PRADESH AT SHIMLA LPA No: 286 of 2025 Decided on: 6th June & Ors. v. Dagi Ram

petition on 28.11.2023 by affirming the orders on

19.11.2018 [Annexure P-2] by Appellate Authority, under the Payment of Gratuity Act. The judgement dated 28.11.2023 passed by Learned Single Judge reads as under:- “8. In terms of the said statutory provision, no appeal by an employer shall be time of admitted unless at the appellant preferring the appeal, either produces a certificate of Controlling Authority to the effect that the appellant had deposited with him an amount equal to the amount of gratuity required to be deposited under sub-section 4 or deposited with the Appellate Authority such amount. The very fact that the - 7 - ( 2025:HHC:22046 ) “shall” has been used therein demonstrates that the provisions of the proviso, are mandatory.

9. (4) (4), was deposited In this case, learned Advocate General could not demonstrate that the provisions (e) of Section of sub-section (a) to 7(7) of the Payment of Gratuity Act, 1972, were complied with before filing of the appeal, that is to say, that the amount of gratuity required to be deposited under sub-section with the Controlling Authority or the Appellate Authority. Therefore, as the statutory provisions were not complied with, this Court does not finds any perversity with the order passed by the Appellate Authority, whereof, the appeal was dismissed for the statutory the non-compliance of provision qua gratuity amount. Accordingly, this Court does not finds any merit in the present petition, the same is dismissed.” the deposition of GROUNDS IN INSTANT LETTERS PATENT APPEAL:

7. Appellants-State Authorities herein, have come up in Letters Patent Appeal, assailing the impugned judgment dated 28.11.2023, on ground, firstly, that the impugned judgment was contrary to facts and secondly, the legal position was ignored and thirdly, the pleadings and documents were misread by the Learned Single Judge and fourthly, the judgment in case of Lashkari Ram [Annexure P-3, in writ file] has been ignored and lastly, Appellants-State Authorities have deposited - 8 - ( 2025:HHC:22046 ) gratuity of Rs.54,519/- dated 13.11.2024 and the interest amount of Rs. 38,514/- dated 27.11.2024 vide Annexure A-4 and A-5, with the instant appeal and therefore, the prayer was made for accepting the appeal with directions to set aside the impugned judgment.

8. Heard, Mr. Gobind Korla, Learned Additional Advocate General for Appellants-State.

9. Instant appeal [LPA No.286 of 2025] was accompanied by [CMP(M) No.634 of 2025], seeking condonation of 448 days of delay in filing the accompanying appeal, which was condoned by this Court on 6.6.2025. However, keeping in view the controversy involved herein, this Court proceeds to hear and decide the instant appeal, at this stage itself.

10. Based on the material on record, the following question, arises for determination in the instant appeal :- “Whether the Joint Labour Commissioner- cum-Appellate Authority was in dismissing the appeal Section 7 of Payment of Gratuity Act, for non-compliance of requirement of filed under justified - 9 - ( 2025:HHC:22046 ) pre-deposit at the time of admitting - entertaining an appeal under second proviso to Sub-Section 7 of the Payment of Gratuity Act ?” (7) of Section ANALYSIS:

11. Taking into account the entirety of facts and circumstances and the material on record and the statutory provisions, this Court is of the considered view, that Impugned Judgment dated

28.11.2023, passed by the Learned Single Judge, upholding the order passed by appellate authority {under Payment of Gratuity Act} dated 19.11.2018 [Annexure P-2,] does not suffer from any perversity, infirmity or illegality for the following reasons :- 11(i). Admitted factual matrix Respondent-Employee [Dagi Ram] was engaged on daily wage basis in 1990, under the appellant No.1 and he served as such till 1992, without rendering continuous service of 240 days during these years. Respondent-Employee worked with the appellant No. 2 from 09.01.1993 with continuous of 240 days till his regularization on 31.03.2006 and he joined on regular basis on 01.04.2006. - 10 - ( 2025:HHC:22046 ) The Respondent-Employee retired from service on

31.10.2006 on attaining the age of 58 years, after rendering 7 months of regular service. After his superannuation, the appellants issued an order on 15.03.2008, granting work-charged status to Respondent-Employee [Dagi Ram] w.e.f. 01.01.2003. It is not in dispute that the Respondent-Employee filed a claim before Controlling Authority, under the Payment of Gratuity Act, seeking release of gratuity on 27.01.2016 and aforesaid Authority adjudicated the claim for gratuity by passing an order on

10.06.2017 [Annexure P-1], whereby, the Respondent -Employee [Dagi Ram], was held entitled for the gratuity amounting to Rs. 54519/- for 14 years of service [for service w.e.f. 1993 to 31.10.2006] along with simple interest @ 9% per annum till realization within one year. Feeling aggrieved against the order passed by Controlling Authority dated

10.06.2017, the Appellants-State Authorities filed an appeal, which was received, by Appellate Authority on 05.03.2018 and this appeal was dismissed by Appellate Authority on 19.11.2018 [Annexure P-2] - 11 - ( 2025:HHC:22046 ) in accordance with law. STATUTORY PROVISION ON ENTERTAINABLY OF APPEAL UNDER SECTION 7(7) OF PAYMENT OF GRATUITY ACT.:

