2004(3) ALL MR 79
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.S. OKA, J.

Cancer Relief Society, Nagpur Vs. Assistant Commissioner Of Labour And Controlling Authority, Nagpur & Anr.

Writ Petition No.4124 of 2003

20th February, 2004

Petitioner Counsel: Mr. N. S. BHATTAD
Respondent Counsel: Mr. N. S. BADHE

(A) Payment of Gratuity Act (1972), S.7(4) - Appeal - Court - Appellate Authority vested only with quasi-judicial powers and therefore it is not a Court.

Sub-section (5) of section 5 confers only limited powers of a Court under the Civil Procedure Code, 1908 on the Appellate Authority. Merely because such limited powers are conferred, it will not give the Appellate Court trappings of a Court. The Appellate Authority is empowered to hear appeal against an order made under sub-section (4) of section 7. Sub-section (4) contemplates an application to be made to the Controlling Authority for resolving the dispute as regards any matters specified in clause (a) of sub-section (4), viz. the dispute as regards the amount of gratuity payable or entitlement to receive gratuity or admissibility of any claim. Therefore, it is clear that while exercising the power under section 4, the Controlling Authority acts at the highest as a quasi-judicial authority. The power which is exercised by the Controlling Authority is of quasi-judicial authority. The Controlling Authority obviously has no trappings of a Court. Considering the scope and powers excecised by the Appellate Authority, it cannot be said that the Appellate Authority is a Court. 2000(III) CLR 399 and 1994(3) Bom.C.R. 27 - Referred to. [Para 16]

(B) Payment of Gratuity Act (1972), S.7(7) - Limitation Act (1963), S.5 - Appeal under S.7(7) of Gratuity Act - Limitation - Delay of more than 120 days in preferring the appeal - Delay cannot be condoned - Appellate Authority under Payment of Gratuity Act not being a Court, S.5 of Limitation Act is not applicable. 1994(3) Bom.C.R. 27 - Rel. on. (Paras 16 to 20)

Cases Cited:
Mukri Gopalan Vs. Cheppilat Aboobacker,, AIR 1995 SC 2272 [Para 7,9,10,14]
State of West Bengal Vs. Kartick Das, AIR 1996 SC 2437 [Para 7,11]
Saikh Vs. Chukka, AIR 2002 SC 749 [Para 7]
P. Sarthy Vs. State Bank, AIR 2000 SC 2023 [Para 7,9,12,17]
State Bank of Punjab Vs. Labour Court, AIR 1979 SC 1981 [Para 7]
Mangu Ram Vs. Municipal Corporation, AIR 1976 SC 105 [Para 7]
Smt. Lata Kamat Vs. Vilas, AIR 1989 SC 1477 [Para 7]
Union of India Vs. Popular Constructions, AIR 2001 SC 4010 [Para 7,18]
Babasahab Kedar Ginning Pressing VA Prakriya Sanstha Ltd. Vs. Addl. Collector, Nagpur, 2000(3) ALL MR 90=2000(2) Mah.L.J. 721 [Para 7]
Madhukar Narayan Rao Vs. Ramchandra Rajaram Wani, 2003(1) ALL MR 687=2002(4) Mah.L.J. 462 [Para 7]
Ramkrishna J. Damdar Vs. Savita w/o. Ramchandra Damdar, 2002 ALL MR (Cri) 1094=2002(2) Mah.L.J. 65 [Para 7]
Van & Co. Vs. Babubhai Lallubhai, 1981 GLH 5 [Para 8,14]
City College, Calcutta Vs. State of W.B., Factory & Labour Reports, 1986(52) 547 [Para 8,9,13]
Sakuru Vs. Tanaji, AIR 1985 SC 1279 [Para 8,9]
Western Coalfields Ltd. Vs. Controlling Authority, 2000(III) CLR 399 [Para 8]
Shri. Gurudeo Ayurved Mahavidyalaya Vs. Madhav s/o. Narayan Mahakode, 1994(3) Bom.C.R. 27 [Para 8,9,19]
Virinder Kumar Satyawadi Vs. State of Punjab, AIR 1956 SC 153 [Para 10,14]


JUDGMENT

JUDGMENT :- This Court had already issued notice for final disposal at admission state. Rule. The Respondent No.2 waives service. Service of Rule on Respondent No.1 is dispensed with, as Respondent No.1 is a formal party. Accordingly, the Writ Petition was forthwith taken up for final hearing. I have heard the counsel appearing for parties at length.

