# State of U.P. & Anr v. Controlling Authority/Dy. Labour Commissioner, Lucknow & Ors

- **Citation:** (2020) 1 ILRA 1161
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-19
- **Case number:** Writ C No. 36251 of 2019
- **Bench:** Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-anr-v-controlling-authority-dy-labour-commissioner-lucknow-ors-45130
- **Pages:** 27

## Headnote

A. Payment of Gratuity Act, 1972 -
Section 7(4) - appeal within 60 days -
Section 7(7) - further appeal within 60
days against an order passed under
Section 7(4) - The Limitation Act -
Section 5 - an appeal is to be filed in a
manner within such time as provided i.e.
60 days - in the event there was
sufficient cause for not filing the appeal
within same period, the said period can
be extended by further period of 60 days
only - where a specific period has been
provided in the statute then further
period of limitation cannot be extended
beyond what has been provided under
the statute - The Act, 1972 is a special
Act, which contained the specific period
in which an appeal can be preferred - an
appeal filed beyond the period of 120
days (60 days + 60 days) cannot be
condoned. (Para 25, 26 & 27)

In the present case, admittedly, the appeal has been
preferred on 15.11.2018 after the rejection of recall
application on 29.11.2017, much beyond the period
of 120 days as per Section 7(7) of the Act, 1972.
Therefore, no further extension could be provided or
contemplated. The appellate authority could not
have extended the period of limitation; therefore,
the appellate authority was right in coming to the
conclusion that the appeal has been filed beyond the
period of limitation. (Para 31)

Held: - The purpose and scheme of the Act
and provisions contained under the Limitation
Act, would therefore, not be applicable for
seeking extension of time beyond the statutory
time period of 60 days, extensible by further
period of 60 days by the competent authority,
being satisfied that the aggrieved person was
prevented by sufficient cause from preferring
the appeal within the prescribed period. (Para
28)

Writ Petition dismissed. (E-7)

List of cases cited: -

1.Commissioner of Sales Tax, UP Lucknow Vs.
M/s Parson Tools and Plants, Kanpur, (1975) 4
SCC 22

2.Commissioner of Customs & Central Excise
Vs. M/s Hongo India (P) Ltd. & Anr.(2009) 5
SCC, 791

3.Patel Brothers Vs. State of Assam and others,
(2017) 2 SCC 350
1162 INDIAN LAW REPORTS ALLAHABAD SERIES

4.Bengal Chemists and Druggists Association
Vs. Kalyan Chowdhury, (2018) 3 SCC 41

5.State Road Transport Corporation Vs. Dy.
Labour Commissioner and others, 2014 (143)
FLR 392

6.State of Gujrat and another Vs Appellate
Authority under Payment of Gratuity Act, and
others, 2015(147) FLR 564

7.Deepak Transport Agency Pvt. Ltd. Vs.
Appellate Authority, Gratuity Act-cum Dy.
Commissioner of Labour, 2018 (159) FLR 885

8.Senior Regional Manager, TN. Civil Supplies
Corporation, Vs. Joint Commissioner of Labour
and others, 2019 (161) 392

9.Ali Hossain Vs. Budge Budge Co. Ltd. And
others, 2018 (159) FLR 68

10.Netram Sahu Vs. State of Chhattisgarh and
another, 2018 (157) FLR 477

## Text

_Characters 0–39,667 of 92,329. This is a partial read: ask again with offset=39667 for what follows._

1 All. Smt. Bedo Vs. State of U.P. & Ors.
1161

38. Since, we have found that actual
physical possession of the petitioner's
surplus land was never taken by the State
Government from the petitioner and the
petitioner stood in possession of the
surplus land on the date of the coming into
force of the Repeal Act, 1999, this writ
petition deserves to be allowed.

39. Accordingly, the writ petition is
allowed.

40. The impugned order dated
18.05.2017 is hereby quashed. A further
direction is issued to the respondents to
expunge the respondent-State from the revenue
record and to restore that of the petitioner who
is the owner of the land in dispute.
----------
(2020)1ILR 1161

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.11.2019

BEFORE
THE HON'BLE PIYUSH AGRAWAL, J.