12. Before adverting to the contention, it is necessary to have a recap of Sub-Section (7) of Section 7 of Payment of Gratuity Act 1972, which deals with entertainability of an appeal, upon deposit or remission of pre-deposit and time line for filing an appeal against the orders of Controlling Authority, as under:- “7. Determination of amount of gratuity.- (1) To (3) …. Not relevant. (4)(a) If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with authority such amount as he admits to be payable by him as gratuity. the controlling (b) Where there is a dispute with regard to any matter or matters specified in clause (a), the employer or employee or any other person raising the dispute may make an application controlling authority for deciding the dispute. (c) The controlling authority shall, after due inquiry and after giving the parties the dispute a reasonable opportunity of being heard, determine - 12 - ( 2025:HHC:22046 ) inquiry in dispute if, as a result of such the matter or matters any amount is found to be payable to the employee, the controlling authority shall direct the employer to pay such amount or, as the case may be, such amount as reduced by the amount already deposited by the employer. The controlling authority shall pay including (d) the amount deposited, excess amount, the employer, thereto. if any, deposited by the person entitled As soon as may be after a deposit (e) is made under clause (a), the controlling authority shall pay the amount of the deposit- to the applicant where he is (i) the employee; or (ii) where the applicant is not the employee, to the [nominee or, as the case may be, the guardian of such nominee or] heir of the employee if the controlling authority is satisfied that there is no dispute as to the right of the applicant to receive the amount of gratuity. Any person aggrieved by an order (7) 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 sufficient cause appeal within the said period of sixty days, extend the said period by a further period of sixty days: appellant was prevented from preferring [Provided that no appeal by an employer shall be admitted unless further - 13 - ( 2025:HHC:22046 ) at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under sub-section (4), or deposits with the appellate authority such amount]” (8)….not relevant…

13. CONTENTIONS OF THE APPELLANTS-STATE AUTHORITIES: Now, this Court proceeds to analyze the contentions of the State Authorities, the appellants hereunder: 13(i). First contention of Learned State Counsel is that Learned Single Judge had dismissed the writ petition and upheld the Appellate Order dated

19.11.2018 [Annexure P-2], by ignoring the facts. The above contention of Learned State Counsel-appellants is misconceived, when, Learned Single Judge after adverting to factual matrix and statutory provisions of sub-section (7) of Section 7 and the second proviso thereof, had upheld the Appellate order dated 19.11.2018 [Annexure P-2], in accordance with law. 13(ii). Second contention of Learned State Counsel is that the legal position has been ignored, resulting - 14 - ( 2025:HHC:22046 ) in an erroneous judgment. The above contention of Learned State Counsel is misconceived, for the reason, that a perusal of Impugned Judgment dated 28.11.2023, indicates that the Learned Single Judge as well the Appellate Authority has dismissed plea of the appellants after taking into account statutory provisions of Section 7 of Payment of Gratuity Act. MANDATE ON REQUIREMENT OF PRE-DEPOSIT BEFORE ENTERTAINING APPEAL: 13(ii-a). The question regarding requirement of pre-deposit, before filing the statutory appeal, has been outlined to be mandatory {in the light of legislative intent of an enactment}, under various statutes before the Honble Supreme Court. Bearing in mind, the legislative intent and the object of the Payment of Gratuity Act, and the mandate of law, on “pre-deposit” before or at the time of filing an filing an appeal, has been spelt out in the following terms:- 13(ii-b). The Constitutional Bench of the Hon’ble - 15 - ( 2025:HHC:22046 ) Supreme Court in case of The Anant Mills Co. Ltd. Versus State of Gujarat and Others, (1975) 2 SCC 175, while dealing with the right of appeal and the condition of pre-deposit has been held as mandatory, as under :- file an appeal. We “40. ……The right of appeal is the creature of a statute. Without a statutory provision creating such a right the aggrieved is not entitled to fail to understand as to why the legislature while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special reasons there legal or constitutional appears to be no impediment imposition of such conditions. It is permissible, for example. to prescribe a condition in criminal cases that unless a convicted person is released on bail, he must surrender to custody before his appeal against the sentence of imprisonment would be entertained. Likewise, it is permissible to enact a law that no appeal shall lie against an order relating to an assessment of tax unless the tax had been paid. Such a provision was on the statute book- in Section 30 of the Income-tax Act, 1922. The proviso to that section provided that " . . . .no appeal shall lie against an order (1) of Section 46 under sub-section tax had been paid". Such condition merely regulate the exercise of the right of appeal so that the same is not abused by a recalcitrant party and there difficulty the order the enforcement of appealed against in case the appeal is ultimately dismissed. It is open to the legislature to impose an accompanying liability upon a party upon whom a legal right is conferred or to prescribe conditions for the exercise of the right. Any requirement discharge of that liability or the fulfillment of that condition in case the party concerned unless is no for the Indian - 16 - ( 2025:HHC:22046 ) it. A is a seeks to avail of the said right valid piece of legislation, and we can discern no contravention of Article 14 disability or disadvantage arising out of a party's own default or omission cannot be taken to be tantamount to the creation of the Constitution, especially when that disability or disadvantage operates upon all persons who make the default or omission.” to Article 14 two classes offensive 13(ii-c). While dealing with the requirement of pre-deposit under Second Proviso to Section 19 of Consumer Protection Act, which is pari-materia with second proviso of sub-section (7) of Section 7 of the Payment of Gratuity Act, the Hon’ble Supreme Court in Shreenath Corporation and others versus Consumer Education and Research Society and Others, (2014) 8 SCC 657, mandated that the pre-deposit avoids frivolous appeals and no appeal can be entertained without pre-deposit as expressly mandated in the statute:-

8. This Court in State of Haryana v. Maruti Udyog Ltd. and others, (2000) 7 SCC 348, while dealing with case of waiver of “pre-deposit” in an appeal under first proviso Haryana General Sales Tax Act held: to Section 39(5) of “7…….There cannot be any dispute that right of appeal is the creature of the statute and has to be exercised within the limits and according to - 17 - ( 2025:HHC:22046 ) if any. No right the appeal the procedure provided by law. It is filed for invoking the powers of a superior court to redress the error of the court below, of appeal can be conferred except by express words. An appeal, for its maintainability, must have a clear authority of law. Sub-section (5) of Section 39 of the Act vests a discretion in the appellate authority to entertain filed within sixty days and the amount of tax assessed along with penalty and interest, if any, recoverable from the persons has been paid. The aforesaid restriction is subject to the proviso conferring discretion upon the appellate authority to dispense with the deposit of the amount only on proof of the fact that the appellant was unable to pay the amount. Before deciding the appellate authority affords an opportunity to the party concerned to either pay the amount or make out a case for the stay sub-section Act. Once the conditions specified under sub-section (5) of Section 39 are complied with, born for being disposed of on merits after hearing both the sides.” (5) of Section 39 of the terms of proviso the appeal, the appeal