2. The short question involved in this petition is whether the provisions of sections 4 to 24 of the Limitation Act, 1963 (hereinafter referred to as "the said Act of 1963") are applicable to an appeal preferred under section 7(7) of the Payment of Gratuity Act, 1972.

3. Before considering the facts of the case, it is necessary to refer to the relevant provisions of the Payment of Gratuity Act, 1972 (hereinafter referred to as "the said Act of 1972"). Section 7(7) of the said Act reads thus :

"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 sub-section (4), or deposits with the appellate authority such amount."

On plain reading of the said provision, an appeal under sub-section (7) of section 7 of the said Act of 1972 can be filed within a period of sixty days from the date of receipt of the order passed under sub-section (4) of section 7 and the Appellate Authority has power to extend the said period of sixty days by a further period of sixty days, if it is satisfied that the Appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days.

4. In the facts of the case before me, it is not in dispute that the Petitioner has not filed the appeal under section 7(7) of the said Act of 1972 within a period of 120 days from the date of receipt of the order under sub-section 4. However, there is a dispute as regards the exact number of days of delay. By the impugned order dated 27th August, 2003, the Appellate Authority has rejected the appeal preferred by the present Petitioner on the ground that the same is filed beyond the statutory time limit as provided in section 7(7) of the said Act of 1972. The Appellate Authority came to the conclusion that no jurisdiction is vested in it to entertain an appeal which is filed beyond the period of 120 days from the date of receipt of the order.

5. The learned Counsel appearing for the Petitioner submitted that though the Appellate Authority may not be a "Civil Court", but it is a "Court". He therefore, submitted that the section 29(2) of the said Act of 1963 will apply to the proceedings of the appeal under section 7(7) of the said Act of 1972. He submitted that as the provisions of sections 4 to 24 (inclusive) of the said Act of 1963 are applicable to the appeal preferred under section 7(7) of the said Act of 1972, the Appellate Authority will have jurisdiction to condone the delay in preferring an appeal even though the same is preferred after the expiry of the period of 120 days i.e. after expiry of period of sixty days from the expiry of stipulated period of limitation of 60 days. The learned Counsel for the Petitioner relied upon several judgments in support of his contention, which are referred to in the later part of this judgment. He further submitted that unless applicability of sections 4 to 24 of the said Act of 1963 is expressly excluded, the same will be applicable to the Appeals under the said Act of 1972.

6. The learned Counsel appearing for Respondent No.2 contended that the applicability of the provisions of sections 4 to 24 of the said Act of 1963 has been expressly excluded by the proviso to sub-section (7) of section 7. He submitted that there is a limited power conferred by the statute on the Appellate Authority to condone the delay in preferring an appeal and the said power can be exercised only if the delay is of not more than 60 days. He relied upon several judgments in support of his contention. He also relied upon section 14 of the said Act of 1972 and contended that the applicability of section 5 of the said Act of 1963 is excluded as the section 5 is inconsistent with the provisions of sub-section (7) of section 7 of the said Act of 1972.

7. Before adverting to the submissions made by the learned Counsel appearing on behalf of the parties, it is necessary to refer to the case law cited by both of them. The case law relied upon by the learned Counsel for the Petitioner can be summarised as under :

(i) Mukri Gopalan Vs. Cheppilat Aboobacker, AIR 1995 SC 2272.

The learned Counsel relied upon the said judgment which has taken a view that the Appellate Authority under section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965, is a Court. The said Act provided specific period of limitation for preferring appeal under section 18. The Apex Court held that as both the conditions for attracting applicability of section 29(2) were satisfied, section 5 of the Limitation Act will be applicable to the appeals under section 18.

(ii) State of West Bengal Vs. Kartick Das, AIR 1996 SC 2437.

In this judgment, the Apex Court has taken a view that sections 4 to 24 of the said Act of 1963 stand attracted to letters patent appeal in so far as and to the extent to which they are not expressly excluded either by special or local law.

(iii) Saikh Vs. Chukka, AIR 2002 SC 749.

In the said judgment, the Apex Court considered the provisions of Hyderabad Municipal Corporation Act relating to the filing of election petition. The Apex Court held that the remedy of election petition is an important remedy provided to ensure free and fair elections. Therefore, the Apex Court held that such an important remedy could be defeated if the provisions of section 5 of the Limitation Act are not made applicable.

