Hyderabad Metropolitan ... vs The Regional Provident Fund ...
2022 Latest Caselaw 4118 Tel

           THE HONOURABLE SRI JUSTICE K.LAKSHMAN

                   WRIT PETITION No.22681 OF 2022

ORDER:

This Writ Petition is filed to quash the impugned order

dated 01.07.2021 passed under Section 7-A of Employees

Provident Funds and Miscellaneous Provisions Act, 1952 (for

short, 'the Act') by 2nd respondent on Notice dated

11.08.2016 and show cause notice dated 21.03.2022, as

illegal.

2. Heard Sri V.Narasimha Goud, learned standing

counsel for the petitioner/Hyderabad Metropolitan

Development Authority (HMDA) and Sri G.Venkateshwarlu,

learned Standing Counsel appearing for respondent -

Corporation. Perused the record.

3. Sri V.Narasimha Goud, learned standing counsel for

the petitioner would submit 2nd respondent had issued notice

dated 11.08.2016 to the petitioner herein under Section 7(A)

of the Act alleging that the exemption granted in favour of

HMDA is not extended from 01.04.2015 to 30.06.2016 by the

Central Government and it is trying to conduct enquiry for

determination of amount payable from 01.04.2015 to

30.06.2016. The petitioner/HMDA was constituted by virtue

of the Act called the HMDA Act, 2008 in the place of the

Hyderabad Urban Development Authority Act (HUDA). When

HUDA was in existence, respondent Nos.1 and 2 had tried to

cover its employees under the provisions of the Act and

therefore they have issued summons under Section 7(A) of

the Act on 22.12.1992. The then HUDA filed a writ petition

vide W.P.No.52 of 1993 challenging the said proceedings

contending that the provisions of the Act does not apply to its

employees and the said proceedings are illegal. The

employees of HUDA are covered by its pension.

4. When the said writ petition came up for hearing, the

learned standing counsel of the respondent authorities has

reported to the Court stating that the HUDA was excluded as

per Section 16(1)(C) of the Act, 1952. Therefore, again

covering the HMDA under the same provision vide

proceedings dated 01.08.2016 after lapse of more than 26

years is nothing but arbitrary and without jurisdiction.

5. The Government of the then Andhra Pradesh also

issued G.O.No.631, MA, dated 13.12.1991 stating that HUDA

in the State has resolved to extend the benefits of pension,

gratuity, group insurance scheme on par with Government

employees. In view of the said submission, this Court closed

the writ petition on 01.10.1993 as cause does not survive.

6. It is further brought to the notice of 2nd respondent

that already this establishment was excluded under Section

16(1) (C) of the Act and the exemption so granted under 16(2)

of the Act was in respect of educational institutions.

Therefore, the alleged exemption, granted from 01.04.2015 to

30.06.2016 and it is alleged to be not extended in respect of

establishment under Societies Registration Act and also in

respect of educational institution. Therefore, the very notice

dated 11.08.2016 is untenable.Despite filing of the above said

detailed counter, without considering the said aspects, 2nd

respondent has passed the impugned orders under Section

7(A) of the Act. Therefore, the same are illegal and liable to be

quashed.

7. Referring to the same, Sri V.Narasimha Goud,

learned standing counsel for the petitioner would submit that

though the impugned order is an appealable order, the

present writ petition is maintainable since there is violation

of principles of natural justice and there is no consideration

of the contentions raised by the petitioner in counter filed by

the petitioner by the 2nd respondent in the impugned

proceedings. Therefore, the present writ petition is

maintainable. He has also placed reliance on the judgments

of the Apex Court in Yeshwant Gramin Shikshan Sanstha Vs.

The Assistant Provident Fund Commissioner1.

8. He would submit that though there is an alternative

remedy of filing an appeal, there is no Presiding Officer in the

Tribunal, at Hyderabad since last one year and therefore, the

petitioner herein is constrained to approach this Court by

way of filing the present writ petition. The maximum period of

limitation to file an appeal is 120 days which is expired. In

view of the same, if this Court comes to conclusion that the

present writ petition is not maintainable and the petitioner

has to file a statutory appeal under Section 7(1) of the Act,

liberty may be granted to the petitioner to file an appeal by

extending the period of limitation beyond 90 days, failing

which the petitioner will be put to irreparable loss and injury.

9. On the other hand, Sri G.Venkateshwarlu, learned

standing counsel appearing for respondents would submit

AIR 2017 SC 1408

that 2nd respondent has granted ample opportunity to the

petitioner herein and passed the impugned orders under

Section 7(A) of the Act. It is an appealable order and appeal

lies to the Tribunal as per Section 7(I) of the Act and instead

of availing the said alternative and efficacious remedy, the

petitioner herein has filed the present writ petition. With the

said submissions, he sought to dismiss the writ petition.