9. The second proviso to Section 19 in terms of of the Act mandates pre-deposit for consideration of an appeal before the National Commission. It requires 50% of the amount an order of the State Commission or 35,000/- whichever entertainment of an appeal by the National Commission. Unless the appellant has deposited the pre-deposit amount, the appeal cannot be entertained by the National Commission. A pre-deposit condition to deposit 50% of the amount in terms of the order of the State Commission or Rs 35,000/- being - 18 - ( 2025:HHC:22046 ) condition precedent for entertaining appeal, it has no nexus with the order of stay, as such an order may or may not be passed by the National Commission. Condition of pre-deposit is there to avoid frivolous appeals. 13(ii-d). While dealing with the requirement of pre-deposit under proviso to Section 43 (5) of Real Estate [Regulation and Development] Act 2016 [RERA], the requirement of pre-deposit has been held to be mandatory and based on intelligible differentia, so as to protect and safeguard the rights, duties and obligations and to protect the interest of consumers, in Newtech Promoters and Developers Private Limited versus State of Uttar Pradesh & Others, (2021) 18 SCC 1, in the following terms :- “126. It may further be noticed that under the present real estate sector which regulated under is now being provisions of the Act 2016, the complaint for refund of the amount of payment which the allottee/consumer has deposited the promoter and at a stage, when the promoter is unable to hand over possession the conditions of the agreement between the parties, are being the instance of the consumer/allotee for refund of the amount demanding deposited by them and after the scrutiny facts being made based on contemporaneous documentary evidence on record made available by the respective instituted at in breach of - 19 - ( 2025:HHC:22046 ) intended least must be parties, the legislature in its wisdom to ensure money which has been computed by the authority at safeguarded if the promoter intends to prefer an appeal before the tribunal and in case, the appeal fails at a later stage, it becomes difficult for the consumer /allottee to get the amount recovered which has been determined by authority and to avoid the consumer /allottee to go from pillar to post for recovery of the amount that has been determined by fact, belongs to the allottee at a later stage could be saved which come forward against him. from all the miseries the authority

127. At time, it will avoid unscrupulous and uncalled for litigation at the appellate stage and restrict the promoter some manifest material irregularity being committed or his defence has not been properly appreciated at the first stage, would prefer an appeal for reappraisal the evidence on record provided substantive compliance of the condition of pre-deposit is made over, the rights of the parties inter se could easily for adjudication at be saved appellate stage.

129. The intention of the legislature appears rights to ensure to be of the decree holder (the successful party) is to be protected and only genuine bona fide appeals are to be entertained. While interpretating Section 18 of SARFAESI Act, Narayan Chandra Ghosh Vs. UCO Bank and Others, observed as under: this Court “8. It is well settled that when a statute confers a right of appeal, granting legislature can impose conditions for the exercise of such right, so long as the conditions are not so right, - 20 - ( 2025:HHC:22046 ) In that view of for not in Section 18 of reason whatsoever (1) of Section 18 of onerous as to amount to unreasonable restrictions, rendering the right almost illusory. Bearing in mind the object of the Act, the conditions hedged in the said proviso cannot be said to be onerous. Thus, we hold that the requirement of pre-deposit under sub section the Act is mandatory and there is giving full effect to the provisions contained Act. no court, much Tribunal, a creature of itself, can refuse to give full effect to the provisions of have no hesitation in holding that deposit under the second proviso to Section 18(1) of the Act being a condition precedent for preferring an appeal under the said section, the Appellate Tribunal had erred in law in entertaining the appeal without directing the appellant to comply with the said mandatory requirement.” the statute. We less the Appellate the Act the matter, for consideration

130. In Har Devi Asnani Vs. State of Rajasthan the validity of proviso and Others , to Section 65(1) of the Rajasthan Stamp Act, 1998 came up in terms of which no revision application could be entertained unless it was accompanied by a satisfactory proof of payment of 50 per cent of the recoverable amount. Relying earlier decisions of this Court including in Government of Andhra Pradesh and Others Vs. P. Laxmi Devi, the challenge was repelled and the view expressed in P. Laxmi Devi was repeated in Har Devi Ashani wherein this Court held as under: “In our opinion this situation it is always open to a party to file a writ challenging petition - 21 - ( 2025:HHC:22046 ) is always open exorbitant demand made by registering officer under the proviso to Section 47-A alleging determination made is arbitrary and/ or based on extraneous considerations, and in that case it to the High Court, if it is satisfied that the allegation is correct, to set aside such exorbitant demand under the proviso to Section 47-A of the Stamp Act by declaring the demand arbitrary. It arbitrariness violates Article 14 of the Constitution vide Maneka Gandhi v. Union of India. Hence, the party is not remediless in this situation.” is well settled ingredient justice,

135. It is indeed the right of appeal which is a creature of the statute, without a statutory provision, creating such a right the person aggrieved is not entitled to file the appeal. It is neither an absolute right nor an the principles of of natural which must be followed in all judicial and quasi is always be circumscribed with conditions of grant. At the given time, it is open for the legislature in its wisdom to enact a law that no appeal shall lie or it may lie on fulfilment of precondition, if any, against the order passed by the Authority question.” litigations and judicial 13(ii-e). While dealing with condition of pre-deposit under second proviso to sub-section (7) of Section 7 of Payment of Gratuity Act, the Allahabad High Court in Prathama U.P. Gramin Bank Versus Union of India and Others, 2019 SCC OnLine Allahabad 3833, held as under :- - 22 - ( 2025:HHC:22046 ) “20. The provisions with regard to making inserted under sub-section of a pre-deposit as a condition precedent for filing of an appeal having of Section 7 of the P.G. Act, 1972 by way of a proviso, it would be apposite to refer to the manner in which a proviso is to be construed. (7)

