Delhi High Court
Jharkhand Urja Vikas Nigam ... vs Regional Provident Fund ... on 17 January, 2020
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:- 17.01.2020
+ W.P.(C) 4983/2018
JHARKHAND URJA VIKAS NIGAM LIMITED, RANCHI
..... Petitioner
Through: Mr.Aabhas Parimal with
Mr.Himanshu Shekhar & Mr.Jamnesh
Kumar, Advs.
versus
REGIONAL PROVIDENT FUND COMMISSIONER, RANCHI
..... Respondent
Through: Ms.Santawana, Adv.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. The present writ petition filed by the employer assails the order
dated 15.02.2017 passed by the Employees Provident Fund Tribunal
in ATA No.69(18)/2017. Under the impugned order, the Tribunal has
rejected the petitioner's application for condonation of delay and,
resultantly, its appeal assailing the assessment order passed by the
respondent under Section 7A of the Employees Provident Fund &
Miscellaneous Provisions Act, 1952 ('the EPF Act' for short) on
09.06.2014 as also the consequential order passed under Section 14B
of the EPF Act on 20.11.2014, for being time barred.
2. That the petitioner establishment was registered with the
Employees Provident Fund Organisation on 04.08.2013 but the said
registration was directed to be effective retrospectively, i.e., from July
2007. Since the petitioner failed to make the requisite deposit on time,
despite reminders, the respondent passed an order dated 09.06.2014
under Section 7A of the EPF Act, holding the petitioner liable to pay
a sum of Rs.1,02,08,850/- towards any balance outstanding dues of
the provident fund. Consequently, the respondent passed another
order on 20.11.2014, this time under Section 14B of the EPF Act,
levying interest and damages totalling a sum of Rs.1,26,53,102/- on
the petitioner. It appears that both the aforesaid amounts were
immediately recovered from the petitioner's account at Allahabad
Bank, Dhurwa, Ranchi.
3. Two years later, i.e., on 27.01.2017, the petitioner preferred an
appeal under Section 7-I of the EPF Act challenging the orders dated
09.06.2014 and 20.11.2014. Along with its appeal, the petitioner also
preferred an application under Rule 7 of the Employees Provident
Fund Appellate Tribunal Rules, 1997 ('EPFAT Rules' for short)
seeking condonation of delay in filing the appeal which was required
to be filed within sixty days, in terms of the aforesaid Rule 7.
4. However, the petitioner's application and appeal came to be
rejected by the Tribunal vide its impugned order dated 15.02.2017 by
observing that the plea of administrative reason furnished as a ground
for seeking condonation of delay was not sufficient for condoning
such a long delay of more than two years.
5. The present writ petition has been filed by the petitioner on
06.02.2018 assailing the impugned order after a further delay of one
year.
6. In support of the petition, learned counsel for the petitioner
submits that the Tribunal has gravely erred in rejecting the
petitioner's appeal without even examining the merits of its case. He
submits that the Tribunal failed to appreciate that the petitioner is a
public sector undertaking which could not file an appeal without
obtaining the requisite approvals and therefore, the petitioner's right
to demonstrate the illegality of the orders passed by the respondent
could not be denied on the ground of technicalities. He therefore,
prays that the writ petition be allowed and the matter be remanded
back to the Tribunal for consideration on merits.
7. On the other hand, learned counsel for the respondent
vehemently opposes the writ petition. She submits that not only had
the petitioner filed the appeal after an inordinate delay of over two
years, but it had also failed to give any explanation whatsoever in its
application for condonation of delay and therefore, the Tribunal was
justified in rejecting the same. She submits that even before this
Court, the petitioner has failed to give any explanation for filing the
appeal belatedly or for approaching this Court after a further delay of
one year. She therefore, prays that the writ petition be dismissed.
8. I have considered the submissions of the learned counsel for the
parties and with their assistance perused the record.
