M/S. A.P.Model School vs Central Government Industrial ...
2023 Latest Caselaw 3388 Tel

 IN THE HIGH COURT OF TELANGANA AT HYDERABAD

           WRIT PETITION No.24405 OF 2023

Between:

M/s. A.P.Model School
                                             ... Petitioner
                            And

Central Government Industrial Tribunal-
Cum-Labour Court and another
                                           ... Respondents

JUDGMENT PRONOUNCED ON: 30.10.2023


     THE HON'BLE MRS JUSTICE SUREPALLI NANDA


1. Whether Reporters of Local newspapers    :   Yes
   may be allowed to see the Judgment?

2. Whether the copies of judgment may be    :    Yes
   marked to Law Reporters/Journals?

3. Whether Their Lordships wish to          :   Yes
   see the fair copy of the Judgment?




                                    __________________
                                     SUREPALLI NANDA, J
                                2




 IN THE HIGH COURT OF TELANGANA AT HYDERABAD

           WRIT PETITION No.24405 OF 2023


% 30.10.2023

Between:

# M/s. A.P.Model School
                                              ... Petitioner
                           And


$ Central Government Industrial Tribunal-
Cum-Labour Court and another
                                       ... Respondents


< Gist:
> Head Note:



! Counsel for the Petitioner       :   Mr.P.Shanker Rao

^ Counsel for Respondents          :   Mr.G.Venkateshwarlu
                                       for R1 , and
                                       Mr.T.Sasi Kumar,
                                       for R2.


? Cases Referred:
                                3




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                W.P. NO. 24405 OF 2023
ORDER :

Heard Mr.P.Shanker Rao, learned counsel for the

petitioner, Mr.G.Venkateshwarlu, learned counsel for

Central Government appearing on behalf of respondent

No.1 and Mr.T.Sasi Kumar, learned Standing Counsel

appearing on behalf of respondent No.2.

2. The petitioner has approached the Court, seeking

the following relief:

"To issue a writ, order or direction more in the nature of a mandamus declaring the order under section 7(1) read with rule 7(2) of the EPF AND M.P.ACT 1952 IN I.A.No.1/2023 IN WPF APPEAL No.CGIT2016 (189/2018) dated 07/08/2023 of the first respondent it is against the principles of natural justice, illegal, arbitrary, Unconstitutional and consequently set-aside the same."

PERUSED THE RECORD :

3. The relevant portion of the impugned order dated

07.08.2023 passed in I.A.No.1/2023 in EPF Appeal

No.CGIT 2016 (189/2018) passed by the Presiding

Officer CGIT-cum-Labour Court, Hyderabad, reads as

under :

"But as a matter of fact Respondent in his reply has categorically stated that the review application filed by the Appellant u/s 7-B was disposed of by the Respondent on 12.9.2014, that has not been countered by the appellant. Since the review application has been dismissed vide order dated 12.9.2014 whereby he was directed to comply the order passed by Assistant Provident Fund Commissioner. But the Appellant failed to comply the order dated 12.09.2014. Thus, the review petition stands disposed of by the PF authority. The limitation period for filing the appeal runs from the date 12.9.2014 and the appeal could have been filed within 60 days from the date of the said order. But the present appeal has been filed by the Appellant on 1.3.2016 with inordinate delay beyond limitation period of 60 days. The reasons furnished by the Appellant in support of his appeal are not plausible and sufficient to condone the delay in filing the appeal beyond limitation period.

It is pertinent to quote the decisions of Hon'ble High Court on the point of limitation period under EPF & MP Act, 1952 for filing appeal:-

The Hon'ble Delhi High Court in Saint Soldier Modern Senior Secondary School Vs. Regional Provident Fund Commissioner reported in 2014(3) LLJ 308, have held, "In view of the fact that limitation is prescribed by a specific Rule, and condensation has also to be considered within the purview of that Rule alone and the provisions of the Limitation Act cannot be

imported into Act and rules, the inevitable conclusion is that the Tribunal did not have the powers to condone the delay beyond a maximum period of 120 days as stipulated in Rule 7(2) of the Rules."

