l^ •M iDft xp^- BEFORE THE HON'BLE HIGH COURTLQF CHHATTISGARH AT BILASPUR IN THE MATTER OF W.P. N0. l^ o ( OF 2005 PETITIONER Chhattisgarh Infrastmcture Development Corporation, A company registered under the Companies Act, with its Registered Office at Shastri Chowk, Raipur through the Managing Director C.I.D.C. Raipur. VERSUS RESPONDENTS w,^ 44' 1. Shri Anand Kumar Agrawal., S/o.Late Shri Vinayak Prasad Agrawal, R/o. Purani Basti, Baniyapara, Raipur (C.G.). 2. Appellate authority under payment of Gratuity Act., 1972 Cum Deputy Labour Commissioner Chhattisgarh, Geetanjalinagar, Raipur (C.G.). 3. Madhya Pradesh Road Transport through the Managing Director, Habibganj, Bhopal (M.P.), PETITIQN UNDER ARTILCE ^ 226/227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF AN APPROPRIATEWR£TORDER OR DIRECTION AS DEEMED FIT. XI-HC-78 ^TT^r^rf^Tr^ crSTT3TT^T$h^|cb TST^TPTT^PT, ^Tfl^KS, f®tc11<H^< ^ ^l<4dl sbt41cb *--.-<-«.^.«-^ 200^ 3ll^yi ^sicb ('i^i^6!^) 3P ?^TT^K^cT3TT^T 3-7-2006 Mr. Prodeep Saksena, coun^elfor the petitioner. AAr. Bharat Rcijput, counse! Gbi^F<n41<i WT^t*^te^ <r^^i< ^3:rf^T3Tl^T For respondent No.l. Mr. Sanjay Patel, counsel fc^r respondent No.3. Return hos already been fil^d on behalf of respondent No.l. Heord learned counsel for ^he parties for final disposai. The short question involve^ deposits 9rotuity amount^ QS asc Section 4 (4) of the Payment of G\ beyond the period of limitation i whether thot appea! is to be treat^d as time barred. Brief facts leading to fiiir^ of this writ petition are thot respondent No.l herein WQS the employee Accountant. The services of resp^ndent No.l were terminated by M.P.S.R.T.C. on 30Ttl April, 2002 which wos c^ moved the Controlling Authority,| 1972 for directing the empioyer| Rs.1,57,535/- QS the amount of g said Qmount within 30 days. Jhe in this petitjon is that in case the employer srtdned by the contrlo}iin9 authority under 'atuity Act, 1972 (for short 'the Act, 1972') icluding the extended period of iimitation, of respondent No.3 i.e. M.P.S.R.T.C. as allenged before the Labour Court and the matter is still pendin9 there. I^i the mean time, respondent No.l claimant Rcynandgaon, under Section 7 of the Act, for payment of gratuity. The Controllin9 Authority vide its order date^ 14-5-2003 ascertained an omount of Qtuity paycible to respondent No.l claimant herein ond it was further directe^l thcit the petitioner herein should pay the petitioner herein obtdned the copy of the said order on 6-6-2003 and prefer^red an appeal before the appellate author'ity on 14-7-2003. However, the peti^ioner hereindeposited the 9ratuity amount XI-HC-78 3TI^T^T^i<=h ^TTOT^?T$hHl<=h *11*1<<11 Sti*11<»» 75? "41-i<l(rt<i4, ^Tfl'U^KS, fc|dl^^< .CA.TS;/.^'?.t. ^ 200^ 311^1 ^5(<!b (y<i^<s«<&T) B^cTT^K ^f?cT 3:n^?T -^ Gbi^t<n41Ti ^iiH<nTWte^'<Ri<^i< ^3Tf^T3TT^T on 16-2-2004. The appellate auti^ vide its order dated 17-3-2005 he| on the dote when the gratuity amo the Gppeol was filed after 8 month|s 10 days, thereby the appeai was filed with the deloy of 4 month^ 10 days appeai on 14-7-2003, therefore, t^ the 9ratuity amount was deposite^ the dote of filing of the appeal| prity on the objection by respondent No.l, !d that filing of the appeal is to be treated ^int was deposited i.e. 16-2-2004, therefore, and treating the appeal QS time barred, dismissed the appectl. The propr|ety, le9a!ity and correctness of the scime order hos been questioned by way 4>f this writ petition by the petitioner. Learned counsel for the p^titioner argued thot copy of the impu9ned order was mode Qvailable to the p4titioner on 6-6-2003 and h@ preferred the \c oppeQl wos preferred within time. Even if 1 on 16-2-2004 that cannot be taken