9. Before dealing with the rival contentions of the parties, it may
be appropriate to notice that Rule 7(2) of the EPFAT Rules provides
that an appeal challenging any order passed by the Central
Government under the provisions of the EPF Act must be preferred
within sixty days from the issuance of the said order. The said
provision also empowers the Tribunal to extend this period by a
further period of sixty days in case it is satisfied that the appellant was
prevented by sufficient cause from preferring the appeal within the
prescribed period of sixty days. To that end, it is imperative for the
party seeking condonation of delay to set out the reasons which
prevented it from filing the appeal within the period of limitation
prescribed in the statute itself. In the present case, the Tribunal did
not find any reason to condone the inordinate delay of two years in
filing the appeal and therefore, rejected the same in the following
terms:-
"1. Present appeal filed on behalf of appellant u/s 7-1 of the
EPF & MP Act, 1952 (the Act) challenging order dated
09.06.2014 and 20.11.2014 passed by respondent u/s 7-A of the
Act. Along with appeal, application for condonation of delay
also filed.
2. Heard on application for condonation of delay.
3. As per Rule 7(2) of EPFAT (Procedures) Rule 1997, Appeal is
to be filed within 60 days of order. Appellant filed present appeal
on 27.01.2017, after a period of more than 02 years of passing
of impugned order. The grounds for seeking condonation of
delay that due to administrative reason appeal could not be filed
within statutory period, is not cogent ground for seeking
condonation of such long delay. Present appeal is highly time
barred hence application for condonation of delay and appeal
filed by appellant dismissed. File be consigned to the record
room after due compliance."
10. Since the short question before this Court is as to whether the
Tribunal was justified in rejecting the petitioner's application for
condonation of delay and, consequently, its appeal, it would be
apposite to reproduce the said application in extenso:-
"1.That the Instant Appeal has been filed by the Appellant
against the order dated 09.06.2014 passed by Regional
Provident Fund Commissioner, Ranchi whereby the liability to
the tune of Rs. 1,02,08,850/- has been imposed upon the
appellant and order dated 20/11 /2014 whereby an additional I
amount of Rs. 1,26,53,102/- towards (interest ,Rs.44,80,200/- +
damages 81,72,902/-) has been ordered on account of default in
payment of PF Contribution.
2. The necessary facts have been fully set out in the
accompanying Appeal and the same are not being reproduced
for the sake of brevity. The Appellant crave leave of this Hon'ble
Tribunal to rely upon the same at the time of hearing of this
application.
3. That the order passed by Respondent is without application of
mind and without averting to various contentions raised in the
memo of appeal and without referring and looking to the
documents. The Respondent has passed cryptic and cudgel order
in cursory manner.
4. That a delay of .... days has occurred in filing the appeal
because of administrative and other reasons. The details
showing reason for delay due to administrative reasons would,
be furnished during the course of hearing.
5. That the Regional Provident Fund Commissioner Tribunal
since has ignored vital aspects of law and has not taken into
consideration important precedents and provisions of the Act,
non condonation of delay would have far reaching effect not only
on the Provident Fund collection for the past period but, also on
the question of law.
6. That it is humbly submitted that once the technicality and the
substantive law is pitted against each other, tilt must be towards
substantive justice.
7. The appellant has a good case on merit and important issue
has been raised having larger repercussions as default in paying
PF Contribution has been imposed which could be waived off
under the Act.
8. That the intention of the appellant is not to adopt dilatory
tactics, however, despite best of the efforts when the appeals
could not be filed within the time; considering the details made
in the application and further affidavit, the Court may
condone the delay.
9. Therefore, this Honble Tribunal may condone the delay in
filing of the appeal and take a liberal view in the matter so as to
subserve the cause of justice by deciding the appeal on merits.
10.That the delay in filing the appeal is neither intentional nor
deliberate.
11.That the instant application is being moved bonafide and in
the interest of justice."