(iv) P. Sarthy Vs. State Bank, AIR 2000 SC 2023.

In the said judgment, the Apex Court held that the Deputy Commissioner of Labour (Appeals) Madras which is an authority constituted under the Tamil Nadu Shops and Establishment Act, 1947, has jurisdiction to adjudicate upon an order by which the services of an employee are terminated. Considering the nature of powers exercised by the Deputy Commissioner of Labour, the Apex Court held that the Deputy Commissioner of Labour may not be a "Civil Court" within the meaning of the Civil Procedure Code, but it is definitely a "Court". The Apex Court further held that section 14 of the said Act of 1963 does not speak of "Civil Court" but speaks of only "Court". The Apex Court further proceeded to hold that it is not necessary that the Court spoken of in section 14 should be a Civil Court and any authority or Tribunal having trappings of a Court would be a Court within the meaning of the section 14.

(v) State Bank of Punjab Vs. Labour Court, AIR 1979 SC 1981.

In this judgment the Apex Court held that the said Act of 1972 enacts a complete code containing detailed provisions covering all the essential features of a scheme for payment of gratuity. The Apex Court held that for enforcement of the provisions of the said Act of 1972, recourse cannot be taken to the provisions of any other law for enforcing the rights under the said Act.

(vi) Mangu Ram Vs. Municipal Corporation, AIR 1976 SC 105.

The Supreme Court considered the question whether the limitation provided in sub-section (4) of section 417 of the Criminal Procedure Code, 1898 can be extended by applying the provisions of section 5 of the said Act of 1963. The Supreme Court held that there was nothing in the Criminal Procedure Code which expressly excludes applicability of section 5 and therefore, section 5 will have application in case of limitation provided under sub-section (4) of section 417 of the said Code. The Apex Court held that mere provision of a period of limitation in section 417(4) in howsoever peremptory or imperative language is not sufficient to displace the applicability of section 5 of the said Act of 1963.

(vii) Smt. Lata Kamat Vs. Vilas, AIR 1989 SC 1477.

In this judgment the Apex Court relying upon section 29(2) of the said Act of 1963 held that the provisions contained in section 12(2) of the said Act of 1963 will apply to an appeal under section 28 of the Hindu Marriage Act, 1955 on the ground that there is nothing in the provisions of the said Act of 1955 to exclude the operation of sections 4 to 24 of the said Act of 1963.

(viii) Union of India Vs. Popular Constructions, AIR 2001 SC 4010.

The Apex Court interpreted section 34 of the Arbitration and Conciliation Act, 1996. Proviso to sub-section (3) of section 34 provides that in case of application for setting aside an award, if the Court is satisfied that the Applicant was prevented by sufficient cause from making the application within the stipulated period of 3 months, it may entertain application within a further period of 30 days but not thereafter. The Apex Court came to the conclusion that in view of the use of phrase "but not thereafter", there is express exclusion of the applicability of section 5 of the said Act of 1963.

(ix) Babasahab Kedar Ginning Pressing VA Prakriya Sanstha Ltd. Vs. Addl. Collector, Nagpur, 2000(2) Mah.L.J. 721 : [2000(3) ALL MR 90].

A Division Bench of this Court in the said judgment held that the Appellate Authority exercising power under clause 21 of the C.P. & Berar Letting of Premises and Rent Control Order, 1949 is a Court and therefore, section 5 of the said Act of 1963 will apply to the proceedings before the Appellate Authority. Relying upon section 29(2) of the said Act of 1963, it is held that there is nothing in the said Rent Control Order to expressly exclude application of provisions of sections 4 to 24 of the said Act, 1963.

(x) Madhukar Narayan Rao Vs. Ramchandra Rajaram Wani & Anr., 2002(4) Mah.L.J. 462 : [2003(1) ALL MR 687].

The learned Single Judge of this Court held in the said judgment that in view of section 29(2) of the said Act of 1963, the provisions of certain sections of the said Act of 1963 will apply to the application under section 17 of the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947.

(xi) Ramkrishna J. Damdar Vs. Savita w/o. Ramchandra Damdar & Anr., 2002(2) Mah.L.J. 65 : [2002 ALL MR (Cri) 1094].

The learned Single Judge of this Court considered the nature of scheme of the said Act of 1963 and held that section 5 of the Limitation Act of 1963 will have application to the Revision Application under section 397 of the Criminal Procedure Code, 1973.

