2023 LLR 456
TELANGANA HIGH COURT
Hon'ble Mr. K. Lakshman, J.
W.P. No. 2969/2023, Dt/– 3-2-2023
M/s. Zieta Technoligies Private Limited
vs.
The Union of India and Others
A. EMPLOYEES' PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952 – Section 14B – Delay in filing appeal beyond 120 days is not condonable – EPF Authority passed an order under section 14B of the Act – Petitioner challenged order of EPF Authority in appeal with an application for condonation of delay of 108 days which was dismissed – Petitioner has challenged order of Tribunal in writ petition – Held, contention of petitioner is that order dated 01.06.2022 is an ex parte order and received by it on 15.11.2022 – They had not paid EPF dues in time due to COVID-19 – No opportunity of hearing was given – Contention of EPF Authority is that Tribunal has no power to condone delay beyond 120 days – Order was delivered on 28.06.2022 as per information of postal department – Petitioner has not denied the version of postal department – Petitioner failed to file within 60 days – Petitioner failed to satisfy the Tribunal that it was prevented by sufficient cause to file the appeal within 60 days – Hence, no error in impugned order – Hence, writ petition is dismissed. Paras 9 and 10
B. EMPLOYEES' PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952 – Section 14B – EPF dues are payable in installments – Justification of – Petitioner could not remit PF dues in time due to COVID-19 – Petitioner is suffering from financial crisis – Since amount is towards damages petitioner is directed to remit EPF dues in six monthly installments failing which EPF Authority may recover the amount in accordance with law. Paras 11 and 12
For Petitioner: Mr. V. Thirupathi Reddy, Advocate.
For Respondent No. 1 & 2: Mr. Gadi Praveen Kumar, Dy. Solicitor General of India.
For Respondent No. 3 to 5 (EPFO): Mr. G. Venkatesshwarlu, SC
IMPORTANT POINTS
ORAL ORDER
K. Lakshman, J.–1. Heard Mr. V. Thirupathi Reddy, learned counsel for the petitioner and Mr. G. Venkateshwarlu, learned Standing Counsel appearing on behalf of respondent Nos. 3 to 5.
2. Respondent No. 4 had passed an order No. TS/RO/KKP/PD/ Zone-I/68408/2022, dated 21.06.2022 under section 14B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short ‘Act, 1952'), determining an amount of Rs. 40,52,438/- towards damages for the period from December, 2010 to November, 2020. Feeling aggrieved and dissatisfied with the said order, the petitioner herein had filed an appeal under section 7-I of the Act, 1952 before the Central Government Industrial Tribunal-cum-Labour Court – Employees Provident Fund Appellate Tribunal, Hyderabad vide UR (SR) No. 849 of 2022. It has also filed an application seeking to condone the delay of 108 days in preferring the appeal. The said application was dismissed by the Tribunal vide order dated 27.01.2023. Challenging the said order, the petitioner herein has filed the present writ petition.
3. The petitioner herein had filed the aforesaid I.A. seeking to condone the delay of 108 days in preferring the appeal on the ground that it has received the impugned order only on 15.11.2022. Due to COVID-19 pandemic, they have not paid the amount in time and the order passed under section 14B of the Act, 1952 is an ex parte order. No opportunity was given.
4. The aforesaid application was opposed by the respondents on the ground that the Tribunal has no power to extend the limitation of filing statutory appeal under section 7-I of the Act, 1952 beyond 120 days (60+60). The impugned order dated 21.06.2022 was delivered on the petitioner on 28.06.2022 itself. In proof of the same, they have filed information obtained from the Postal Department.
5. Vide impugned order dated 27.01.2023, respondent No. 2 has dismissed the aforesaid application filed by the petitioner to condone the delay on the ground that the Tribunal has no power to extend the limitation beyond 120 days and it has no power to condone the delay. It has also relied upon the judgment of the Delhi High Court in Saint Soldier Modern Senior Secondary School v. Regional Provident Fund Commissioner , 2011 SCC Online Del. 3140.
6. Mr. V. Thirupathi Reddy, learned counsel for the petitioner, would submit that the petitioner had received the aforesaid order only on 15.11.2022 and there was delay of 108 days in filing the appeal. The Tribunal has to consider the date of knowledge, but not date of order. Without considering the said facts, respondent No. 2 Tribunal has dismissed the aforesaid application seeking to condone the delay of 108 days in filing the appeal. Therefore, the impugned order is not on consideration of actual facts and law.
7. On the other hand, learned Standing Counsel appearing for the respondent referring to the order dated 03.12.2008 in W.P. No. 14725 of 2005 passed by the combined High Court of Andhra Pradesh at Hyderabad, and as confirmed by a Division Bench of High Court for the State of Telangana at Hyderabad, vide judgment dated 08.11.2021 in W.A. No. 539 of 2008, would submit that the Tribunal has no power to condone the delay beyond 120 days.
8. In the aforesaid judgment, dated 08.11.2021, the Division Bench has relied upon the judgment of a Division Bench of Delhi High Court in Assistant Regional Provident Fund Commissioner, Meerut v. Employees Provident Fund Appellate Tribunal , (2006) II LLJ 338. In both the orders, there is categorical finding that the Tribunal cannot condone the delay beyond 120 days and the same is impermissible.
9. As per Rule 7(2) of the Employees' Provident Funds Appellate Tribunal (Procedure) Rules, 1997, 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 preferring the appeal within the prescribed period, extend the said period by a further period of 60 days. Therefore, the aforesaid statutory appeal shall be filed within sixty (60) days from the date of the order and that the Tribunal has power to condone the delay of sixty (60) days. The Tribunal has no power to condone the delay beyond 60 days.
10. In the present case, the respondents have filed information obtained from the Postal Department to show that the impugned order dated 21.06.2022 passed by respondent No. 4 under section 14B of the Act, 1952 was served on the petitioner on 28.06.2022 itself. The said aspects were specifically considered by the Tribunal in the impugned order dated 27.01.2023. There is no denial to the said aspect. In view of the aforesaid discussion and the law laid down by the High Courts in the aforesaid decisions, according to this Court, there is no error in the said impugned order dated 27.01.2023 passed in US (SR) No. 849 of 2022 by respondent No. 2.
11. At this stage, Mr. V. Thirupathi Reddy, learned counsel for the petitioner, would submit that the petitioner is suffering from financial problem due to COVID-19 pandemic, and all the employees are working from home. However, in view of the present situation, the petitioner will pay the aforesaid amount of Rs. 40,52,438/- in installments, for which he sought some reasonable time. The said amount is towards damages and not towards contributions. Considering the said aspects, this Court is inclined to grant some protection to the petitioner herein.
12. In view of the above discussion and considering the request made by the petitioner, this writ petition is disposed of directing the petitioner to pay the aforesaid amount of Rs. 40,52,438/- in six (06) monthly equal installments within six (06) months from today commencing from 15th February, 2023, failing which, the respondents are at liberty to take necessary steps in accordance with law for recovery of the said amount. However, there shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending in the writ petition shall stand closed.