-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.9687 OF 2004 M/s.SKF India Limited : Petitioner V/s. Shri Pandurang Dattatraya Nangare & Ors. : Respondents ... Mr.K.S.Bapat for the petitioner. Mr.N.M.Ganguli for respondent no.1. ... CORAM : S.A. BOBDE, J. DATE : FEBRUARY 26, 2009. P.C. 1. Rule, returnable forthwith. Mr.Ganguli for the respondent no.1 waives service. Heard by consent. 2. The petitioner has challenged the order of the appellate authority dated 11.2.2004 under the Payment of Gratuity Act, 1972. The appellate authority has allowed the appeal of the respondent no.1 and set aside the judgement and order dated 9.10.2002 given by the controlling authority. 3. Mr.Bapat, the learned counsel for the petitioner, submitted that the respondent was not at all entitled to -: 2 :- make any claim for gratuity, in view of the judgement of this Court in Writ Petition No.2674 of 1991 (P.D. Nagare v. M/s.SKF Bearing India Limited & Anr.) decided on 14.7.1995 by Srikrishna,J., as he then was. The second submission on behalf of the petitioner is that the appeal which is allowed by the appellate authority under the Payment of Gratuity Act was not tenable in view of the limitation provided by sub-section (7) of section 7 of the Payment of Gratuity Act which reads as follows:- "(7) 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: -: 3 :- 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." 4. The undisputed facts in this regard are that the controlling authority dismissed the application filed by the respondent no.1 on 9.10.2002. The respondent no.1 filed an appeal before the appellate authority on 9.5.2003 i.e. after a period of about seven months. The limitation provided by section 7 is 120 days. Mr.Bapat, the learned counsel for the petitioner, submitted that section 5 of the Limitation Act cannot be invoked to condone delay in filing an appeal beyond the period of 120 days provided by sub-section (7), supra. 5. Mr.Ganguli, the learned counsel for the respondent no.1, however, submitted that the limitation cannot be pleaded to defeat a right conferred by a statute on a workman to receive gratuity. The point is, however, -: 4 :- covered by the decision of the learned single Judge of this Court, Oka,J. in Cancer Relief Society, Rashtra Sant Tukdoji Cancer Hospital & Research Centre, Nagpur v. Asstt. Commissioner of Labour and Controlling Authority under Payment of Gratuity Act and Anr. (2004 III CLR 349) where this Court held that the proviso to sub-section (7) confers power to condone the delay only to the extent of 60 days and excludes the applicability of section 5 of the Limitation Act, 1963. 6. In this view of the matter, the rule is made absolute. The appellate order is hereby set aside. There will be no order as to costs. S.A. BOBDE, J.