Solitaire Build Tech Pvt. Ltd. Vs Sri Manjunath

SOLITAIRE BUILD TECH PVT LTD, SOUVENIR CONSTRUCTIONS, REP BY MANAGING DIRECTOR, MR. ANWAR PASHA, NO.349, 2^ND FLOOR, 9^TH MAIN ROAD, 25^TH CROSS, BANASHANKARI, 2^ND STAGE, BANGALORE - 560 070. REGISTERED UNDER COMPANIES ACT, 1956. (BY SRI. DEEPAK.B.R., ADVOCATE)

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…APPELLANT

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AND:

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Digitally signed by REKHA R Location: High Court of Karnataka

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SRI. MANJUNATH, S/O. LATE B. BORE GOWDA, NO.7/1, 36^TH 'A' CROSS, 2^ND MAIN ROAD, 4^TH BLOCK, JAYANAGAR, BANGALORE - 560 096.

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THE ASSISTANT LABOUR COMMISSIONER, & LABOUR AUTHORITY, BANGALORE - DIVISION - 2, KARNATAKA LABOUR RESEARCH CENTRE, KSLI, 2^ND FLOOR, ROOM NO.23 & 24,

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HC-KAR

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MANJUNATHNAGAR, BAGALAGUNTE, BANGALORE - 560 073.

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THE LABOUR OFFICER, UNDER THE PAYMENT OF GRATUITY ACT, SUB - 2, KARMIKA BHAWAN, BANNERGHATTA ROAD, BANGALORE - 560 096.

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…RESPONDENTS (BY SRI. M.N. SUDEV HEGDE, AGA FOR R2 & R3)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO ALLOW THIS APPEAL PETITION AND SET ASIDE THE IMPUGNED ORDER DATED 17.09.2025 PASSED BY THE LEARNED SINGLE JUDGE OF THE HONBLE HIGH COURT OF KARNATAKA, BANGALORE PASSED IN WRIT PETITION No.21264/2023 ORDER DATED 17.09.2025, IN THE ENDS OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE D K SINGH and

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HON'BLE MR. JUSTICE T.M.NADAF

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE T.M.NADAF)

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Though the matter is listed under the heading fresh

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matters, with the consent of both the parties, the matter

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is taken up for final disposal.

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HC-KAR

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Unsuccessful petitioner is before this Court in

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this appeal under Section 4 of Karnataka High Court Act, 1961, calling in question the Order dated 17.09.2025 passed by the learned Single Judge in W.P.No.21264/2023. The learned Single Judge by order impugned dismissed the writ petition.

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The parties are referred to as per their rankings before the trial Court.

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A brief factual matrix relating to filing of this present appeal are as under:

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The main contention of the learned counsel appearing for the petitioner is that the petitionerestablishment would not fall under the Payment of Gratuity Act, 1972 ('the Act of 1972' for short) as there are only 5 employees working under the petitionerestablishment, whereas as per the provisions to apply under the Act of 1972, the establishment must be consisting of 10 and more employees. It is the further

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HC-KAR

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case of the petitioner that respondent No.3 that is, the Controlling Authority while passing the original order has not considered this aspect of the matter.

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The petitioner at the earlier point of time approached this Court in W.P.No.43910/2019, calling in question the order passed by the Controlling Authority which came to be dismissed. A writ appeal was filed which also resulted in dismissal. Thereafter the petitioner filed a review petition in R.P.No.40/2022 to review the order passed in W.A.No.4069/2019. Subsequently, the review petition came to be withdrawn, with liberty to approach the appropriate forum in accordance with law.

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The order passed by this Court in

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R.P.No.40/2022 reads as under:

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"Heard learned counsel for petitioner for sometime. Learned counsel for petitioner files a memo seeking permission to withdraw the petition. Memo is placed on record.

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Petition is dismissed as withdrawn with liberty to approach appropriate form in accordance with law."

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HC-KAR

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However, there is nothing stated in respect of limitation. After review, the petitioner filed an appeal before the Appellate Authority, calling in question the order passed by the Controlling Authority dated 17.09.2022 under Sub-section (7) of Section 7 of the Act of 1972. The Appellate Authority dismissed the appeal, on the point of limitation. Aggrieved by the order passed by the Controlling Authority as well as the Appellate Authority under sub-Section (7) of Section 7 of the Act, 1972, the petitioner was before this Court in W.P.No.21264/2023.