Writ C No. 36251 of 2019

State of U.P. & Anr. ...Petitioners
Versus
Controlling
Authority/Dy.
Labour
Commissioner, Lucknow & Ors.
 . ...Respondents

Counsel for the Petitioners:
Sri Shreeprakash Singh

Counsel for the Respondents:
-

A. Payment of Gratuity Act, 1972 -
Section 7(4) - appeal within 60 days -
Section 7(7) - further appeal within 60
days against an order passed under
Section 7(4) - The Limitation Act -
Section 5 - an appeal is to be filed in a
manner within such time as provided i.e.
60 days - in the event there was
sufficient cause for not filing the appeal
within same period, the said period can
be extended by further period of 60 days
only - where a specific period has been
provided in the statute then further
period of limitation cannot be extended
beyond what has been provided under
the statute - The Act, 1972 is a special
Act, which contained the specific period
in which an appeal can be preferred - an
appeal filed beyond the period of 120
days (60 days + 60 days) cannot be
condoned. (Para 25, 26 & 27)

In the present case, admittedly, the appeal has been
preferred on 15.11.2018 after the rejection of recall
application on 29.11.2017, much beyond the period
of 120 days as per Section 7(7) of the Act, 1972.
Therefore, no further extension could be provided or
contemplated. The appellate authority could not
have extended the period of limitation; therefore,
the appellate authority was right in coming to the
conclusion that the appeal has been filed beyond the
period of limitation. (Para 31)

Held: - The purpose and scheme of the Act
and provisions contained under the Limitation
Act, would therefore, not be applicable for
seeking extension of time beyond the statutory
time period of 60 days, extensible by further
period of 60 days by the competent authority,
being satisfied that the aggrieved person was
prevented by sufficient cause from preferring
the appeal within the prescribed period. (Para
28)

Writ Petition dismissed. (E-7)

List of cases cited: -

1.Commissioner of Sales Tax, UP Lucknow Vs.
M/s Parson Tools and Plants, Kanpur, (1975) 4
SCC 22

2.Commissioner of Customs & Central Excise
Vs. M/s Hongo India (P) Ltd. & Anr.(2009) 5
SCC, 791

3.Patel Brothers Vs. State of Assam and others,
(2017) 2 SCC 350
1162 INDIAN LAW REPORTS ALLAHABAD SERIES

4.Bengal Chemists and Druggists Association
Vs. Kalyan Chowdhury, (2018) 3 SCC 41

5.State Road Transport Corporation Vs. Dy.
Labour Commissioner and others, 2014 (143)
FLR 392

6.State of Gujrat and another Vs Appellate
Authority under Payment of Gratuity Act, and
others, 2015(147) FLR 564

7.Deepak Transport Agency Pvt. Ltd. Vs.
Appellate Authority, Gratuity Act-cum Dy.
Commissioner of Labour, 2018 (159) FLR 885

8.Senior Regional Manager, TN. Civil Supplies
Corporation, Vs. Joint Commissioner of Labour
and others, 2019 (161) 392

9.Ali Hossain Vs. Budge Budge Co. Ltd. And
others, 2018 (159) FLR 68

10.Netram Sahu Vs. State of Chhattisgarh and
another, 2018 (157) FLR 477

(Delivered by Hon'ble Piyush Agrawal, J.)

1. By means of the present writ
petition, the petitioner is challenging the
order dated 17.6.2019 passed by the
controlling authority, respondent no.1
under Payment of Gratuity Act, 1972
(hereinafter referred to as 'the Act, 1972')
in P.G. Appeal No. 1/2019 as well as the
impugned order dated 6.7.2019 and
29.11.2017 passed by respondent-2 in P.G.
Case No. 09 of 2016.

2. Brief case are that respondent no.
3 (herein after referred to as 'the
workman') was initially engaged on
1.2.1998 as Beldar in Work Charge
Establishment by the petitioners and
continuously worked till 12.10.2011 in the
office of petitioner no. 2 in the same
status.
Thereafter
by
the
order
of
Executive Engineer, Tone Pump Canal,
Prayagraj, the workman was relieved on
13.10.2011 and directed to join in regular
establishment. In pursuance thereof the
workman joined in regular establishment
on 14.10.2011, on the pay Scale of Rs.
5200-20200/- Grade Pay Rs. 1800/-.

3. Subsequently, on 31.1.2015, the
workman was made permanent and after
completion of age of 60 years, he was
superannuated
on
29.2.2016.
The
workman had worked 13 years 08 months
and 13 days as work charge employee and
thereafter regularized and had discharged
total 04 years, 04 months and 16 days of
service
as
permanent
employee.
Accordingly at the time of superannuation,
the workman had not completed 05 years
service as regular/permanent employee as
such he was paid gratuity of Rs. 1,11,663/-
against the service of work charge
employee.

4. On 24.12.2016, the workman set
up his claim before the concerned
authority under Section 4 of the Act, 1972,
claiming gratuity of Rs. 4,56,600/- along
with 12% interest for a period of 1.6.1975
to 29.2.2016, for about 40 years of his
service. The petitioners filed objection in
which it was stated that the workman was
employee
on
work
charge
in
the
establishment on 1.2.1998 to 13.10.2011.
Moreover, there was no case of payment
of gratuity. The gratuity which was
admitted by the petitioners, had been paid
of Rs. 1,11,663/- to the workman. The
stand was taken that the workman has not
completed minimum 05 years of service as
regular employee as per sub Rule 4 of the
Rules, 1972, therefore, there was no
question of payment of gratuity under the
Act, 1972.

