Bharat Sanchar Nigam Limited vs The Assistant Provident Fund ...
2023 Latest Caselaw 3159 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      (Criminal Appellate Jurisdiction)

                        L.P.A. No. 278 of 2022
Bharat Sanchar Nigam Limited, represented through Ram Kripal Singh, s/o
late Chandrika Singh, aged about 57 years, The Deputy General Manager
(Operational), Daltonganj, Palamau, the then Telegram District Manager,
Daltonganj, Palamau, office situated at Shantipuri, New Police Line,
Daltonganj, PO & PS-Daltonganj, District-Palamau (Jharkhand)
                                             ............. Petitioner/Appellant
                                Versus
1. The Assistant Provident Fund Commissioner, Employees' Provident
Fund Organization, Regional Office, Jharkhand, Bhagirathi Complex, Near
Circuit House, Karamtoli, PO-Karamtoli, PS-Bariatu, District-Ranchi,
Jharkhand, PIN-834001
2. The Recovery Officer, Employees' Provident Fund Organization,
Regional Office, Bhagirathi Complex, Near Circuit House, Karamtoli, PO-
Karamtoli, PS-Bariatu, District-Ranchi, Jharkhand, PIN-834001
                                                          ...... Respondents

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
       HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

For the Appellants          : Mr. Nipun Bakshi, Advocate
                              Mr. Shubham Choudhary, Advocate
                              Mr. Shubham Linda, Advocate
For the Resp.-EPFO         : Mr. Rupesh Singh, Advocate
                              Mr. Jagdeesh, Advocate
                          --------------

                                       Order No. 5/Dated:25th August 2023
Per, Anubha Rawat Choudhary, J.

I.A No.7504 of 2023

1. This application has been filed under section 5 of the Limitation Act for condonation of delay of 2 days in preferring L.P.A No.278 of 2022.

2. There is no opposition to this application by the respondents.

3. Considering the facts as stated in the application for condonation of delay, I.A No.7504 of 2023 seeking condonation of delay in filing appeal is allowed.

L.P.A No.278 of 2022

4. This appeal is taken up for hearing on merits with the consent of the learned counsels appearing for the parties.

5. This appeal has been filed against the order dated 7th June 2022 passed in W.P(C) No. 5362 of 2021 whereby the learned writ Court has refused to interfere with the order dated 1st October 2021 passed by the Presiding Officer, Central Government Industrial Tribunal-cum- Labour Court (No.2) at Dhanbad by which the appellate Tribunal has refused to condone the delay beyond 120 days in preferring the appeal.

6. The learned writ Court has held as under:

"Admittedly, the petitioner had preferred the appeal before the Appellate Tribunal i.e. Central Government Industrial Tribunal- cum-Labour Court (No.2), Dhanbad beyond the combined limitation period of 120 days from the date of the order passed by the Assistant Provident Fund Commissioner, Ranchi under Section 7-A of the Act, 1952. Hence, this Court does not find any infirmity in the impugned order dated 1st October, 2021 passed by the Appellate Tribunal in Case No.IT-2/3/2020 refusing to entertain the petitioner's appeal being barred by limitation.

The writ petition being devoid of merit is, accordingly, dismissed."

7. The learned counsel for the appellant has submitted that there was a further delay of only 55 days beyond 120 days in filing the appeal before the appellate Tribunal and for the ends of justice the delay should have been condoned by the learned Tribunal. The learned counsel for the appellant has also submitted that the time prescribed for filing an appeal before the appellate Tribunal and permissible period of condonable delay in filing the appeal as prescribed under the rules are only directory and not mandatory. He submits that the aforesaid aspects of the matter have not been considered by the learned writ Court and therefore the present appeal has been filed.

8. The learned counsel for the respondents has submitted that the aforesaid issue involved in this appeal as argued by the learned counsel for the appellant is squarely covered by the judgment of this Court passed in L.P.A No.893 of 2019 titled "M/s Nagarmal Modi Seva Sadan, Ranchi v. Employees'Provident Fund Organization, Regional Office, Ranchi & Ors." 2021 (2) JBCJ 410 (Jhr.) which has been referred to by the learned Single Judge while dismissing the writ petition.

9. This Court also finds that the order passed under section 7-A of the Employees' Provident Funds and Miscellaneous Provisions Act,

1952 was not under challenge before the learned writ Court and the appellant had only challenged the order passed by the learned Tribunal dismissing the appeal on the ground of limitation. This is apparent from a plain reading of the writ petition. Rule 7 of the Employees' Provident Fund Appellate Tribunal (Procedure) Rules, 1997 was also not under challenge in the writ petition.

