The present petition has been filed seeking quashing of the order dated 4.2.2019 passed by the Presiding Officer, Central Government, Industrial Tribunal cum Labour Court, Kanpur in an appeal preferred under Section 7I of ...
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WritC No. 6196 of 2019
AFR
Court No. 3
Case : WRIT C No. 6196 of 2019
Petitioner : M/S Kushang Security And House Keeping
Private Limited
Respondent : Presiding Officer Central Government
Industrial Tribunal Cum Labour Court And Another
Counsel for Petitioner : Virendra Singh
Counsel for Respondent : Sachindra
Upadhyay,C.S.C.,Jagdish Pathak
Hon'ble Dr. Yogendra Kumar Srivastava,J.
1.Heard Sri Virendra Singh, learned counsel for the
petitioner and Sri Jagdish Pathak, learned counsel for the
respondent no. 2.
2.The present petition has been filed seeking
quashing of the order dated 4.2.2019 passed by the
Presiding Officer, Central Government, Industrial
Tribunal cum Labour Court, Kanpur in an appeal
preferred under Section 7I of the Employees' Provident
Funds and Miscellaneous Provisions Act, 1952 (Act No.
19 of 1952), (hereinafter referred to as 'the EPF Act')
registered as Appeal No. A.T.A. (Misc.) No.03/19. The
petitioner has also sought to challenge the earlier order
of levy of damages under Section 14B and interest under
Section 7Q of the EPF Act dated 19.10.2015 passed by
the Assistant Provident Fund Commissioner, Employees
Provident Fund Organization, Kanpur (in short 'APFC').
3.The records of the case indicate that the petitioner
establishment, having Registration No. UP/39140 had
failed to pay the provident fund dues for the period
08.09.2012 to 31.12.2014. A Quantification Notice No.
Neutral Citation No. 2019:AHC:139832
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180510 dated 10.1.2015 was issued, and after several
opportunities being granted to the petitioner which were
not availed, the APFC passed an order (Levy Order No.
174530) dated 19.10.2015 in respect of the remittance
for the period 09/12 to 12/2014 levying an amount of
Rs.1,33,282/as damages under Section 14B and an
amount of Rs.1,89,937/ as interest under Section 7Q of
the EPF Act. An order dated 22.5.2017 levying damages
and interest for a subsequent period was also passed
against the petitioner establishment.
4.The petitioner establishment preferred an appeal
under Section 7I of the EPF Act, registered as Appeal
No. A.T.A. (Misc.) No.03/19, against the two orders
dated 19.10.2015 and 22.05.2017 referred to above. The
appellant also prayed for stay of the operation of the
aforementioned orders as well as notices dated
4/11.01.2017, 09.10.18 and 19.11.18.
5.Objections were filed by the APFC Kanpur
(respondent in the appeal) strongly opposing the
maintainability of the appeal and submitting that the
appeal was highly belated and that the validity of two
separate orders could not be challenged in a joint appeal.
On the question of limitation reliance was placed upon
the judgments in the case of Lotus Chemicals Pvt. Ltd.
Vs. Asst. Provident Fund Commissioner, (Compl.),
Rourkela
1
and M/s Port Shramik Cooperative
Enterprises Ltd. Vs. Employees Provident Fund
Organization
2
.
6.The Presiding Officer upon a consideration of the
1 2018 (157) FLR 440 (Ori.H.C.)
2 2018 (156) FLR 363 (Cal.H.C.)
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facts of the case came to the conclusion that both the
appeals preferred were highly belated and the challenge
raised to two separate orders dated 19.10.2015 and
22.05.2017 by means of a single appeal was not
permissible and further that legality of the three notices
could not be examined in the appeal. Accordingly, it
came to the conclusion that neither the appeal could be
admitted nor any relief could be granted and the appeal
was disposed vide order dated 04.02.2019. Aggrieved
against the aforementioned order, the present petition
has been filed.
7.Heard learned counsel for the parties and perused
the records.
8.The sole contention of the counsel for the
petitioner is that the dismissal of the appeal in terms of
the order dated 04.02.2019, on the ground of delay is
wholly illegal, and that the delay in filing of the appeal
ought to have been condoned in the interest of justice.
9.Counsel appearing for the respondent no. 2 APFC
has supported the order passed in appeal by submitting
that the levy of damages under Section 14B and interest
under Section 7Q had been made after due notice and
opportunity to the petitioner establishment and that the
appeals being beyond the statutory period of limitation
have rightly been rejected.
10.The sole ground which has been raised in the
present writ petition is with regard to the question of
limitation in filing of the appeal under the provisions of
EPF Act.
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11.The question which thus falls for consideration is as
to whether the time limit granted in terms of the
statutory provisions under the EPF Act and the rules
made thereunder with regard to filing of an appeal can
be extended beyond the period prescribed by granting
benefit of the provisions of Section 5 of the Limitation
Act, 1963.
