1 wp-7728-08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION W.P. NO. 7728 OF 2008 Mrs.Manjeet S.Malhotra ..Petitioner Vs. Santosh Vithoba Patil and Ors. ..Respondents .... Mr.Dilip N.Mandavia Adv. for Petitioner Mr.N.M.Gangal Adv. for Respondents. .... CORAM : SMT.V.K.TAHILRAMANI,J. DATE : AUGUST 10, 2009 P.C.: 1. Heard the learned counsel for the petitioners-company and the learned counsel for the respondent no.1. 2. The respondent no. 1 is a workman. The services of respondent no.1 were terminated with effect from 26th February, 1999 after 11 years of service. Respondent no.1 preferred application under Sections 4 and 7 of the Payment of Gratuity Act, 1972 which came to be allowed by the Controlling Authority by order dated 24.12.2003. By the said order, the petitioner-company was directed to pay the workers within a period of one month the gratuity amount of Rs.25,385/- along with simple interest at the rate of 10% per annum from the date of termination till realization of the gratuity amount. 2 wp-7728-08 3. The case of the petitioner-company is that the said order was an exparte order and hence, review application came to be preferred for setting aside the exparte order dated 24.12.2003. The said review application came to be rejected by order dated 21st June, 2006. Being aggrieved thereby, appeal came to be preferred by the petitioner- company. As according to the respondent-workman, there was delay in filing appeal, respondent raised preliminary objection in respect of maintainability of the appeal by filing a separate application dated 30th November, 2007. The appellate authority holding that no genuine convincing reason has been advanced by the appellant for delay in preferring the appeal, dismissed the appeal by order dated 27th May, 2008. Hence, this petition. 4. The order against which the appeal has been preferred is dated 21st June, 2006. It is the case of the petitioner-company that the appeal was filed along with the principal amount of gratuity on 27th September, 2006. He submitted that Section 7(7) of the Payment of Gratuity Act, provides that the appeal has to be filed within sixty days and the appeal was filed by the petitioner within 34 days of receiving certified copy of the order. However, the said appeal was not admitted and the petitioner received letter from the controlling authority dated 23.11.2006 wherein, it was stated that the amount of interest along with gratuity amount was not deposited and unless the amount is deposited, 3 wp-7728-08 the appeal cannot be registered and by this letter dated 23.11.2006 the appeal came to be returned to the petitioner-company. Thereafter, on 13th December, 2006 again the appeal came to be filed along with the principal amount as well as interest. The learned counsel for the petitioner-company submitted that section 7(7) of the Act does not provide for deposit of interest on the principal amount and it only provides for deposit of principal amount. Hence, his appeal ought not to have been returned. He further submitted that section 7(7) of the Act, provides for a period of sixty days for preferring the appeal, however, there is also provision for extension of the period by a further period of sixty days if the appellate authority is satisfied that the appellant was prevented on account of sufficient cause from preferring appeal. He submitted that the petitioner deposited the principal amount with the appeal 34 days after receiving the copy of the Judgment as per the provisions of Section 7(7) and the principal amount and the interest amount were deposited on 13th December, 2006 which according to him, is 105 days from the date he received the certified copy. He submitted that thus, the period would fall within 120 days as stipulated under Section 7(7) of the Act and hence, the appellate authority should have condoned the delay. 5. It is seen that the order against which the appeal has been preferred is dated 21st June, 2006. The advocate for the appellant i.e. the 4 wp-7728-08 petitioner-company was aware about the order being passed on 21st June, 2006. Despite this fact, the application for certified copy was made only on 24th August, 2006. In fact, on 24th August, 2006 the period of more than 60 days had already expired. No explanation was offered by the appellant as to why application for certified copy was not preferred immediately. Thus, it is seen that initial period of sixty days was over and thereafter, the application for certified copy was preferred by the appellant-company. The certified copy was ready on 30th August, 2006 and the appeal was filed on 27th September, 2006 along with the principal amount. When the appeal was filed on 27th September, 2006, there was no application for condonation of delay as according to the petitioner, the appeal was within time. In the facts of the present case the period from 22nd June, 2006 to 24th August, 2006 cannot be excluded from limitation. In such case, the period of sixty days having expired, an application for condonation of delay ought to have been preferred, but it was not preferred. The appellant filed formal application for condonation of delay with supporting affidavit after more than one year of filing of the appeal. 6. As far as delay is concerned, no oral arguments were advanced. Only a statement showing the dates of events, short notes and synopsis was filed, from these, it is seen that the appellant had totally failed to explain the delay between 21st June, 2006 and 24th August, 2006. The 5 wp-7728-08 respondent workman in his preliminary objection statement dated 30th November, 2007 stated that advocate for the appellant company Mr.M.C.Singh was aware about the order being passed on 21st June, 2006 by the Controlling Authority. There was no denial of this fact by the appellant in their reply or otherwise. Even though the appellant was aware about the order of the Controlling Authority through their Advocate and even after receiving letter dated 11th August, 2006 from the advocate of the opponent workman, they preferred to approach the office of the Controlling Authority for certified copy of order only on 28th August, 2006. The copy was immediately provided to the appellant on 30th August, 2006 without any delay. However, even after getting the certified copy of order on 30th August, 2006, the appellant did not immediately file the appeal. No genuine convincing reason has been advanced by the appellant for such delay in preferring the appeal beyond the stipulated time limit of sixty days. Moreover, the application for condonation of delay was also preferred after one year. Looking to all the aspects of the case. The Appellate Authority rejected the