, the reasons mentioned for condonation of delay are very much relevant and that there was no justification for the 2nd respondent in returning the appeals by holding that the appeals are time barred. The petitioner does not make any grievance as to the non-deposit of the disputed amount, and in fact, it is prepared to comply with that condition. Sri P.B.Vijay Kumar, learned counsel for the petitioner, submits that though Section 7(7) of the Gratuity Act prescribes period of limitation for presentation of the appeals and to certain extent provides for condonation of delay; it does not exclude the application of Section 5 of the Limitation Act. He submits that there is nothing in the Gratuity Act, which expressly excludes the application of Section 5 to 14 of the Limitation Act and the appellate authority was not justified in refusing to entertain the application for condonation of delay. There was no representation for the contesting respondents i.e. the employees. This Court requested Smt.Udaya Sree, learned counsel, to assist the Court. After undertaking thorough study she has apprised this Court of the principles involved, and cited the relevant precedents. The amount involved in these writ petitions, is too meagre. However, having regard to the principle involved the petitioner has assailed the orders passed by the appellate authority returning the appeals on the grounds of limitation, and taking the view that it has no power to condone delay, under Section 5 of the Limitation Act. Section 7(7) of the Gratuity Act reads as under: “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 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.” From a perusal of this, it becomes clear that the period of limitation for filing an appeal against an order passed under sub-section (4) thereof is 60 days from the date of receipt of copy of the order. In addition to stipulating that period, the first proviso to sub-section (7) confers power upon the appellate authority to extend the period of limitation by sixty days. The language employed in the proviso is somewhat typical. It does not make any mention of condonation of the delay. On the other hand, it gives an indication that the period of limitation itself stands extended by sixty days. The petitioner presented the appeals beyond 120 days. Therefore, it has filed an application under Section 5 of the Limitation Act, with a prayer to condone the delay. The 1st respondent took the view that it has no power to entertain the appeal after expiry of 120 days. The prescription of limitation for institution of proceedings, or for filing of appeals, or applications; and the matters connected therewith, are in the realm of law of limitation. The Limitation Act 1908 governed these aspects, till that was replaced by the 1963 Act. The fundamental difference between these two enactments is that under the former, the provisions of Sections 4 to 24, dealing with the matters of condonation of delay, computation of period of limitation, exclusion of the time spent in pursuing remedy before an incorrect forum etc., did not apply to the proceedings under various enactments, unless they were specifically made applicable. In contrast, Section 29(2) of the 1963 Act makes them applicable, unless their application is expressly excluded. The said provision reads as under: “Section 29(2) - 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 Section l4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.” Interpretation of this provision, posed its own difficulties. Uniformity of opinions did not prevail as to the consequences that follow where the local or special law provided for a period of limitation different from the one prescribed under the Limitation Act. For example, in Commissioner of Sales Tax, Uttar Pradesh v. Parson Tools and Plants, Kanpur[1], the Supreme Court took the view that wherever a special enactment provides for limitation and condonation of delay up to a maximum period, Section 14(2) of the Limitation Act that provides for exclusion of time spent in prosecuting the remedy before the wrong forum or its analogy would not apply. The relevant portion of the judgment reads as under: “Thus, the principle that emerges is that 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 due diligence any prior proceeding on the analogy of Section 14(2) of the Limitation Act.” However, in the recent past, the Supreme Court struck a different note. It was held that even if Section 5 of the Limitation Act stands excluded, Section 14 thereof does not get excluded, unless there is a clear provision to that effect. State of Goa v. M/s.Western Builders[2] arose under the Arbitration and Conciliation Act, 1996. Section 34 of that enactment has not only prescribed the limitation for filing an application to set aside the award, but also conferred power upon the Court to condone the delay up to the maximum period of 30 days. The appellant therein presented a suit with a prayer to set aside the award, but in a forum that did not have jurisdiction. By the time the proceedings were presented before a proper forum, the period of limitation including the one that could have been condoned, expired. The trial Court took the view that Section 14 of the Act has no application to that case, once Section 5 of the Limitation Act stood excluded