5. Thereafter the order dated
16.7.2017 was passed accepting the claim
1 All. State of U.P.& Anr. Vs. Controlling Authority/Dy. Labour Comm. Lucknow & Ors.
1163
of the workman and direction was issued
for payment of gratuity of sum of Rs.
3,44,937/- along with interest at the rate of
8% after deducting Rs. 1,11,663/-. The
petitioners moved recall application on
26.8.2017,
which
was
rejected
on
29.11.2017 on the ground that the
petitioners have alternative remedy of
filing of statutory appeal which could be
preferred under the Act, 1972 as per subsection 7 of Section 7.

6.

Thereafter,
the
petitioners
preferred an appeal on 15.11.2018 before
the appellate authority under sub Section 7
of Section 7 of the Act, 1972. The said
appeal was filed along with the application
under Section 5 of the Limitation Act,
which was supported by the affidavit. The
appeal was filed for payment of requisite
amount as prescribed under the Act,1972.
The workman filed his objection opposing
the maintainability of the appeal as has
been filed beyond the period of limitation
provided under sub Section 7 of Section 7
of the Act, 1972. The workman has
submitted that the appeal was highly
belated and should be rejected on this
ground alone. The appellate authority by
the impugned order dated 17.6.2018 had
dismissed the appeal of the petitioner
holding that the appeal is beyond the
period prescribed under sub Section 7 of
Section 7 of the Act. Against the order
dated 17.6.2018, the petitioners preferred
the present writ petition.

7. Heard learned counsel for the
parties and perused the records.

8. The contention of the petitioners'
counsel is that the appeal has been rejected
solely on the ground that it has been filed
beyond the period of limitation prescribed
under sub section 7 of section 7 of the Act,
1972, and in the interest of justice, same ought
to have been condoned. The question of law
which falls for determination in the present
writ petition is with regard to whether in filing
the appeal under sub section 7 of section 7 of
the Act 1972, the provisions of Section 5 of
Limitation Act, would be applicable so that
period beyond the limitation can be extended
or not ?

9. The only ground and question
raised in the present writ petition is
whether the time granted in terms of
statutory provisions under the Act, 1972 to
file an appeal, can be extended beyond the
period prescribed under the Act by
granting benefit of the provisions of
Section 5 of Limitation Act.

10.

Before
adverting
to
the
contention of the petitioner, it is necessary
to extract the relevant part sub-section 7 of
Section 7 of the Act, 1972 as under:

7. Determination of the amount
of gratuity -(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
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
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.]

11. On bare perusal of the aforesaid
sub-section, it is very clear that any person
aggrieved by the order passed under subsection 4 of section 7 may file an appeal
within 60 days from the date of receipt of
the order as may be specified therein. In
case the aggrieved person was prevented
by sufficient cause from preferring the
appeal within the said period then the
same period can be extended by further
period of 60 days. In other words an
appeal can be preferred within 60 days
which can be extended for another period
of 60 days only when there is sufficient
cause and not otherwise.

12. The case in hand, the petitioner
against the order dated 6.7.2017 moved a
recall application which was rejected on
29.11.2017 and thereafter the petitioner
preferred an appeal under sub-section 7 of
Section 7 of the Act, 1972 on 15.11.2018,
almost after a year.

13. The issue came before the
Supreme Court as to whether period of
limitation can be extended in the case of
Commissioner
of
Sales
Tax,
UP
Lucknow Vs. M/s Parson Tools and
Plants, Kanpur, (1975) 4 SCC 22.
Relevant part of the judgement is extracted
below:

12. ..... The third is that the Revising
Authority has no discretion to extend this period
beyond a further period of six months, even on
sufficient cause shown. As rightly pointed out in
the minority judgment of the High Court,
pendency of proceedings of the nature
contemplated by s. 14(2) of the Limitation Act,
may amount to a sufficient cause for condoning
the delay and extending the limitation for filing
a revision application, but s. 10 (3-B) of the
Sales-tax Act, gives no jurisdiction to the
Revising Authority to extend the limitation,
even in such a case, for a further period of more
than six months.

13. The three star features of the
scheme and language of the above
provision, unmistakably show that the
legislature has deliberately excluded the
application of the principles underlying ss.
5 and. 14 of the Limitation Act, except to
the extent and in the truncated form
embodied in sub-s. (3- B) of Section 10 of
the Sales-tax Act. Delay in disposal of
revenue matters adversely affects the
steady inflow of reve- nues and the
financial stability of the State. Section 10
is therefore designed to, ensure speedy and
final determination of fiscal matters within
a reasonably certain time-schedule.