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The learned Single Judge having considered the provisions, especially under sub-Section (7) of Section 7 of the Act, 1972, declined to interfere with the order passed by the Appellate Authority and dismissed the petition. It is this order passed by the learned Single judge is called in question in this appeal.

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Heard Sri.Deepak B. R, learned counsel

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appearing for appellant and Sri.M.N.Sudev Hegde, learned

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HC-KAR

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Additional Government Advocate appearing for respondent Nos.2 and 3.

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Sri.Deepak argued on the point that to apply the Act of 1972, there must be 10 and more employees working under the establishment, whereas in the petitioner's establishment, only 5 persons are working, as such, the Act has no application to the establishment of the petitioner. He further submits that the Appellate Court has failed to consider the fact that the appellant was before this Court in writ petition as well as in writ appeal and thereafter in review petition, calling in question the

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order passed by Controlling Authority. The Review petition was thereafter withdrawn by the petitioner with liberty to approach the appropriate forum under the provisions of the Act of 1972. Further he submits that the Appellate Authority has failed to consider liberty reserved in the Review Petition order, explanation offered in the application filed along with the appeal and sought to allow

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HC-KAR

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the appeal and remand the matter to the Appellate Authority to consider the case afresh on the merits.

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Sri.M.N.Sudev Hegde supporting the order passed by the learned Single Judge, submits that the Appellate Authority has considered the delay aspect in terms of the provisions of Sub-section (7) of 7 of the Act of 1972 and dismissed the appeal. The learned Single Judge having considered the explicit language used in Sub-section (7) of Section 7 of the Act of 1972, wherein the appeal has to be preferred within 60 days from the date of receipt of copy of the order and the Appellate Authority may entertain the appeal post 60 days however, with further extension of 60 days and submits that the liberty which is provided in the review petition cannot extend the limitation period, that apart there is no such order on the limitation. In these circumstances there is no fault found in the Appellate Authority order and accordingly sought to dismiss the appeal.

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HC-KAR

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Having heard the rival submissions, perused the entire writ appeal paper.

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The petitioner has received the order

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immediately after the order has been passed by the Controlling Authority and directly filed a writ petition, without calling in question the same before the Appellate Authority within the timeline prescribed. Though the liberty has been granted as sought, however, as rightly contented by learned Additional Government Advocate, it cannot be construed as there is extension of timeline, fixed under the statute as the same is against the statute. When a special provision provides 60 days limitation for preferring an appeal and if not filed within the time prescribed, the discretion however, enjoined to receive the appeal beyond time of 60 days but with an extension of another 60 days with a reasonable explanation. However, no further extension beyond another 60 days is provided in the proviso. In other words as per Section 7(7), no appeal could be received after 120 days from the date of

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HC-KAR

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receipt of the order. Any delay which is a reasonable delay could be condoned and not the one which is unreasonable and against the statute.

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The petitioner directly filed a writ, suffered an order, appealed against it and suffered an order, unsuccessfully filed a review and finally got it withdrawn. But the withdrawal of review petition with liberty to go before the appropriate authority would not in itself extend or enlarge the time limitation provided under Sub-section (7) of Section 7 of the Act of 1972. The Act being a beneficial legislation, summary procedures are stipulated under Section 7(7) of the Act of 1972, with an object to dispose of the matters without causing any unnecessary delay, since the same involves the benefits available to the workmen under the Act. The Supreme Court time and again cautioned that the delay in preferring the appeals which are permitted under the Special enactment may not be considered in a routine mechanical manner, if the same are unreasonable and long delay.

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HC-KAR

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The Hon’ble Apex Court has ruled in catena of judgments that condonation of delay under special enactments cannot be treated as a rule but only as an exception, in view of the procedural efficiency contemplated under such enactments for the protection of substantive rights. A litigant who is not diligent cannot be lent a helping hand by the Court by condoning unreasonable and unexplained delay which is deliberate. In the case on hand, the petitioner approached this Court in writ petition, then in writ appeal and unsuccessfully filed a review and withdrawn the same with liberty to approach the appropriate forum, which has taken nearly four years from the date of the order passed by the Controlling Authority. The order was passed in the month of November 2018, whereas the appeal filed before the Appellate Authority on 17.09.2022 i.e., nearly four years after the order passed by the Original/controlling Authority.

