M/S KHEMKA ENTERPRISES v. THE UNION OF INDIA & Ors.

Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ---------- Dated, the 21st July, 2008. This is second round of litigation at the instance of the present appellant. On 24.03.2005, the Assistant Provident Fund Commissioner, S.R.O. Adampur, Bhagalpur held that the appellant was covered by the provisions of The Employees‟ Provident Funds and Miscellaneous Provisions Act, 1952 (for short „Act of 1952‟). The appellant was assessed accordingly under the said Act. A writ petition was field by the present appellant being C.W.J.C. No. 10113 of 2005 challenging the order dated 24.03.2005. That writ petition was disposed of on 10th January, 2006, by holding that the appellant has alternative and efficacious remedy of appeal before the Employees Provident Fund Appellate Tribunal under Section 7-I of the Act. The Court passed the following order: - “Having heard learned counsel for the petitioner - 2 - learned counsel appearing the Assistant Provident Fund Commissioner and considering the facts that the petitioner has remedy by way of appeal under Section 7-I of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, this court in the facts and circumstances directs that the petitioner at first three weeks, instance should whereupon the appellate authority will consider the desirability of disposing of the appeal on merits after condoning the delay, if any. The petitioner may also pray for interim order, which shall also be considered by the appellate authority. However, till filing of the appeal, Respondent-authorities are directed not to take any coercive steps against the petitioning agency.” file appeal within

2. That the appellant did not prefer the appeal before the Tribunal within three weeks from that order is not in dispute. The appeal was preferred on 17.7.2007.

3. The appellate Tribunal found that the appeal having not been preferred within the time granted by the Court and rather preferred after 158 days suffered from delay and beyond the condonable limit and consequently dismissed the appeal.

4. The appellant challenged the order of the appellate Tribunal by filing writ petition being C.W.J.C. No. 9217 of

2006. The said writ petition has been dismissed on 30th April, 2007. Aggrieved thereby the present appeal has been preferred.

5. The counsel for the appellant raised two fold submission, namely, (i) that the appellant had challenged the very jurisdiction of the Provident Fund authority, as the Act of 1952 was not applicable to the appellant, because it had not employed 20 persons. The counsel would, thus, submit that the order of the Assistant Provident Fund Commissioner is without jurisdiction; and - 3 - (ii) that the Single Judge, under Article 226 of the Constitution of India, having plenary power, ought to have condoned the delay that occurred in filing the appeal before the Tribunal.

6. We will deal with the second contention, first. Section 7-I of the Act of 1952, makes a provision for appeal to Tribunal. It reads thus: - “7-I. Appeals to Tribunal (1) Any person aggrieved by a notification issued by the Central Government, or an order passed by the Central Government or any authority, under the proviso to sub-section (3), or sub-section (4) of section 1, or section 3, or sub-section (1) of section 7-A, or 7-B [except an order rejecting an application for review referred to in sub-section (5) thereof], or section 7-C, or section 14-B, may prefer an appeal to a Tribunal against such notification or order. (2) Every appeal under sub-section (1) shall be filed in such form and manner, within such time and be accompanied by such fees, as may be prescribed.”

7. The limitation for filing the appeal under Section 7-I is not provided under the Act. In the Rules entitled, „The Employees‟ Provident Funds Appellate Tribunal (Procedure) Rules, 1997‟, framed in exercise of powers conferred under Section 21(i) of the Act of 1952, provides for time in filing the appeal. Rule 7(2), which is relevant for the purposes of limitation reads thus: - “7(2) Any person aggrieved by a notification issued by the Central Government or an Order passed by the Central Government or any other authority under the Act, may within 60 days from the date of issue of the notification/order, prefer an appeal to the Tribunal: Provided that the Tribunal may if it is satisfied that the appellant was prevented by sufficient cause from - 4 - preferring the appeal within the prescribed period, extend the said period by a further period of 60 days:”

8. It would be, thus, seen that limitation for filing an appeal to the Tribunal from an order of the authority from the Act is 60 days from the date of passing that order. Proviso appended thereto enables the Tribunal to extend the period of limitation by further period of 60 days, if sufficient cause is shown.

9. In the present case, the appellant was shown indulgence by this Court vide order dated to 10th January, 2006 to prefer the appeal within three weeks therefrom. The date of impugned order challenged before the appellate Tribunal is 24th March, 2005. On 10th January, 2006 when this Court disposed of writ petition, the limitation in appeal had already expired. However, this Court vide its order dated 10th January, 2006, permitted appeal to be filed within three weeks. But that was not done. As a matter of law, the statute limits the exercise of discretion by the Tribunal in condoning the delay of 60 days, and not beyond that period. Once the appellant failed to file the appeal within the time granted by this Court in its order dated 10th January, 2006 and decided to file the appeal at his leisure and pleasure, by filing the same after more than five months, the Tribunal cannot be said to have erred in dismissing the appeal as time barred. As a matter of law, had the Tribunal considered the appeal on merits, it would have acted beyond its power and competence.

10. The order of Tribunal, therefore, cannot be - 5 - faulted.

11. In so far as the contention of the counsel for the appellant that the appellant did not engage 20 employees is concerned, suffice it to say that the finding by the Assistant Provident Fund Commissioner on facts is otherwise. There is absolutely no justification for us to take a different view on facts.

12. L.P.A. accordingly has no merit. It is dismissed in limine. R. M. Lodha, CJ Kishore K. Mandal, J Pawan/-