In Central Board of Trustees, EPFO Vs. Nasiruddin Biri Merchant Pvt. Ltd., reported in 2015(4) LLJ 232, Hon'ble Patna High Court held, "an aggrieved person can file an appeal within a period of 60 days from the date of issuance of the order/notification. However, the Appellate Tribunal has been authorized to condone further delay of 60 days. Meaning thereby, that in any event after expiry of 120 days from the date of issuance of the order, no appeal can be entertained nor delay can be condones by the Appellate Tribunal."

Thus, in view of the provision of Sec.7(1) read with Rule 7(2) and law laid down by the Hon'ble High Court and the facts and circumstances of the case, it is manifest that the present appeal has been filed beyond the limitation period of 120 days and appeal is barred by limitation. Further, the Tribunal has got no power to condone the delay in filing appeal beyond 120 days under the EPF & MP Act, 1952, hence appeal is liable to be rejected. Therefore, appeal is dismissed, being barred by limitation. Consign.

Ordered accordingly."

4. The counter affidavit filed by the 2nd Respondent,

in particular, Paras 5, 6, and the relevant portion at

para 9 and para 10, reads as under:

"5. I submit that Aggrieved by the order Petitioner establishment has filed Form-9 for

review of order under Section 7B of EPF and MP Act, 1952. For consideration of Review Application the Respondent Office has issued a letter dated 12.09.2014 to the Petitioner Establishment for submission of Coverage Proforma along with Form-5A and Bank Guarantee of 25% of assessed amount (i.e., Rs.2,99,637/-). The Respondent Office has given sufficient time to employer to submit said requisition till end of that financial year but Petitioner Establishment has failed to submit the same. Hence, on completion of financial year, as per the provisions u/S 8B of the Act, the Respondent Organization has issued Revenue Recovery Certificate for an amount of Rs.11,98,548/- to Recovery Officer for taking further recovery action.

6. It is submitted that in response to the averments made in Paragraph no.(c), that the enquiry under Section 7A was concluded on 22.07.2014. The Petitioner has filed a review petition under Section 7B of EPF & MP Act, 1952 on 04.09.2014. In reply to the Review Petition, the Petitioner was asked to submit 1. Coverage Proforma along with Form-5A and 2. Bank Guarantee of 25% assessed amount of Rs.11,98,548/- which comes to, Rs.2,99,637/- immediately. The Appellant has failed to submit the required documents till the end of Financial Year-2014-15. Hence, Recovery Certificate was issued under Section 8B of the Act for further recovery

actions. Upon initiation of Recovery Proceedings by issue of Attachment of Movable property in CP-2 dated 09.09.2015 and Attachment of Immovable property in CP-16 dated 09.09.2015, the employer remitted Rs.3,00,000/- on 02.11.2015 vide DD No.268449 dated 30.09.2015 drawn on Indian Overseas Bank towards Part Payment. On 03.12.2015 the Petitioner had assured to remit the dues by the next day failing which the Respondent can take over the transport vehicles (Annexure-A). This shows that the Petitioner has remitted Rs.3,00,000/- against Recovery actions initiated but not towards Bank guarantee of 25% assessed amount. Further he has also not contended the 7A/7B Order but accepted to pay the balance amount vide his letter dated 03.12.2015.

9. The Total strength of teaching of staff of the Petitioner's establishment is 26. On the day of the said inspection 20 teachers were present. The copy of the Attendance Register is submitted herewith for the kind perusal of the Hon'ble Court.

10. It is submitted that in response to the averments made in Paragraph no.(e), the said letter is dated 12.09.2014 from the Respondent, the bank guarantee of 25% of the assessed amount i.e., Rs.2,99,637/- out of Rs.11,98,548/- to be remitted by the Petitioner (as per Doc.No.22 of the W.P.). Whereas the payment shown Rs.3,00,000/- by way of Demand Draft, (as per

Doc.No.23 of W.P.), was dated 30.09.2015, i.e., more than 1 year of the said letter's date."