8. The learned Counsel appearing for the Respondent No.2 relied upon the following judgments :

(i) Van & Co. Vs. Babubhai Lallubhai & Ors., 1981 GLH 5.

A Division Bench of the Gujarat High Court in this judgment considered specific question as to whether after expiry of 120 days from the date of the order, the Appellate Authority has jurisdiction to entertain an appeal under section 7(7) of the said Act of 1972. The Division Bench of Gujarat High Court held that the Appellate Authority is not a Court for the purpose of section 29(2) of the said Act of 1963. It is also held that section 29(2) of the said Act of 1963 will have no application in view of the language of section 14 of the said Act of 1972 and therefore, section 5 of the said Act of 1963 cannot be applied to an Appeal under section 7(7) of the said Act of 1963.

(ii) City College Calcutta Vs. State of W.B., Factory & Labour Reports, 1986(52) 547.

A Division Bench of the Calcutta High Court also held that the Appellate Authority exercising powers under section 7(7) of the said Act of 1972 cannot entertain an appeal after expiry of period of 120 days from the date of receipt of the order. The Division Bench further held that in view of the judgment of the Apex Court reported in AIR 1985 SC 1279 (Sakuru Vs. Tanaji), the Appellate Authority cannot be a Court.

(iii) Western Coalfields Ltd. Vs. Controlling Authority and Others, 2000(III) CLR 399.

The learned Single Judge of the Madhya Pradesh High Court has taken a similar view after considering the provisions of section 7(7) of the said Act of 1972.

(iv) Shri. Gurudeo Ayurved Mahavidyalaya Vs. Madhav s/o. Narayan Mahakode & Ors., 1994(3) Bom.C.R. 27.

The learned Single Judge of this Court agreed with the view taken by the Division Bench of the Calcutta High Court which is referred to above.

9. I have carefully considered the detailed submissions made by the learned Counsel appearing for the parties. The learned Counsel for the Petitioner when confronted with the judgment of this Court in the case of Shri. Gurudeo Ayurved Mahavidyalaya (supra) submitted that the view taken by the learned Single Judge that the Appellate Authority under section 7(7) is not a Court needs reconsideration. He submitted that the said view is based on the Division Bench judgment of the Calcutta High Court in the case of City College (supra). He submitted that the Division Bench of the Calcutta High Court while coming to the conclusion that the Appellate Authority is not a Court relied upon the judgment of the Apex Court reported in AIR 1985 SC 1279 (Sakuru Vs. Tanaji). In the said judgment of the Apex Court a view was taken that the provisions of the Limitation Act, 1963, apply to the proceedings in Courts and not to appeals or applications before the bodies other than Courts such as quasi judicial Tribunals or executive authorities, notwithstanding the fact that such bodies and authorities may be vested with certain specific powers under the Civil Procedure Code, 1908. The learned Counsel submitted that the decision of the Calcutta High Court was rendered in the year 1986 and the Division Bench obviously did not have benefit of considering the subsequent judgments and especially the judgment of the Apex Court in the cases of Mukri Gopalan (supra) and P. Sarthy (supra). The learned Counsel submitted that considering the view taken by the Apex Court in the subsequent judgments, the Appellate Authority under section 7(7) of the said Act of 1972 will have to be held as a Court even if it is not a Civil Court and in view of the law laid down by the Apex Court, the view taken by the learned Single Judge of this Court is no longer a good law. The learned Counsel for the Petitioner further submitted that once it is held that the Appellate Authority is a Court, there is nothing in the said Act of 1972 which expressly excludes applicability of sections 4 to 24 of the said Act of 1963 and therefore, provisions of section 5 will squarely apply in case of an appeal preferred before the Appellate Authority. These submissions will have to be appreciated in the light of the law laid down in various judgments cited by the learned Counsel appearing for the rival parties.

