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J.V. Dalal Vs. Plastpeel Chemicals and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Application No. 5292 of 1976
Judge
Reported in(1979)ILLJ409Bom
ActsPayment of Gratuity Act, 1972 - Sections 7, 7(2) and 7(4); Payment of Gratuity (Maharashtra) Rules, 1972 - Rules 7, 8 and 10(1); Constitution of India - Articles 226 and 227
AppellantJ.V. Dalal
RespondentPlastpeel Chemicals and ors.
Excerpt:
.....like the government is authorised by the act or not. when the corporation made an application against the employers in this case, the claim was sought to be defeated by the employers on the ground of limitation prescribed by rule 17 of the said rules. absence of express indication in rule 10(1)(iii) as to when the limitation starts may have as well confounded the petitioner......to delegate its legislative functions to subordinate bodies subject to certain limitations. rule making powers are invariably delegated to the government expressly. validity of such rule may be open to challenge on the ground of want of delegation on the particular topic or of excessive delegation or these being in a given case in conflict with some provisions of the act itself. the validity may be open to challenge on some other grounds also. in the wake of the complexities of modern life, such delegation of legislative power after laying down the broad policy, is becoming increasingly inevitable. useful reference can be made in this context to the judgment of the supreme court in the case of arnold rodricks and another v. state of maharashtra and others, reported in a.i.r. 1966.....
Judgment:

V.S. Deshpande, J.

1. The petitioner was employed as a Chemist on 23rd April, 1960 by the respondent No. 1 Company. He resigned from his job on 28th February, 1973 making it effective from 1st March, 1973. On the very date of his resignation, he made an application to his employer-respondent No. 1 for payment of Rs. 5,850 towards gratuity amount due to him for his 13 years' service. There was no response. He filed an application on 9th April, 1975 being Application No. (PGA) 145 of 1975 under S. 7 of the Payment of Gratuity Act, 1972 (hereinafter referred to as the 'Act') to the 'Controlling Authority', respondent No. 2. The respondent No. 1 contested his claim on the grounds, amongst others, that the petitioner was not a workman and that there was no compliance with Rule 7 of the Payment of Gratuity (Maharashtra) Rules, 1972 (hereinafter referred to as the 'Rules').

2. By his order dated 20th July, 1976, the respondent No. 2 adjudged the petitioner to be worker and that there was compliance with Rule 7 of the Rules. He, however, dismissed the application on the ground of it not having been filed within 90 days, as required under Rule 10(1)(iii) of the Rules. The Controlling Authority also observed that no application for condoning the delay was made to him. The validity of this order is challenged before us by the petitioner in this Special Civil Application under Arts. 226 and 227 of the Constitution of India.

3. Mr. Bhatkal, the learned advocate for the petitioner, stated at the out set that the cause of action in the case having exclusively arisen in greater Bombay, he would confine his argument to the relief under Art. 227 of the Constitution of India as claim under Art. 226 is liable to be heard only by the original side of this Court in view of the rules in this behalf.

4. Section 7 of the Act enables a person, eligible for gratuity, to claim the same from his employer by making an application in writing. Such an application is required to be made by the employee to the employer under Rule 7, in Form 'I' within 30 days from the date, the gratuity became payable. The employer has to act within 15 days from the receipt of such an application as required under sub-s. (2) to (4) of S. 7 of the Act and Rule 8 of the Rules in this behalf. Explanation to S. 7(4) then is as follows :

'Where there is a dispute with regard to any matter specified in this clause, the employee may make an application to the controlling authority for taking such action as is specified in clause (b)'.

Section 7(4) read with Explanation, thus, enables the employee to make an application to the Controlling Authority for action contemplated under clause (b), viz., for holding enquiry and finding out to what amount of gratuity the employee is entitled. Section 7(4) of the Explanation thereto does not itself prescribe any limitation for making such an application. Rule 10(1)(iii), however, requires him to make such an application in the event of the employer failing to comply with his claim and the requirements of sub-s. (2) to (4) of S. 7 and Rules 7 and 8, within 90 days of the occurrence of the cause for application. The proviso to Rule 10 also enables the Controlling Authority to accept such an application after the expiry of such time on sufficient cause being shown by the applicant.