DISCUSSION AND CONCLUSION :

DISCUSSION :

5. It is a specific case of the Petitioner that the

Petitioner's School was not covered under the EPF & MP

Act, 1952 but on the ground that the Petitioner failed to

pay the contributions for the period 01.07.2011 to May

2013 proceedings were initiated U/s.7A of the EPF and

MP Act, 1952 and order passed to pay a sum of

Rs.11,98,548/- on 22.07.2014 and against the said

order the Petitioner had preferred review application

U/s.7B of the EPF and MP Act, 1952 before the 2nd

Respondent Authority on 04.09.2014 and the 2nd

Respondent herein had issued letter for submission of

proforma of coverage and Form 5A and Bank Guarantee

for 25% assessed amount to take up the review

application for which the Petitioner had deposited all

the required documents including Demand Draft for

Rs.3 lakhs before the Respondent Authority and the

Hon'ble EPF Tribunal, New Delhi, numbered the Appeal

preferred by the Petitioner by ATA No.270(1) 2016 on

04.03.2016 and the Tribunal passed order to transmit

the file initially to Southern Tribunal, Bangalore and

later to Hyderabad Tribunal vide EPF Appeal No.2016

(189)/2018 as renumbered while admission of the

above Appeal with IA No.1/2023 with a condone delay

petition and vide impugned order dated 07.08.2023 the

said Appeal is dismissed being barred by limitation and

aggrieved by the same the Petitioner filed the present

writ petition.

6. The main contentions put forth by the learned

counsel appearing on behalf of the writ petitioner are

as follows :

(i) The Respondent had not placed the order dated

12.09.2014 on record, but however stated in the

counter that the review application was disposed of and

the Court below came to a conclusion that the review

application was disposed of on 12.09.2014 which

according to the Petitioner is factually incorrect.

(ii) That the impugned order dated 07.08.2023 in

IA No.1/2023 in EPF Appeal No.CGIT 2016 (189)/2018

is against the principles of natural justice and contrary

to the judgment of the Apex Court since limitation

starts from the date of disposal of the review

application and in the present case petitioner contends

that the review application had not been disposed of

according to law since no notice was issued by the

Respondent fixing the date of hearing in the review

application.

(iii) The Petitioner contends the very applicability

of EPF & MP Act, 1952 contending that the Petitioner

M/s. A.P. Model School, Shankerpally, never engaged

20 members as on the date of coverage.

(iv) The order impugned is not a judicial order

and not a reasoned speaking order.

(v) The Petitioner being aggrieved by the order

U/s.7A preferred review under Sec.7B of the Act, 1952

and that the directions issued by the APFC for

consideration of review application made U/s.7B is

contrary to the enacted legislation.

(vi) The Petitioner prayed that the Petitioner is

entitled for the relief as prayed for in the writ petition,

since the Petitioner is the person aggrieved since

Petitioner's right had been adversely effected.

7. The learned counsel appearing on behalf of the

2nd Respondent placing reliance on the counter affidavit

filed by the 2nd Respondent put's forth the following

submissions :

(i) The total strength of the teaching staff of the

Petitioner establishment is 26 and on the day of

inspection 20 teachers were present and a copy of the

attendance register is filed along with the counter

affidavit before the Court evidencing the said fact and

therefore the learned counsel contended that the

Petitioner is not entitled for any relief as prayed for in

the present writ petition since the specific plea of the

Petitioner that the Petitioner's school is beyond the

purview of the EPF & MP Act, 1952 is totally false and

contrary to the record.

(ii) The counsel for the Respondent placed

reliance on the order dated 08.11.2021 passed in WA

No.531/2008 and contended that the learned Tribunal

has rightly dismissed the IA No.1/2023 in EPF Appeal

No.CGIT 2016 (189)/2018, dated 07.08.2023.

(iii) Petitioner establishment was in default from

date of coverage, hence inquiry was initiated under

Section 7A of the EPF and MP Act, 1952 duly serving

summons dated 26.06.2013. As many as 17

adjournments were given to the establishment and

inquiry was prolonged over a period of one year but

petitioner failed to justify/attend the inquiry and

inquiry was concluded ex parte on the basis of available

records vide order dated 23.07.2014 duly assessing

Rs.11,98,548 for the inquiry period from July 2011 to

June 2014.

