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2021 SCC OnLine Bom 7236

In the High Court of Bombay

(BEFORE K.K. TATED AND RIYAZ I. CHAGLA, JJ.)

Saket Shuddhodhan Nagdeve … Petitioner;

Versus
State of Maharashtra and Others … Respondents.
Writ Petition (St) No. 5257 of 2021
Decided on March 17, 2021
Advocates who appeared in this case:
Mr. Sujeet G. Kurup for the Petitioner.
Mr. R.P. Kadam, AGP for the Respondent-State.
ORDER
1. Heard learned Counsel Mr. Kurup for the Petitioner.
2. By this Petition filed under Article 226 of the Constitution of India, the Petitioner
is challenging the validity of proviso of Section 7(7) of the Payment of Gratuity Act,
1972, which reads thus:—
“Section 7(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.
[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 subsection (4), or deposits with the appellate authority such amount.]”
3. Learned Counsel for the Petitioner submits that in view of subsequent
development, i.e. the order dated 27th May 2020 passed by the Apex Court in the
matter Chairman-cum-Managing Director, Mahanadi Coalfelds Limited v. Sri.
Rabindranath Choubey1 , they filed the present Writ Petition.
4. In the present proceedings, initially, Respondent No. 4 filed the Application
before the Controlling Authority, Under Payment of Gratuity Act, 1972 & Assistant
Labour Commissioner (Central), Mumbai dated 6th March 2018 as provided under
Section 4 and 7 of the Payment of Gratuity Act, 1972 read with Rule 10 of the
Payment of Gratuity (Central) Rules, 1972 for the payment of amount of gratuity with
interest at the rate of 10 percent per annum.
5. The said Authority by order dated 4th June 2019 allowed the said Application and
passed the following order:—
“(1) The Application for direction is allowed.
(2) The Applicant is entitled to receive the amount of gratuity to the extent of Rs.
10,00,000/- (Rupees Ten Lakhs Only) with simple interest at the rate of 10% per
annum w.e.f. 31.05.2017 till the actual date of payment of the amount of
gratuity.
(3) The Opponent is directed to make the payment of gratuity amounting to Rs.
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10,00,000/- (Rupees Ten Lakhs Only) to the Applicant with simple interest at the
rate of 10% per annum within 30 days from the date of this order.
(4) No order as to cost.”
6. Being aggrieved by the said order, the Petitioner preferred the Appeal under
Section 7 of the Payment of Gratuity Act, 1972 before the Appellate Authority. There
was delay of 515 days in preferring the Appeal. Hence, the Appellate Authority by its
order dated 2nd December 2020 rejected the Petitioner's Application for condonation of
delay in filing the Appeal as per Section 7(7) of the Payment of Gratuity Act, 1972
under which maximum time limit is 120 days only.
7. Being aggrieved by the said order, the Petitioner filed the present Writ Petition.
It is to be noted that bare reading of the Application filed by the Petitioner for
condonation of delay before the Appellate Authority, failed to disclose the name of the
officer, because of whom there was delay of 515 days in filing the Appeal.
8. In any case, as the Respondents are not duly served, we pass the following
order:—
(i) Petitioner is directed to remove all office objections on or before 17th April 2021,
failing which the Writ Petition shall stands dismissed without further reference to
the Court.
(ii) Registry is directed to issue notice before admission to the Respondents,
returnable on 27th April 2021.
(iii) In addition to usual mode of service, the Petitioner is permitted to serve the
Respondent by private notice along with entire proceedings, either by registered
post AD and/or by hand delivery and file an Affidavit of Service to that effect.
(iv) Learned AGP Mr. Kadam waives service on behalf of Respondent No. 1-State.
———
1
AIR 2020 SC 2978

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