C.W.P.No.9373 of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.9373 of 2001 Date of Decision:- 29.05.2009 M/s. Indian Sulphacid Industries Ltd. ....Petitioner(s) vs. The State of Haryana and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Mansur Ali, Advocate for the petitioners. Mr.D.S.Nalwa, Addl.A.G., Haryana for respondent No.1 to 3. Mr.Rajesh Bansal, Advocate, for respondent No.4. *** AUGUSTINE GEORGE MASIH, J. (Oral) The present writ petition has been preferred praying therein the quashing of the order dated 2.5.2001 (Annexure P-6) passed by the Appellate Authority under the Payment of Gratuity Act, 1972( hereinafter referred to as the Act), vide which the appeal preferred by the petitioner- company stands dismissed on the ground that it has failed to deposit the amount decreed by the Controlling Authority under sub-section (2) of Section 7 of the Act. Counsel for the petitioner contends that along with the appeal preferred by the petitioner, an application (Annexure P-5) for waiver of pre- deposit of the amount decreed by the Controlling Authority was filed, but the same has not been decided by the Appellate Authority nor was any C.W.P.No.9373 of 2001 -2- notice given to the petitioner while dismissing the appeal. He contends that the application (Annexure P-5) preferred by the petitioner was required to be decided by the Appellate Authority before proceeding to pass any order in appeal. He further contends that in case the said application was to be rejected, the petitioner should have been given an opportunity to contest the appeal. He submits that dismissal of the appeal without notice to the petitioner is, therefore, not sustainable. On the other hand, counsel for the respondents submit that appeal preferred by the petitioner could not have been entertained by the Appellate Authority without complying with the provisions as mandated under sub-section ( 7 ) of Section 7 of the Act whereof the requirement is that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produced a certificate of the Controlling Authority to the effect that he had deposited with it an amount equal to the amount of gratuity required to be deposited under sub-section (4) of the Act or deposits with the Appellate Authority such amount. He further submits that there is no provision under the Payment of Gratuity Act, 1972, which would give a right to the appellant to claim waiver from pre- deposit as mandated under the Act. They, on this basis, submit that the appeal has been rightly rejected by the Appellate Authority as the same is not maintainable without the requirement of pre-deposit of the amount assessed by the Competent Authority. Counsel for the petitioner, at this stage, submits that the petitioner-company stands registered with BIFR and, therefore, no proceedings could have been initiated against it for execution of the order passed by the Competent Authority. C.W.P.No.9373 of 2001 -3- I have heard counsel for the parties and have gone through the records of the case. The only question in the present writ petition is as to whether an application which was preferred by the petitioner before the Appellate Authority under the Act for waiver of the pre-deposit of the amount as assessed by the Competent Authority under sub-Section (4) of Section 7 of the Act could be filed and if filed, could it be entertained by the Appellate Authority. It is an admitted position between the parties that the Statute does not provide for any provision which could be termed to be enabling the appellant to move an application before the Appellate Authority for waiver of pre-deposit of the amount as assessed under sub-section (4) of Section 7 under the Act. An appeal is a creation of the Statute and all rights flow from the provisions governing the said appeal as provided under the Statute. Sub-section (7) of Section 7 do provide for the extension of time for filing an appeal in case sufficient cause which prevented the filing of an appeal within the time stipulated is established by the appellant before the Appellate Authority. There is no such provision which provides for moving an application or making a prayer for waiver of pre-deposit of the amount as assessed by the Competent Authority under sub-section (4) of Section 7 of the Act. An application even if preferred by the appellant which is not provided for under the Statute does not call for any entertainment or consideration by the Appellate Authority. The application, Annexure P-5, prays for stay of the impugned order in the appeal and further prays for stay of recovery of the amount as per the order of the Competent Authority. The said application does not talk of waiver but prays for the stay of the impugned order as well as the stay of recovery of the amount so assessed. C.W.P.No.9373 of 2001 -4- In any case, this application also is not maintainable before the Appellate Authority as there is no provision for either waiver of the pre-deposit or for stay of the order passed by the appropriate Authority under sub-section (4) of Section 7 of the Act. The Appellate Authority was, therefore, not enjoined upon to pass any order on the application, if any, moved along with the said appeal before the Appellate Authority. In this view of the matter, the contention of the counsel for the petitioner that the petitioner who was an appellant before the Appellate Authority should have been given notice before deciding the appeal, cannot be accepted as the appeal itself was not maintainable as the requirement for entertaining the same was not fulfilled by the petitioner-company. In view of the above, the contention of the counsel for the petitioner stands rejected. In the peculiar facts and circumstances of the present case where it is the contention of the counsel for the petitioner- company that the company is registered before the BIFR and in view of the fact that the appeal has been dismissed, this Court is of the view that one opportunity should be granted to the petitioner-company to comply with the provisions of sub-section (7) of Section 7 of the Act. Accordingly, two months' time is given to the petitioner to deposit the amount as assessed by the Competent Authority under sub-section (4) of Section 7 of the Act from today. In case the aforesaid amount is deposited within the stipulated time, the Appellate Authority shall entertain the appeal and decide the same in accordance with law. The writ petition stands disposed of accordingly. It is clarified that in case the amount is deposited by the company, order dated 2.5.2001 (Annexure P-6) passed by the Appellate Authority under the Payment of Gratuity Act, 1972 shall not stand in the C.W.P.No.9373 of 2001 -5- way of the Appellate Authority to proceed and decide the case on merits. Copy of this order be given dasti to the counsel for the parties, under the signatures of the Court Reader. May 29, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No