Amitava Lala, J. - (1.) The Food Corporation of India and another challenged the order passed by the controlling Authority under the Payment of Gratuity Act and order under appeal therein by the Appellate Authority. The relevant observation of the controlling Authority under the Payment of Gratuity Act is as follows : "J. The O.P. has argued that as per circular No. 21 of 1984, the applicant (who join on deputation from the State Govt.) will be treated as direct recruit and that the F.C.I. has no liability for the past service of the applicant rendered in State Govt. whereas, the earned leave and sick leave standing at the credit of the applicant were transferred to the F.C.I. service which clearly shows that there was continuity of service from previous spell of service and the second spell of service with F.C.I. However, accordingly to Section 14 of Payment of Gratuity Act, the Act will have overriding effect over any other circulars etc. Moreover the circular have no statutory force and they cannot deprive the right provided by the stature. In this connection, I hereby rely on the following Judgments: (i) Executive instructions can't supplement/replace statutory rules: The State of Maharashtra v. Jagannath Achyut Karalikar (1989 1 LLJ 441 - SC DB : 1989 Supp (1) SECTION 393: AIR 1989 SC 1133) : [1989(2) SLR 31 (SC)]. (ii) Administrative instruction cannot override statutory rules: Ex- Capt. K. Balasubramanian v. State of Tamil Nadu & Others (1991 II LLJ 277 SC DB: (1991) & SEC 708: 1991 11 CLR 381) : [1992(3) SLR 112 (SC)]. (iii) Admn. Instructions can't over ride statutory law. The Government's executives instructions can not replace the law made by the legislature. According to the rules of interpretation, statutory law prevails over the administrative or executive instruction. It was held in Krishna Kumar and another v. Sr. Supdt of Police, Bulandshahar & Others (1998) Cr.LJ 3806 All DB : (1998) ALSC 4581: 1998 All LJ 1579: 1998 (3t,) ALL Ori C. 630). (iv) Court can't take cognizance of the Govt. circulars which are not Statutory: Andhra Sinters Ltd. v. PF Inspector (1994) 1 LLJ 11711 AP) . K. It was argued by the Op/Management that there is a writ petition pending in W.P. No. 10235 (W) of 1998 before the Hon'ble High Court of Calcutta relating to Sri Radhagobinda Chandra and the said case has not yet attained finality. I am of the opinion that the claim of the present applicant is a nothing to with that of Sri Radhagobinda Chandra, and the present applicant is not a party to the above writ petition, and also since it has not reached any finality, this Authority is not barred from adjudicating this present claim, unless there is a specific direction to that effect. L. The applicant has argued that vide Circular No. 39 of 1985 of the F.C.I., it has been clarified that deputationists absorbed in the Corporation can be allowed the benefit of past services rendered with the State Govt. for the purpose of Gratuity. M. There was provision in F.C.I. Staff Regulations, 1971, Death-cum Retirement Gratuity Regulations, 1967 at Explanation 4 of Regulation 4 that the service rendered in the State Govt. will be considered for the purpose of determining qualifying service in respect of Gratuity subject to the condition that the amount of gratuity which was received from the State Govt. is deposited with the F.C.I. But in this case, the employees tried to deposit the amount received from the State Govt. and some correspondence took place with regarding to how to get the amount deposited. But the F.C.I. did not evolve any procedure for depositing the gratuity amounts already received from the State Govt. but the FCI has waived off the condition of depositing the State Govt. gratuity by their letter dated 4th March, 1994. N. The applicant is not at fault for not depositing the amount with the F.C.I. and the FCI can deduct the amount of gratuity that has already been received from the State Govt. and has to pay only the balance gratuity to the applicant as per the entry made in their service books. The FCI could have calculated gratuity clubbing together both spells of service rendered in the State Govt. and could have deducted the amount of gratuity that has already been paid by the State Govt. from the total amount payable. But now even though there continuity of service, and there was no break in service and when the resignation was only a technical resignation, and even when the seniority of the applicant was protected in the FCI etc. both spells of service where treated differently, which is not correct and it is totally detrimental to the interest of the applicant. The applicants were sent on deputation on public interest and they were absorbed in the service of the FCI in the public interest, for which the applicant should not be made to suffer. O. The Controlling Authority strongly relies on the following judicial pronouncement of Hon'ble Supreme Court and various other High Courts. (i) Gratuity Act is special Act for the benefit of employee: Dholpur Kraya Vikraya Sahkari Samithi Lt. v. Controller u/P.G. Act, Bharatpur & Ors. (2000 