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HC-KAR

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The Appellate Authority dismissed the appeal on the ground of delay as no appropriate explanation much less the sufficient cause as contemplated under the provision has been stated by the petitioner. The learned Single Judge following the judgment of the Hon'ble Apex Court in WARANGAL DISTRICT CO-OPERATIVE SOCIETY LTD. VS. APPELLATE AUTHORITY UNDER PAYMENT OF GRATUITY ACT, 1972 , comes to the conclusion that there is no order regarding condonation of delay in the review order so also the limitation prescribed under the Act of 1972, not finding any fault in the order passed by the Appellate Authority dismissing the appeal on the ground of delay, dismissed the petition reasoning his order at paragraph Nos.19 and 20 which reads as under:

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"19. It is stated in catena of judgments that the appellate authority under the Payment of Gratuity Act cannot condone the delay beyond 120 days as prescribed under the Act. Therefore, the appellate authority has dismissed the appeal of the petitioner, taking the view that it is barred by time, which is in consonance to the Act.

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20. I do not find any good ground or cogent reason to interfere with the judgment passed by the Appellate Authority. There is no liberty given to

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HC-KAR

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the petitioner by way of a prescription to condone the delay of 120 days in preferring the appeal. Accordingly, this petition does not merit consideration."

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As per the provision under sub-section (7) of

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Section 7 of Act of 1972, the time prescribed for preferring appeal is 60 days from the date of receipt of order however, the authority in its discretion may condone the delay in preferring the appeal extending it by another 60 days, preferably if it is satisfactorily explained by the appellant that he was prevented by sufficient ground in preferring appeal within the period prescribed. The words

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used are 'extension of further period of 60 days' is a restrictive discretion granted to the Appellate Authority provided the sufficient cause has been properly explained. The word 'sufficient' means 'adequate' or 'enough', inasmuch as may be necessary to answer the purpose intended. Therefore, the word 'sufficient' embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose initiated in the

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HC-KAR

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facts and circumstances existing in a case, from the viewpoint of a reasonable ordinary prudent/cautious man would have exercised. The facts and circumstances of each case must be considered by the Court concerned to exercise discretion enjoined judiciously, provided, the applicant must satisfy the Court that he was prevented by such sufficient cause from prosecuting the case and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay.

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In the case on hand, the dispute falls under a special enactment, wherein a special procedure has been encompassed to answer the dispute which arises under the Act of 1972. A speedy remedy has been provided with an object underlined in enacting the Act since it involves the benefits extended to the workmen/employee and the duties of the employer, thereunder.

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The Act of 1972 under sub-section (7) of Section 7, provides an appeal against the order passed by

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HC-KAR

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the Controlling Authority with the limitation as 60 days from the date of receipt of copy of the order. Though, a discretion has been enjoined with the Appellate Authority, but with a rider that the discretion can be exercised by extending the limitation by another 60 days. Neither subsection nor the proviso says anything beyond 60 days however, in view of judicial pronouncements, if there is any reasonable delay, beyond the dates prescribed, under exceptional circumstances, however, not as a rule, but an exception could be considered. In the case on hand, the delay in preferring the appeal is clearly four years. It is not the case of the appellant that they are not aware of the procedural aspect, there is no such explanation forthcoming from the order of the Appellate Authority. We are referring the order of the Appellate Authority because the appellant/petitioner has not furnished copy of the application filed seeking condonation of delay. In these circumstances, what is seen in the order of Appellate Authority has been considered.

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HC-KAR

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Withdrawing the review in itself will not take

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away the order passed by the learned Single Judge as well as the Co-ordinate Bench of this Court in writ appeal. The order passed on the earlier point of time called before the learned Single Judge is confirmed in writ petition and confirmed again in the writ appeal. The review however, filed was withdrawn with liberty to approach the appropriate forum. However, in the review order, nothing has been ordered regarding the order passed by the learned Single Judge as well as the Co-ordinate Bench of this Court and it was purely on the memo filed. A delay which is deliberate and intentional cannot be condoned and when the special procedure encompassed in the special enactment restrict the discretion in extension of period by another particular period of time, it cannot be extended against the statute, beyond the one prescribed.

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