12.In order to appreciate the rival contentions the
relevant statutory provision with regard to filing of
appeal under Section 7I of the EPF Act may be adverted
to.
“7I. Appeals to Tribunal. (1) Any person aggrieved
by a notification issued by the Central Government, or
an order passed by the Central Government or any
authority, under the proviso to subsection (3), or sub
section (4), of Section 1, or Section 3, or subsection
(1) of Section 7A, or Section 7B(except an order
rejecting an application for review referred to in sub
section (5) thereof), or Section 7C, or Section 14B,
may prefer an appeal to a Tribunal against such
notification or order.
(2) Every appeal under subsection (1) shall be filed in
such form and manner, within such time and be
accompanied by such fees, as may be prescribed.”
13. The power to make rules including the power to
make rules in respect of the form and the manner in
which, and the time within which, an appeal shall be
filed before a Tribunal and the fees payable for filing
such appeal is provided for under Section 21 of the EPF
Act. The relevant provision is being extracted below :
“21. Power to make Rules– (1) The Central
Government may, by notification in the Official
Gazette, make rules to carry out the provisions of this
Act.
(2) Without prejudice to the generality of the foregoing
power, such rules may provide for all or any of the
following matters namely :
xxxxxx
(b) the form and the manner in which, and the time
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within which, an appeal shall be filed before a Tribunal
and the fees payable for filing such appeal.”
14.In exercise of powers conferred under subsection
(1) of Section 21 of Act No. 19 of 1952 ''The Employees
Provident Fund Appellate Tribunal (Procedure) Rules,
1997'' have been made. The procedure including the time
period for filing an appeal is provided under Rule 7 of
the aforementioned Rules, 1997.
“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 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 7A:
Provided also that the Tribunal may for reasons to be
recorded in writing, waive or reduce the amount to be
deposited under Section 7O.”
15.A plain reading of the aforementioned statutory
provisions indicates that in terms of subsection (2) of
Section 7I every appeal under subsection (1) is to be
filed in such form and manner, within such time and is to
be accompanied by such fees, as may be prescribed.
Further, Rule 7 of the Rules, 1997 provides that the
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appeal may be preferred within 60 days from the date of
issue of the order, 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.
16.It is seen that the initial period for filing of appeal
is 60 days which can be extended by the EPF Appellate
Tribunal for another 60 days only when there is sufficient
cause and not otherwise. In this regard, reference may be
made to the judgment in the case of M/s Port Shramik
Cooperative Enterprise Ltd. Vs. Employees Provident
Fund Organisation
2
. The relevant observations made in
the judgment are as follows :
“3.......The period of limitation for filing an appeal
against an order passed under Section 7A or Section
14B of the Employees' Provident Funds and
Miscellaneous Provisions Act is 60 days. If the appellant
satisfies the Tribunal that it was prevented by sufficient
cause from not filing the appeal within the said period
of 60 days, in appropriate case, the Tribunal has the
power to condone the delay of another 60 days. Thus,
even if the Tribunal wanted to condone the delay it
could not condone it beyond a period of 60 days.”
17.In the case of Assistant Regional Provident Fund
Commissioner, Meerut Vs. Employees Provident Fund
Appellate Tribunal and others
3
, an appeal to the
Appellate Tribunal was filed after 165 days from the date
of the order of the EPF Authority and the delay was
condoned by the Appellate Authority in view of the
provisions under Section 5 of the Limitation Act, 1963.
Upon a challenge being raised the order condoning the
delay was set aside and it was held that when the period
2 2018 (156) FLR 363 (Cal.H.C.)
3 2006 (108) FLR 35 (Del.H.C.)
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of 60 days was provided under Rule 7 (2) and a further
period of 60 days for condoning the delay is allowed
under the proviso to the said rule only then that much
period could be condoned. It was held that applicability
of Section 5 of the Limitation Act was specifically
excluded. The relevant observations made in the
judgment are as follows :
“8.......On behalf of the Assistant Provident Fund
Commissioner before the Tribunal, a preliminary
objection was raised to the effect that the appeal is
barred by time. The appeal was preferred after more
than 160 days and the Tribunal had no jurisdiction to
condone the delay beyond 60 days. The appeal was
presented on 11.1.1999 though the order dated
10.7.1998 was received by the appellant on 20.7.1998.
Thus it took 165 days in preferring the appeal. In view
of the provisions contained in Section 7I(2) of the Act
read with Rule 7(2) of the Rules, the appeal was
required to be preferred within 60 days to the Tribunal.
It was submitted that the Tribunal on being satisfied
that the appellant was prevented by sufficient cause in
preferring the appeal within the prescribed period of 60
days, may extend the said period by a further period of
60 days and thus in all the appeal was required to be
preferred maximum within a period of 120 days and
not beyond that. Section 7I (2) of the Act reads as
under:
"An appeal under subsection (1) shall be filed in
such form and manner, within such time and be
accompanied by such fees, as may be prescribed."