application for condonation of delay and in my opinion, rightly so. 7. The learned counsel for the petitioner thereafter submitted that the Appellate Authority had the discretion to condone the delay if the appeal was filed within 120 days. The question arises whether this is a 6 wp-7728-08 fit case to use discretion. The facts of this case reveal that after the termination of the respondent-employee, the employee approached the petitioner for payment of gratuity. As even after repeated requests, the petitioner did not pay his legal dues, the employee sent a legal notice to the petitioner through his advocate on 19.3.2003. A copy of the said legal notice has been produced before the Controlling Authority along with the postal acknowledgment card duly signed by the petitioner. The petitioner has not paid the gratuity even after receipt of the said legal notice nor replied the said notice. The petitioner also has not replied the I Form. After getting notice from the Controlling Authority, the petitioner also has not filed written statement denying the claim. Even though the notice was served on the petitioner and enough opportunities were given to them to file written statement, no written statement was filed by the petitioner-company. The petitioner-company remained absent throughout the proceeding before the Controlling Authority. Since the petitioner neither filed the written statement, nor attended the hearing the employee made an application to proceed without written statement and to proceed exparte. A copy of the said application was served on the petitioner but even thereafter they did not attend the proceeding nor filed written statement. It is seen that the Controlling Authority had sent notice to the Applicant, which was duly served on the applicant. Even after receipt of notice from the 7 wp-7728-08 Controlling Authority, the applicant employer did not take any interest to attend the matter. The opponent employee had filed an affidavit in lieu of evidence and copy of it, was served on the applicant along with his advocate ’s letter dated 22.09.2003. Proof of service of the affidavit was produced before the Controlling Authority. Since the applicant employer was continuously ignoring the proceedings, an exparte order was passed on 24.12.2003 granting gratuity, interest and cost to the employee. It is in these circumstances, the matter was proceeded exparte by the Controlling Authority. 8. Being aggrieved by the exparte orders of the Controlling Authority, the petitioner preferred review application. The said application was filed by the petitioner after expiry of stipulated time of 30 days for making Review Application. It is stated by the petitioner-employer in the Review Application that as per the order dated 24.12.2003 of the Controlling Authority, the employer was directed to pay the opponent- employee the amount along with interest @ 10% per annum within the period of one month from the date of order. It is also stated by the petitioner that on 7.1.2004 a notice in Form No.R was issued to the employer by the Controlling Authority sending therewith Order dated 24.12.2003. It is also submitted that thereafter on 10.2.2004 the Applicant employer sought certified copy of the order and inspection of the proceedings. The applicant employer further stated that they made 8 wp-7728-08 another application on 5.3.2004 for certified copy of the order and they received certified copy of the order. The Respondent employee filed affidavit in the review proceedings stating that he has served a copy of the said exparte order on the applicant company along with his Advocate ’s letter dated 28.1.2004. This has not been denied by the petitioner-employer by rejoinder or otherwise even though they have received the order, the petitioner-company failed to file the Review Application within 30 days from the receipt of the order. The exparte order was passed on 24.12.2003, whereas the Review Application was filed on 30th April, 2004. It is pertinent to note that it is not disputed that the employer was aware about the order in January, 2004 itself, when they received form No.3. From the record, it is seen that the certified copy of the order dated 24.12.2003 was ready on 24.12.2003 itself, whereas on behalf of the employer, one Shri.Gautam Roy made an application for certified copy only on 5.3.2004 and the copy was delivered to the petitioner on the same day i.e. on 5.3.2004. Thus, there was absolutely no delay by the office of the Controlling Authority in supplying certified copy of the order to the employer. 9. Once the notice is served on the party, it cannot be said that the proceedings were held without giving any reasonable opportunity of hearing to the said party. The facts show that the applicant employer was well aware about the proceedings pending before the Authority and 9 wp-7728-08 they failed and neglected to attend the proceedings. The petitioner employer has not shown any valid or cogent reasons for non- appearance before the Controlling Authority. The petitioner employer was given enough opportunities before the Controlling Authority to defend the matter by leading proper evidence. However, the petitioner- employer has failed and neglected to avail such opportunities and to attend the proceedings before the Controlling Authority. Moreover, no just and sufficient reason was made out in the review proceedings for condoning delay caused in filing review application. So also, no just and sufficient reasons were given before the Appellate Authority for the delay in filing appeal. In the facts of this case, it is not a fit case wherein the discretionary powers ought to have been used to condone the delay. 10.Payment of gratuity is a Welfare Legislation. It is apparent from record that the employer tried to defeat the due claim of the workman. This is apparent from his action before the Controlling Authority and Appellate Authority and hence, Appellate Authority has rightly not used his discretion to condone delay. I may also state here that for deciding this matter, it would not be necessary to enter into the aspect whether at the time of filing of appeal, it is mandatory to deposit the interest amount also along with the principal amount as even otherwise it is seen that no diligent steps were taken by the petitioner at any stage and more so 10 wp-7728-08 while filing the appeal. 11.In view of the above, no case is made out for interference with the orders of the appellate authority whereby the appeals filed by the petitioner-company came to be dismissed as no genuine convincing reason was advanced for the delay in preferring the appeals. 12.Writ petition is dismissed. ` [ SMT.V.K.TAHILRAMANI,J.]