14. It cannot be said that-by
excluding the unrestricted application of
the principles of ss. 5 and 14 of the
Limitation Act, the Legislature has made.
the provisions of s. 10, unduly oppressive.
In most cases, the discretion to extend
limitation, on sufficient cause being shown
for a further period of six months only,
given by sub-s. ( 3_B) would be enough to
afford
relief.
Cases
are
no
doubt
conceivable where an aggrieved party,
despite sufficient cause, is unable to make
an application for revision within this
maximum period of 18 months. Such
harsh cases would be rare. Even, in such
exceptional cases of extreme hardship, the
Revising Authoritly may, on its own
motion, entertain revision and grant relief.

15. Be that as it may, from the
scheme and language of Section 10, the
intention of the Legislature to exclude the
unrestricted application of the principles of
1 All. State of U.P.& Anr. Vs. Controlling Authority/Dy. Labour Comm. Lucknow & Ors.
1165
Sections 5 and 10 of the Limitation Act is
manifestly clear. These provisions of the
Limitation Act which the Legislature did
not, after due application of mind,
incorporate in the Sales-tax Act, cannot be
imported into it by analogy. An enactment
being the will of the legislature, the
paramount rule of interpretation, which
overrides all others,- is that a statute is to
be expounded "according to the intent of
them that made it". "The will of 'the
legislature is the supreme law of the land,
and
demands
perfect
obdience".(1)
"Judicial power is never exercised" said
Marshall C. J. of the United States, "for
the purpose of giving effect to the will of
the Judges; always for the purpose of
giving effect to the will of the Legislature;
or in other words, to the will of the law".

16. If the legislature wilfully
omits to incorporate something of an
'analogous law in a subsequent statute, or
even if there is a casus omissus in a
statute, the language of which is otherwise
plain and unambiguous, the Court is not
competent to supply the omission by
engrafting on it or introducing in it, under
the guise of interpretation, by analogy or
implication, something what it thinks to be
a general principle of justice and equity.
To do so would be entrenching upon the
preserves of Legislatures, 'The primary
function of a court of law being jus dicere
and not jus dare.'

17. In the light of what has been
said above, we are of the opinion that the
High Court was in error in importing
whole hog the principle of Section 14(2)
of the Limitation Act into Section. 10 (3B) of the Sales-tax Act.

18. The ratio of the Privy
Council decision in Ramdutt Ramkissen
Dass v. E. D. Sasson & Co. (Supra) relied
upon by the High Court is not on speaking
terms with the clear language of s. 10 (3B) of the Sales-tax Act. That decision was
rendered long before the passage of the
Indian Arbitration Act, 1940. It lost its
efficacy after the enactment of the
Arbitration Act which contained a specific
provision in regard to exclusion of time
from computation of limitation.

19.
The
case
in
point
is
Purshottam Dass Hussaram v. Index
(India) Ltd. (supra). In this Bombay case,
the question was, whether the suit was
barred by limitation. It was not disputed
that Article 115 of the Limitation Act
governed the limitation and if no other
factor was to be taken into consideration,
the suit was filed beyond time. But what
was relied upon by the plaintiff for the
purpose of saving limitation was the fact
that
there
were
certain
infructuous
arbitration,, Proceedings and if the time
taken in prosecuting those proceedings
was eXcluded under Section 14, the suit
would be within limitation. It was held that
if Section 14 were to be construed strictly,
the plaintiff would not be entitled to
exclude the period in question.

20. On the authority of Ramdutt
Ramkissen's case (supra), it was then
contended
that.
the
time
taken
in
arbitration proceedings should be excluded
on the analogy of s. 14. This contention
was also negatived on the ground that
since the decision of the Privy Council, the
legislature had in s. 37(5) of the
Arbitration Act, 1940, provided as to what
extent the provisions of the Limitation Act
would be applicable to the proceedings
before the arbitrator. Section 37(5) was as
follows :

"Where the cow orders that
an award be set aside or orders, after the
commencement of an arbitration, that the
arbitration agreement shall cease to have
effect with respect to the difference
referred,
the
period
between
the
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
commencement of the arbitration and the
date of the order of the Court shall be
excluded in computing the time prescribed
by the Indian Limitation Act, 1908, for the
commencement
of
the
proceedings
(including arbitration) with respect to the
difference referred."

The
reasons
advanced,
the
observations made and the rule enunciated
by Chagla C.J., who spoke for the Bench
in that case, are opposite and may be
extracted with advantage:

....we have now a statutory
provision for exclusion of time taken up in
arbitration Pr when a suit Is filed, and the
question arises of computing the period of
limitation with regard to that suit, and the
time that has got to be excluded is only
that time which is taken up as provided in
s. 37(5). There must be an order of the
Court setting aside an award or there must
be an order of the Court declaring that the
arbitration agreement shall cease to have
effect, and the period between the
commencement of the arbitration and the
date of this order is the period that has got
to be excluded.

