Dismissed

State and Ors. v. D.J Nainital and Ors.

Uttarakhand HC26 Jul 2017WPMS/639/2006

Case brief

AI extract

What is this about?

The High Court of Uttarakhand rejected the argument that Section 5 of the Limitation Act applies to condone delay in appeals under Section 17 of the Payment of Wages Act, holding the limitation period under Section 17 to be absolute and non-extendable. The Writ Petition was dismissed.

What did the court decide?

Writ Petition No. 639 of 2006 dismissed on the ground that Section 5 of the Limitation Act is inapplicable to appeals under Section 17 of the Payment of Wages Act, 1936.

State and Ors. Vs D.J Nainital and Ors. — Pension and Retirement Benefits | Uttarakhand HC (2017)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition No. 639 of 2006(M/S)

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State of Uttaranchal through Collector, Almora and others

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……Petitioners

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versus

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District Judge, Nainital and others.

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Mr. Pankaj Purohit, Deputy Advocate General for the petitioners/State. Mr. Dinesh Chauhan, Advocate for respondent no 3.

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Hon’ble Sharad Kumar Sharma, J. (Oral)

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Against an issue of determination of wages under the Payment of Wages Act, 1936 (herein after referred to as the Act), an appeal is contemplated under Section 17 of the Payment of Wages Act. Under the constitutional mandate, our country is a welfare State and the interpretation of law has to be made in a fashion which goes to the wider interest of the people at large. Payment of Wages Act of 1936, is an Act which provides safeguard to a workman from any atrocities or dereliction of the employer in any act unauthorizedly curtailing the wages, which he is otherwise legally entitled to

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seek. This law of Payment of Wages Act is for the benefits of the workers so that they may reap the fruits of their legally earned wages and any order passed by the Prescribed Authority created under the Act for determining the wages is subject to an appeal under Section 17 of the Act.

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Section 17 of the Act provides that appeal against the order passed under Section 15 sub-section (2) could be preferred “within thirty days”. The said provision or any provision contained in the Payment of Wages Act does not provide for extension of limitation or concession from the period by applying the principles of Section 5 of the Limitation Act. This analogy is to be drawn from the view point that Section 17 which does not grant a scope of extension and not even provisions given under the special statute for preferring an appeal would be treated to be an absolute provision, which is not extendable.

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Submission of the learned counsel for the petitioners submits that the provision of Section 5 would be applicable for granting an extension of limitation in preferring an appeal. In support of his contention learned counsel for the petitioners placed reliance on a judgment reported in AIR (SC) 1976 page 105 in the case of Mangu Ram (In S.L.P No. 918 of 1975) & M/s Ram Parshad Gondamal through Ram Pershad and Jaidayal ( In S.L.P. No. 919 of 1975) vs. Municipal Corporation of Delhi this Court is not in agreement with the petitioner, as in the said case, wherein the Court was ceased with interpreting of the provision contained under sub-section (2) of Section 29 of the Limitation Act read in consonance

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with sub-section (5) of the Act holding thereof that section 5 of the Limitation Act, would be applicable for condoning the delay despite the fact that special statute does not contemplate a condonation of delay.

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This Court is not in agreement with the arguments of Mr. Pankaj Purohit the reason being that the authority which he has placed reliance was in relation to a proceedings where an acquittal order was under challenge. The criminal law where the limitation under Section 5 has been interpreted by the Apex Court while making reference to Section 29, since being punitive in nature too would have a rational impact on a special law. The Apex Court has extended the implication of Section 5 by diluting the provision of Section 9 sub-section (2) in relation to proceedings on a criminal side under special statute.

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The Allahabad High Court in a judgment reported in 1997 (76) FLR page 354 in the case of U.P.State Electricity Board and 7^th Additional District Judge, Faizabad and others in its para-3 has held that the Courts created within the meaning of Section 4 and 5 of the Limitation Act will not include Tribunal as Tribunal is not a Court within Section 4 and 5 and thus for the said purpose the provision of Section 5 of the Limitation Act in appeals under Section 17 would not be applicable.

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In the scheme of the Limitation Act, it is not provided that the Tribunals created under the Labour Laws would be a court as it has been held in the judgment rendered in 1970 (20)

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FLR 153 (SC) in Nityanand M. Joshi and another vs. The Life Insurance Corporation of India and others. Thus Section 5 of the Limitation Act will not apply.

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This ratio will not apply here. This Court is of the considered view that once an act grants a specific time for preferring of an appeal without granting liberty for extension of the time period or providing for applicability of the Limitation Act, the same cannot be extended by applying Section 5 and an answer to the argument extended by Mr. Pankaj Purohit is negatived. This Court refers to Section 29 sub-section(2) which in itself creates restrictions that once the proceedings happens to be under a special Act, the limitation as prescribed by law in Suits or Appeal cannot apply, as different to that provided under that special statute. Thus, the impugned order whereby the Appeal of the petitioner has been dismissed on the ground of limitation holding thereof Section 5 would not apply in an Appeal preferred under Section 17 of the Payment of Wages Act of 1936 does not suffer from any mistake or legal error apparent on the face of the record.

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8. Thus the Writ Petition is dismissed.

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(Sharad Kumar Sharma, J.)

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26.07.2017

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Nahid

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State and Ors. v. D.J Nainital and Ors.

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State and Ors. v. D.J Nainital and Ors.

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