10. In the case of Mukri Gopalan (supra), the Apex Court considered the scope of section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965. Under section 18 of the said Act, appellate powers are invested in an officer not below the rank of a subordinate Judge. Under section 18 an appeal is provided against an order passed by the Rent Control Court. The Apex Court observed that the Appellate Authority under section 18(1) has to decide lis between the parties in a judicial manner and subject to revision of its order, the decision would remain final between the parties. Such an Appellate Authority has been constituted by designation as a District Judge of a District and the Appellate Authority is not a persona designata. Considering the jurisdiction of the Appellate Authority under section 18 of the said Act which is the Rent Control Act applicable to the State of Kerala, the Apex Court held that it is a Court. The Apex Court relied upon its earlier decision in the case of Virinder Kumar Satyawadi Vs. State of Punjab, AIR 1956 SC 153, in which distinction between a Court and a quasi-judicial Tribunal is made. Considering the law laid down in the said judgment and considering the powers and functions of the Appellate Authority under section 18, the Apex Court held that the Appellate Authority is a Court.

11. In so far as the case of State of West Bengal (supra) is concerned, the Supreme Court was dealing with a Letters Patent Appeal. However, the said judgment may not have any bearing so far as the present controversy is concerned, as the Letters Patent Appeal is admittedly heard by a Court.

12. In the case of P. Sarthy (supra), the Apex Court considered the question whether the Deputy Commissioner of Labour (Appeals) which is an authority constituted under the Tamil Nadu Shops and Establishments Act, 1947, can be termed as a Court. The Apex Court held that though the Deputy Commissioner of Labour may not be a Civil Court within the meaning of Civil Procedure Code, it is definitely a "Court". The Apex Court recorded the said finding in the light of the fact that under the provisions of the said Tamil Nadu Shops and Establishments Act, 1947, the Deputy Commissioner of Labour has jurisdiction to adjudicate upon an order by which the services of an employee are terminated. The Apex Court held that the Deputy Commissioner has jurisdiction to decide whether the order of dismissal passed by the employer was valid or whether it was passed in violation of any statutory rule or principles of natural justice.

13. The Division Bench of Calcutta High Court while dealing with the case of City College (supra) specifically considered the question whether the Appellate Authority under the said Act of 1972 can be said to be a Court. In paragraph 6 of the said judgment, the said controversy has been considered by the Division Bench of the Calcutta High Court. The Division Bench held that the Appellate Authority is vested with only with quasi-judicial powers and therefore, it is not a Court.

14. The Division Bench of the Gujarat High Court in the case of Van & Co. (supra) also considered the said question. In paragraph 5, the Division Bench of Gujarat High Court appears to have accepted the contention that the Appellate Authority is a quasi-judicial Tribunal relying upon the judgment of the Apex Court reported in AIR 1969 SC 1335. The Division Bench observed that even the Industrial Tribunal or a Labour Court dealing with the applications or reference under the Industrial Disputes Act, 1947, is not a Court for the purpose of the Limitation Act. The view taken by the Division Bench of the Calcutta High Court as regards nature of the Appellate Authority under section 7 has been accepted as correct by the learned Single Judge of this Court. The question which is to be considered whether the view taken is no longer a good law in view of the later judgments of the Apex Court. If the later judgments of the Apex Court are considered, I find that there is no departure from the view expressed earlier that there is a distinction between a Court and a quasi-judicial authority or quasi-judicial Tribunal. Even in the case of Mukri Gopalan (supra) which is relied upon by the learned Counsel for the Petitioner, the Apex Court has adverted to this aspect in paragraph 8. Referring to the view taken in the earlier case of Virinder Kumar (AIR 1956 SC 153), the Apex Court has observed that the said judgment lays down a well settled test. Considering the said judgment, the Apex Court came to the conclusion that the Appellate Authority under section 18 of the Kerala Rent Control Act has the essential trappings to constitute as a Court.

15. In view of the law laid down by the Apex Court, which is consistently followed, it will be necessary to examine the provisions of the said Act of 1972. I am conscious of the fact that I am bound by the view taken by another learned Single Judge of this Court. However, I am considering the submission of the learned Counsel for the Petitioner that the view taken by the learned Single Judge is no longer a good law in view of the law laid down by the subsequent judgments of the Apex Court.

16. Sub-section (5) of section 5 confers only limited powers of a Court under the Civil Procedure Code, 1908 on the Appellate Authority. Merely because such limited powers are conferred, it will not give the Appellate Court trappings of a Court. The Appellate Authority is empowered to hear appeal against an order made under sub-section (4) of section 7. Sub-section (4) contemplates an application to be made to the Controlling Authority for resolving the dispute as regards any matters specified in clause (a) of sub-section (4), viz. the dispute as regards the amount of gratuity payable or entitlement to receive gratuity or admissibility of any claim. Therefore, it is clear that while exercising the power under section 4, the Controlling Authority acts at the highest as a quasi-judicial authority. The power which is exercised by the Controlling Authority is of quasi-judicial authority. The Controlling Authority obviously has no trappings of a Court. Considering the scope and powers excecised by the Appellate Authority, it cannot be said that the Appellate Authority is a Court.

