2023 LLR 330
KARNATAKA HIGH COURT
Hon'ble Mr. S. Sunil Dutt Yadav, J.
Hon'ble Mr. Umesh M. Adiga, J.
W.P. No. 147645/2020 (L-PF), Dt/– 17-11-2022
Town Municipal Council
vs.
The Asst. Provident Fund Commissioner and Others
EMPLOYEES' PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952 – Section 7A – Condonation of delay – Scope of – EPF Authority passed order under section 7A of the Act on 15.07.2015 which was communicated to petitioner on 14.12.2015 – W.P. No. 100080/2016 was filed on 05.01.2016 against order of EPF Authority since appellate authority was not functional – Petitioner filed regular appeal on 06.01.2016 which was transferred to CGIT Bangaluru – Tribunal rejected the appeal being time barred – Petitioner challenged order of Appellate Tribunal in writ petition – Held, speedpost acknowledgement endorsement show that order dated 15.07.2015 was served upon petitioner on 06.08.2015 – Contention of petitioner that order was received by it on 14.12.2015 cannot be accepted – Section 14 of the Limitation Act cannot come to the aid of petitioner since writ petition was filed on 05.01.2016 which was beyond 120 days – Once prescribed limitation of 120 days has expired, Section 5 of Limitation Act has no application – Writ petition is dismissed. Paras 9 to 11
For Petitioner: Mr. Kushal V. Bolmal, Advocate.
For Respondents: Mr. P.V. Gunjal, Advocate.
IMPORTANT POINTS
ORDER
S. Sunil Dutt Yadav, J.–1. The petitioner-Town Municipal Council, Savanur, has called in question validity of the order dated 06.01.2020 passed by the CGIT Cum Labour Court at Bangalore in case No. EPF/ITB/327/ 2017 (Old No. ATA No. 21(6) 2016) which is produced at Annexure-H whereby the appeal was filed by the petitioner as against the order passed by the respondent authority under section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short ‘Act') dated 15.07.2015 as per which the authority had quantified the dues to be paid by the petitioner at Rs. 10,11,940/- and requiring the sum to be paid within ten days with interest under section 7Q of the Act. The said order, it is submitted that was communicated to the petitioner on 14.12.2015. It is submitted that as against the said order as the appellant authority was not functional, W.P. No. 100080/2016 came to be filed on 05.01.2016 and the same is pending as on date. It is further submitted that the petitioner also approached the appellate Tribunal on 06.01.2016 by filing the appeal before the Employees' Provident Fund Tribunal (appellate Tribunal at Delhi) and in turn the said appeal came to be transferred to CGIT at Bengaluru and registered as No. 21(6)/2016 and the same has been renumbered as EPF/ITB/327/2017.
2. Learned counsel for the petitioner submits that the Tribunal has wrongly rejected the appeal by observing that the same was barred by limitation insofar as the time permitted for preferring appeal under the Act in terms of Rule 7(2) of the Tribunal (Procedure) Rules, 1997, is 60 days from the date of issue of notification/ order and the Tribunal had further jurisdiction to extend the said period by a further period of 60 days. It is submitted that as copy of the order was received on 14.12.2015 and the writ petition was filed on 05.01.2016. As the period of 120 days was to be calculated from 14.12.2015 and the appeal was also filed before the appellate Tribunal at Delhi on 06.01.2016 which was within the period of 60 days and accordingly the CGIT has grossly erred in holding the appeal was barred by time by taking the date for commencement of the period of 120 days from 06.08.2015 on which date it was submitted by the respondent that copy of the order was served by Speed Post Acknowledgement Due.
3. Learned counsel for the respondent submits that admittedly the order was passed on 15.07.2015. A memo is filed producing copy of the Speed Post Acknowledgement which has the endorsement of the TMC, Savanur as 06.08.2015. It is submitted that it is this acknowledgement that was taken note of by the CGIT while recording the finding that even if the date of 06.08.2015 was taken note of and 120 days calculated thereafter the filing of the appeal on 06.01.2016 is clearly beyond the time prescribed.
4. Heard both sides.
5. It is to be noticed that the order passed under section 7A if is to be appealed in terms of section 7(1) the filing of appeal is in the manner prescribed. The Tribunal procedure Rules, 1997 at Rule 7 prescribes Rule 7(2) as follows:
“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.”
6. It must be noted that the person aggrieved is required to file an appeal within a period of 60 days from the date of issue of notification / order and the Tribunal has further discretion to condone the delay if sufficient cause is shown for not preferring the appeal and extend the period by a further period of 60 days.
