- 1 - HC-KAR NC: 2025:KHC:37014 WP No. 21264 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR WRIT PETITION NO. 21264 OF 2023 (L-PG) BETWEEN: SOLITAIR BUILD TECH PVT LTD SOUVENIR CONSTRUCTIONS, REP BY MANAGING DIRECTOR, MR ANWAR PASHA, NO 349, 2ND FLOOR, 9TH MAIN ROAD, 25TH CROSS, BANASHANKARI, 2ND STAGE, BANGALORE- 560 070 …PETITIONER (BY SRI. DEEPAK B R., ADVOCATE) AND: 1. SRI. MANJUNATH S/O LATE B BORE GOWDA, NO 7/1, 36TH A CROSS, 2ND MAIN ROAD, 4TH T BLOCK, JAYANAGAR, BANGALORE 560 096 2. THE ASSISTANT LABOUR COMMISSIONER AND LABOUR AUTHORITY BANGALORE DIVISION 2, KARNATAKA LABOUR RESEARCH CENTRE, KSLI, 2ND FLOOR, ROOM NO 23 AND 24, MANJUNATHNAGAR, BAGALAGUNTE, BANGALORE 560 073 3. THE LABOUR OFFICER UNDER THE PAYMENT OF GRATUITY ACT, SUB 2, KARNATAKA BHAWAN, Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:37014 WP No. 21264 of 2023 BANNERGHATTA ROAD, BANGALORE 560 096 …RESPONDENTS (BY SRI. NAIK V S.,ADVOCATE FOR R1; SR.RAJENDRA K.R, AGA FOR R2 AND R3) THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO SETTING ASIDE THE IMPUGNED ORDER DTD 23.08.2023 PASSED IN CR -18/2022- 23 PASSED BY THE R-2 ASST LABOUR COMMISSIONER APPELLATE AUTHORITY FOR PAYMENT OF GRATUITY ACT DIVISION-2 BANGALORE. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR ORAL ORDER Petitioner is before this Court seeking to set aside the order dated 23.08.2023 passed IN CR - 18/2022-23 by the respondent No. 2 by which the respondent No.2 dismissed the appeal preferred by petitioner and consequently seeks to set aside the final order passed by the respondent No.3 - Controlling Authority dated 27.11.2018. 2. It is the contention of the learned for the petitioner that the petitioner is not an establishment that would fall - 3 - HC-KAR NC: 2025:KHC:37014 WP No. 21264 of 2023 under the Gratuity Act, which has not been considered by the respondent No.3 while passing the impugned order. 3. It is further contended by the learned counsel for the petitioner that pursuant to the order passed by the respondent No.3, the Controlling Authority, due to the wrong advice, the petitioner preferred a writ petition before this Court in WP No. 43910/2019. The said writ petition was heard, and the learned Single Judge of this Court did not agree with the petitioner and accordingly dismissed the petition. 4. Aggrieved by the same, the petitioner preferred a writ appeal before this Court, which also came to be dismissed, affirming the orders of the learned Single Judge. 5. The petitioner preferred a review petition in RP No. 40/22 in WA No.4069/2019 before the Division Bench of this Court to review the order passed in the WA No. 4069 of 2019. - 4 - HC-KAR NC: 2025:KHC:37014 WP No. 21264 of 2023 6. It is the contention of the learned counsel of the petitioner that he had approached the Division Bench of this Court to review the order and to provide him the liberty to approach the appropriate forum for consideration of the matter on merits, as he does not come within the definition of the establishment or fall within the purview of Gratuity Act, as he has only 6 employees and the requirement in law is more than 10. 7. It is further contended by learned counsel for the petitioner that the review petition came to be withdrawn by the petitioner, and a liberty was given to approach the appropriate forum in accordance with law. Therefore, he would contend that the liberty that was granted in the review petition was a liberty to the petitioner to approach the appropriate forum and the forum was to consider the claim of the petitioner on its merits rather than on delay, as he had argued the matter with regard to condonation of delay, which was not considered by the Writ Court and the Writ Appeal Court. - 5 - HC-KAR NC: 2025:KHC:37014 WP No. 21264 of 2023 8. Learned counsel for the petitioner contends that when such a liberty is granted by the Hon'ble Division Bench, the appropriate authority ought to have considered the merits of the matter rather than the delay, as he has approached the appropriate authority within the prescribed time period of 120 days from the date of the order of the review petition. Under these circumstances, he contends that the impugned order, which is once again rejected on the ground of delay in filing the petition is illegal, arbitrary and the same is liable to be set aside. On these grounds, he seeks to allow this petition and consequently remit the matter back to the controlling authority to consider the matter in accordance with law on the merits, rather than on the delay aspect, as liberty was reserved to the petitioner in the review petition. 9. Per contra, learned counsel Sri.V.S. Nayak appearing on behalf of respondent No. 1 contends that the petitioner is not entitled to any relief before this Court, as instead of approaching the appellate authority aggrieved - 6 - HC-KAR NC: 2025:KHC:37014 WP No. 21264 of 2023 by the impugned order dated 27.11.2018, the petitioner filed a writ petition on 16.09.2019. Therefore, it is clearly barred by the limitation period, which contemplates 60 days time to file the appeal and another 60 days were provided in the Act to prefer the appeal; thereby, the total number of days provided is 120 days from the date of the order of the Controlling Authority, which has not been done in the present case. Therefore, the writ petition came to be dismissed, and the alternative remedy available was not availed on time and on challenge by the petitioner, the writ appeal came to be dismissed on the very same grounds. 