9. Rule making authority under Section 21 is entitled to
make rules to carry out the provisions of this Act by
issuing a notification in the Official Gazette. Subclause
(b) of subsection (2) of Section 21 reads as under:
"….the form and the manner in which, and the
time within which, an appeal shall be filed before
a Tribunal and the fees payable for filing such
appeal....."
10. Rule 7(2) reads as under:
“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 :
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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."
11. It is in view of the aforesaid provisions, it was
contended that the appeal was hopelessly time barred
and after the period of 60 days granted for preferring
an appeal, if there is a delay of 60 days then such delay
can be condoned and no further.
12. The Tribunal expressed an opinion that the power
of the Tribunal to condone the delay under Section 5 of
the Indian Limitation Act, 1963, is not curtailed by the
Legislature..Therefore, the provisions under the
Employees' Provident Funds Appellate Tribunal
(Procedure) Rules, 1997, only to condone a delay of 60
days is ultra vires and is void. Therefore, it held that
the Tribunal has jurisdiction to condone any delay, if it
is satisfactorily explained...
13. Learned counsel for the Company submitted that
subclause (b) of subsection (1) of Section 21 provides
the rule making authority to prescribe time limit within
which an appeal shall be filed before the Tribunal.
Legislature only authorized the rule making authority
to make a provision for prescribing a period for
preferring an appeal, however, the rule also provided a
further period of 60 days by proviso to subrule (2) of
Rule 7 of the Rules. In view of this, it was contended
that proviso is ultra vires the provisions contained in
the Act. It was further submitted that if the proviso is
ultra vires the provisions contained in the Act, then the
Limitation Act, 1963 will apply. In the submission of
learned counsel for the Company, the Tribunal has
rightly held that the law of limitation is applicable. It
was submitted that Section 7I of the Act, if read it
becomes very clear that subsection (2) of Section 7I
also refers such time within which the appeal is to be
filed.
14. The Act is a labour legislation wherein provision is
made for provident funds to be deposited by the
employer. Section 7D to 7H provide for the Appellate
Tribunal, the term of the office of the Presiding Officer
of Tribunal, salary, allowances and other terms and
conditions of Presiding Officer and the staff of the
Tribunal. Section 7I provides for appeals to the
Tribunal. The Chapter further provides procedure
before the Tribunal, assistance of a legal practitioner,
right of hearing or rectification of an order, finality of
orders of the Tribunal, deposit of amount due on filing
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an appeal, transfer of cases, the manner of recovery,
recovery certificate, validity of the certificate and such
other things. It provides penalties, offences by
companies, enhanced punishment in certain cases and
offences under the Act to be cognizable. It also provides
the Court which shall try the offences. Thus a special
mechanism is indicated in the Act itself.
15. With a view to see that the proceedings are
disposed of as early as possible, it was left by the
Legislature to fix ''such time'' for preferring an appeal.
Section 21(2)(b) refers to the time within which an
appeal shall be filed and in view of this it was
submitted that in absence of any power, it was not
open to prescribe a specific period for condonation of
delay in subrule (2) of Rule 7 of the Act in exercise of
the powers conferred under subsection (1) of Section
21 of the Act.
16. The Legislature left it open to the rule making
authority to prescribe time for preferring an appeal.
However, at the same time the rule making authority
while prescribing the period of limitation for preferring
an appeal also provided a period during which if there
is a delay, the same can be condoned if the Tribunal is
satisfied that the appellant was prevented by sufficient
cause from preferring the appeal within the prescribed
period. However, the limitation was placed that that
can be done if there is a delay of a further period of 60
days.
17. In our opinion, it cannot be said that the rule
making authority has exceeded its limit while
prescribing the period of limitation. Like the provisions
in other statutes for condoning the delay, the rule
making authority thought it fit to provide some period
if there is a sufficient cause and the Tribunal is satisfied
that the applicant was prevented from preferring the
appeal on such cause to extend the period of limitation.
This provision is an enabling provision. It does not take
away the right of a person of preferring an appeal but
on the contrary it enables a party who could not prefer
an appeal within the prescribed period for sufficient
reasons. However, at the same time, keeping in mind
that that provision is made for a weaker section,
disputes must be resolved at the earliest, therefore,
restricted the period, i.e. that if the delay is of 60 days
then to that extent delay can be condoned. Therefore,
in our opinion, the provision cannot be said to be ultra
vires of the provisions of the Act as the provision for
condonation of delay is made to help the litigant who
might be facing genuine difficulties. It is difficult to say
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that the proviso to subrule (2) of Rule 7 is bad. If that
is declared as bad or ultra vires Section 7I or Section
21(1)(b) of the Act, it can be said that the period of
limitation prescribed is bad for want of not providing
extended period in case of difficulty.
