THE HONOURABLE SRI JUSTICE K.LAKSHMAN
WRIT PETITION No.22681 OF 2022
ORDER:
This Writ Petition is filed to quash the impugned order dated 01.07.2021 passed under Section 7-A of Employees Provident Funds and Miscellaneous Provisions Act, 1952 (for short, 'the Act') by 2nd respondent on Notice dated 11.08.2016 and show cause notice dated 21.03.2022, as illegal.
2. Heard Sri V.Narasimha Goud, learned standing counsel for the petitioner/Hyderabad Metropolitan Development Authority (HMDA) and Sri G.Venkateshwarlu, learned Standing Counsel appearing for respondent - Corporation. Perused the record.
3. Sri V.Narasimha Goud, learned standing counsel for the petitioner would submit 2nd respondent had issued notice dated 11.08.2016 to the petitioner herein under Section 7(A) of the Act alleging that the exemption granted in favour of HMDA is not extended from 01.04.2015 to 30.06.2016 by the Central Government and it is trying to conduct enquiry for determination of amount payable from 01.04.2015 to 2 30.06.2016. The petitioner/HMDA was constituted by virtue of the Act called the HMDA Act, 2008 in the place of the Hyderabad Urban Development Authority Act (HUDA). When HUDA was in existence, respondent Nos.1 and 2 had tried to cover its employees under the provisions of the Act and therefore they have issued summons under Section 7(A) of the Act on 22.12.1992. The then HUDA filed a writ petition vide W.P.No.52 of 1993 challenging the said proceedings contending that the provisions of the Act does not apply to its employees and the said proceedings are illegal. The employees of HUDA are covered by its pension.
4. When the said writ petition came up for hearing, the learned standing counsel of the respondent authorities has reported to the Court stating that the HUDA was excluded as per Section 16(1)(C) of the Act, 1952. Therefore, again covering the HMDA under the same provision vide proceedings dated 01.08.2016 after lapse of more than 26 years is nothing but arbitrary and without jurisdiction.
5. The Government of the then Andhra Pradesh also issued G.O.No.631, MA, dated 13.12.1991 stating that HUDA in the State has resolved to extend the benefits of pension, 3 gratuity, group insurance scheme on par with Government employees. In view of the said submission, this Court closed the writ petition on 01.10.1993 as cause does not survive.
6. It is further brought to the notice of 2nd respondent that already this establishment was excluded under Section 16(1) (C) of the Act and the exemption so granted under 16(2) of the Act was in respect of educational institutions. Therefore, the alleged exemption, granted from 01.04.2015 to 30.06.2016 and it is alleged to be not extended in respect of establishment under Societies Registration Act and also in respect of educational institution. Therefore, the very notice dated 11.08.2016 is untenable.Despite filing of the above said detailed counter, without considering the said aspects, 2nd respondent has passed the impugned orders under Section 7(A) of the Act. Therefore, the same are illegal and liable to be quashed.
7. Referring to the same, Sri V.Narasimha Goud, learned standing counsel for the petitioner would submit that though the impugned order is an appealable order, the present writ petition is maintainable since there is violation of principles of natural justice and there is no consideration 4 of the contentions raised by the petitioner in counter filed by the petitioner by the 2nd respondent in the impugned proceedings. Therefore, the present writ petition is maintainable. He has also placed reliance on the judgments of the Apex Court in Yeshwant Gramin Shikshan Sanstha Vs. The Assistant Provident Fund Commissioner1.
8. He would submit that though there is an alternative remedy of filing an appeal, there is no Presiding Officer in the Tribunal, at Hyderabad since last one year and therefore, the petitioner herein is constrained to approach this Court by way of filing the present writ petition. The maximum period of limitation to file an appeal is 120 days which is expired. In view of the same, if this Court comes to conclusion that the present writ petition is not maintainable and the petitioner has to file a statutory appeal under Section 7(1) of the Act, liberty may be granted to the petitioner to file an appeal by extending the period of limitation beyond 90 days, failing which the petitioner will be put to irreparable loss and injury.
9. On the other hand, Sri G.Venkateshwarlu, learned standing counsel appearing for respondents would submit 1 AIR 2017 SC 1408 5 that 2nd respondent has granted ample opportunity to the petitioner herein and passed the impugned orders under Section 7(A) of the Act. It is an appealable order and appeal lies to the Tribunal as per Section 7(I) of the Act and instead of availing the said alternative and efficacious remedy, the petitioner herein has filed the present writ petition. With the said submissions, he sought to dismiss the writ petition.
