Xavier Institute Of Social ... vs Employees Provident Fund ...
2010 Latest Caselaw 1151 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) No. 1235/2010

%                                    Judgment delivered on: 02.03.2010

XAVIER INSTITUTE OF SOCIAL SERVICE                 ...... Petitioner
                                     Through: Mr. Rajiv Shukla, Advocate
                        versus

EMPLOYEES PROVIDENT FUND APPELLATE & others         ..... Respondents
                                     Through: Mr. R.C. Chawla, Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.       Whether the Reporters of local papers may
         be allowed to see the judgment?                  Yes

2.       To be referred to Reporter or not?               Yes

3.       Whether the judgment should be reported
         in the Digest?                                   Yes

KAILASH GAMBHIR, J. Oral:
*

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

Constitution of India, the petitioner seeks to challenge the impugned

order dated 23.1.2010 passed by the EPF Appellate Tribunal

dismissing the application moved by the petitioner seeking restoration

of its appeal and order dated 17.07.2008 whereby the appeal filed by

the appellant was dismissed for non-prosecution. Counsel for the

petitioner also prays that the statutory appeal filed by the petitioner

be decided on its merits.

2. Brief facts relevant for deciding the present petition as set

out by the petitioner are that the petitioner is an educational

institution registered under the Societies Registration Act. An order

dated 20.3.2003 was passed by the Regional Fund Commissioner-II,

Ranchi against the petitioner, to which an appeal was filed which was

registered as Appeal No. 492(3)03. Thereafter, appeal of the

petitioner was fixed at camp hearing at Kolkata on 17.7.2008 where

the representative of the petitioner due to ill health could not appear,

and hence the said appeal was dismissed for non-prosecution.

Thereafter, the petitioner filed an application to seek restoration of

the appeal which was again fixed for a camp hearing at

Bhubhneshwar on 23.1.2010 and was dismissed for being filed beyond

the statutory period of 30 days. Feeling aggrieved by the same, the

present petition has been preferred.

3. Counsel for the petitioner submits that the petitioner had

preferred an appeal under Section 7-I of The Employees Provident

Funds & Miscellaneous Provisions Act , 1952 challenging the order

dated 20.03.2003 of the Regional Provident Fund Commissioner-II,

Ranchi passed under Section 14-B of the EPF & Misc. Provisions Act,

1952. Counsel further submits that the said appeal was registered as

appeal No. 492 (3)2003 and the petitioner had even filed its written

submissions in support of the arguments. Counsel further submits

that without there being any request or consent taken from the

petitioner, the Ld. Appellate Tribunal had suo moto fixed the hearing

of the said appeal at Kolkata. Counsel further submits that his

authorized attorney, Sh. B.D. Shah, while on his visit to Delhi had

fallen ill and remained under medical treatment from 12.07.2008 to

20.07.2008, and, therefore, could not attend the said hearing fixed at

Kolkata. Counsel further submits that the appellant came to know

about the fate of the said hearing only on 28.08.2008 and thereafter

took steps to seek restoration of the appeal by filing an application on

03.09.2008. The hearing of the application was fixed by the Appellate

Tribunal on 23.01.2010 at Bhubneshwar. The authorized

representative of the petitioner appeared before the camp hearing of

the Tribunal fixed at Bhubneshwar, but the application of the

petitioner was dismissed on the ground that the same was filed

beyond the prescribed period of limitation. Assailing both the orders,

counsel for the petitioner submits that both the orders of the Ld.

Tribunal are ex-facie illegal.

4. Mr. R.C. Chawla appears on advance notice. He submits

that since the petitioner failed to file the restoration application

within a period of 30 days as prescribed under Section 7-I of the

Employees Provident Funds Act and, therefore, no illegality can be

found in the order passed by the Tribunal.

5. I have heard counsel for the parties.

6. The statutory appeal was filed by the petitioner before the

Appellate Tribunal thereby challenging the order dated 20.03.2003

passed by the Regional Provident Fund Commissioner-II, Ranchi. It is

not in dispute that the Principal Bench of the Appellate Tribunal is

located at Delhi and normally the hearing of the appeal should have

taken place at Delhi alone. In any event of the matter, since the

Tribunal, for the benefit of the litigants keeping in view the principle

of 'access to justice at door step' fixed the hearings at various

destinations and accordingly the said appeal filed by the petitioner

was also fixed for hearing at Kolkata. Since the authorized

representative of the petitioner could not appear at Kolkata,

therefore, the said appeal filed by the petitioner was dismissed for

non-prosecution. The petitioner sought restoration of its appeal by

filing appropriate application before the Principal Bench of Tribunal

at Delhi but the said application of the petitioner was taken up by the

Tribunal at Bhubneshwar and was dismissed as the same was found

to be not maintainable having been filed after the prescribed period of

limitation. So far the non-maintainability of the application filed by

the petitioner is concerned, I do not find any fault in the impugned

order as the Appellate Tribunals was bound by the period of limitation

as prescribed under the Statute and the Rules framed thereunder.

Since the petitioner has given sufficient explanation for the non-

appearance of its authorized representative that during the relevant

period he was on his visit to Delhi and had fallen ill, therefore,

keeping in view the principles of natural justice, I set aside the

impugned order dated 23.01.2010 and condone the delay in filing the

said application by the petitioner and allow the said application of the

petitioner seeking restoration of the appeal. Since the petitioner has

already deposited the entire amount of damages at the time of filing

the statutory appeal, it is therefore directed that the appellate

Tribunal may hear the appeal filed by the petitioner on its merits.

7. Before parting with this order, this court would like to observe

that many such matters are coming before this court where appeals

filed by the various establishments are getting dismissed due to the

non-appearance of the petitioners or their counsels at the camp

hearings. Undoubtedly, it is the prerogative of the Tribunal to fix

such camp hearings, as the prime objective appears to be that hearing

at such camps should be in proximity to the place of establishments of

such petitioners. Yet, in all such cases the petitioner may require to

engage another advocate practicing at the place or near to the place

of camp hearing which would put unnecessary financial burden on

such establishments. In the foregoing, this court is of the view that at

least the consent of such petitioners in advance be taken by the

Appellate Tribunal and camp hearings be fixed only in those cases

where such establishments give their consent. In any event of the

matter, the Appellate Tribunal is expected not to dismiss such appeals

when taken up at such camp hearings as such orders will cause

serious prejudice to the rights of the petitioners leading to avoidable

financial burden.

8. With the above directions, the present petition is disposed of.

The petitioner is directed to appear before the Tribunal at Delhi on

1.04.2010. Order Dasti.

March 02, 2010                                  KAILASH GAMBHIR,J
pkv