17. The learned Counsel for the Petitioner contended that the Gujarat High Court and the Calcutta High Court have relied upon the judgment of the Apex Court in which the Apex Court has considered the question whether the Collector exercising power under section 18 of the Land Acquisition Act, 1894 is a Court. The learned Counsel contended that in the later judgments and especially in the Judgment of the Apex Court reported in AIR 2000 SC 2023, the Apex Court held that the Appellate Authority under the Tamil Nadu Shops and Establishment Act, 1947 is a Court. However, it cannot be ignored that the Apex Court came to the said conclusion after examining the scope of powers vesting in the Appellate Authority. The jurisdiction of the Appellate Authority under the said Act extends to adjudication as regards the legality and validity of the order of dismissal passed against the employees. Considering the said power of the Appellate Authority, the Apex Court held that it is a Court. Considering the very limited power of adjudication conferred on the Appellate Authority under the said Act of 1972, I am not inclined to take a view different from the view taken by the Calcutta High Court as well as the Gujarat High Court in the cases referred to herein above.

18. Even if it is assumed that the Appellate Authority is a Court, some meaning will have to be assigned to the proviso to sub-section (7) of section 7. The said proviso limits the power of the Appellate Authority to condone delay to the extent of only 60 days. The learned Counsel for the Petitioner has contended that unless it is expressly provided in the said Act of 1972 that the applicability of sections 4 to 24 of the said Act of 1963 is excluded, the said sections will apply to the proceedings under the said Act of 1972. The learned Counsel submitted that there is no express bar created by the said Act of 1972. In this behalf it is necessary to refer to what the Apex Court has held in paragraph 13 of the judgment reported in AIR 2001 SC 4010 (Union of India Vs. Popular Construction). Paragraph 13 of the said judgment reads as under :

"13. Apart from the language, 'express exclusion' may follow from the scheme and object of the special or local law. Even in a case where the special law does not exclude the provisions of sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation."

Therefore, even if the said Act of 1972 does not exclude the application of provisions of sections 4 to 24 by an express reference, the scheme of the Act will have to be examined to ascertain whether there is such an exclusion. If the proviso to sub-section (7) is examined it is very clear that the Legislature intended to confine the power to condone the delay only to the extent of delay of 60 days. The said proviso clearly indicates that the applicability of section 5 of the said Act of 1963 is excluded. The said exclusion follows from the scheme and express language of the proviso.

19. Therefore, it cannot be said that the view expressed by the learned Single Judge of this Court in the case of Shri. Gurudeo Ayurved Mahavidyalaya (supra) is no longer a good law. In paragraph No.14, the learned Single Judge has held that :

"14. Secondly, it will have to be seen whether powers under section 5 of the Indian Limitation Act were available to the appellate authority. Shri. Gorde relied on the Division Bench judgment of the Calcutta High Court reported in (City College, Calcutta Vs. State of West Bengal & others), 1987 L.L.J. Volume-I, page 41. The Division Bench of the Calcutta High Court has taken a view that the provisions of section 5 of the Limitation Act cannot be invoked for condoning the delay caused in filing the appeal under section 7, under Payment of Gratuity Act. The learned Judges therein have held that the provisions of section 5 of the Limitation Act were applicable only to the Court and appellate authority under the provisions of section 7(7) of the Payment of Gratuity Act could not be said to be the Court. The learned Judges have also further held that having regard to the language of section 7(7), the maximum period during which the appeal could be filed, could be firstly sixty days and the said period of sixty days could be extended only by further sixty days and that the proviso to that sub-section has provided a specific bar to the condonation of delay beyond 120 days. In view of these two reasons, the learned Judges came to the conclusion that there could be no condonation of delay when the delay exceeded 120 days. I am in respectful agreement with the ratio of this case. In that view of the matter, it must be held that the delay was not liable to be condoned at all, and the appellate authority was right in not condoning the delay."

20. In the present case admittedly the delay in preferring the appeal is more than 120 days. Hence the said delay could not have been condoned. The petition, therefore, fails and is hereby rejected. Rule discharged. No order as to costs.

Petition dismissed.