18. It is required to be noted that in case of Delta
Impex v. Commissioner of Customs, decided on
13.2.2004, this Court had an occasion to examine the
question raised by the applicant which reads as under:
"Whether the provision of Section 128 of the
Customs Act, 1962 completely bars the
Commissioner (Appeals) from condoning the
delay beyond the period of 30 days even in a
deserving case and that despite the order made
by the Commissioner (Appeals) is it incumbent
upon the Tribunal to consider the appeal on
merits?"
19. There also it was submitted that considering the
provisions contained in section 29(2) of the Indian
Limitation Act, 1963 (hereinafter referred to as 'the
Limitation Act') read with section 5 thereof, irrespective
of the fact that the matter was under the Customs Act,
the appellate authority ought to have condoned the
delay, examined the matter on merits and it could not
have dismissed the appeal on the ground that the
Commissioner (Appeals) can only condone the delay, if
an appeal is presented within a period of 30 days after
the statutory period of 60 days in view of section 128
of the Act.
20. In case of Collector of C.E. Chandigarh v. Doaba
Cooperative Sugar Mills, Supreme Court pointed out
that the authorities functioning under the Act are
bound by the provision of the Act. If the proceedings
are taken under the Act by the Department, the
provisions of limitation prescribed in the Act will
prevail. In the case of Miles India Limited v. Assistant
Collector of Customs, the Court observed that the
Customs Authorities acting under the Act were not
justified in disallowing the claim as they were bound by
the period of limitation provided there in the relevant
provisions of the Customs Act, 1962.
21. The Court in the aforesaid case pointed out that the
period of limitation prescribed by the Act for filing an
application being different from the period prescribed
under the Limitation Act, by virtue of Section 29(2) of
the said Act, it shall be deemed as if the period
prescribed by the different Act is the period prescribed
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by the schedule to the Limitation Act. However, it
would be difficult to say that section 5 of the Limitation
Act is intended to be made applicable in view of the
proviso to section 128 of the Customs Act.
22. The Court is required to examine the scheme of the
special law, and the nature of the remedy provided
therein. Considering these aspects, the Court will have
to find out whether the Legislature intended to provide
a complete code by itself which along should govern
the matters provided by it. On examination of the
relevant provisions, if it becomes clear that the
provisions of section 5 of the Limitation Act are
necessarily excluded, then the said provisions cannot
be called in aid to supplement the provisions of the Act.
It is open to the Court to examine whether and to what
extent the nature of the provisions contained in the
Limitation Act in comparison with the scheme of the
special law are excluded from operation. When a
specific period is provided and a further period of 60
days by way of extended period only then that much
period can be condoned.
23. In the instant case, a separate period of limitation is
provided, as also the period for which delay can be
condoned. The Legislature was aware about the
provisions contained in section 5 of the Limitation Act,
yet with an intention to curb the delay in labour
matters, Legislature left it to the Rule making authority
to make a provision for limitation. Rule making
authority under the Statute has specifically provided
that after the statutory period, if there is delay of 60
days, on showing sufficient grounds for delay of 60
days, that can be condoned. Thus applicability of
section 5 of the Limitation Act is specifically excluded.
24. The expression ''expressly excluded'' in subsection
(2) of section 29 of the Limitation Act means an
exclusion by express words, i.e. by express reference
and not exclusion as a result of logical process of
reasoning. In the instant case, there is no question of
implied exclusion but, it specifically provides a different
period of limitation, as also the period during which, if
delay has occurred, it could be condoned.
25. With regard to the applicability of sections 4 to 24
of the Limitation Act (inclusive) one will have to refer
to subsection (2) of section 29 of the Limitation Act,
1963. It specifically states that these provisions shall
apply only so far as and to the extent to which, they are
not expressly excluded by special or local law. Reading
the language of Rule 7 of the Rules and section 5 of the
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Limitation Act, it is very clear that extension of time for
a period 60 days only can be condoned subject to
satisfaction and not beyond that. From an examination
of Rule 7 of the Rules, it is very clear that section 5 of
the Limitation Act is expressly excluded as a specific
provision is made in Rule 7.
xxxxxxx
38. In the instant case, there is clear intention of the
Legislature for asking the rule making authority to
prescribe the time during which an appeal shall be
filed. When the time is to be prescribed, it is open for
the rule making authority to prescribe extended period
also. If the extended period is provided, the provisions
would not become bad or ultra vires the provisions
contained in the Act, as it is only an enabling provision.
39. It is also clear that an opinion was expressed before
the Legislature, that in the opinion of the Government
the provision should be made for granting provident
fund facilities not only to the employees in industrial
establishments, but also to the employees in
commercial and other undertakings. An assurance was
given that the Government would take appropriate
measures. It is thereafter the Act came to be enacted.
