Sabhajeet Yadav,J. –
Heard learned counsel for the parties.
2. By this petition, the petitioners have challenged the order dated 6.9.2005 passed by Additional District Judge, Jhansi in Misc. Appeal No.120 of 1999 Union of India Vs. Munna Lal and others, which has been dismissed by lower appellate court holding that the provisions of Section 5 of Limitation Act are not attracted in appeal u/s 17 of the Payment of Wages Act. The aforesaid appeal was preferred against the order dated 26.3.1993 passed by Prescribed Authority u/s 15 of Payment of Wages Act, whereby the claim set up Late Munna Lal has been accepted by the Prescribed Authority under Payment of Wages Act.
3. Learned counsel for the petitioners has submitted that against the order passed by the Prescribed Authority an appeal can be preferred u/s 17 of Payment of Wages Act, 1936 within 30 days of the date on which order or direction was made before the District court. But there is nothing to indicate from the provisions of Act that the provisions of Section 5 of Limitation Act are excluded by said Act. Therefore, by virtue of provisions of Section 29 of Limitation Act, unless the provisions of Section 5 of Limitation Act are expressly excluded by the provisions of Payment of Wages Act, the provisions of Section 5 shall apply in entertaining appeal u/s 17 of the Payment of Wages Act. In support of his submission learned counsel for the petitioners has placed strong reliance upon U.P. State Electricity Board, Lucknow and others Vs. District Judge, Gorakhpur and others 2003-I-LLJ 260 and Hafizuddin Vs. Additional District Judge, Allahabad 2006 (109) FLR 877, contrary to it learned counsel appearing for respondents has placed reliance upon another decision of this Court rendered in Hind Majdoor Sabha, U.P. Vs. State of U.P. 1998-LAWS (ALL)-12-63.
4. I have considered the submission of learned counsel for the petitioner and have gone through the aforesaid decisions cited by learned counsel for the parties. In U.P. State Electricity Board, Lucknow and others Vs. District Judge, Gorakhpur and others 2003-I-LLJ 260 in paras 14 and 15 of the decision this Court observed as under:-
"14. For still better appreciation of the controversy it is rendered essential to excerpt below Section 29 (2) of the old Act.
29. (1) ........
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
(a) the provisions contained in Section 4, Section 9 to 18 and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply.
15. Section 29 of the Old Act does not refer to Section 5 and it simply refers to Section 4, Sections 9 to 18 and Section 22. In view of the law laid down by the Apex Court in Mangu Ram's case (supra), there is no exclusion of Section 5 for application to the provisions of Payment of Wages Act, 1936. The Act prescribes the period of 30 days as limitation for the purposes of filing the appeal. In view of the law laid down by the Apex Court (supra) I am of the firm opinion that the Payment of Wages Act is not a complete code in itself so far as limitation is concerned and Section 5 of the Indian Limitation Act comes into play as envisaged in Section 29 (2) of the Act. From a combined reading of the relevant provisions of the Special Act i.e. Payment of Wages Act, it is indubitably clear that the provisions of limitation act are not excluded and therefore, the same shall be deemed to be supplementing the provisions of the Special Act i.e. Payment of Wages Act. I agree in concurrence with the law laid down by the Single Judge in Union of India V. Aftab Ahmad (supra) that Payment of Wages Act though it prescribes limitation for filing the appeal, is not a complete code in the matter of limitation."
5. Thus, in view of aforesaid legal position, in my opinion, the provisions of Section 5 of Limitation Act shall apply while preferring belated appeal u/s 17 of the Payment of Wages Act. Accordingly, the judgment and order dated 6.09.2005 passed by Additional District Judge, Jhansi in Misc. Appeal No.120 of 1999 Union of India Vs. Munna Lal and others cannot be sustained and the same is hereby quashed. The Misc Appeal/ Application is restored to the file of District Judge, Jhansi who shall look into the matter and pass appropriate order on merit on delay condonation application moved by the petitioner along with the appeal preferred by it u/s 17 of the Payment of Wages Act. In case delay in moving the said appeal is condoned, only then the court shall proceed to hear the appeal on merit.
6. With the aforesaid observation and direction, writ petition stands allowed to that extent.
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