10. There is no dispute that 2nd respondent has passed

the impugned order under Section 7(A) of the Act. On receipt

of summons from 2nd respondent, petitioner had appeared

and filed its counter. It has raised several grounds. According

to the petitioner, 2nd respondent has not considered the said

grounds. In view of the same, the questions that fall for

consideration before this Court in the present writ petition

are as follows:-

i) Whether the petitioner can maintain the present writ petition though there is an alternative and efficacious remedy available to it under Section 7(I) of the Act?

ii) Whether three factors as laid down by the Apex Court existing in the present writ petition to maintain it though an alternative and efficacious remedy is available?

iii) Whether this Court can extend period of limitation stipulated by a statute, by invoking its powers under Article 226 of the Constitution of India?

11. As stated above, there is no dispute that the

impugned order was passed under section 7(A) of the Act. It

is an appealable order under section 7(I) of the Act. The

limitation period prescribed to file the said appeal is 60 days.

However, the Tribunal is having power to extend the said

period by a further period of 60 days. Though there is

alternative and efficacious remedy, the writ petition can be

maintained under the following circumstances where there is :-

        i)     Breach of fundamental right,

        ii)    Violation of principles of natural justice,

        iii)   Excessive of jurisdiction, and

        iv)    Challenge to the vires of the statute or
               complicated legislation?

12. The said principle was also laid down by the three

Judge Bench of the Apex Court in Asst. Commissioner of

State Tax Vs. Commercial Steel Limited2 and also

Whirlpool Corporation Vs. Registrar of Trade Marks,

Mumbai3.

13. Perusal of the impugned order would reveal that on

receipt of summons under Section 7(I) of the Act, from 2nd

respondent, the petitioner herein had appeared before him

and filed a detailed counter. Hearings were conducted. On

consideration of the entire pleadings only, 2nd respondent has

passed the impugned order. It is a detailed order. He has

given reasons. He has also considered several aspects,

provisions of law and also law laid down by the Apex Court.

Therefore, there is no violation of principles of natural justice.

There is no breach of fundamental right. There is no

excessive jurisdiction by 2nd respondent in the present writ

petition. There is no challenge to the vires of the Act. The

challenge is to the order passed by 2nd respondent under

Section 7(A) of the Act. Therefore, the petitioner herein

cannot contend that though there is an alternative remedy,

the present writ petition is maintainable. Since there is no

Manu/SC/0801/2021

(1998) 8 SCC

Presiding Officer for the last more than one year, the

petitioner is forced to approach this Court, as it is not having

effective alternative remedy in the present fact situation for

questioning the impugned order. However, as discussed

supra, the present writ petition will not fall under the above

said four exceptions laid down by the Apex Court to maintain

the present writ petition in view of availability of alternative

and efficacious remedy. Therefore, the present writ petition is

liable to be dismissed on the above ground.

14. However, Sri V.Narasimha Goud, learned standing

counsel for the petitioner would submit that the limitation

prescribed under the Act to file statutory appeal under

Section 7(I) of the Act is 60 days and the same can be

extended by 60 more days. Therefore, the said limitation as

prescribed by the Act may come in the way of the petitioner

in filing the statutory appeal. He would further submit that

the petitioner has received the impugned order on

03.07.2021 and it has filed the present writ petition on

27.04.2022. This Court has also granted interim order. The

Hon'ble Apex Court extended limitation considering COVID-

19 circumstances.

15. With the said submission, he sought liberty to the

petitioner to take the said contentions before the Employees'

Provident Fund Appellate Tribunal, in a petition to be filed

seeking condonation of delay in filing the appeal.

16. It is settled law that this Court in exercise of its

inherent powers under Article 226 of the Constitution of

India, cannot extend the period of limitation prescribed by a

statute.

17. However, considering the above said submissions, it

is relevant to note that it is settled law that the period of

pendency of the writ petition also cannot be put against the

petitioner. In Essar Steel (India Limited) Committee of

Creditors v. Satish Kumar Gupta4, the Hon'ble Apex Court

held that the time taken in legal proceedings cannot ever be

put against the parties. The basis of the said principle is the

Latin Maxim 'Actus Curiae Neminem Gravabit' i.e. an act of

the Court shall prejudice no man.

18. In view of the same, this Writ Petition is disposed of

granting liberty to the petitioner to file statutory appeal under

Section 7(I) of the Act. Liberty is also granted to the

(2020) 8 SCC 531

petitioner to file an application seeking condonation of delay

in filing the said Appeal. With the said contentions and to

rely upon the principle laid down by the Hon'ble Apex Court

in Miscellaneous Application No.21 of 2022 in Miscellaneous

application No.665 of 2021 in Suo Motu Writ Petition (C) No.3

of 2020 in seeking condonation of delay. The Employees'

Provident Fund Appellate Tribunal, shall consider the said

aspects, while deciding the application filed by the petitioner

in seeking for condonation of delay in filing appeal.

Miscellaneous Petitions, if any, pending, shall also stand closed.

__________________ K. LAKSHMAN, J Date:11.08.2022.

vvr.