34. It may, therefore, be inferred that in terms of the second proviso introduced by the Act 25 of 1984 the right to appeal granted under sub-section (7) of Section 7 of the P.G. Act, 1972, has been qualified with the requirement of pre-deposit as a condition precedent, the said condition having been introduced compulsive in form the appeal cannot be held absence of fulfilment of the condition of pre-deposit. to be competent language which in a

35. It may also be seen that the right to inheres in no one and such appeal right being the creature of a statute, the same can be qualified or be made subject to fulfilment of conditions prescribed therefor.

36. The object of the legislation is very clear and the second proviso to sub- section (7) of Section 7 of the P.G. Act, 1972 has been introduced with a view to make pre-deposit of the gratuity amount determined by the Controlling Authority preferring an appeal and a duty has been cast on the Appellate Authority not to admit an appeal unless is accompanied either by a certificate or by a deposit, as the case may be. pre-requisite a

37. The Appellate Authority having been given no discretion condition of pre-deposit there is no scope for admitting the appeal unless at the time of preferring the appeal the appellant produces a certificate of the Controlling to waive - 23 - ( 2025:HHC:22046 ) Authority to the effect that the amount in question has been deposited with the authority or deposits such amount with the Appellate Authority. 13(ii-f). The Hon’ble Supreme Court in The Director, Employees State Insurance Health Care & Others Versus Maruti Suzuki India Limited & Others, 2022 Live Law (SC) 453, has held as under :- “8. We find that the view taken by the statute has High Court, while relying on its earlier judgment in Ranjit Singh, that appellate authority would have the implied power to grant interim relief is not tenable. Once condition of pre-deposit before filing an appeal, such condition is required to be satisfied. The judgments of the High Court in Ranjit Singh and Punjab State Power Corporation Limited observing that the appellate authority has the implied power to waive the amount determined cannot be said to be in accordance with law. Hence, the condition of pre-deposit, said to be not mandatory and giving appellate authority a discretion to waive of the amount determined, is clearly not sustainable and is thus set aside. Consequently, allowed.” the present appeal 13(ii-g). While adjudicating issue regarding pre-deposit under the Micro, Small and Medium Enterprises Development Act, 2006 [MSMED Act], the Hon’ble Supreme Court held requirement - 24 - ( 2025:HHC:22046 ) of “pre-deposit” requirement to be mandatory in India Glycols Limited and Another Versus Micro and Small Enterprises Facilitation Council, Medchal Malkajgiri and Others, 2023 SCC OnLine SC 1852 as under:-

9. Section 19 provides recourse against an award of the Facilitation Council in the following terms: “19. Application for setting aside decree, award or order— No application for setting aside any decree, award or other order made either by the Council itself or by any institution or centre providing alternate dispute resolution services to which a reference is made by the Council, shall be entertained by any court unless the appellant (not being a supplier) has deposited with cent. of the amount in terms of the decree, award or, as the case may be, the other order in the manner directed by such court: it seventy-five per Provided that pending disposal of the application to set aside the decree, award or order, the court shall order that such percentage of deposited shall be paid to the supplier, it considers reasonable under the circumstances of the case, subject to such conditions as it deems necessary to impose.” the amount

10. In terms of Section 19, an application for setting aside an award of the Council Facilitation entertained by any court unless the appellant has deposited seventy-five per cent of the amount cannot in terms - 25 - ( 2025:HHC:22046 ) that Act. Hence, remedy is provided under Section 34 the Facilitation Council. is a super added of the award. In view of the provisions of Section 18(4), where the Facilitation Council proceeds to arbitrate upon a dispute, the provisions of the Act of 1996 are to apply to the dispute as if it is in pursuance of an arbitration agreement under sub-section (1) of Section 7 of of the Act of 1996 would govern an However, condition which Section 19 of MSMED Act, 2006 the effect that an application for setting aside an award can be entertained only upon the appellant depositing with the Council seventy- five per cent of the amount in terms of the award. Section 19 has been introduced as a measure of security for enterprises for whom a special provision is made in the MSMED Act by Parliament. In view of the provisions of Section 18(4), the appellant had a remedy under Section 34 of the Act of 1996 to challenge the award which it failed to pursue. imposed 13(ii-h). Perusal of second proviso to sub-section (7) of Section 7 of Payment of Gratuity Act and specifically provides that no appeal shall be admitted, unless at the time of preferring the appeal, the appellant either produces a certificate of Controlling Authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity, required to be deposited under sub- section 4 or deposits such amount with Appellate - 26 - ( 2025:HHC:22046 ) Authority. A bare reference to second proviso below sub-section (7) of Section 7 of Payment of Gratuity Act, expressly places a mandatory embargo, not admitting an appeal, unless aforesaid appeal was accompanied by the certificate amount of gratuity required-stands deposited with Controlling Authority or said amount of gratuity being deposited with Appellate Authority. Meaning thereby, that the second proviso to sub-section (7) of Section 7 of the Payment of Gratuity Act expressly provides for pre-deposit before “admitting an appeal” by an employer. FAILURE TO REMIT AMOUNT OR PRODUCE CERTIFICATE OF DEPOSIT OF GRATUITY AS PRE-DEPOSIT VITIATES ENTERTAINABILIY/ ADMISSION OF APPEAL: 13(iii). In instant case, the Controlling Authority had passed an order dated 10.06.2017 [Annexure P-1, in writ file], awarding gratuity of Rs.54,517/- along with simple interest @ 9% per annum from the date the said amount became payable to the Respondent-Employee [Dagi Ram]. After passing of the order dated 10.06.2017, the Appellants-State Authorities filed the appeal before - 27 - ( 2025:HHC:22046 ) the Appellate Authority on 05.03.2018. It is not in dispute that though the aforesaid appeal was filed on 05.03.2018 without producing a certificate the Controlling Authority the required amount of gratuity stands deposited or without depositing the awarded gratuity amount before the Appellate Authority at the time of preferring the appeal on 05.03.2018. Even a perusal of order dated 19.11.2018 [Annexure P-2] passed by Appellate Authority [under Payment of Gratuity Act] clearly indicates the Appellants-State Authorities did not deposit the gratuity amount either before Controlling Authority or before Appellate Authority at the time of preferring the appeal. Requirement of depositing the awarded gratuity amount was a pre-condition for preferring an appeal and failure to deposit or remit said amount led to dismissal of appeal by the Appellate Authority on 19.11.2018 [Annexure P-2]. Perusal of appellate order dated