11. The petitioner's averments in its application leaves no manner
of doubt that the petitioner was not only utterly negligent but it also
acted most casually without giving any reason whatsoever for seeking
condonation of such a huge period of delay of about 850 days delay
viz. order dated 09.06.2014 and of 700 days viz. the order dated
20.11.2014. Interestingly, even the writ petition is conspicuously
silent on the reasons which prevented the petitioner from filing the
appeal within the statutorily prescribed time.
12. Undoubtedly, when the delay is bona fide, and the party
concerned has acted diligently, the Courts must endeavour to decide
the matter on merits but when the party itself fails to give any
justifiable reason whatsoever for the delay, the Courts ought not to
come to the aid of such a party.
13. In this regard, reference may be made to the decision in
Basawaraj vs. Land Acquisition Officer AIR 2014 SC 746, where the
Supreme Court held as under:-
"12. It is a settled legal proposition that law of limitation may
harshly affect a particular party but it has to be applied with all its
rigour when the statute so prescribes. The court has no power to
extend the period of limitation on equitable grounds. "A result
flowing from a statutory provision is never an evil. A court has no
power to ignore that provision to relieve what it considers a
distress resulting from its operation." The statutory provision may
cause hardship or inconvenience to a particular party but the court
has no choice but to enforce it giving full effect to the same. The
legal maxim dura lex sed lex which means "the law is hard but it is
the law", stands attracted in such a situation. It has consistently
been held that, "inconvenience is not" a decisive factor to be
considered while interpreting a statute.
13. The statute of limitation is founded on public policy, its aim
being to secure peace in the community, to suppress fraud and
perjury, to quicken diligence and to prevent oppression. It seeks to
bury all acts of the past which have not been agitated
unexplainably and have from lapse of time become stale. According
to Halsbury's Laws of England, Vol. 28, p. 266:
"605. Policy of the Limitation Acts.--The courts have
expressed at least three differing reasons supporting
the existence of statutes of limitations namely, (1) that
long dormant claims have more of cruelty than justice
in them, (2) that a defendant might have lost the
evidence to disprove a stale claim, and (3) that persons
with good causes of actions should pursue them with
reasonable diligence."
An unlimited limitation would lead to a sense of insecurity and
uncertainty, and therefore, limitation prevents disturbance or
deprivation of what may have been acquired in equity and justice
by long enjoyment or what may have been lost by a party's own
inaction, negligence or laches. (See Popat and Kotecha Property v.
SBI Staff Assn. [(2005) 7 SCC 510] , Rajender Singh v. Santa Singh
[(1973) 2 SCC 705 : AIR 1973 SC 2537] and Pundlik Jalam Patil
v. Jalgaon Medium Project [(2008) 17 SCC 448 : (2009) 5 SCC
(Civ) 907] .)
14 xxx xxx xxx xxx
15. The law on the issue can be summarised to the effect that where
a case has been presented in the court beyond limitation, the
applicant has to explain the court as to what was the "sufficient
cause" which means an adequate and enough reason which
prevented him to approach the court within limitation. In case a
party is found to be negligent, or for want of bona fide on his part
in the facts and circumstances of the case, or found to have not
acted diligently or remained inactive, there cannot be a justified
ground to condone the delay. No court could be justified in
condoning such an inordinate delay by imposing any condition
whatsoever. The application is to be decided only within the
parameters laid down by this Court in regard to the condonation of
delay. In case there was no sufficient cause to prevent a litigant to
approach the court on time condoning the delay without any
justification, putting any condition whatsoever, amounts to passing
an order in violation of the statutory provisions and it tantamounts
to showing utter disregard to the legislature." (emphasis supplied)
14. When the facts of the present case are considered in the light of
the aforesaid decision of the Supreme Court, I am unable to persuade
myself to differ with the findings of the Tribunal, there is absolutely
no infirmity or perversity in the impugned order.
15. The writ petition, being meritless, is dismissed.
REKHA PALLI, J
JANUARY 17, 2020
gm