8. Aggrieved by the said order, the Petitioner

Establishment has filed Form-9 for review of order under

Section 7-B of EPF & MP Act, 1952 and though sufficient time

was given to the petitioner to submit certain requests as

called for by the respondents office vide its letter dated

12.09.2014, the petitioner establishment failed to submit the

same and hence on completion of financial year, as per the

provisions under Section 8-B of the Act, the respondent

organization has issued Revenue Recovery Certificate for an

amount of Rs.11,98,548/- to recovery officer for taking

further recovery action and that the petitioner had remitted

an amount of Rs.3,00,000/- against recovery action initiated

but not towards bank guarantee of 25% assessed amount.

The petitioner had not contested 7A/7B order, but accepted to

pay the balance amount vide its letter dated 03.12.2015 and

the learned counsel appearing on behalf of the 2nd respondent

contended that the petitioner is not entitled for any relief as

prayed for.

CONCLUSION:

9. The statutory provisions governing the field as

contained under Rule 7 of the Tribunal (Procedure)

Rules, 1997, are reproduced as under:

"Fee, time for filing appeal, deposit of amount due on filing appeal-

(1) Every appeal filed with the Registry shall be accompanied by a fee of two thousand rupees to be remitted in the form of crossed demand draft on a nationalised bank in favour of the Registrar of the Tribulal and payable at the main branch of that Bank at the station where the seat of the said Tribunal is situated]

(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 a Tribunal unless he has deposited with the Tribunal [a Demand Draft Payable in the Fund and bearing] 75 per cent 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."

10. A bare perusal of order impugned dated

07.08.2023 passed in IA No.1/2023 in EPF Appeal No.

CGIT 2016 (189/2018), and in particular para 7 of the

said order, clearly indicates that the 1st Respondent

proceeded with an understanding that the Review

Application filed by the Petitioner U/s.7-B was disposed

of by the Respondent on 12.09.2014 and the limitation

period for filing the Appeal was calculated from the

date 12.09.2014 and the 1st Respondent held that the

Appeal should have been filed within 60 days from the

date of the said order and the Petitioner however had

filed the Appeal on 01.03.2015 with an inordinate delay

beyond limitation period of 60 days and further the 1st

Respondent observed in the order impugned dated

07.08.2023 that the reasons furnished by the Petitioner

in support of the said Appeal are not plausible and

sufficient to condone the delay in filing the Appeal

beyond limitation period. Referring to two judgments,

(i) reported in (2014) 3 LLJ 308 in Saint Soldier Modern

Senior Secondary School Vs. Regional Provident Fund

Commissioner and (ii) the judgment reported in (2015)

4 LLJ 232 in Central Board of Trustees EPFO Vs.

Nasiruddin Biri Merchant Pvt. Ltd., the 1st respondent

held that the Appeal filed by the Petitioner is beyond

the limitation period of 120 days and hence barred by

limitation and further dismissed the Appeal very clearly

observing that the Tribunal has got no power to

condone the delay in filing Appeal beyond 120 days

under the EPF & MP Act, 1952.

11. A bare perusal of the contents of the letter dated

12.09.2014 of the Asst. Provident Fund Commissioner

addressed to the Petitioner herein vide

AP/SRO/PTC/74029/Enf/Z-1/2014 reads as under :

"AP/SRO/PTC/74029/Enf/Z-1/2014, dated 12.09.2014

To

M/s. A.P. Model School Shankarpally Villag, Rangareddy District.

Sub: Submission of Form No.5-A and Bank Guarantee - reg.

Ref: Your Review application against 7A dt.04.09.2014.

Sir,

Please refer to the above cited.

In this regard, it is requested to submit the following documents in order to Review of your petition under Section 7-B of the Act.

1. Coverage Proforma along with Form No.5- A(enclosed)

2. Bank Guarantee of 25% assessed amount i.e., Rs.299637/- (Out of Rs.1198548/-)

Hence, you are directed to submit the above documents to the undersigned immediately."