It is therefore no longer
open to the Court to rely on s. 14
Limitation Act as applying by analogy to
arbitration proceedings. If the Legislature
intended that s. 14 should apply and. that
all the time taken up in arbitration
proceedings should be excluded, then
there was no reason to enact s. 37(5)., The
very fact that s. 37(5) has been enacted
clearly shows- that the whole period
referred to in...a, 49 Limitation Act is not
to be excluded but the limited'.. indicated
in s. 37(5).
* * * * * *

"it
may
seem
rather
curious-and it may also in certain cases
result in hardship-as to why the legislature
should not have excluded all time taken up
in good faith before an arbitrator just as
the time taken up in prosecuting a suit or
an appeal in good faith is excluded. But
obviously the Legislature did no t intend
that parties should waste time infructuous
proceedings
before
arbitrators.
The
Iegisla- ture has clearly indicated that
limitation having once begun to run, no
time could be excluded merely because
parties chose to go before an arbitrator
without getting an award or without
coming to Court to get the necessary order
indicated in s. 37(5)."

21. What the learned Chief
Justice said about the inapplicability of s.
14, Limitation Act, in the context of s.
37(5) of the Arbitration Act, holds good
with added force with reference to s. 10
(3-B) of the Sales-tax Act.

22. Thus the principle that
emerges is that if the legislature in a
special statute prescribes a certain period
of limitation for filing a particular
application thereunder and provides in
clear terms that such period on sufficient
cause being shown, may be extended, in
the maximum, only upto a specified timelimit and no further, than the tribunal
concerned has no jurisdiction to treat
within limitation, an application filed
before it beyond such maximum time-limk
specified in the statute, by excluding the
time spent in prosecuting in good faith and
due diligence any prior proceeding on the
analogy of s. 14(2) of the Limitation Act.

23. We have said enough and we
may say it again that where the legislature
clearly declares its intent in the scheme
and language of a statute, it is the duty of
the court to give full effect to the same
without scanning its wisdom or policy, and
without engrafting, adding or implying
anything which is not congenial to or
consistent with such expressed intent of
1 All. State of U.P.& Anr. Vs. Controlling Authority/Dy. Labour Comm. Lucknow & Ors.
1167
the law-giver; more so if the statute is a
taxing statute. We will close the discussion
by recalling what Lord Hailsham (1) has
said recently, in regard to importation of
the principles of natural justice into a
statute which is a clear and complete
Code, by itself :

"It is true of course that the
courts will lean heavily ,against any
construction of a statute which would be
manifestly fair. But they have no power to
amend or supplement the language of a
statute merely because in one view (1)At
P. 11 in Pearl Berg v. Varty [1972] 2 All
E. R. 6, of the matter a subject feels
himself entitled to a larger degree of say in
the making of a decision than a statute
accords him. Still less is it the functioning
of the courts to form first a judgment on
the fairness of an Act of Parliament and
theft to amend or supplement it with new
provisions so as to make it conform to that
judgment."

24. For all the reasons aforesaid,
we are of the opinion that the object, the
scheme and language of s.10 of the Salestax Act do not permit the invocation of
s.14(2) of the Limitation Act, either, in
terms, or, in principle, for excluding the
time spent in prosecuting proceedings for
setting aside the dismissal of appeals in
default, from com- putation of the period
of limitation prescribed for filing a
revision under the Sales-tax. Accordingly,
we answer the question referred, in the
negative.

The Apex Court has observed that
where the special statute prescribes a
certain period, the limitation for filing an
appeal, may be extended only upto a
specified time limit.

14. A similar view has been reiterated
by Supreme Court in the case of
Commissioner of Customs & Central
Excise Vs. M/s Hongo India (P) Ltd. &
Anr.(2009) 5 SCC, 791, in which the
Apex Court has held herein below:-

14.
Article
214
of
the
Constitution of India makes it clear that
there shall be a High Court for each State
and Article 215 states that every High
Court shall be a court of record and shall
have all the powers including the power to
punish for contempt of itself. Though we
have adverted to Section 35 H in the
earlier part of our order, it is better to
extract sub- section (1) which is relevant
and we are concerned with in these
appeals :

"35H. Application to High
Court - (1) The Commissioner of Central
Excise or the other party may, within one
hundred and eighty days of the date upon
which he is served with notice of an order
under section 35C passed before the 1st
day of July, 2003 (not being an order
relating, among other things, to the
determination of any question having a
relation to the rate of duty of excise or to
the value of goods for purposes of
assessment),
by
application
in
the
prescribed form, accompanied, where the
application is made by the other party, by
a fee of two hundred rupees, apply to the
High Court to direct the Appellate
Tribunal to refer to the High Court any
question of law arising from such order of
the Tribunal."