1 LLJ 663 Raj.) Hon'ble Mr. J.C. Vermeer, Judge of Rajasthan High Court has held that The Payment of Gratuity Act is a special Act for the benefit of be wherein a machinery has been provided by the legislature to adjudicate and decide the cases arising between the employer and employee in regard to payment of gratuity. Even non-payment of gratuity had been made punishable under the Act. It was never the intention of the legislature to deprive the employee for the benefit falling within the ambit of Gratuity Act by referring the matter to any other forum when the forum under Gratuity Act was available to him. (ii) Gratuity Act is a welfare legislation like Bonus Act, Minimum Wages Act, E.P.F. Act, & ESl Act etc. prescribe minimum benefits to employees for achieving social/economic justice: Bakshis Singh v. Darshan Eng Works & Ors., (1994 1 LLJ 197 SC DB : (1994) 1 SCC 251) : [1993(5) SLR 742 (SC)1. The Payment of gratuity under the Act is thus obligatory being one of the minimum conditions of service. The non-compliance of the provisions of the Act is made an offence punishable with imprisonment of fine. It is settled law that the establishments which have no capacity to give their workmen the minimum conditions of service prescribed by the Statute have no right to exist (vide Bijya Cotton Mills Ltd. v. The State of Ajmer, 1995 1 LLJ 129 , M/s. Crown Aluminum v. Their Workmen, 1958 1 LLJ 1 , and U. Unichoyi & Ors. v. State of Kerala, 1961 1 LLJ 631) 'The present Act (Payment of Gratuity Act, 1972) is of the genre of Minimum Wages Act, Payment of Bonus Act, the Provident Fund Act, Employees State Insurance Act, and other like statutes. These statutes lay down the minimum relevant benefits which must be made available to the employees. We have solemnly resolved to constitute this country among others, into a socialist republic and to secure to all it is citizens, among others, into a socialist republic and to secure to all its citizens, which, of course, include workmen, social and economic justice. It cannot be disputed that the present Act is a welfare measure introduced in the interest of the general public to secure social and economic justice to workmen to assist them in their old age and to ensure them a decent standard of life on their retirement.' (iii) In another case between Rajendra Deva v. Addl. Labour Commissioner, reported in 1991 1 CLR 1216 , the Allahabad High Court has held that- An employee is entitled to get interest on the gratuity amount unless gratuity is paid within one month of its becoming due. The interest shall be calculated till the date of actual payment. (iv) In a decided case between Champaran Sugar Co. Ltd. v. Joint Labour Commissioner, reported in 1987 Lab. I.C. 47 the Patna High Court has held that Employees right to interest accrues from the failure to perform his statutory duty to tender pay and not from any formal demand therefore the liability to pay interest does not stem the a certificate of the Controlling Authority but from the performance of his duty by the employer. The proceedings are a procedural mode of recovery and not source of a substantive right to interest. (v) Beneficial interpretation in favour of weaker sections Article 38: State Bank of India & Ors. v. Amal Kumar Sen & Ors. (1988 1 LLN 827 Cal DB) : [1988(1) SLR 417 (Cal.)] 'In this set up (Management & Workers), therefore, the new juristic principle that is to be evolved to enable our forensic machinery to rise up to the challenge for social justice is that whenever the weaker or poorer section is petted in forensic combat against a stronger or the richer section, then if two interpretations are reasonable possible, whether for the facts or the laws involved, the interpretation in favour of the former is to be adopted so that social justice i.e. justice to the weaker or poorer section of the society is ensured. We have adverted to all these as in the case before us, the workers are pitted against their employer and are seeking intervention of the Court to prevent attempted wage cut by the later.' (vi) Liberal interpretation-in favour of weaker section, i.e. labour: Bharat Petroleum Corp. Ltd. v. P.O. & Ors. (1992 1 LLJ 818 Cal) in K.C.P. Employees Association v. Management of K.C.P. Pvt. Ltd. (1978 1 LLJ 332 SC ) it was held that in case of any doubt regarding interpretation, the interpretation has to be made in favour of the weaker section, namely the labour while relying on the decision of the Supreme Court above, it was held that in industrial law interpreted and applied in the perspective of Part IV of the Constitution the benefit of reasonable doubt on law and facts, if there be such doubt, must go to the weaker section labour. (vii) Constitution of provisions of welfare legislation Court should adopt beneficial to employees : Genesh Rajan Servai v. M/s. Benett. Coleman & Co. Ltd. & Ors. (1994 III LLJ 877 Bom) . (viii) In a decided case between Punjab & Sind Bank v. Ash K. Agarwal, 1999 (4) LLN 261 (Delhi DB) : [1999(5) SLR 185 (Delhi)] the respondent was an officer in Bank of India from 1983. In Sept. 1989 he went