10. There is no dispute that 2nd respondent has passed the impugned order under Section 7(A) of the Act. On receipt of summons from 2nd respondent, petitioner had appeared and filed its counter. It has raised several grounds. According to the petitioner, 2nd respondent has not considered the said grounds. In view of the same, the questions that fall for consideration before this Court in the present writ petition are as follows:-
i) Whether the petitioner can maintain the present writ petition though there is an alternative and efficacious remedy available to it under Section 7(I) of the Act?
ii) Whether three factors as laid down by the Apex Court existing in the present writ petition to maintain it though an alternative and efficacious remedy is available?6
iii) Whether this Court can extend period of limitation stipulated by a statute, by invoking its powers under Article 226 of the Constitution of India?
11. As stated above, there is no dispute that the impugned order was passed under section 7(A) of the Act. It is an appealable order under section 7(I) of the Act. The limitation period prescribed to file the said appeal is 60 days. However, the Tribunal is having power to extend the said period by a further period of 60 days. Though there is alternative and efficacious remedy, the writ petition can be maintained under the following circumstances where there is :-
i) Breach of fundamental right,
ii) Violation of principles of natural justice,
iii) Excessive of jurisdiction, and
iv) Challenge to the vires of the statute or
complicated legislation?
12. The said principle was also laid down by the three Judge Bench of the Apex Court in Asst. Commissioner of 7 State Tax Vs. Commercial Steel Limited2 and also Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai3.
13. Perusal of the impugned order would reveal that on receipt of summons under Section 7(I) of the Act, from 2nd respondent, the petitioner herein had appeared before him and filed a detailed counter. Hearings were conducted. On consideration of the entire pleadings only, 2nd respondent has passed the impugned order. It is a detailed order. He has given reasons. He has also considered several aspects, provisions of law and also law laid down by the Apex Court. Therefore, there is no violation of principles of natural justice. There is no breach of fundamental right. There is no excessive jurisdiction by 2nd respondent in the present writ petition. There is no challenge to the vires of the Act. The challenge is to the order passed by 2nd respondent under Section 7(A) of the Act. Therefore, the petitioner herein cannot contend that though there is an alternative remedy, the present writ petition is maintainable. Since there is no 2 Manu/SC/0801/2021 3 (1998) 8 SCC 8 Presiding Officer for the last more than one year, the petitioner is forced to approach this Court, as it is not having effective alternative remedy in the present fact situation for questioning the impugned order. However, as discussed supra, the present writ petition will not fall under the above said four exceptions laid down by the Apex Court to maintain the present writ petition in view of availability of alternative and efficacious remedy. Therefore, the present writ petition is liable to be dismissed on the above ground.
14. However, Sri V.Narasimha Goud, learned standing counsel for the petitioner would submit that the limitation prescribed under the Act to file statutory appeal under Section 7(I) of the Act is 60 days and the same can be extended by 60 more days. Therefore, the said limitation as prescribed by the Act may come in the way of the petitioner in filing the statutory appeal. He would further submit that the petitioner has received the impugned order on 03.07.2021 and it has filed the present writ petition on 27.04.2022. This Court has also granted interim order. The Hon'ble Apex Court extended limitation considering COVID- 19 circumstances.
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15. With the said submission, he sought liberty to the petitioner to take the said contentions before the Employees' Provident Fund Appellate Tribunal, in a petition to be filed seeking condonation of delay in filing the appeal.
16. It is settled law that this Court in exercise of its inherent powers under Article 226 of the Constitution of India, cannot extend the period of limitation prescribed by a statute.
17. However, considering the above said submissions, it is relevant to note that it is settled law that the period of pendency of the writ petition also cannot be put against the petitioner. In Essar Steel (India Limited) Committee of Creditors v. Satish Kumar Gupta4, the Hon'ble Apex Court held that the time taken in legal proceedings cannot ever be put against the parties. The basis of the said principle is the Latin Maxim 'Actus Curiae Neminem Gravabit' i.e. an act of the Court shall prejudice no man.
18. In view of the same, this Writ Petition is disposed of granting liberty to the petitioner to file statutory appeal under Section 7(I) of the Act. Liberty is also granted to the 4 (2020) 8 SCC 531 10 petitioner to file an application seeking condonation of delay in filing the said Appeal. With the said contentions and to rely upon the principle laid down by the Hon'ble Apex Court in Miscellaneous Application No.21 of 2022 in Miscellaneous application No.665 of 2021 in Suo Motu Writ Petition (C) No.3 of 2020 in seeking condonation of delay. The Employees' Provident Fund Appellate Tribunal, shall consider the said aspects, while deciding the application filed by the petitioner in seeking for condonation of delay in filing appeal.
Miscellaneous Petitions, if any, pending, shall also stand closed.
__________________ K. LAKSHMAN, J Date:11.08.2022.
vvr.