Except providing a period of 180
days for filing reference application to the
High Court, there is no other clause for
condoning the delay if reference is made
beyond the said prescribed period.

15. We have already pointed out
that in the case of appeal to the
Commissioner, Section 35 provides 60
days time and in addition to the same,
Commissioner has power to condone the
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
delay up to 30 days, if sufficient cause is
shown. Likewise, Section 35B provides 90
days time for filing appeal to the Appellate
Tribunal and sub-section (5) therein
enables the Appellate Tribunal to condone
the delay irrespective of the number of
days, if sufficient cause is shown.
Likewise, Section 35EE which provides 90
days time for filing revision by the Central
Government and, proviso to the same
enables the revisional authority to condone
the delay for a further period of 90 days, if
sufficient cause is shown, whereas in the
case of appeal to the High Court under
Section 35G and reference to the High
Court under Section 35H of the Act, total
period of 180 days has been provided for
availing the remedy of appeal and the
reference. However, there is no further
clause empowering the High Court to
condone the delay after the period of 180
days. ...

27. The other decision relied on
by the counsel for the appellant is M.V.
Elisabeth
and
Others
vs.
Harwan
Investment
and
Trading
Pvt.
Ltd.,
Hanoekar House, Swatontapeth, VascoDe-Gama, Goa, 1993 Supp (2) SCC

The learned ASG heavily relied
on the following observations:

"66. The High Courts in
India are superior courts of record. They
have original and appellate jurisdiction.
They have inherent and plenary powers.
Unless expressly or impliedly barred, and
subject to the appellate or discretionary
jurisdiction of this Court, the High Courts
have unlimited jurisdiction, including the
jurisdiction
to
determine
their
own
powers....."

Here again, there is no dispute
about the above proposition. The High
Courts in India are having inherent and
plenary powers and as a Court of Record
the
High
Courts
have
unlimited
jurisdiction including the jurisdiction to
determine their own powers. However, the
said principle has to be decided with the
specific provisions in the enactment and in
the light of the scheme of the Act,
particularly in this case, Sections 35, 35B,
35EE, 35G and 35H of the unamended
Central Excise Act, it would not be
possible to hold that in spite of the abovementioned statutory provisions, the High
Court is free to entertain reference
application even after expiry of the
prescribed period of 180 days.

30. In the earlier part of our
order, we have adverted to Chapter VIA of
the Act which provides appeals and
revisions to various authorities. Though
the Parliament has specifically provided an
additional period of 30 days in the case of
appeal to the Commissioner, it is silent
about the number of days if there is
sufficient cause in the case of an appeal to
Appellate Tribunal. Also an additional
period of 90 days in the case of revision by
Central Government has been provided.
However, in the case of an appeal to the
High Court under Section 35G and
reference application to the High Court
under Section 35H, the Parliament has
provided only 180 days and no further
period for filing an appeal and making
reference to the High Court is mentioned
in the Act.

31. In this regard, it is useful to
refer to a recent decision of this Court in
Punjab
Fibres
Ltd.,
Noida
(supra).
Commissioner of Customs, Central Excise,
Noida is the appellant in this case. While
considering the very same question,
namely, whether the High Court has power
to condone the delay in presentation of the
reference under Section 35H(1) of the Act,
the two-Judge Bench taking note of the
said provision and the other related
provisions following Singh Enterprises vs.
1 All. State of U.P.& Anr. Vs. Controlling Authority/Dy. Labour Comm. Lucknow & Ors.
1169
Commissioner
of
Central
Excise,
Jamshedpur and Others, (2008) 3 SCC 70
concluded that "the High Court was
justified in holding that there was no
power for condonation of delay in filing
reference application."

32. As pointed out earlier, the
language used in Sections 35, 35B, 35EE,
35G and 35H makes the position clear that
an appeal and reference to the High Court
should be made within 180 days only from
the date of communication of the decision
or order. In other words, the language used
in other provisions makes the position
clear that the legislature intended the
appellate authority to entertain the appeal
by condoning the delay only up to 30 days
after expiry of 60 days which is the
preliminary limitation period for preferring
an appeal. In the absence of any clause
condoning the delay by showing sufficient
cause after the prescribed period, there is
complete exclusion of Section 5 of the
Limitation Act. The High Court was,
therefore, justified in holding that there
was no power to condone the delay after
expiry of the prescribed period of 180
days.

33. Even otherwise, for filing an
appeal to the Commissioner, and to the
Appellate Tribunal as well as revision to
the Central Government, the legislature
has provided 60 days and 90 days
respectively, on the other hand, for filing
an appeal and reference to the High Court
larger period of 180 days has been
provided with to enable the Commissioner
and the other party to avail the same. We
are of the view that the legislature
provided sufficient time, namely, 180 days
for filing reference to the High Court
which is more than the period prescribed
for an appeal and revision.