on deputation to appellant Bank. In 1993, he was absorbed in appellant Bank after he resigned from Bank of India. He resigned from appellant bank in Sept. 1995. He is denied gratuity and provident fund on the ground that he was fresh appointee and had not put in prescribed period of service. His writ petition was allowed by the Single Judge and hence this appeal. It was held by the Division Bench that respondent was extended all benefits of his previous service with Bank of India notwithstanding the appointment letter to him by the appellant bank. Record shows that appellant had taken conscious decision after deliberations and legal advice to grant benefit of continuity of service. As such conclusion of Learned Single Judge was right (Comment: This is also a similar case of absorption of a deputationist from one bank in to the services of another bank). P. All Circulars including D.C.R.G. of F.C.I. and those after her date of absorption on and from 01.07.84 (such as Circular dated 04.03.94, 21.11.96 etc.) contemplate to provide the benefit to continuous service or for that matter counting of her past service with W.B. Govt. for the purpose of payment of gratuity". (emphasis supplied). Upon considering the aforesaid aspects of the matter the Authority has drawn an inference about payment of gratuity with interest deducting the amount already received by him from the Food Corporation of India and the West Bengal Government. Such order dated 8th January, 2003 was not challenged within the prescribed period. The Appellate Authority by the communication dated 4th July, 2003 did not admit the appeal being not maintainable on three grounds as follows : 1. The appeal is not filed within the stipulated period as per the revision mentioned under Sub-Section (7) of section (7) of the Payment of Gratuity Act, 1972. It is found that controlling Authority gave his order in 08/01/2003 and this office received your appeal on 6/6/2003. 2. You have failed to produce certificate of competent Authority to the effect that the amount of gratuity as decided by controlling Authority is deposited with him as per the provision mentioned under Sub-Section (4) of sec. (7). 3. A certified copy of the findings of the controlling Authority is not appended". (emphasis supplied). Therefore, there is no appeal in the eye of law. Under such situation it is to be ascertained at first whether such appellable order will be interfered with by the Writ Court or not. From the grounds of the writ petition I do not find any point has been taken which is independent on the grounds to be taken before the Appellate Forum. The Writ Court is neither the Fact Finding Court nor the Second Appellate Court. Neither the fundamental right nor the principles of natural justice nor the ultra vires of any act is challenged before the Writ Court. The only challenge seems to be in respect of the power of the controlling Authority in deciding the question as regards continuity of the service of the incumbent for the period attached to the State service and attached to the Corporation's service. That point can also be taken before the Appellate Authority. But leaving aside the other aspects of the matter I find that the Appellate. Authority held about abnormal delay for a period of 146 days in preferring the appeal. Therefore, the order which has been passed by the Appellate Authority was within the jurisdiction. Normally no Authority can condone the delay like the Court of Law which is well-settled by now. Although certain power like the Court of Law is given in respect of conducting an enquiry by the controlling Authority but no such power is appended under the Act for condoning the delay in preferring an appeal. Sub Section VIII of Payment of Gratuity Act, 1972 says that appeal will be preferred within sixty days from the date of the order and if one is prevented by a sufficient cause for a further period of sixty days. Therefore totally a period of 120 days is given to the Appellate Authority for the purpose of entertaining an appeal. Admittedly, the appeal was preferred beyond 120 days. Therefore, rightly no question of condonation of delay survives. A situation where management agrees to provide such benefit to a beneficiary under this beneficial price of legislation beyond the period can not be equated with the above.
(2.) Moreover, the employer will have to deposit the amount under appeal with the controlling Authority in case of preferring an appeal. Pre-deposit is a condition precedent. Sub Section (4) of Section 7 is categorical to this extent by in corporating the word "shall". There is no scope of waiver of pre-deposit. The Act itself clarified two categories of people i.e. employer and employee since they are not in equal bargaining position. In the instant rase the employer/management did not choose to deposit the said amount which is also a ground of refusal appeal. Last but not the least, the certified copy of the original order was not annexed with the appeal.
(3.) Therefore, what is wrong in passing the order by the Appellate Authority for not entertaining the appeal?;