to be QS the appeai was diready filed by the petitioner on 14-7-2003. On the other hand, Mr. R^jput, learned counsel for respondent No.l opposin9 the argument of learned <jounseJ for the petitioner argued that os per the second proviso of sub-section (7) of Section 7 of the Act, 1972, the appea! is to be entertained and admitted |only after payment of gratuity. Asper the second proviso to sub-section f7) c^f Section 7 of the Act, 1972, the petitioner was required to ottach a certifica^e of the controllin9 authority to the effect that the petitioner has deposited gratuity, which has to be deposit^ the appeliote authority such am oniount, oppeal cannot be treate^ pvith him an amount equol to the omount of d under sub-section (4), or deposited with |?unt. Therefore, without depositing the to be fiied os per the provisions of sub- XI-HC-78 ^l^dl sh*<lcb 75ET ^I^Idq, ^Tf1<H^<o, l^<ni<My[< LO,T:>. (^-©( ^ 200i^ 3TT^T^)Tf^rf^ cTSTT3TT^?T5hHI<=t) 311^1 ^15|cb (^qi^q<^T) ^crr^F^rfN'w^T ~ ^l cf>l^f<rt4)<l ^l^KnT^te^^^K ^3Tf^T3TT^T section (7) of Section 7 of the A^t, 1972. In the circumstances, the Qppeliate authority rightly dismissed the ap|>eal being time barred. Having heard ieorned couns^i for the parties, I have perused the record. In order to appreciate the argum^nts advanced by respective counsei it would be profitabie to reproduce the pr<^ Act, 1972, which deals with filing <) "(7) ^ny persona9grlieved by an order under sub-^ection (4) moy, within ^ixty the order, prefer &ov@rinment or ^uch by the apppoppiate 6c|vernment in this behaif: Provided thatl appeliate authority, satisfied that the a^ cause from preferrin^ sixty days, extend sixty days. t+ie apped, the appeliant controlling authority depo^jted witiii him visions of sub-section (7) of Section 7 of the >f appeal. days from the date of -t+ie receipt of an oppeal to the appropriate other outhority as may be specified I the appropriate Sovernment or the ^s the case may be, may, if it is ,rtpelJGnt was prevented by sufficient the Qppeai within the sdd period of said period by a further period of Provided furt^er that no appeal by an employer shdl be admitted ur|iess <at the time of preferrin9 the ^iti^er produces a certificate of the ^"o the effect 1+iat the appellant has bin amount equai to 1+se amount of grcituity required to be deposited under sub-section (4), or deposits with the ^ppellate authority such amount." Perusol of the provisions ^)f sub-section (7) of Section 7 of the Act, 1972, shows that onyperson 099? within sixty days from the date of the appropriate &overnment or a^ Section 7 further emlsages eved by an order undier sub-sectSon (4) may, receipt of the order con prefer an appealto ithority. First proviso to sub-Section (7) of that in case the appeilant satisfies XI-HC-78 ^n^T^iTf^ri^ cmT3TT^Tsh^i<=h *ii*i^i a»*iict» 75^ '<iNi<t*i, y>Tfl'ylic, ^i<ni<i^< ^...^...B.^.j/..^2oo^ 3< 1^1 ^^cb (^I^^) ?^T^K^f?cTW^T -^ firlal thot he was prevented by sufficiei|it period of sixty dciys can be exten^ed sub-section (7) of Section 7 furt^er shail be admitted unless at the the controlling outhority regardi^g omount is deposited with the Qppel( To my mind, the approach appeGi shal! be treated to be consonance with the provisions o| 1972. A bare perusal of the prov^ of sub-section (7) refers for pr^ emisoQes that the oppeal sholl no|l deposit of the amount of the conti deposited with the authority. So with different situQtions. Harmonl Section 7 is that a person can pre{ even without depositing the amou^it. section (7) of Section 7 is that certificate of the amount deposi1|e< appeol or the amount is deposite^ admigsion of the appeai can be de-flei the amount is depo^ited delayed, date