19.11.2018 reveals that the Appellate Authority had sent communication(s) on 23.03.2018 and on

19.06.2018, directing the State Authorities-Employer - 28 - ( 2025:HHC:22046 ) to deposit the gratuity amount as determined by the Controlling Authority, but despite this, no such amount was deposited. For want of pre-deposit of the determined and payable gratuity amount, the Appellate Authority dismissed the appeal on

19.11.2018 [Annexure P-2], in accordance with law. REASONING FOR UPHOLDING APPELLATE ORDER AND WRIT JUDGEMENT IN PRESENT LATTERS PATENT APPEAL: In the above backdrop, the order dated

19.11.2018 [Annexure P-2], passed by the Appellate Authority, dismissing the appeal, filed under sub- section (7) of Section 7 of Payment of Gratuity Act, for want of pre-deposit amount, at the time of preferring the appeal is valid, for the reason, firstly, the right of appeal is a creation of statute; and secondly, once the right of an appeal a creation of a Statute and the Legislature has imposed a condition that before exercising right of appeal [in view of the object and legislative intent of the Payment of Gratuity Act and further in order to protect and secure the benefit of Gratuity, - 29 - ( 2025:HHC:22046 ) which stands determined and is payable to an employee for service rendered with an employer] requirement of pre-deposit of gratuity which was determined by the Controlling Authority and proof of deposit is mandatory or the determined amount is to be mandatorily remitted with the appellate authority. Mandatory requirement of “pre-condition” cannot be permitted to be negated or whittled down or eased out in any manner ; and thirdly, the Appellants-State Authorities do not have any to seek the appeal be admitted/ entertained without pre-deposit, dehors the mandate of second proviso to sub-section (7) of Section 7 of the Payment of Gratuity Act; and fourthly, it is open to the Legislature to impose an accompanying liability, upon a party so as to enable an appellant to exercise right of appeal; and fifthly, even the requirement of pre-deposit under second proviso to sub-section (7) of Section 7 of Payment of Gratuity Act casts an obligation on Appellate Authority, not to admit an appeal, unless at the time of preferring such appeal, a certificate of pre-deposit issued by - 30 - ( 2025:HHC:22046 ) Controlling Authority is produced or determined -payable amount of gratuity is deposited at the time of filing of appeal, so as to enable such appeal as entertainable by the Appellate Authority. In instant case, the Appellants-State Authorities have failed to either produce a certificate or to deposit the amount of gratuity at the time of filing of appeal. Since, the appellants failed comply with twin alternative modes of pre-deposit under second proviso to sub-section (7) of Section 7 of Payment of Gratuity Act then, the order dated 19.11.2018 [Annexure P-2] passed by the Appellate Authority dismissing the appeal for want of pre-deposit, does not suffers from any infirmity; and sixthly, once a Statute requires an act to be in a particular mode and manner, then, non-performance or failure to perform an act in manner prescribed, not only defeat the intent of the Statute i.e. Payment of Gratuity Act but vitiates the action taken in non-compliance thereof ; and seventhly, once the State Authorities have failed to perform or discharge or comply with the - 31 - ( 2025:HHC:22046 ) statutory obligation of pre-deposit, at the time of filing of appeal, then, the default or omission or inaction of State Authorities-appellants cannot be made the basis to give leverage to the Appellants- State Authorities to admit its appeal/entertain and hear such an appeal, dehors the mandate of second proviso to sub-section (7) of Section 7 of Payment of Gratuity Act; and eighthly, the absence of any express provision in Payment of Gratuity Act, conferring discretion on Appellate Authority to waive off or to condone or to ease out the requirement of pre-deposit [in whole or in part] therefore, the requirement of pre-deposit under second proviso to sub-section (7) of Section 7 of the Payment of Gratuity Act being mandatory cannot be diluted; and ninthly, the order passed by appellate authority in dismissing the appeal, being without any pre-deposit, is legal and valid, when, the Statute in question did not confer any discretion on appellate authority either to waive off or condone or ease out the requirement of pre-deposit and when, it is not the case of the - 32 - ( 2025:HHC:22046 ) State Authorities-Appellants condition of pre-deposit was so onerous which amounted to restricting the right of appeal ; and tenthly, the plea-contention of the State Authorities seeking the appeal to be admitted or entertained without pre- deposit shall certainly defeat the intent/object of pre-deposit of gratuity which stood determined by Controlling Authority; and eleventhly, the orders passed by the appellate authority dismissing the appeal for want of pre-deposit is in accordance with law, for the reason, that the State Authorities cannot be conferred with an unfettered right of appeal dehors the express mandatory requirement of pre-deposit under second proviso to sub-section (7) of Section 7 of the Payment of Gratuity Act. The intent and object of pre-deposit under second proviso to sub-section (7) of Section 7 of the Payment of Gratuity Act is to restrict and curtail unscrupulous and uncalled litigation, as this case. Perusal of the order passed by the appellate authority on 19.11.2018 [Annexure P-2], reveals that the Controlling Authority passed an - 33 - ( 2025:HHC:22046 ) order on 10.06.2017 [Annexure P-1] and aforesaid order was dispatched the State Authorities on 21.07.2017 but the State Authorities slept over its rights/remedy and filed the appeal before the Appellate Authority only on 05.03.2018 and that too without the mandatory pre-deposit, as required under the Statute. Even though, it was not statutorily required, yet, the Appellate Authority had sent communications on 23.03.2018 and on 19.06.2018 [referred to in the Appellate Order] directing State Authorities to deposit the amount of gratuity, so determined by Controlling Authority but even despite these communications, the State authorities failed to deposit or remit the amount of pre-deposit before the appellate authority. These facts add to the default or inaction or omission by the State Authorities at the time of filing the appeal and such inaction, default or omission or negligence of the State Authorities cannot be permitted to be invoked so as to seek leverage or waiver or condonation or exemption or easing out of the condition of pre-deposit, as in the - 34 - ( 2025:HHC:22046 ) instant case; and twelfthly, the condition of pre-deposit in second proviso to sub-section (7) of Section 7 of the Payment of Gratuity Act, is to secure the right of successful party i.e. the Respondent-Employee and such a right needs to be protected, so that the accruable right is not permitted to be taken away, infringed or deluded by the employer due to its default or omission or negligence in not depositing the amount of gratuity, in terms of pre-deposit under the second proviso to sub-section (7) of Section 7 of the Payment of Gratuity Act; and lastly, the mandate of law (supra), upholds the statutory requirement “pre-deposit before admitting or entertaining an appeal”, by an aggrieved party-employer, with the legislative intent that the right of successful party {Respondent-Employee, Dagi Ram} regarding the claim for gratuity was safeguarded and such right was not delayed or denied merely due to the litigations. In these circumstances, the order of appellate authority dated 19.11.2019 [Annexure P-2] was validly upheld by Learned Single Judge on - 35 - ( 2025:HHC:22046 )