Reading the provisions contained in the Act, it covers
large number of employees. Employer, as indicated in
the Act, has to make contributions to the fund in the
manner indicated in section 6. Section 7A of the Act
empowers the authority to decide a dispute about the
applicability of the Act if raised and to determine the
amount due from any employer, as indicated in sub
clause (b) of subsection (1) of section 7A of the Act.
The officer empowered to conduct an inquiry under
subsection (2) of section 7A of the Act in this behalf
having the powers as are vested in Code under the Civil
Procedure Code, 1908 for trying a suit in respect of the
matters indicated therein. How the order is to be
reviewed is indicated under section 7B. Section 7C
refers to determination of escaped amount. An order
made by authority was challenged before the Appellate
Tribunal known as ''Employees Provident Funds
Appellate Tribunal”. Thus it is a special statute to
determine the liability of employer to make his
contribution and to pass further orders by the
authorities which are to be examined by the Tribunal in
case of an appeal. It is in this background the
provisions of the Act are to be examined.
40. Considering the language of the Act and the rules,
the Scheme, which is meant for weaker section and
from the intention of the Legislature, it is clear that the
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Legislature left it to the Rule making authority to
prescribe the time by specifically referring that an
appeal under subsection (1) shall be filed within such
time as also specifically referring in section 21 about
the form and the time within which an appeal shall be
filed. It is clear that the Legislature left it to the Rule
Making Authority to prescribe total period during
which an appeal can be filed, which includes extended
period. This being an enabling provision and in
consonance with the provision contained in the Act
cannot be said to be ultra vires the provisions contained
in the Act.”
18.In the aforementioned case of Assistant Regional
Provident Fund Commissioner, Meerut (supra)
reference was made to the judgment in the case of
Mohd. Ashfaq Vs. State Transport Appellate Tribunal
U.P. and others
4
, where in the context of the provisions
under the Motor Vehicles Act, 1939, it was held as
follows :
"8......This clearly means that if the application for
renewal is beyond time by more than 15 days, the
Regional Transport Authority shall not be entitled to
entertain it, or in other words, it shall have no power to
condone the delay. There is thus an express provision
in subsection (3) that delay in making an application
for renewal shall be condonable only if it is of not more
than 15 days and that expressly excludes the
applicability of Section 5 in cases where an application
for renewal is delayed by more than 15 days......."
19.Similar observations were made in the case of The
Commissioner of Sales Tax, Uttar Pradesh, Lucknow
Vs. M/s Parson Tools and Plants, Kanpur
5
, wherein it
was stated as follows :
"22. Thus the principle that emerges is that if the
Legislature in a special statute prescribes a certain
period of limitation for filing a particular application
thereunder and provides in clear terms that such period
on sufficient cause being shown, may be extended, in
the maximum, only upto a specified timelimit and no
further, then the tribunal concerned has no jurisdiction
4 (1976) 4 SCC 330
5 (1975) 4 SCC 22
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to treat within limitation, an application filed before it
beyond such maximum timelimit specified in the
statute, by excluding the time spent in prosecuting in
good faith and due diligence any prior proceeding on
the analogy of Section 14(2) of the Limitation Act."
20.Rule 7 (2) of the Rules, 1997 again came up for
consideration in the case of Dr. A.V.Joseph Vs. Assistant
Provident Fund Commissioner and another
6
and it was
held that the maximum period for filing an appeal is only
120 days from the date of the impugned order. The
relevant observations made in the judgment are as
follows :
“10. Section 7I(2) of the Act provides that every
Appeal under subsection (1) shall 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
Employees' Provident Funds Appellate Tribunal
(Procedure) Rules, 1997 states that 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.
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. In short, the
maximum period for filing the Appeal is only 120 days
from the date of the impugned proceedings/order
(60+60). When the statute confers the power on the
Authority to condone the delay only to a limited extent,
it can never be widened by any Court contrary to the
intention of the law makers....”
21.In the case of C.B.Sharma Vs. Employees'
Provident Funds Appellate Tribunal and others
7
, the
appeal filed nine months after the date of the order
passed by the Commissioner was dismissed and the
challenge raised to the order passed by the Tribunal was
turned down with the following observations :
6 2009 (122) FLR 184 (Ker.H.C.)
7 2012 (135) FLR 637 (P.&H. H.C.)
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“9. In terms of the rule, period of 60 days has been
provided for filing the appeal before the Tribunal. For
sufficient reasons the Tribunal can extend the period
for further 60 days. Once the petitioner undisputedly
had the knowledge of the order passed by the
Commissioner on 16.2.2009, the appeal filed nine
months thereafter had rightly been dismissed by the
Tribunal as time barred.”