7. In the present case, the finding of fact by the Tribunal is to the effect that the order was communicated to the petitioner on 06.08.2015. The said finding is supported by virtue of the memo filed by the learned counsel for the respondent on 04.11.2022 enclosing a copy of the acknowledgement.
8. There is no reason to hold otherwise as regards such finding of fact and such finding of fact cannot be disturbed in writ proceedings as there is no perversity as regards such finding. Admittedly, the period of 120 days from 06.08.2015 ends on 06.12.2015. The appeal before the Tribunal at Delhi even as per the say of the petitioner was filed on 06.01.2016. The contention of the petitioner that they were communicated with the order only on 14.12.2015 cannot be accepted in light of the acknowledgement having been signed by the authority relating to receipt of copy of order as is evidenced by the acknowledgement certificate produced by the counsel for the respondent.
9. The reliance by the counsel for the petitioner of section 14 of the Limitation Act and the judgment of the Orissa High Court in Udayanath Autonomous College v. Regional Provident Fund (W.P. No. 19092/2015): 2018 LLR 215, cannot come to the aid of the petitioner on the sole ground that the writ petition admittedly has been filed on 05.01.2016 challenging the very same order of the authority which was subsequently challenged by way of appeal before the appellate Tribunal at Delhi on 06.01.2016. The impugned order having been challenged by way of writ is also beyond the period of 120 days from 06.08.2015. If it is the case that filing of appeal before the Tribunal at Delhi on 06.01.2016 must be taken note of and the time during which the writ petition was pending, if required to be taken note of, the writ petition itself having been filed on 05.01.2016 the additional period of one day would at the most be available to be added to the period of limitation. However, it must be noted that once the limitation has expired, i.e., 120 days, under Rule 7(2) having expired, subsequent filing and pendency of the writ petition will not result in time during which such writ was pending enlarging the period of limitation. Once the limitation starts, it does not stop and accordingly if no act is done within the period of limitation question of taking recourse to section 17 of the Limitation Act on the ground that a writ petition was filed and pending will not arise.
10. As noted above, the contention of the petitioner regarding the date of receipt having been rejected in light of the acknowledgement placed by the counsel for the respondent, the appeal is filed beyond the period of limitation. Insofar as to whether section 5 of the Limitation Act would apply a co-ordinate Bench of this Court in W.P. No. 50134/2019 by a detailed consideration has dealt with the aspect and the observation at paragraph Nos. 14 and 15 summarized the position of law which reads as hereunder:
“14. Keeping these authoritative principles in mind when we have a relook at sub-Rule (2) of Rule 7, of EPF Rules, it would clearly indicate that any person aggrieved by an order passed by the Central Government or any other Authority under the Act who is empowered to file an appeal has to file such an appeal within 60 days from the date of issue of such order. If for any sufficient reason, or cause appeal could not have been filed within the period of 60 days, it would still be open for such person to present an appeal beyond the period of 60 days and within outer limit of 60 days. In other words appeal can be filed beyond 60 days but within 120 days from the date of issuance of order and subject to sufficient cause being shown for not filing within 60 days.
15. In other words, an aggrieved person is required to give sufficient cause for not presenting the appeal within 60 days or the reason for filing the appeal after 60 days and before 120 days. To this limited extent only the Legislature has consciously held that delay can be condoned and not beyond 120 days. In fact, the Legislature has clearly, unequivocally and in specific terms held that outer limit for filing an appeal is 120 days. As such, neither by consent nor by extending section 5 of the Limitation Act, 1963 delay could be condoned by the Appellate Tribunal. Section 5 of the Limitation Act, which itself is inapplicable particularly when Rule 7(2) itself prescribe the limitation which an appeal is required to be filed.”
11. In light of the finding by the co-ordinate Bench of equal strength specifically holding that the period of 120 days is specifically provide for by the special statute is clear and unambiguous and section 5 of the Limitation Act has no application when Rule 7(2) itself prescribes limitation. Accordingly, the order of the CGIT does not suffer from any infirmity and the writ petition is rejected.
12. It must be noted that as against the same order of the CGIT, W.P. No. 100080/2016 had been filed and is pending before the learned Single Judge. Needless to state that the said writ petition will have to be disposed of as having become infructuous by the learned Single Judge taking note of the present order passed and passing suitable orders. Records in the said writ petition be placed before the learned Single Judge.