28.11.2023, in accordance with law. 13(iv). Third contention of Learned State Counsel is that the pleadings and documents have been ignored/misread and the Impugned Judgment dated

28.11.2023 is erroneous. The above plea of Learned State Counsel is devoid of any merit, for the reason, that the Learned Single Judge had discussed the pleadings and factual matrix including statutory provisions as well as the factual matrix and the legal position Impugned Judgment passed by Learned Single Judge does not warrant any interference. 13(v). The Fourth Contention of Learned State Counsel is that the judgment in case of Lashkari Ram [2008 (1) Shimla Law Cases 245], [Annexure P-3], has not been considered by Learned Single Judge. The reliance placed by appellants on the judgement in case of Lashkari Ram is misplaced, firstly, the facts therein related to a situation, where an employee had served in two different capacities - 36 - ( 2025:HHC:22046 ) i.e. as daily wager for 10 years and thereafter on a post on regular basis for more than 7 years and therefore, the gratuity for daily wage service was determinable under the Payment of Gratuity Act and for regular service, gratuity was to be determined under CCS (Pension) Rules; and secondly, in instant matter, Respondent {Dagi Ram} had rendered daily wager from 09.01.1993 till

31.03.2006 and then on regular basis for 7 months and this period does not qualifies gratuity under the CCS [Pension] Rules then, the judgement in case of Lashkari Ram [supra], is neither attracted nor applicable. Even grant of work-charge status on 15.3.2008 w.e.f 1.1.2003 was not against a post but was mere conferment of better status, with higher pay only, therefore, order passed by Controlling Authority determining gratuity for entire service on basis of wages or the emoluments last drawn, is in accordance law. However, the appellate authority dismissed appeal due to its “non-entertainability for want of pre-deposit and being time barred” and the order - 37 - ( 2025:HHC:22046 ) dated 19.11.2018 passed by the Appellate Authority, was validly upheld, by Learned Single Judge also. APPEAL NOT ENTERTAINABLE BEYOND 120 DAYS : REJECTION VALID.