by operation of Section 29(2) of that Act read with Section 34 of the Arbitration and Conciliation Act. The Supreme Court held that though Section 5 of the Limitation Act stood excluded Section 14 of the Limitation Act would continue to apply. The following observation makes that clear: “In the present case under Section 34 by virtue of sub- section 3 only the application for filing and setting aside the award a period has been prescribed as 3 months and delay can be condoned to the extent of 30 days. To this extent the applicability of section 5 of Limitation will stand excluded but there is no provision in the Act of 1996 which excludes operation of Section 14 of the Limitation Act. If two Acts can be read harmoniously without doing violation to the words used therein, then there is no prohibition in doing so.” Similar view was taken in Consolidated Engineering Enterprises v. Principal Secretary Irrigation Department[3]. Thus, it becomes clear that though Section 29(2) of the Limitation Act refers to Sections 4 to 24 (both inclusive) as a group, the exclusion of the individual Section or the extent thereof, would depend upon the text of the local or special enactment that prescribes a period of limitation different from the one prescribed under the Limitation Act and other connected matters. The circumstances under which Section 5 of the Limitation Act gets excluded were dealt with by the Supreme Court in Union of India v. Popular Construction Company[4]. It was held that the judgment in Parson Tools and Plants’s case (1 supra) cannot be held to be relevant in the context of filing of an application under Section 34 of the Arbitration and Conciliation Act . By taking note of the text of Section 34 of the Arbitration and Conciliation Act the Supreme Court held that Section 5 of the Limitation Act gets excluded vis-à-vis proceedings under Section 34(3) of the Former Act. The provision reads as under: “An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.” What becomes relevant and obviously which weighed with the Supreme Court is the phrase occurring at the end of sub-section (3) namely, “but not thereafter”. That phrase takes away the discretion of the Court to condone the delay beyond 30 days after the expiry of the period of limitation, viz., three months. Similarly, Section 25(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 stipulates the delay, which the High Court can condone, independent of an application for condonation of delay. Proviso to Section 25(2) reads as under: “Provided that the High Court may, in its discretion, allow further time not exceeding one month for the filing of any such application, if it is satisfied that the applicant had sufficient cause for not preferring the application within the time specified in this sub- section.” This provision was interpreted as excluding the application of Section 5 of the Limitation Act in respect of the proceedings. Under the said enactment, if one compares Section 7(7) of the Gratuity Act with the two provisions extracted above, a perceptible difference can be noticed. No ceiling or prohibition on the discretion of the Court to condone the delay beyond a particular period, is imposed in Section 7(7) of the Gratuity Act. I n Special Officer, Salem Cooperative Primary Land Development Bank, Salem v. Deputy Commissioner of Labour[5], a learned single Judge of the Madras High Court held that Section 7(7) of the Gratuity Act excludes the operation of Section 5 of the Limitation Act. The Madras High Court rested its conclusion on the ratio laid down by the Supreme Court in Parson Tools and Plants’s case (1 supra). However, in view of the judgment of the Supreme Court in Consolidated Engineering Enterprises’s case (3 supra), the very foundation for the judgment rendered by the Madras High Court, becomes shaky. The Allahabad High Court, in U.P.S.R.T.C. v. Ram Prakash[6] has also took the view that Section 5 of the Limitation Act has no application for the proceedings under Section 7(7) of the Gratuity Act. It has drawn analogy from the judgment of the Supreme Court in Vinod Gurudas Raikar v. National Insurance Company Limited[7]. That case arose under the Motor Vehicles Act before Section 166 (3) of that Act was amended. The relevant provision as it stood then, reads: “166. Application for compensation. (1) ……………………………… ……………………………………………………………………………………… (3) No application for such compensation shall be entertained unless it is made within six months of the occurrence of the accident : provided that the Claims Tribunal may entertain the application after the expiry of the said period of six months but not later than twelve months, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.” Here again, the provision specifically prohibit the Tribunal from condoning the delay beyond twelve months. It is almost on par with Section 34(3) of the Arbitration and Conciliation Act and Section 25(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Section 7(7) of the Gratuity Act on the other hand is substantially different. It would be restatement of what is settled, to say that law of limitation bars the remedy, but does not extinguish the rights. It aims at ensuring that the citizens are diligent in pursuing their remedies. The provision for condonation of delay is as important as, if not more, than