10. Learned counsel for the respondent further contends that in the review petition filed by the petitioner, the petitioner had withdrawn the petition. No doubt, the Division Bench of this Court has provided the liberty to approach the appropriate forum and the same was in accordance with law. There is no order passed in the review petition to condone the delay in filing the appeal. - 7 - HC-KAR NC: 2025:KHC:37014 WP No. 21264 of 2023 Therefore, the petitioner cannot take something, that is not written as no such order was passed in the review petition, to condone the delay in filing the appeal, which the petitioner has been vehemently contending in this petition. 11. Learned counsel for the respondent No.1 relies upon the judgment of the High Court of Andhra Pradesh, which had considered a similar issue in the case of Warangal District Cooperative Society Ltd. V/s Appellate Authority under payment of gratuity Act, 1972. At Para 11,12, 13 it is discussed as follows. 11. However, the difficulty in this case is that the limitation prescribed under the Payment of Gratuity Act, once again an enactment made by Parliament is only 60 days for the purpose of preferring an appeal. Under the proviso to Section 7, Sub-section (7), the appellate authority is empowered to "extend the period" of limitation by another sixty days. In other words, the appellate authority is empowered to - 8 - HC-KAR NC: 2025:KHC:37014 WP No. 21264 of 2023 condone the delay to upper limit of another sixty days beyond the prescribed period of limitation. No doubt, the Payment of Gratuity Act does not expressly exclude the operation of the Limitation Act, but the fact remains that the Payment of Gratuity Act is of the year 1972 where the Limitation Act is of the year 1963. The settled principle of interpretation of statutes is that if there are two mandates by the Sovereign Legislature, the later of the two shall prevail. Therefore, the fact that there was no express exclusion of Section 5 of the limitation under the Payment of Gratuity Act makes no difference while construing the scope of the power of the appellate authority constituted under the Payment of Gratuity Act, to condone the delay in preferring the appeals. The legal position enunciated by the Supreme Court in Shantilal M. Bhayani v. Shanti Bai (supra), in my view, must be understood in the context of the Limitation Act, 1963, and the special period of limitation, prescribed in any other special or local law prior to the date of the enactment of the Limitation Act. It is worthwhile mentioning that that the Tamil Nadu Buildings (Lease and Rent Control) Act, which is the subject matter of the issue before the Supreme Court in the above case was of the year 1960. - 9 - HC-KAR NC: 2025:KHC:37014 WP No. 21264 of 2023 12. In view of my conclusion on this, I do not wish to examine the question whether the appellate authority under the Payment of Gratuity Act is a Court or not though a Division Bench of the Calcutta High Court in a decision in City College. Calcutta v. State of West Bengal 1987-I-LLJ-41, dealing with the identical situation held that the appellate authority under the Payment of Gratuity Act could not condone the delay beyond 120 days on the ground it is not a Court. 13. In the circumstances, I do not see any reason to interfere with the impugned order. The appellate authority, in my view, rightly refused to condone the delay. 12. The High Court of Andhra Pradesh relies upon the judgment of the Hon'ble Apex Court in the case of Shantilal M. Bhayani v. Shanti Bai in support of its case. 13. I have heard the counsel for the petitioner and the counsel for the respondent. Considering the impugned order and the judgments passed by the learned Judge in the writ petition and the division bench order in the writ - 10 - HC-KAR NC: 2025:KHC:37014 WP No. 21264 of 2023 appeal, so also the review petition and the citations relied on by the learned counsel for the respondents. 14. In the present case, on hand, there is no dispute that the Controlling authority had passed the order on 27.11.2018; within the time prescribed under the Payment of Gratuity Act; no appeal came to be filed by the petitioner before the appellate authority. 15. Straight away the petitioner preferred a writ petition on 16.09.2019, by which time the period of 120 days had already elapsed. Aggrieved by the same, he had challenged the same in Writ Appeal, which also came to be dismissed. 16. The review petition filed by the petitioner came to be withdrawn, reserving liberty to the petitioner to approach the appropriate authority in accordance with law. It is seen that the petitioner has based his cause of action for filing the appeal before the appellate authority on the date of the order of the writ petition wherein the liberty - 11 - HC-KAR NC: 2025:KHC:37014 WP No. 21264 of 2023 was given to him to approach the appropriate forum in accordance with law. 17. Unfortunately for the petitioner, in the review petition, no such order was passed to condone the delay incurred in filing the appeal before the Appellate Authority which was ordered on 27.11.2018, and the limitation prescribed under the Act is 120 days from the date of the order. 18. Therefore, when there is no clear prescription in the order of the Division Bench of this Court in the review petition to condone the delay, the Appellate Authority has considered the matter once again and dismissed the appeal on the ground of delay. The judgments relied on by the learned counsel for the respective respondents are squarely applicable to the present case on hand. 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 - 12 - HC-KAR NC: 2025:KHC:37014 WP No. 21264 of 2023 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. 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 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. 21. I proceed to pass the following order. ORDER The petition is dismissed. Sd/- (PRADEEP SINGH YERUR) JUDGE RCK,List No.: 1 Sl No.: 1