14. The instant appeal needs to be tested from another angle also. As per sub-section (7) of Section 7 of Payment of Gratuity Act and the “first proviso” thereto, the appeal against the order passed by the Controlling Authority was to be filed within 60 days. Such period of 60 days was extendable by a further period of 60 days subject to the satisfaction of the Appellate Authority on pointing out sufficient cause, which prevented him from filing the appeal within first 60 days. An appeal was not entertainable beyond a maximum period of 120 days. 14(i). Before adverting to the facts in instant matter, it is necessary to refer to the statutory provisions of the proviso to sub-section (7) of Section 7 of the Payment of Gratuity Act, which prescribes the time-line filing of an appeal against the order of the Controlling Authority have - 38 - ( 2025:HHC:22046 ) already been reproduced in Para 12 of this judgement. 14(ii). In backdrop of statutory provisions, the period of filing of an appeal against the order of the Controlling Authority was 60 days from the date of receipt of the order. This period of 60 days was extendable for further 60 days, if the appellate authority is satisfied that sufficient cause prevented him from preferring the appeal within the initial period of 60 days. Admittedly, the first proviso to Section 7 (7) of the Payment of Gratuity Act does not provide for condoning the delay beyond 120 days. MANDATE OF LAW-NON ENTERTAINABILITY OF APPEAL BEYOND 120 DAYS 14(iii). With reference to pari-materia provisions in other statutes, the Honble Supreme Court has held the appeal beyond 120 days to be time-barred warranting its dismissal, in following terms:- 14(iii-a). On similar issue as to whether appeal could be entertained beyond the maximum period of 120 days became the subject matter of controversy with reference to pari materia - 39 - ( 2025:HHC:22046 ) Clause under Section 125 of Electricity Act, 2003 whereby the expression “further period of 60 days” came up for discussion before the Hon’ble Supreme Court in Chhattisgarh State Electricity Board Versus Central Electricity Regulatory Commission and others, (2010) 5 SCC 23, that an appeal filed beyond 120 days was time barred upheld, in the following terms: “25. Section 125 lays down that any person Court limitation file an appeal the Tribunal. Proviso filed within a aggrieved by any decision or order of the Tribunal can this Court within 60 days from the date of communication of the decision or order of Section 125 empowers entertain an appeal further period of 60 days if it is satisfied that there was sufficient cause for not filing appeal within initial period of 60 days. This shows that the period prescribed appeals under Sections 111(2) and 125 the Limitation period prescribed under Act for filing suits etc. The use of the expression `within a of not exceeding 60 days’ in Proviso it clear that to Section 125 makes the outer limit for filing an appeal is 120 days. There is no provision in the Act under which this Court can entertain an appeal filed against the decision or order of the Tribunal after more than 120 days. substantially different further period filing 14(iii-b). Likewise, the Hon’ble Supreme Court in Bengal Chemist and Druggists Association - 40 - ( 2025:HHC:22046 ) Versus Kalyan Choudhary, (2018) 3 SCC 41, has mandated that the expression within a further period not exceeding 45 days implies that appellate authority had no power to condone the delay beyond the period of 45 days as in Section 421 (3) of the Companies Act, which is pari-materia to sub-section (7) of Section 7 of Payment of Gratuity Act, in the following terms: 4) A cursory reading of Section 421 (3) provided it clear the proviso further period not exceeding 45 provides a period of limitation different Limitation Act, and also provides a days only if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. Section 433 obviously cannot the appellant because the provisions of the Limitation Act only apply “as far as may be”. In a case like the present, where there is a special provision contained in Section 421(3) proviso, Section 5 of the Limitation Act obviously cannot apply. 5) Another very important aspect of the is provided only case is that 45 days is the period of limitation, and a further period not exceeding 45 days if sufficient cause is made out for filing the appeal within the extended period. According to us, this is a peremptory otherwise be provision, which will rendered completely were to accept the argument of learned counsel for the appellant. If we were to accept such argument, it would mean if we ineffective, - 41 - ( 2025:HHC:22046 ) further that notwithstanding period of 45 days had elapsed, Appellate Tribunal msay, so warrant, condone the delay. This would be to render otiose the second limit of 45 days, which, as has been pointed out by us above, is peremptory in nature. if the In backdrop of legal position and the facts of instant matter, Controlling Authority passed an order dated 10.06.2017 [Annexure P-1] and copy of this order was dispatched to the State Authorities on 21.07.2017, but the appellants filed the appeal before Appellate Authority on 05.03.2018. Perusal of Appellate Order dated 19.11.2018 [Annexure P-2] indicates that appeal was after a delay of 227 days. Since the appellants were bound to file the appeal within 60 days from the date of receipt of order of Controlling Authority. This period of 60 days was extendable on sufficient cause, being shown by further 60 days by the Appellant(s)-State Authorities and therefore, the appeal could not be filed beyond maximum 120 days from receipt of order; but in the instant case, the appeal was filed after a delay of 227 days. In these circumstances, the - 42 - ( 2025:HHC:22046 ) order dated 19.11.2018 [Annexure P-2] passed by the appellate authority dismissing the appeal as time-barred is in accordance with law ; and this order was validly upheld by Learned Writ Court. ABSENCE OF EXPRESS POWER IN PAYMENT OF GRATUTY ACT TO CONDONE DELAY BEYOND 120 DAYS : DEBARS CONDONATION: 14(iv). Moreover, once the Payment of Gratuity Act did not provide for condoning delay beyond maximum permissible period of 120 days then, the appeal filed after 227 days in instant matter, was rightly held as time barred by the appellate authority. ABSENCE OF SUFFICIENT CAUSE IN NOT FILING APPEAL WITHIN 60 DAYS REFRAINS ENLARGEMENT FOR FURTHER 60 DAYS: 14(v). Besides this, even on facts, the appeal was to be filed within 60 days from receipt of order, which on sufficient cause was extendable by another 60 days under the first proviso to sub-section (7) of Section 7. The appeal does not reveal “any sufficient cause” which prevented the appellants-State Authorities from the filing appeal within the initial time frame of 60 days, so as - 43 - ( 2025:HHC:22046 ) to enlarge the time by further period of 60 days. Even the appeal was filed much beyond maximum 120 days and therefore, the appeal filed after 227 days, being time barred, was dismissed by Appellate Authority on 19.11.2018 [Annexure P-2 in writ file]; and this order was rightly upheld by Learned Single Judge on 28.11.2023 in accordance with law.