when it was fiied. <tii<MT^i41<ri *4i^ciT^tec^'<Ri<^i< ^3Tf^T3TT^T couse from preferrin9 the appeal, further for fiiin9 the appeai. Second proviso to provides that no Qppeol by an employer i^e of preferring the oppeal, a certificate of depositing the omount is produced or the |ate authority. ^idopted by the Qppeilcste outhority thot the only on the d&posit of amount is not in >|f sub-section (7) of Section 7 of the Act, Jsion quoted above shows thot main provision rferring on appeal whereas, second proviso b@ admitted unless a certificote regarding ^oliing Quthority is produced or the omount is sub-section (7) and its second proviso deal ous interpretation of the above provision i.e. s|rer an appeal before the appellcrte authority ^. Th& bor created under proviso to sub- ^he appea! shaii not be admitted uniess the ^ed is produced on the date of filin9 of the with the oppellate Quthority. Therefore, flerred tSII the deposit of the amount. Even if the Qpped is to be treated as filed on the XI-HC-78 3^^PT7^T, -^W^, f^Trey WTFTT ^TTf^ .-^:B./^.?V. ^: 2005^ CT^rq^T (i^fg^q-) 3n^r^rfN^ <T2TT3TT^TgWw| ^<TTW^cf3TT^T wrf^rm^'^te^^R- ^-^rf^T^^r It is true thot depositin9 of the amount is a condition precedent for adms55ion of the appeai, but it hos n^t been made so for preferring on appea! under the provisions of Section 7 C7)|°^t^^ Act, 1972. In this connection, the questi^n re9arding interpretation of sub-section (7) Section 7 of the Act, 1972 camejup before the Division Bench of AA.P. Hi9h Court in the matter of Jonpad PG^chayQt Mastun, Bilospur vs. Appellote Authority and Dy. Labour Conimissjioner & others reported in 1998 III LLJ (Supp,) HC 163 wherein the og9rie\ted person preferred an appeai a9ainst the order doted 31 December/1992 ^nd the appeliate authority dismissed the appeal on the ground thot the aj^pellant faiied to deposit the omount of gratuity or produce cs certificate <|f the controllin9 authority of its deposit. However, later on, the amount w^s deposited and point was raised by the appellant that the appellate autho^ity was not entitled to dismiss the appeQl summcirily without affordin9 oppor^unity to the oppellont to make the requislte deposits. T1rie Court diiowed th^ submission and passed order that the petitioner to make suitcsbie appiic^tion along with the requisite deposit or a certificate in terms of second prc^viso to sub-section (7) of Section 7 of the Act before the appeliate authority and then the appellcite authority to consider admission of the appeal ond its lfearin9 on merits, after due notice to the pcirties. In view of the foregoing di^cussion,! om of the considered opinion that the impugned order passed by the appeliate authority is not in consonance with the provisions of Section 7 f7) of|the Act, 1972,same is liabk to be set aside and it is hereby set aside. The >peliate authority is directed to decide the XI-HC-78 *11+1dl sb^lcb 3^ ^NI^l^, ^THy'Ko, (c|(y11'Hl4,< ..y'.^./.f:0.!/ ^200^- ^n^fr^rf^Tf^ cW31T^T5h^|ch -.^ Soma 3ll^l ^sttb (licli4s'<^) ?^nw^f?cT3n^T -^ expected that the appellate autho) three months from 21 August, 2CJ Registry to send a copy of dfter tomorrow. With the observotions an<| disposed of. Consequently, M.(W.)P.No.l) <=t)i^I^4)<i ^i^^T^te^i'<Ri<^i< ^3ri^T3T^T appeal on its own merit, after hectrin9 all the parties concerned. Parties are directed to appeQr before the app^llote authority on 21st August, 2006. It is disposed of. Parties are entitled for cerfified copy of this order. 'ity will decide the Qppea! within a period of 36. 1-his order to the appeilate authority by day directions aforesdd, the petition stands ^42/2006 and I.A.No.1560/2006 aiso stand Sd/- L.C. Bhadoo Judge ^ '^