22. The question as to whether the Appellate Tribunal
was vested with any power to condone the delay in filing
the appeal beyond the prescribed period again came up
for consideration in the case of Saint Soldier Modern
Senior Secondary School Vs. Regional Provident Fund
Commissioner
8
and it was held that there was no such
power with the Appellate Tribunal. The observations
made in the judgment are as follows :
“8. A perusal of the section 7I of the Act and Rule 7 of
the Rules would reveal that the time period for filing an
appeal is within 60 days from the date of issue of the
notification/order, provided, the Tribunal, if satisfied
that for certain sufficient cause, the appeal could not be
preferred within the period of 60 days, then, the period
to file appeal can be extended to 60 days thereafter.
Suffice to state, the provision does not vest any power
with the Tribunal to condone a delay beyond that
period.....
9. From the above decision of the Supreme Court, even
in the case in hand, it is clear from the provisions of the
Act, which is a special statute, a certain period of
limitation is prescribed for filing the appeal. In the
eventuality, the appeal is not filed within the said
period, the power to condone the delay is for a further
period of 60 days and no more.......”
23.A similar view was again taken in the case of Lotus
Chemicals Pvt. Ltd. Vs. Assistant Provident Fund
Commissioner, (Compl.) Rourkela
1
, wherein it was
held as follows :
“8.......The procedure for filing of appeal has been
provided under the provision of Rule 7 of the
8 2014 (142 ) FLR 730 (Del.H.C.)
1 2018 (157) FLR 440 (Ori.H.C.)
16
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Employees Provident Fund Appellate Tribunal
(Procedure) Rules, 1997, wherein it has been provided
under Regulation 7(2) that the appeal may be filed
within 60 days from the date of issuance of
notification/order, provided that the Tribunal may, if it
is satisfied that the appellant was prevented by
sufficient cause from preferring appeal within the
prescribed period, may extend the said period by a
further period of 60 days, meaning thereby the appeal
is to be filed before the appellate Tribunal within a
maximum period of 120 days subject to its condonation
and beyond that it cannot be extended. It is settled that
if any legislation has been provided, it has to be
followed in its strict sense and if there is specific time
period framed in the legislation to entertain an appeal,
the authorities concerned are not supposed to extend
that period by assuming the power conferred under the
Limitation Act, 1963. Here in the instant case, the
maximum period of filing an appeal is 60 days, subject
to its condonation for a further period of 60 days,
hence the condonation is only to be done for maximum
period of 60 days, which suggests that the provision of
Limitation Act, 1963 will not be applicable.
9. It is settled position of law that the court of law or
the Tribunal is supposed to follow the statutory
provision and it cannot be interpreted, if there is no
ambiguity and it is settled that the things is to be done
as per the statutory provision, hence applying the said
principle, it is the considered view of this Court that the
Tribunal has not committed any error in passing the
order under Section 7I by rejecting it, since appeal was
preferred after delay of 260 days, hence the Tribunal is
having no power to condone the said delay period, in
view of the provision of Rule 7 of the Employees
Provident Fund Appellate Tribunal (Procedure) Rules,
1997 as discussed herein above.”
24.Reiterating a similar view, in the case of Bihar
Shiksha Pariyojna Parishad Vs. Regional Provident
Fund Commissioner, Employees' Provident Fund
Organzation and another
9
, it was held that condonation
of delay has to be considered within the purview of the
statutory provision and the provisions of the Limitation
Act cannot be imported or made applicable into the EPF
Act and the Rules, 1997. The relevant observations made
9 2017 (155) FLR 657 (Pat.H.C.)
17
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in the judgment are extracted below :
“18. Thus, in view of the fact that the limitation is
prescribed by specific Rule 7(2) of 'the Rules' as also in
view of the ratio laid down by the Supreme Court in
Commissioner of Customs and Central Excise v. Hongo
India Private Limited & Anr. (supra) and M/s. Patel
Brothers v. State of Assam & Ors. (supra), condonation
of delay has also to be considered within the purview of
the statutory provision and the provisions of the
Limitation Act cannot be imported or made applicable
into 'the Act' and 'the Rules'. In that view of the matter,
no illegality can be found with the order impugned
passed by the Tribunal.”
25.A similar view has been taken in the case of Bihar
State Industrial Development Corporation Vs.
Employees Provident Fund Organization and
another
10
and again in Bihar State Industrial
Development Corporation Vs. Employees' Provident
Fund Organization, Patna and another
11
.
26.The question with regard to condonation of delay
by applying Section 5 of the Limitation Act, 1963, in the
context of filing an appeal and reference under the
Central Excise Act, came up for consideration in the case
of Commissioner of Customs and Central Excise Vs.
Hongo India Private Limited and another
12
, and taking
into consideration that the Central Excise Act is a special
law and a complete code by itself, it was held that the
time limit prescribed for making a reference thereunder
is absolute and unextendable by the Court under Section
5 of the Limitation Act, 1963. The relevant observations
made in the judgment are as follows:
“30. In the earlier part of our order, we have adverted
to Chapter VIA of the Act which provides for appeals
and revisions to various authorities. Though Parliament
has specifically provided an additional period of 30
10 2017 (154) FLR 88 (Pat.H.C.)
