Fatka Refractories Private Limited v. Presiding Officer, Employees Provident Fund Appellate Tribunal (Ministry of Labour & Employment, Delhi
2019-10-17
RAJESH SHANKAR
body2019
DigiLaw.ai
JUDGMENT : The present writ petition has been filed for quashing the order dated 20.09.2012 (Annexure-11 to the writ petition) passed by the respondent No.1 in A.T.A. No. 755(18)/2012 whereby the statutory appeal preferred by the petitioner under Section 7(I) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as ‘the Act, 1952’) has been dismissed on the point of limitation. Further prayer has been made for quashing the order dated 14.09.2011 (Annexure-5 to the writ petition) passed by the respondent No.2 whereby the penalty/damages under Section 14(B) of the Act, 1952 to the tune of Rs.28,58,621/- as well as interest under Section 7-Q of the Act, 1952 to the tune of Rs.11,38,573/- have been imposed on the petitioner without assigning any reason. The petitioner has also made prayers to quash letter No. JH/RO/RNC/PD/2487/2012/664 dated 03.01.2012 and letter No. JH/RO/RNC/Recovery/2487/1/43 dated 02/14.01.2013 consequential to the order dated 14.09.2011 passed by the respondent No.2. 2. The petitioner being aggrieved by the order dated 14.09.2011 passed by the respondent No.2 imposing the penalty/damages under Section 14(B) of the Act, 1952 to the tune of Rs. 28,58,621/- as well as interest under Section 7-Q of the Act, 1952 to the tune of Rs.11,38,573/-, preferred an appeal before the respondent No.1. However, the respondent No.1 dismissed the said appeal vide the impugned order dated 20.09.2012 on the point of limitation. 3. Learned counsel for the petitioner submits that the respondent No.1 failed to consider that the petitioner had preferred a writ petition being W.P.(C) No. 7281/2011 before this Court against the assessment order dated 14.09.2011 passed by the respondent No.2, which was dismissed as withdrawn vide order dated 23.04.2012 giving liberty to the petitioner to file statutory appeal before the appropriate Forum with an application for condonation of delay. The petitioner also preferred a review petition under Section 7(B) of the Act, 1952 which was also dismissed by the respondent No.2 vide order dated 01.08.2012. The petitioner thereafter presented the memo of appeal before the respondent No.1 on 14.09.2012 i.e. within a period of about 45 days from the date of rejection of the review petition. Hence, the respondent No.1 committed an error in rejecting the appeal of the petitioner on the point of limitation and not entertaining the same on merit. 4.
The petitioner thereafter presented the memo of appeal before the respondent No.1 on 14.09.2012 i.e. within a period of about 45 days from the date of rejection of the review petition. Hence, the respondent No.1 committed an error in rejecting the appeal of the petitioner on the point of limitation and not entertaining the same on merit. 4. Learned counsel for the respondent No.2 submits that the respondent No.1 has rightly rejected the appeal preferred by the petitioner as the same was filed after about one year of passing of the assessment order by the respondent No.2 and as such the impugned orders dated 20.09.2012 and 14.09.2011 passed by the respondent Nos. 1 & 2 respectively do not warrant any interference of this Court. 5. Heard learned counsel for the parties and perused the relevant material available on record. The respondent No.1, after considering the provisions of Section 7 I (2) of the Act, 1952 and Rule 7(2) of the EPFAT (Procedure) Rules, 1997 [hereinafter referred to as ‘the Rules, 1997’] has held that the appeal was required to be preferred within 60 days from the date of the order passed under Section 14B of the Act, 1952 and the learned Appellate Tribunal has power to condone the delay only up to further 60 days and not beyond that. On conjoint reading of Section 7 I (2) of the Act, 1952 and Rule 7 (2) of the Rules, 1997, it would emerge that the appeal under Section 7 I (2) is to be presented by the aggrieved person within 60 days from the date of issuance of the order. It has also been provided inter alia that the Appellate Tribunal may extend the said period for further period of 60 days, if the appellant provides sufficient reason for condoning the delay. Thus, it appears that there is a statutory bar in entertaining any appeal preferred by the aggrieved person beyond the period of 60+60=120 days. Admittedly, the order of assessment was passed by the respondent No.2 on 14.09.2011 and the memo of appeal was presented by the petitioner before the respondent No.1 on 14.09.2012 i.e. exactly after an year. Even if the period of 120 days is deducted from the same, there would be a limitation of eight months in preferring the appeal. 6. In the case of Smita Subhash Sawant Vs. Jagdeeshwari Jagdish Amin & Ors.
Even if the period of 120 days is deducted from the same, there would be a limitation of eight months in preferring the appeal. 6. In the case of Smita Subhash Sawant Vs. Jagdeeshwari Jagdish Amin & Ors. reported in (2015) 12 SCC 169 , the Hon’ble Supreme Court has held as under: “33. It was, therefore, necessary for Respondent 1 (election petitioner) to have filed the election petition on any day between 17-2-2012 to 27-2-2012. Since the election petition was filed on 28-2-2012, a date beyond 27-2-2012, it was liable to be dismissed as being barred by limitation. In the absence of any provision made in the Act for condoning the delay in filing the election petition, the Chief Judge had no power to condone the delay in filing the election petition beyond the period of limitation prescribed in law. Indeed, no such argument was advanced by the learned counsel for Respondent 1 in this regard.” 7. In the case of Commissioner of Custom and Central Excise Vs. Hongo India (P) Ltd. & Anr. reported in (2009) 5 SCC 791 , the Hon’ble Supreme Court has held as under: “32. As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H 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.” 8. It is a settled law that if a specific period has been prescribed by the statute for the purpose of condoning the delay in preferring an appeal, the application for condoning the delay after the period prescribed cannot be entertained by any Tribunal or the Court of law.
It is a settled law that if a specific period has been prescribed by the statute for the purpose of condoning the delay in preferring an appeal, the application for condoning the delay after the period prescribed cannot be entertained by any Tribunal or the Court of law. Learned counsel for the petitioner has further contended that some time was consumed before the respondent No.2 as the petitioner had preferred a review petition under Section 7B of the Act, 1952 and therefore the respondent No.1 should have considered the said fact. The said contention of the learned counsel for the petitioner is also not tenable in view of the fact that no review lies against the order passed under Section 14B of the Act, 1952 and as such the review petition preferred by the petitioner before the respondent No.2 was itself not maintainable and the period consumed during the pendency of the review petition before the respondent No.2 could not have been counted for the purpose of condoning delay. 9. Pursuant to the order dated 24.09.2019, Mr. Vikas Anand, Regional Provident Fund Commissioner (C&R), Ranchi is physically present before this Court. He submits that out of the outstanding amount of Rs.39,97,194/- assessed against the petitioner, substantial amount has already been realized from it, except Rs.4,96,006/- for which the process of recovery is already going on. 10. In view of the discussions made herein above, I find no infirmity in the impugned order dated 20.09.2012 (Annexure-11 to the writ petition) passed by the respondent No.1 in A.T.A. No. 755(18)/2012 dismissing the appeal of the petitioner on the point of limitation, so as to warrant any interference of this Court. Since no infirmity is found in the order dated 20.09.2012 passed by the respondent No.1, there is no need to enter into the merit of the order dated 14.09.2011 (Annexure-5 to the writ petition) passed by the respondent No.2. 11. The present writ petition is accordingly dismissed.