5. As indicated earlier, application to the employer was made by the employee on the prescribed form on 28th February, 1973 itself. The employer did not appear to have taken any step, presumably, on the ground of its contention, that the petitioner, being an officer and not an employee, was not entitled to the same. The employer, neither prepared any statement of such dues of the petitioner, nor did it deposit the same with the Controlling Authority.

6. The question when limitation could have commenced in this case was not argued before us by either side. Mr. Bhatkal's argument proceeded on the footing that it was so time barred. His only contention is that Rule 10(1)(iii) prescribing limitation for such application itself was ultra vires firstly, because the State Government is not competent to perform the legislative functions involved in the process of prescribing limitation and secondly, because S. 15(1) does not authorise the State Government to frame such a Rule. The rule is also claimed to be void because of its being in conflict with S. 7(4) of the Act. Mr. Bhatkal, therefore, contends that the Controlling Authority was bound to issue necessary directions to the employer when the claim of the employee was found to be admissible and the employer was found to have no defence whatsoever to the same claim. We, therefore, confine ourselves to the point of limitation specifically raised before us.

7. First contention of Mr. Bhatkal is that, prescribing limitation for enforcing claim, being legislative function, State Government is not competent to frame any rule such as Rule 10(1)(iii) requiring the employees to make an application within ninety days. This contention is devoid of substance. It is now well-settled that, Legislature is competent to delegate its legislative functions to subordinate bodies subject to certain limitations. Rule making powers are invariably delegated to the Government expressly. Validity of such rule may be open to challenge on the ground of want of delegation on the particular topic or of excessive delegation or these being in a given case in conflict with some provisions of the Act itself. The validity may be open to challenge on some other grounds also. In the wake of the complexities of modern life, such delegation of legislative power after laying down the broad policy, is becoming increasingly inevitable. Useful reference can be made in this context to the judgment of the Supreme Court in the case of Arnold Rodricks and another v. State of Maharashtra and others, reported in A.I.R. 1966 SC 2788. The contention is thus untenable.

8. Mr. Bhatkal then contends that S. 15(1) of the Act does not authorise the State Government to frame any rule prescribing limitation for making application such as Rule 10(1)(iii). Section 15(1) is to the following effect :

'The appropriate Government may by notification, make rules for the purpose of carrying out the provisions of this Act.'

It is not disputed that the Government of Maharashtra is the 'appropriate Government' in this behalf. This section does authorise the Government to make every rule which will be found necessary for the 'purpose of carrying out the provisions of this Act'. We have already seen how S. 7(4)(a) Explanation enables the employee like the petitioner to make an application to the Controlling Authority for enforcing his claim for gratuity. The said authority has powers under S. 7(4)(b) to hold enquiry and determine whether such claim is admissible and also to adjudicate all the points arising out of his claim and the disputes raised by the employer thereto such as the respondent No. 1. Ordinarily, any rule regulating the mode and procedure of making an application to the authority as also regulating the procedure before such Authority, would indeed be for the purpose of carrying out the provisions of S. 7 of this Act. The Act, in terms of the preamble is aimed at providing for a scheme for the payment of gratuity to employees engaged in factories, mines, etc. and for matters connected therewith or incidental thereto. In pursuance of this aim, right to gratuity is conferred on the employees defined in the Act. Section 7 of the Act provides for the manner of approaching the employer and requires the employer to comply with such a claim of the employee. The sections also indicate how the disputes in between the employer and the employee on this count be adjudicated by the Controlling Authority. Outline of the procedure is indicated in the Section itself. All the details thereof are not provide in this Section or in the Act. The Act, however, delegates all rule-making powers to the Government in this behalf. Government's authority to frame rules for the purposes of carrying out the provisions of the Act, must be deemed to include power to fill all the details left unfilled under S. 7 of the Act. The provisions of the Act can be carried out, by filling in the said gaps. The details of the procedure are ordinarily left to be worked out by the rule-making authority. As long as, the rule so framed is shown to serve the purpose of effectively carrying out the provisions of enactment, the same cannot be held to be liable to be declared as ineffective. The rule-making power is as wide as it could be. Only limitation is that rule so framed should have nexus with the purpose of carrying out the provision of the Act. It is difficult to see why Rule 10(1)(iii) cannot be said to be for carrying out the purposes of the provisions of the Act.