11 2017 (154) FLR 534 (Pat.H.C.)
12 (2009) 5 SCC 791
18
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days in the case of appeal to the Commissioner, it is
silent about the number of days if there is sufficient
cause in the case of an appeal to the Appellate
Tribunal. Also an additional period of 90 days in the
case of revision by the Central Government has been
provided. However, in the case of an appeal to the High
Court under Section 35G and reference application to
the High Court under Section 35H, Parliament has
provided only 180 days and no further period for filing
an appeal and making reference to the High Court is
mentioned in the Act.
31. In this regard, it is useful to refer to a recent
decision of this Court in Punjab Fibres Ltd, (2008) 3
SCC 73. The Commissioner of Customs, Central Excise,
Noida was the appellant in this case. While considering
the very same question, namely, whether the High
Court has power to condone the delay in presentation
of the reference under Section 35H(1) of the Act, the
twoJudge Bench taking note of the said provision and
the other related provisions following Singh
Enterprises v. CCE [(2008) 3 SCC 70] concluded that:
(Punjab Fibres Ltd. case [(2008) 3 SCC 73] , SCC p.
75, para 8)
“8. … the High Court was justified in holding that there
was no power for condonation of delay in filing
reference application.”
32. As pointed out earlier, the language used in
Sections 35, 35B, 35EE, 35G and 35H makes the
position clear that an appeal and reference to the High
Court should be made within 180 days only from the
date of communication of the decision or order. In
other words, the language used in other provisions
makes the position clear that the legislature intended
the appellate authority to entertain the appeal by
condoning the delay only up to 30 days after expiry of
60 days which is the preliminary limitation period for
preferring an appeal. In the absence of any clause
condoning the delay by showing sufficient cause after
the prescribed period, there is complete exclusion of
Section 5 of the Limitation Act. The High Court was,
therefore, justified in holding that there was no power
to condone the delay after expiry of the prescribed
period of 180 days.
33. Even otherwise, for filing an appeal to the
Commissioner, and to the Appellate Tribunal as well as
revision to the Central Government, the legislature has
provided 60 days and 90 days respectively, on the
other hand, for filing an appeal and reference to the
High Court larger period of 180 days has been
19
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provided with to enable the Commissioner and the
other party to avail the same. We are of the view that
the legislature provided sufficient time, namely, 180
days for filing reference to the High Court which is
more than the period prescribed for an appeal and
revision.
34. Though, an argument was raised based on Section
29 of the Limitation Act, even assuming that Section
29(2) would be attracted, what we have to determine
is whether the provisions of this section are expressly
excluded in the case of reference to the High Court.
35. It was contended before us that the words
“expressly excluded” would mean that there must be an
express reference made in the special or local law to
the specific provisions of the Limitation Act of which
the operation is to be excluded. In this regard, we have
to see the scheme of the special law which here in this
case is the Central Excise Act. The nature of the remedy
provided therein is such that the legislature intended it
to be a complete code by itself which alone should
govern the several matters provided by it. If, on an
examination of the relevant provisions, it is clear that
the provisions of the Limitation Act are necessarily
excluded, then the benefits conferred therein cannot be
called in aid to supplement the provisions of the Act. In
our considered view, that even in a case where the
special law does not exclude the provisions of Sections
4 to 24 of the Limitation Act by an express reference, it
would nonetheless be open to the court to examine
whether and to what extent, the nature of those
provisions or the nature of the subjectmatter and
scheme of the special law exclude their operation. In
other words, the applicability of the provisions of the
Limitation Act, therefore, is to be judged not from the
terms of the Limitation Act but by the provisions of the
Central Excise Act relating to filing of reference
application to the High Court.
36. The scheme of the Central Excise Act, 1944
supports the conclusion that the timelimit prescribed
under Section 35H(1) to make a reference to the High
Court is absolute and unextendable by a court under
Section 5 of the Limitation Act. It is wellsettled law
that it is the duty of the court to respect the legislative
intent and by giving liberal interpretation, limitation
cannot be extended by invoking the provisions of
Section 5 of the Limitation Act.
37. In the light of the above discussion, we hold that
the High Court has no power to condone the delay in
filing the “reference application” filed by the
20
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Commissioner under unamended Section 35H(1) of
the Central Excise Act, 1944 beyond the prescribed
period of 180 days and rightly dismissed the reference
on the ground of limitation.”
27.The principle of implied exclusion of the Limitation
Act by a special law was reiterated in the case of Patel
Brothers Vs. State of Assam and others
13
, where in the
context of the provision for filing a revision under the
Assam Value Added Tax Act, 2003 it was held that even
if there exists no express exclusion in the special law, the
court has right to examine the provisions of the special
law to arrive at a conclusion as to whether the legislative
intent was to exclude the operation of the Limitation Act.