the one that prescribes period of limitation. Many are faced with plethora of other problems and in the process, they may not be in a position to prosecute the remedies with required amount of promptitude. To relieve the rigor of the consequences that flow from the prescription of limitation for enforcement of the rights, the Act conferred power on the Courts to condone the delay in certain cases. Since the condonation of delay is mostly in relation to filing of appeals or applications. The Supreme Court and High Courts repeatedly held that liberal view must be taken and if a given situation warrants, the delay, even if abnormal, must be condoned. By mere condonation of delay at the stage of appeals, the other party is not put to serious hardship. The parties have already faced litigation with each other and at the stage of appeal, it is only the verdict given by the primary authority, that is put to test. Such a remedy provided for under the statute cannot be denied at the threshold, unless the language of the provision mandates. Another important aspect of the matter is that Section 29(2) of the Limitation Act directs that the application of Section 5 to 24 can be excluded only, when the local or special enactment expressly directs. The Courts have placed interpretation on it, to the effect that even where no express “exclusion” is provided for under the local or special enactment, it can be inferred from the attendant circumstances. The examples that have been cited above, have arisen in cases where the special enactment did not provide for specific exclusion of Section 5 of the Limitation Act. However, the specific restriction placed upon the discretion of the Court to condone delay beyond a point, gave rise to an inference that Section 5 of the Limitation Act stands excluded. Logic and reason warrants that if the provisions do not contain such ceiling or restriction, it is not at all safe to infer exclusion of the application of Section 5 of the Limitation Act. Reverting to the provision concerned, it may be noted that the first proviso to Section 7(7) of the Gratuity Act does not deal with the power to condone delay, in its strict sense. The language employed is “extend the said period (of limitation) by a further period of sixty days.” Extension of period of limitation for institution of proceedings is distinct and different from condonation of delay, in doing so. If limitation is to be treated as a border line, beyond which proceedings cannot be instituted, extention is a process through which the border line itself is shifted further. It is akin to the enlargement of time under Section 148 C.P.C. In contrast, condonation of delay is the one, where the very act of crossing the border line is excused. Thereby, a disability which the person concerned has incurred on account of his failure to avail the remedy within the period of limitation is erased. This is the purport of Section 5 of the Limitation Act. It therefore becomes clear that proviso to sub-section 7 of Section 7 of the Gratuity Act is similar in content and purport to Section 148 C.P.C. and not to Section 5 of the Limitation Act. The difference pointed herein may appear to be thin. When, however, the benefit, which Section 5 of the Limitation Act confers is sought to be taken away not because of its express exclusion as provided for under Section 29(2) thereof, but through the process necessary inference, it must be ensured that the inference is not equivocal. If two views are possible while interpreting a provision concerning limitation, the one that does not restrict the availment of the remedy must be adopted. Conferring the benefit under proviso to Section 7(7) of the Gratuity Act, as well as the one under Section 5 of the Limitation Act, appear to be anomalous. The anomaly would dissolve once the purport of the two provisions is properly understood. The harmonious way of understanding thereon would be that, if the appeal is presented beyond sixty days, the appellate authority can extend the limitation by further period of sixty days in exercise of power under proviso to Section 7(7) of the Gratuity Act and it is presented beyond that period, the party can file an application under Section 5 of the Limitation Act. As in the case of an application for condonation of delay before any other forum, much would depend upon the 1) extent of delay 2) the nature of reasons pleaded by the party, for the delay and 3) the satisfaction of the authority. For the foregoing reasons, the Writ Petitions are allowed. Common order, dated 13.11.2003, passed by the 1st respondent in so far as it expressed the view that the delay in presentation of the appeal cannot be condoned, is set aside. It is left open to the petitioner to represent the appeals duly complying with the condition as to pre-deposit of the disputed amount. The 1st respondent shall consider the application for condonation of delay on its own merits without feeling restricted by the time stipulated under Section 7(7) of the Gratuity Act and proceed with the matter accordingly. There shall be no order as costs. _____________________ L. NARASIMHA REDDY, J. Dt.20.01.2011. GJ [1] AIR 1975 SC 1039 [2] AIR (SC) (2006) 2525 [3] AIR (SCW) (2008) 4182 [4] 2001 (8) SCC 470 [5] 1998 (3) LLJ (Supplement) 1168 [6] 2005 ESC-1-295 [7] AIR 1991 SC 2156