9. Mr. Bhatkal contends that prescribing limitation for enforcing the right conferred by the Act involves abridging and curtailing the said rights in that, the beneficiary of the right is preventing from enforcing the same beyond the period so prescribed. This, according to Mr. Bhatkal operates as obstructive and restrictive of the substantive right under S. 7 of the Act and thereby preventing the purpose of the Act being carried out. The contention is attractively plausible and yet fallacious. This assumes that rule prescribing limitation is obstructive if not destructive of the right created by the statute. It is now well-settled that process of specifying limitation for enforcement of any right is part of the procedural law and all procedures are ultimately aimed at effectively subserving the very substantive right, enforcement of which is so procedurally regulated. Rule of limitation is intended to eliminate uncertainty, and ensure effective enforcement, while evidence to prove or disprove the claim is easily available and falsity and forgery can be easily detected. Permitting enforcement of stale and delayed genuine rights may operate as oppressive and cause grave injustice. Rule of limitation is thus the part of enforcement machinery and cannot be considered to be obstructive or restrictive of the right sought to be so regulated. Real question is whether framer of such a rule by the legatee like the Government is authorised by the Act or not. In our opinion S. 15(1) of the Act is wide enough to include delegation of such power and Rule 10(1)(iii) therefore, cannot be struck down as ultra vires of this rule-making power.

10. Mr. Bhatkal then contends that when S. 7(4) of the Act, itself does not seek to prescribed any limitation for such application, Rule 10(1)(iii) prescribing such limitation come into conflict with the plain statutory mandate and rule is, therefore, void. Answer must turn on whether S. 15(1) is wide enough to cover such a rule. We have indicated above how S. 15(1) does authorised prescribing limitation for such application and how framing rule for carrying out provision of the Act includes providing limitation for enforcement of the right contemplated under S. 7(4). Section 7(4) must be read with S. 15(1) harmoniously. On our interpretation of S. 15(1), Legislature must be deemed to have intended to prescribe such a limitation as under Rule 10(1)(iii) notwithstanding absence of the express indication of such legislative intent in S. 7(4) itself.

11. Mr. Bhatkal, however, strongly relied on the judgment of the Supreme Court in the case of M/s. Bharat Barrel & Drum Mfg. Co. Private Ltd. and another v. The Employees' State Insurance Corporation, reported in : (1971)IILLJ647SC . Section 75 of the employees' State Insurance Act of 1948 enables the Employees' State Insurance Corporation to approach the Employees' Insurance Court for the purpose of enforcing the contributions liable to be made by the employers towards statutory compulsory Insurance Scheme for the employees. Section 96(1)(b) of the said Act enables the State Government to frame rules relating to 'the procedure to be followed in proceeding before such Courts and the execution of orders made by such Courts'. The State Government framed Rule 17 in this behalf prescribing limitation of 12 months for making such application to the said Court by the Corporation. When the Corporation made an application against the employers in this case, the claim was sought to be defeated by the employers on the ground of limitation prescribed by Rule 17 of the said Rules. The Division Bench of this Court held that the said Rule 17 was beyond the rule-making powers conferred on the State Government under S. 96(1)(b) on the Act, this view of this Court was upheld by the Supreme Court in the above case. While holding the said Rule to be ultra vires of the rule-making powers, this Court indicated how the rule-making power was confined to the stage after the applications were made to the Court and S. 96(1)(b) of the Act and did not contemplate authorising the Government to frame any rule with regard to the pre-institution stage and prescribe any limitation for instituting claims. In addition to upholding this interpretation of this Court as to S. 96(1)(b) of the Act, the Supreme Court also further examined the very scheme of the Act under which no limitation was contemplated if the claims were regarded to be enforced otherwise than by approaching the said Insurance Court. The Supreme Court, therefore, also held that rule militated against the basic scheme of the enactment and also was void on that ground. Suffice it to observe that ratio of this case has no application to the situation arising in the present case. Rule-making power conferred on the State Government under S. 15(1) of the Act does not limit it to former of rules only with regard to post institution procedure as was found to be the case under S. 96(1)(b) of the Act discussed by the Supreme Court. Mr. Bhatkal also could not show us anything inherent in the enactment itself militating against the validity of this Rule 10(1)(iii) of the Rules.