12. Para 5 of the counter affidavit filed by Respondent

No.2 reads as under :

"I submit that Aggrieved by the order Petitioner establishment has filed Form-9 for review of order under Section 7B of EPF and MP Act, 1952. For consideration of Review Application the Respondent Office has issued a letter dated 12.09.2014 to the Petitioner Establishment for submission of Coverage Proforma along with Form-5A and Bank Guarantee of 25% of assessed amount (i.e., Rs.2,99,637/-). The Respondent Office has given sufficient time to employer to submit said requisition till end of that financial year but Petitioner Establishment has failed to submit the same. Hence, on completion of financial year, as per the provisions u/S 8B of the Act, the Respondent Organization has issued Revenue Recovery Certificate for an amount of Rs.11,98,548/- to Recovery Officer for taking further recovery action."

13. In the counter affidavit filed by the 2nd

Respondent in particular at para 5 (referred to and

extracted above) it is very clearly stated that for

consideration of Review application, the Respondent

office has issued a letter dated 12.09.2014 to the

Petitioner establishment for submission of coverage

proforma along with Form - 5A and bank guarantee of

25% of assessed amount (i.e., Rs.2,99,637/-) and that

the Respondent office had given sufficient time to the

Petitioner to submit the said requisition till the end of

the financial year but the Petitioner establishment had

failed to submit the same and hence on completion of

financial year, as per the provisions U/s.8B of the Act,

the Respondent organization has issued Revenue

Recovery Certificate for an amount of Rs.11,98,548/- to

Recovery Officer for taking further recovery action.

14. This Court opines that the observation at para 7 of

the order impugned of the 1st Respondent dated

07.08.2023 in I.A.No.1/2023 in EPF Appeal No.CGIT

2016 (189/2018) that the Review application of the

Petitioner filed U/s.7-B, has been disposed vide order

dated 12.09.2014, is totally contradictory to the

averments made at para 5 of the counter affidavit filed

by the Respondent No.2. This Court is of the firm

opinion that the 1st Respondent proceeded, by taking

into consideration the date 12.09.2014 as the basis and

observed in the order impugned dated 07.08.2023, that

the Review application filed by the Petitioner U/s. 7-B

as disposed by the Respondent on 12.09.2014, which as

borne on record is factually incorrect and contrary to

the record. The 1st respondent further concluded that

the Appeal filed by the Petitioner is barred by limitation

and dismissed the same.

15. This Court opines that the 1st Respondent needs to

reconsider the whole issue afresh again within a

reasonable period, in the interest of justice, by giving

due notice and reasonable opportunity to both the

Petitioner and the 2nd Respondent herein, in accordance

to law, and pass appropriate reasoned orders duly

communicating the decision to the Petitioner and the

2nd Respondent herein.

16. Taking into consideration the aforesaid facts and

circumstances of the case and in particular the specific

averments made at para 5 of the counter affidavit filed

by the 2nd Respondent and duly considering the

contents of the letter dated 12.09.2014 of the Asst.

Provident Fund Commissioner addressed to the

Petitioner herein (referred to and extracted above), the

Writ Petition is allowed as prayed for and the order

impugned dated 07.08.2023 passed in I.A.No.1/2023 in

EPF Appeal No.CGIT 2016 (189/2018) is set aside and

the matter is remitted back to the 1st Respondent for

consideration of the whole issue afresh again by giving

due notice and reasonable opportunity to both the

Petitioner and the 2nd Respondent herein in accordance

to law, in conformity with the principles of natural

justice and pass appropriate reasoned order within a

period of 4 weeks from the date of receipt of the copy

of the order duly communicating the decision to the

Petitioner and the 2nd Respondent herein. However,

there shall be no order as to costs.

Miscellaneous petitions, if any pending, shall stand

closed.

___________________________ MRS. JUSTICE SUREPALLI NANDA

Date: 30.10.2023 Note : L.R. Copy to be marked.

(B/o) Yvkr.

HON'BLE MRS. JUSTICE SUREPALLI NANDA

W.P.No.24405 OF 2023 (L.R.copy to be marked)

Date: 30.10.2023.

Yvkr