M/S Bhartiya Commercial & ... vs Union Of India & Others
2010 Latest Caselaw 381 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                W.P. (C ) NO. 6880/2004

                          Judgment delivered on :22 January, 2010


M/s Bhartiya Commercial &
Industrial Resources (India) Limited
                                               ......Petitioner
                             Through: Ms. Anjana Gosain, Advocate


                    versus
Union of India & others                     ..... Respondents

                             Through: Mr. Amit Khemka, Advocate
                                       for Respondent Nos. 2 to 4.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may                          No
   be allowed to see the judgment?

2. To be referred to Reporter or not?                                 No

3. Whether the judgment should be reported                            No
   in the Digest?


KAILASH GAMBHIR, J. (ORAL)

*

1. By this writ petition filed under Article 226/227 of the

Constitution of India, the petitioner seeks directions to direct

respondent No. 2 to condone the delay in filing the review

application dated 20.11.2001 and to direct the respondent to

decide the review application of the petitioner on merits.

2. Ms. Anjana Gosain, counsel appearing for the petitioner

submitted that Ms. M.D. Rajput, Managing Director of the

petitioner company had received a copy of the recovery notice

along with the copy of the ex parte order from the official of

respondent No. 2 on 22nd June, 1999. Counsel further submitted

that after receiving the same the petitioner wrongly filed an

appeal before the office of the Recovery Commissioner instead of

preferring the same before the Appellate Tribunal under the

Employees Provident Fund and Miscellaneous Provisions Act. The

said appeal of the petitioner was rejected by the Recovery

Commissioner vide orders dated 29th October, 2001 on the

ground that the said Authority was not competent to hear the

appeal. Counsel further submitted that thereafter the petitioner

had filed a review application under the said Act on 21.11.2001,

but the same was not taken up for hearing as it was filed beyond

the statutory period of 45 days. Since the application of the

petitioner filed under Section 7-B was not taken up by the

Provident Fund Commissioner so, therefore, the petitioner had

filed a writ petition before this Court to seek directions to the

Provident Fund Commissioner to decide the application of the

petitioner for condonation of delay as well as the review

application filed by the petitioner under Section 7-B of the Act.

3. This Court vide orders dated 27th August, 2003 gave

directions to the respondent Additional Provident Fund

Commissioner to examine the condonation of delay application of

the petitioner and if he decides to condone the delay, then to

examine the review application of the petitioner moved under

Section 7-B of the Act on its merits. In the said order this Court

also observed that the petitioner was not receiving its official dak

at the address given as the Division Bench of this Court vide

orders dated 3rd July, 1996 in CM No. 6267/95 in CW 3732/95

gave the direction for the delivery of the personal dak of the

petitioner and not the official dak. Counsel further submitted that

pursuant to the directions given by this Court, the petitioner had

moved an application under Section 151 CPC to seek condonation

of delay in filing the review application along with another

application praying for deciding the review application which was

filed earlier. The said application of the petitioner came to be

rejected by the Assistant Provident Fund Commissioner vide

order dated 9th February, 2004. The said order is now assailed by

the petitioner in the present writ petition.

4. Mr. Khemka, counsel appearing for the respondent while

opposing the present petition submitted that no illegality or

perversity can be found in the impugned order as the mandate of

the law as envisaged under Section 79A of the Scheme is that

such an application seeking review can be preferred only within a

period of 45 days from the date of passing the order. Counsel

thus submitted that since the application as preferred by the

petitioner was much beyond the period of limitation, therefore,

Assistant Provident Fund Commissioner has rightly exercised its

discretion to dismiss the said application. Counsel further

submitted that once the condonation application of the petitioner

was dismissed then there was no occasion for the respondent to

have decided the review application of the petitioner. Counsel

also submitted that the present writ petition is not maintainable

as the order is an appealable order under Section 7(i) of the

Employees Provident Fund and Miscellaneous Provisions Act.

Counsel also submitted that if the present writ petition is allowed

then the petitioner will unnecessarily take advantage of it by not

paying interest and penalty amount on the impugned recovery.

4. I have heard learned counsel for the parties and

perused the records.

5. Undoubtedly, the Assistant Provident Fund

Commissioner is not conferred with the powers to condone the

delay as prescribed under paragraph 79 (a) of the Scheme and,

therefore, to that extent no fault can be found by this Court with

the said order. However, this fact was not brought to the notice

of this Court when the order dated 27th August, 2003 was passed

as then the Court directed the said Assistant Provident Fund

Commissioner to decide the condonation application of the

petitioner although by that time the same was already barred by

time.

6. In the backdrop of the aforesaid position, I am of the view

that at that point of time this Court could have given direction to

decide the review application of the petitioner after condoning

the delay in the matter. Be that as it may, since the petitioner

had earlier taken a wrong remedy by filing an appeal before the

Recovery Commissioner and thereafter had filed a review

application under Section 7-B of the said Act and also that this

Court, in the order dated 27th August, 2003, has observed that

the petitioner was not able to receive its official dak at the given

address, therefore, the delay in filing the review application is

condoned.

7. So far the contention of Mr. Amit Khemka that the

present writ petition is not maintainable before this Court, I do

not find any merit in the said submission as admittedly the

Provident Fund Commissioner has no power to condone the delay

and even if the petitioner had taken a remedy before the

Appellate Tribunal the same hurdle would have come in the way

of the petitioner. Therefore, while exercising inherent powers

under Article 226 of the Constitution of India, delay in filing the

review application is condoned.

8. So far as the contention of Mr. Amit Khemka with

regard to the penalty and interest amount is concerned the same

will ultimately depend on the fate of the decision of the review

application of the petitioner and, therefore, if at last the

petitioner does not succeed in the said review application then it

will be for the appropriate Authority to take a decision on

imposing the penalty and interest on the amount as was found

due from it.

9. Henceforth, the parties are directed to appear before

the concerned Authority on 8th February, 2010. The Assistant

Provident Fund commissioner shall expeditiously decide the

review application of the petitioner within a period of two months

from the date of this order.

10 . In view of the above, the writ petition stands disposed

of.

Dasti.

JANUARY 22, 2010                         KAILASH GAMBHIR,J
rkr