12. Mr. Bhatkal also drew our attention to the judgment of the single Judge of the Calcutta High Court in the case of Century Enka Ltd. v. The Income-tax Officer and others, reported in 1977 TLR 615. The learned Judge found Rule 19A (2) and Rule 19A (3) of the Income-tax Rules as being violative of the express provision of S. 80J of the Income Tax Act. We have already quoted S. 7(4) Explanation as also S. 15(1) of the Act and the relevant Rule 10(1)(iii). We are unable to see any repugnancy in between the express provisions of the Act and the impugned rule.

13. Mr. Bhatkal then wanted us to compare the express provisions of S. 7(1) and 7(3) with the language of the Explanation of S. 7(4)(a) of the Act. Now, it is true that S. 7(1) and 7(3) does expressly authorise prescribing limitation for making application to the employer or employer's depositing the admitted amount of gratuity in the Court. Section 7(4) or its explanation does not indicate any express legislative intent of prescribing limitation for the employees' application to the Controlling Authority. This omission in S. 7(4) compared to express indication in this behalf in Ss. 7(1) and 7(3) is relied on by Mr. Bhatkal to support his contention that the Legislature did not contemplate prescribing any limitation for employee's application to the Controlling Authority. It must be conceded that this contention of Mr. Bhatkal is not without some substance. This, however, cannot be conclusive. This apart, the width of the language of S. 15(1) with far-reaching implications discussed above, also cannot be lost sight of and indeed outweighs such omission in S. 7(4) of the Act. Section 15(1) is as much part of the enactment as S. 7 itself. It is, thus, impossible to hold that the Act did not contemplate prescribing of limitation for such application. The impugned order in this behalf, therefore, does not call for any interference.

14. The petitioner himself did not make any application for condoning the delay before the Controlling Authority. Mr. Bhatkal also did not indicate to us any intention even now to make such application for condoning the delay and did not invite us to direct the Controlling Authority to consider any such application if made. He was keen only on getting a decision on the validity of the Rule. Notwithstanding all this, we think that we should direct the Controlling authority to consider on merits, if any, application for condoning the delay is made by the petitioner. Absence of express indication in Rule 10(1)(iii) as to when the limitation starts may have as well confounded the petitioner. When we indicated to Mr. Bhatkal that we ourselves are inclined to direct the Controlling Authority to consider any such application for condoning the delay, Mr. Bhatkal informed us that he will make such an application only if making such an application does not adversely affect his right to move the Supreme Court in time.

15. In view of the above statement of Mr. Bhatkal, we remand this matter to the Controlling Authority and direct him to consider any application for condonation of delay if made by the petitioner within three months from today. In case, no application is made within three months from today, the order will stand confirmed and the petitioner's application will stand rejected.

16. In the result, the rule is discharged. In the circumstances of the case, no order as to costs. Mr. Bhatkal applies for leave to appeal to Supreme Court. Leave refused.


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