34. Though, an argument was
raised based on Section 29 of the
Limitation
Act,
even
assuming
that
Section 29(2) would be attracted what we
have
to
determine
is
whether
the
provisions of this section are expressly
excluded in the case of reference to High
Court.

35. It was contended before us
that the words "expressly excluded" would
mean that there must be an express
reference made in the special or local law
to the specific provisions of the Limitation
Act of which the operation is to be
excluded. In this regard, we have to see the
scheme of the special law here in this case
is Central Excise Act. The nature of the
remedy provided therein are such that the
legislature intended it to be a complete
Code by itself which alone should govern
the several matters provided by it. If, on an
examination of the relevant provisions, it
is clear that the provisions of the
Limitation Act are necessarily excluded,
then the benefits conferred therein cannot
be called in aid to supplement the
provisions of the Act. In our considered
view, that 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 subjectmatter and scheme of the special law
exclude their operation. In other words, the
applicability of the provisions of the
Limitation Act, therefore, to be judged not
from the terms of the Limitation Act but
by the provisions of the Central Excise Act
relating to filing of reference application to
the High Court.

36. The scheme of the Central
Excise Act, 1944 support the conclusion
that the time limit prescribed under
Section 35H(1) to make a reference to
High Court is absolute and unextendable
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
by court under Section 5 of the Limitation
Act. It is well settled law that it is the duty
of the court to respect the legislative intent
and by giving liberal interpretation,
limitation cannot be extended by invoking
the provisions of Section 5 of the Act.

37. In the light of the above
discussion, we hold that the High Court
has no power to condone the delay in
filing the "reference application" filed by
the
Commissioner
under
unamended
Section 35H(1) of the Central Excise Act,
1944 beyond the prescribed period of 180
days and rightly dismissed the reference
on the ground of limitation.

15. Similar observations were made
by the Supreme Court in the case of Patel
Brothers Vs. State of Assam and others,
(2017) 2 SCC 350 in which the Apex
Court has held as follows:-

6. In the first instance, he
referred to Section 79 of the VAT Act
which is a provision relating to appeals to
the Appellate Authority. As per Section
79(1) of the VAT Act, appeal against the
order of the taxing authority can be filed
with the appellate authority within 60 days
from the date of receipt of such order of
the taxing authority. Sub- section (2) of
Section 79 of the VAT Act empowers the
appellate authority to entertain the appeal
even beyond 60 days, provided it is
presented within a further period of 180
days, if the appellate authority is satisfied
that the appellant was prevented by
sufficient cause from presenting the appeal
within the stipulated period of 60 days[1].

7. The learned counsel next
referred to Section 80 of the VAT Act[2]
which deals with appeals to the Appellate
Tribunal inter alia against the orders of the
Appellate Authority. Here also, period of
60 days for preferring such an appeal is
provided under sub-section (3) of Section
80 of the VAT Act and proviso to subsection (3) empowers the Appellate
Tribunal to condone the delay, if the
appeal is preferred within a further period
of 120 days, on sufficient cause being
shown for not filing the appeal within 60
days of limitation prescribed. The learned
counsel contrasted the aforesaid provisions
of Sections 79 and 80 with Section 81[3]
of the VAT Act and pointed out that
whereas there was specific provision for
condonation of delay in filing appeals
under Sections 79 and 80 of the VAT Act,
no such equivalent provision was made in
Section 81 of the VAT Act. As per Section
81 of the VAT Act, revision can be
preferred to the High Court against the
order of the Appellate Tribunal within 60
days. However, there is no provision
giving specific power to the High Court to
condone the delay if the revision is
preferred beyond 60 days. As per the
learned counsel, the reason for not
providing such a provision was that
provisions
of
Limitation
Act,
1963
including
Section
5
thereof
were
applicable.

8. Insofar as Section 84 of the
VAT Act[4] is concerned, it was submitted
that Sections 4 and 12 of the Limitation
Act, 1963 were made applicable for
specific purpose of computing the period
of limitation under the said Chapter and
High Court committed a grave error while
holding that because of the aforesaid
provision only Sections 4 and 12 of the
Limitation
Act,
1963
were
made
applicable to the VAT Act thereby
excluding other provisions of the Act.

9. For this purpose, the learned
counsel relied upon Section 29(2) of the
Limitation Act, 1963[5] which makes
provisions contained in Sections 4 to 24
(inclusive) of the Limitation Act, 1963
1 All. State of U.P.& Anr. Vs. Controlling Authority/Dy. Labour Comm. Lucknow & Ors.
1171
applicable in case of suit, appeal or
application under any special or local law,
where these provisions are not expressly
excluded by such special or local law.

