Kalyan Roy vs Employees' Provident Fund ...
2023 Latest Caselaw 765 Cal

    22                     IN THE HIGH COURT AT CALCUTTA
30.01.2023                CONSTITUTIONAL WRIT JURISDICTION
  sb
   Ct 550                         APPELLATE SIDE
                                   WPA 1391of 2023

                                      Kalyan Roy
                                          Vs.
                     Employees' Provident Fund Organisation & Ors.

                          Mr. Ranjay De
                          Mr. Basabjit Banerjee
                                           ... For the petitioner.

                          Mr. Shiv Chandra Prasad
                                           ... For the respondents.

The present writ application has been filed, inter

alia, challenging the order dated 15th December, 2022

passed in Appeal No. EPF 35 of 2019, by the Appellate

Tribunal, constituted under the provisions of Employees'

Provident Fund and Miscellaneous Provisions Act, 1952

(herinafter referred to as the "said Act").

The records reveal that being aggrieved by the order

passed under Section 7A of the said Act, dated 20th

October, 2005 in respect of the determination made by the

respondents for the period from May, 1998 to December,

2001, an appeal was filed which was registered as EPF 35

of 2019. The appeal was accompanied by an application

under Section 7(O) of the said Act, inter alia praying for

waiver of the pre-deposit for filing of the appeal.

By the order impugned, the Tribunal, taking into

consideration the provision of Rule 7(2) of the Tribunal

(Procedure) Rules, 1997 (hereinafter referred to as the

"said Rules), has arrived at a finding that the appellant

having failed to come within the prescribed period of

limitation, as provided in Rule 7, the appeal is hopelessly

barred by limitation and accordingly has dismissed the

appeal.

Mr. De, learned advocate appearing in support of

the aforesaid application submits that the Appellate

Authority ought not to have, without taking into consideration

the merits of the case, dismissed the appeal. By referring

to Rule 7(2) of the said Rules it is submitted that the aforesaid

Rule, inter alia, provides that any person aggrieved by a

notification issued by the Central Government or by any

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. He submits that the first proviso to the aforesaid

Rule, ordinarily enables the Tribunal to extend the period of

limitation by a further period of 60 days. According to Mr.

De, the Tribunal has the power and competence to extend

the time even beyond the extended period of 60 days, by

invoking Rule 21 of the said Rules. He says if it was the

intention of the legislature to limit the power of the

Tribunal to grant extension for a period of upto 60 days

only, then the legislature would have, so worded the Rule

so as not to permit the Tribunal to extend the time beyond a

further period of 60 days. He says that there is a fair

chance of success in the aforesaid appeal. Unfortunately,

since the Tribunal did not admit the aforesaid appeal, the

petitioner has been denied the right to question the order

passed under Section 7A of the said Act. By drawing

attention of this Court to a notice dated 24th February,

2020 it is submitted that subsequent to the filing of the

aforesaid appeal, the aforesaid notice has been issued

whereby the petitioner has been threatened to be arrested

and imprisoned in person. He further submits that his

client is ready and willing to secure 50 per cent of the

determination already made under Section 7A of the said

Act before the Tribunal. It is still further submitted that

the Tribunal erred in dismissing the appeal. He says that

the Tribunal is competent to condone the delay and admit

the appeal. In support of his aforesaid contentions, he

places reliance on a judgment delivered by this Hon'ble

Court in the case of M/s. C.D. Steel Pvt. Ltd. & Ors. Vs.

Assistant Provident Fund Commissioner & Ors.,

reported in 2022 LLR 793 and a judgment delivered by

this Hon'ble Court in the case of C.D. Steel Pvt. Ltd. Vs.

Assistant Provident Fund Commissioner, reported 2019

(3) CHN (Cal) 788.

Per contra, Mr. Prasad, learned advocate appearing

for the respondents submits that the Tribunal has rightly

refused to entertain the appeal since the appeal was filed

beyond 120 days. According to Mr. Prasad there was

enormous delay in preferring the aforesaid appeal and the

Tribunal is not competent to condone the delay beyond

120 days, in view of Section 29(2) of the Limitation Act,

the appeal has been dismissed.

By referring to an unreported judgment delivered by

this Hon'ble Court on September 4, 2017 in the case of

M/s. Port Sramik Cooperative Enterprise Limited Vs.

The Employees Provident Fund Organization,

Regional Office, Kolkata & others in W.P. No. 18400

(W) of 2017, it is submitted that the Tribunal rightly

dismissed the aforesaid appeal and the order passed by

the Tribunal cannot be faulted.

I have heard the learned advocates appearing for the

respective parties and have considered the materials on

record.

In find the principal question for consideration in

this application is whether the Tribunal constituted under

the said Act is competent to extend the period of limitation

beyond 120 days, for condoning the delay in preferring the

appeal, by exercising its powers under Rule 21 of the said

Rules.

I find two different Coordinate Bench of this Court in

separate judgments delivered in the case of C.D. Steel Pvt.

Ltd. (supra) and in the case of M/s C.D. Steel Pvt. Ltd. and

Ors. (supra) have not only held that section 5 of the

Limitation Act applies to proceedings before the Tribunal

but have also held that the Tribunal is also competent to

pass orders as are necessary for securing ends of justice.

Ordinarily I would have disposed of the aforesaid

application, however, since the respondents by placing

reliance on the judgment delivered in the case of M/s Port

Sramik Cooperative Enterprise Limited (supra) claim

that there is contrary view and also wished to elaborate on

the same and also intends to rely on documents, this writ

application requires to be heard.

I also find that the determination under Section 7A of

the said Act, has already been made. Ordinarily if the

petitioner is permitted to prefer an appeal under Section 7I

of the said Act, the petitioner would be required to deposit

75% of amount due from him, as determined under Section

7A of the said Act, unless otherwise waived by the Tribunal.

However, having regard to the discussion made

hereinabove, I am of the view, since an order under Section

7A of the said Act has already been passed, it is necessary

to direct the petitioner to secure at least a portion of the

determination already made under Section 7A of the

aforesaid Act.

There shall, however, be an unconditional stay of

operation of the order dated 20th October, 2005, passed

under Section 7A of the said Act and the order dated 15th

December, 2022 passed by the Appellate Tribunal forming

Annexure P-15 to the present writ application for a period

of 3 weeks from date.

The petitioner is directed to deposit a sum of

Rs. 2,30,000/- with the learned Registrar General of this

Court on or before 3 weeks from date.

In the event, the aforesaid amount is deposited by the

petitioner, the same shall be invested by the learned

Registrar General in a Fixed Deposit Account with any

Nationalized Bank of his/her choice and the same shall be

kept renewed until further order of this Court and the

interim order shall continue till disposal of the aforesaid

application or until further orders whichever is earlier.

In the event, the aforesaid deposit is not made, the

interim order passed herein shall automatically stand

vacated and the respondents shall be entitled to execute

the order passed under Section 7A of the said Act.

It is also recorded that Mr. De, learned advocate for

the petitioner on instructions from his client submits that

his client undertakes to deposit the aforesaid sum of Rs.

2,30,000/- before this Hon'ble Court within the period as

directed hereinabove

As prayed for the respondents shall be at liberty to

file affidavit-in-opposition to the present application within

a period of 3 weeks from date. Reply, if any, thereto be filed

within the period of one week thereafter.

List this matter in the Combined Monthly List of

March, 2023, under the heading "Hearing".

(Raja Basu Chowdhury, J.)