15. Fifth contention of Learned State Counsel is that appellants have deposited the amount of gratuity in terms of the order dated 10.06.2017 [Annexure P-1], before the Controlling Authority on

13.11.2024 and also deposited the interest amount with said authority on 27.11.2024 [Annexure A-4 & A-5], therefore, the appeal may be heard after quashing the Impugned Order(s). The above contention of Learned State Counsel is devoid of any merit, for the reason that finality has to be attached to quasi-judicial proceedings. The appellants-State Authorities were legally bound to deposit the certificate of determined amount at the time of filing of appeal - 44 - ( 2025:HHC:22046 ) on 5.3.2018 which was not done till the dismissal of appeal on 19.11.2018 [Annexure P-2]. Even before the Writ Court [CWP No. 4449 of 2019, the State Authorities did not care to remit/deposit the “amount of pre-deposit” since the date of filing of writ petition on 13.12.2019 till its decision on 28.11.2023. Inaction, slackness, lethargy and negligence of the State Authorities disentitles and negates the plea for accepting the pre-deposit, at this stage, in LPA. Further, the plea of appellants in accepting the pre-deposit in LPA in November 2024 [Annexure A-4 & A-5], shall result in rendering the express mandate of second proviso to sub- section (7) of Section 7 of the Payment of Gratuity Act as redundant/otiose. The express requirement of pre-deposit is mandatory for an appeal be admitted or entertained. For want of pre-deposit coupled with the fact that no express provision existed permitting waiving off or condoning or relaxing or easing out the amounts of pre-deposit [in whole or in part], and therefore the order dated 19.11.2018 [Annexure P-2] passed by the - 45 - ( 2025:HHC:22046 ) Appellate Authority dismissing the appeal “as not entertainable’ does not suffer from any perversity or illegality but the same is in accordance with law, which was validly upheld by the Learned Single Judge in its judgement dated 28.11.2023. ANSWER TO QUESTION FORMULATED:

16. In reference to the question formulated i.e. whether the Joint Labour Commissioner-cum- Appellate Authority was justified in dismissing the appeal filed under Section 7 of Payment of Gratuity Act, for non-compliance of requirement of pre-deposit at the time of admitting-entertaining an appeal under second proviso to sub-section (7) of Section 7 of Payment of Gratuity Act” is in the negative, for the reason, that the appeal is a creation of a Statute. The legislature keeping the object and intent of the legislative policy in question, has every right to prescribe and give fettered right of appeal or unfettered right of appeal to a litigant. Legislature is competent to impose accompanying liability upon a party on whom the right to appeal is conferred. Disability or default or inaction or - 46 - ( 2025:HHC:22046 ) omission or negligence of a party, appeal cannot be permitted to be raised as a ground to whittle down, condone or ease out the express requirement of pre-deposit at the time of filing of an appeal. Second Proviso to sub-section (7) of Section 7 of Payment of Gratuity Act expressly prohibits that no appeal shall be admitted, unless at the time of preferring the appeal, the pre-deposit of the amount of gratuity is made or shown to have been made. Once sub-section (7) of Section 7 of Payment of Gratuity Act, nowhere confers a discretion on the Appellate Authority to condone or waive off the requirement of pre-deposit under second proviso to sub-section (7) of Section 7 of the Payment of Gratuity Act, then permitting easing out requirement of pre-deposit shall defeat the intent and object of beneficial legislation, which cannot be permitted. Right of appeal with pre-deposit has a definite intent and object so that the right of appeal is not misused by an appellant and also to ensure that unscrupulous and uncalled litigation is not permitted to be continued and - 47 - ( 2025:HHC:22046 ) also that the right of a successful party-decree holder is adequately protected and safeguarded and is not delayed due to mere filing of an appeal, which an employer normally resorts to in such circumstances. Right of appeal cannot be permitted to be exercised endlesslessly will not only defeat the “principle of reasonableness” in action but also divest, deny or curtail the rights which had accrued under the order sought to be appealed. Requirement of pre-deposit, as discussed above, under various enactments adds the validity of the appellate order, declaring the appeal as “not entertainable for want of pre-deposit” so as to protect the rights of successful litigant and when, the condition of pre-deposit stands approved by the Hon’ble Supreme Court while dealing with pari-materia provisions under different enactments, in the cases of Anant Mills Co. Ltd., Shreenath Corporation, Prathama U.P. Gramin Bank and The Director, Employees State Insurance Health Care [supra]. Thus, in totality of the factual and legal matrix as discussed hereinabove, the Appellate - 48 - ( 2025:HHC:22046 ) Authority had validly dismissed the appeal by the Appellants-State Authorities for want of pre-deposit of determined gratuity-amount. The Learned Single Judge has validly dismissed the writ petition filed by the State authorities after taking into account the statutory provision of second proviso to sub-section (7) of Section 7 of the Payment of Gratuity Act, by upholding the order dated 19.11.2018 [Annexure P-2], passed by Appellate Authority, in accordance with law.

17. In view of the discussion, this Court is of the considered view, Impugned Judgment dated 28.11.2023 passed by Learned Single Judge, upholding the Order dated 19.11.2018 [Annexure P-2] passed by the Appellate Authority dismissing the appeal as “not entertainable” and being “time barred” is valid and is in accordance law. Accordingly, the Impugned Judgement does not suffer from any perversity, infirmity or illegality and the same is accordingly upheld. CONCLUSION AND DIRECTIONS:

18. In view of the above discussion and for - 49 - ( 2025:HHC:22046 ) the reasons stated hereinabove, the instant appeal is dismissed, in the following terms:- (i) Instant Appeal i.e. LPA No. 286 of 2025 is dismissed ; (ii) Impugned Judgment dated 28.11.2023 passed by Learned Single Judge in CWP No 4449 of 2019, as Engineer-in- Chief & Others versus Dagi Ram, is upheld ; (iii) Orders dated 29.11.2018 [Annexure P-2 in writ file], passed by Appellate Authority [under Payment of Gratuity Act] and Order dated 10.06.2017 [Annexure P-1, in writ file], passed by Controlling Authority regarding payable gratuity and interest are also upheld; (iv) Appellants-State Authorities, including Controlling Authority are also directed to release the deposited gratuity amount of Rs 54519/- and Rs 34514/-along-with admissible interest, to Respondent {Dagi Ram} in terms of this judgment within two months from today; (v). Parties to bear their respective costs. In aforesaid terms, the instant appeal and all pending miscellaneous application(s), any, shall also stand disposed of accordingly. (G.S. Sandhawalia) Chief Justice (Ranjan Sharma) Judge June 6, 2025 (Chiranjeev/tm)