10. It was argued that in the
absence
of
any
provision
expressly
excluding the applicability of Sections 4 to
24 of the Limitation Act, 1963, those
Sections were applicable qua revision
petitions filed under Section 81 of the
VAT Act and, therefore, Section 5 of the
Limitation Act, 1963 was also applicable
to such proceedings. To placate his
aforesaid submissions, the learned counsel
relied upon the judgment of this Court in
the case of Mangu Ram v. Municipal
Corporation of Delhi & Anr.[6]. In that
case, special leave petitions were filed
against the condonation of delay to the
application for grant of special leave under
Section
417,
Cr.P.C.,
1898
against
acquittal of the petitioners by the trial
court, in spite of the mandatory period of
limitation provided in sub-section (4) of
Section 417. Question arose whether in the
case of Kaushalya Rani v. Gopal Singh[7],
which held Section 417, Cr.P.C., 1898 a
special law and excluded application of
Section 5 on a construction of Section
29(2)(b) of the old Act of 1908 applied
under the corresponding provision of
Limitation Act, 1963 which governed the
case. The Court held that since the case
was governed by Limitation Act, 1963,
judgment in Kaushalya Rani case did not
apply. For applicability of the Limitation
Act, 1963 to such proceedings, the Court
referred to Section 29(2) of the Limitation
Act, 1963 holding that there is an
important
departure
made
by
the
Limitation Act, 1963 insofar as the
provision contained in Section 29, subsection (2), is concerned. Under the Indian
Limitation Act, 1908, clause (b) to sub-
section (2) of Section 29 provided that for
the purpose of determining any period of
limitation prescribed for any suit, appeal
or application by any special or local law
the application of Section 5 was in clear
and specific terms excluded. But under
Section 29(2) of Act, the provisions of
Section 5 shall apply in case of special or
local law to the extent to which they are
not expressly excluded by such special or
local law. Since under the Limitation Act,
1963, Section 5 is specifically made
applicable by Section 29 (2), it is only if
the special or local law expressly excludes
the applicability of Section 5 that it would
stand displaced. The Court held that there
is nothing in Section 417(4), Cr.P.C.,
which excludes the application of Section
5 of Limitation Act, 1963.

11. Learned counsel for the
appellant also referred to the case of State
of Madhya Pradesh & Anr. v. Anshuman
Shukla[8]. In that case, question of
applicability of Section 5 of the Limitation
Act arose in relation to revision petition
that can be preferred under Section 19 of
the
M.P.
Madhyastham
Adhikaran
Adhiniyam, 1983 (as it stood prior to its
amendment in 2005). The Court held that
since unamended Section 19 did not
contain any express rider on power of the
High Court to entertain applications for
revision
after
expiry
of
prescribed
limitation
thereunder,
provisions
of
Limitation Act, 1963 would become
applicable vide Section 29(2) thereof. It
further held that as the High Court was
conferred with suo moto power under
Section 19 of Adhiniyam, 1983 to call for
record of an award at any time, there was
no legislative intent to exclude the
applicability of Section 5 of the Limitation
Act, 1963.

12. Mr. Nalin Kohli, learned
senior
counsel
appearing
for
the
respondents, on the other hand, submitted
1172 INDIAN LAW REPORTS ALLAHABAD SERIES
that the High Court had exhaustively dealt
with the issue and rightly found that since
Section 84 of the VAT Act confined the
applicability of Limitation Act only in
respect of Sections 4 and 12 thereof to the
proceedings under the said Chapter, by
necessary implication the other provisions
of the Limitation Act, 1963 including
Section 5 thereof stood excluded. He
submitted that for the purpose of finding
whether other provisions are excluded or
not, the focus should be on the scheme of
the special law as laid down in Hukumdev
Narain Yadav v. Lalit Narain Mishra[9]
wherein it was held that even if there
exists no express exclusion in the special
law, the Court has right to examine the
provisions of the special law to arrive at a
conclusion as to whether the legislative
intent was to exclude the operation of the
Limitation Act. According to him, Section
84 of the VAT Act clearly depicted such a
legislative intent.

13. After examining the matter
in the light of law laid down in various
judgments cited by both the parties, we are
of the view that the High Court has given
correct interpretation to the provisions of
Section 81 of the VAT Act, when this
provision is read along with Section 84
thereof.

14. In the case of Commissioner
of Customs and Central Excise v. Hongo
India Private Limited & Anr.[10], the
question that fell for determination was
that as to whether the High Court had
power to condone the delay in presentation
of
the
reference
application
under
unamended Section 35-H(1) of the Central
Excise Act, 1994 beyond the period
prescribed by applying Section 5 of the
Limitation Act. Unamended Section 35-H
dealt with reference application to the
High Court.