The judgment of the High Court rendered in the case of
Patel Brothers Vs. State of Assam and others
14
was
affirmed. The relevant observations made in the
judgment are as follows :
“22. The High Court has rightly pointed out the well
settled principle of law that: (Patel Bros. case [Patel
Bros. v. State of Assam, 2016 SCC OnLine Gau 124],
SCC OnLine Gau para 19)
“19. … ‘the courts cannot interpret a statute the way
they have developed the common law “which in a
constitutional sense means judicially developed
equity”. In abrogating or modifying a rule of the
common law the courts exercise “the same power of
creation that built up the common law through its
existence by the Judges of the past”. The court can
exercise no such power in respect of statutes.
Therefore, in the task of interpreting and applying a
statute, Judges have to be conscious that in the end the
statute is the master not the servant of the judgment
and no Judge has a choice between implementing the
law and disobeying it.’ [Ed.: See Principles of Statutory
Interpretation, 14th Edn., p. 26 by Justice G.P. Singh.]
”
What, therefore, follows is that the court cannot
interpret the law in such a manner so as to read into
the Act an inherent power of condoning the delay by
13 (2017) 2 SCC 350
14 2016 SCC OnLine Gau 124
21
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invoking Section 5 of the Limitation Act, 1963 so as to
supplement the provisions of the VAT Act which
excludes the operation of Section 5 by necessary
implication”.
28.On the point of implied exclusion of the Limitation
Act by a special law reference may be had to an earlier
judgment in the case of Hukumdev Narain Yadav Vs.
Lalit Narain Mishra
15
, wherein while examining whether
the Limitation Act would be applicable to the provisions
of the Representation of the People Act, it was observed
as follows :
“17.… what we have to see is whether the scheme of
the special law, that is in this case the Act, and the
nature of the remedy provided therein are such that the
legislature intended it to be a complete code by itself
which alone should govern the several matters
provided by it. If on an examination of the relevant
provisions it is clear that the provisions of the
Limitation Act are necessarily excluded, then the
benefits conferred therein cannot be called in aid to
supplement the provisions of the Act. In our view, even
in a case where the special law does not exclude the
provisions of Sections 4 to 24 of the Limitation Act by
an express reference, it would nonetheless be open to
the Court to examine whether and to what extent the
nature of those provisions or the nature of the subject
matter and scheme of the special law exclude their
operation.”
29.The aforementioned legal position has been reiterated
in the case of the State of Himachal Pradesh and others Vs.
Tritronics India Private Ltd.
16
, where the issue involved was
as to whether a revision under the Himachal Pradesh Value
Added Tax Act, 2005 which was beyond the period of
limitation prescribed under the statute could be entertained
by applying Section 5 of the Limitation Act, and it was stated
as follows :
“28..... taking into consideration the fact that Himachal
Pradesh Value Added Tax Act, 2005, is a complete code
15 (1974) 2 SCC 133
16 2018 SCC OnLine HP 757
22
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in itself, which, in other words, is both a substantive as
well as a procedural law and as there is no provision
contained in the Act, making the provisions of
Limitation Act applicable to the proceedings which are
to originate from the Act, we hold that this Court has
no inherent power to condone the delay in entertaining
a Revision Petition which stands filed beyond the
period of limitation prescribed in the Act.”
30.In a recent judgment in the case of Bengal
Chemists and Druggists Association Vs. Kalyan
Chowdhury
17
, it was held in the context of the
Companies Act, 2013, that the limitation for filing an
appeal to the Appellate Tribunal which is 45 days under
Section 421 (3) plus additional 45 days grace period in
terms of its proviso, are mandatory in nature and no
further time can be granted beyond this total period.
31.In view of the foregoing discussion, the legal
position which emerges that in terms of Section 7I (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.
32.It is thus seen that the EPF Act is a special law
providing for institution of provident funds, pension fund
and depositlinked insurance fund for employees in
factories and other establishments and in terms of the
rules framed thereunder a certain period of limitation for
17 (2018) 3 SCC 41
23
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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.
33.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.
34.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.
35.In the instant case, when the time limit is
24
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prescribed by the rule making authority for filing an
appeal and also the extended period has been provided,
and no further extension thereof has been envisaged or
contemplated, the Appellate Authority could not have
granted any further extension. In view of the aforesaid,
the order passed by the Appellate Authority recording its
conclusion that the appeal was filed beyond the statutory
period of limitation, cannot be faulted with.
36.Counsel for the petitioner has not been able to
dispute the aforementioned legal position.
37.No other argument was raised.
38.The writ petition is accordingly held to be devoid of
merits and is accordingly dismissed.
Order Date : 19.8.2019
Pratima
(Dr.Y.K.Srivastava,J.)
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