10. It is not in dispute that the appellant had filed the appeal before the learned appellate Tribunal beyond the combined period of limitation of 120 days (60 days + 60 days). As per Rule 7 of the Employees' Provident Fund Appellate Tribunal (Procedure) Rules, 1997 the appeal has to be preferred within a period of 60 days from the date of issue of the notification/order and upon showing sufficient cause for not filing the appeal within the stipulated period the period prescribed can be extended by a further period of 60 days.

11. Rule 7 is quoted as under:

"7. Fee, time for filing appeal, deposit of amount due on filing appeal - (1) Every appeal filed with the Registrar shall be accompanied by a fee of Rupees five hundred to be remitted in the form of Crossed Demand Draft on a nationalized bank in favour of the Registrar of the Tribunal and payable at the main branch of that Bank at the station where the seat of the said Tribunal situate.

(2) Any person aggrieved by a notification issued by the Central Government or an 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.

Provided that the Tribunal may if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the prescribed period, extend the said period by a further period of 60 days.

Provided further that no appeal by the employer shall be entertained by the Tribunal unless he has deposited with the Tribunal a Demand Draft payable in the Fund and bearing 75% of the amount due from him as determined under Section 7-A. Provided also that the Tribunal may for reasons to be recorded in writing, waive or reduce the amount to be deposited under Section 7-O."

12. The aforesaid Rule 7 was considered by a co-ordinate Bench of this Court in L.P.A No.893 of 2019 (M/s Nagarmal Modi Seva Sadan versus Employees' Provident Fund Organization, Regional Office, Ranchi and others) and it has been clearly held that the maximum period for filing the appeal is only 120 days from the date of issuance of the

notification/order to be challenged. It has also been clearly observed that it is a well-settled principle of statutory interpretation that where the Statute confers power on the authority to condone the delay only to a limited extent the same cannot be stretched or extended beyond what has been provided under the Statute. Paragraph 14 of the judgment passed in L.P.A No.893 of 2019 (supra) is quoted as under: -

"14. In view of the foregoing discussion, the legal position which emerges that in terms of Section 7-I (2) every appeal is to be filed in such form and manner, within such time and be accompanied by such fees, as may be prescribed. Rule 7 (2) of the Rules, 1997 provides for filing of the appeal within 60 days from the date of issuance of the order. The first proviso thereunder further stipulates that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the prescribed period, extend the said period by a further period of 60 days. It is thus seen that the EPF Act is a special law providing for institution of provident funds, pension fund and deposit-linked insurance fund for employees in factories and other establishments and in terms of the rules framed thereunder a certain period of limitation for filing an appeal having been provided for in clear terms and a further provision having been made for extension of such period only upto a specified time period and no further, the Appellate Tribunal would have no jurisdiction to treat within limitation, an appeal filed before it beyond such maximum time limit specified in terms of the statutory rules.

Moreover, in terms of the scheme and the intent of the provisions contained in the EPF Act it is seen that the legislature intended it to be a complete code by itself. As a consequence, even if the provisions of the Limitation Act may be held to have not been expressly excluded the principle of implied exclusion would apply in terms of the nature of the subject matter, the purpose and the scheme of the Act. The provisions contained under the Limitation Act, 1963 would therefore not be applicable for seeking extension of time beyond the statutory time period of 60 days from the date of issue of the notification/order, extendable by a further period of 60 days, upon the Tribunal being satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the prescribed period. The maximum period for filing the appeal would be thus 120 (60+60) days from the date of the issuance of the notification/order which is sought to be challenged. It is a well settled principle of statutory interpretation that where the statute confers power on the authority to condone the delay only to a limited extent the same cannot be stretched or extended beyond what has been provided under the statute."

13. This Court finds that the impugned order passed by the learned writ Court by referring to the aforesaid judgment passed in L.P.A No.893 of 2019(supra) does not suffer from any illegality. Sound reasons have been assigned by the learned writ Court while refusing to interfere

with the order passed by the learned Tribunal dismissing the appeal filed beyond a total period of 120 days from the date of issue of the notification/order. The impugned order of the learned writ Court does not call for any interference. Accordingly, L.P.A No.278 of 2022 is dismissed.

14. Pending I.A, if any, is closed.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.) Sudhir/NAFR