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Calcutta High Court (Appellete Side)

23 2020 M/S. Warsi Traders & Anr vs 5 The Regional Provident Fund ... on 4 February, 2020

Author: Shekhar B. Saraf

Bench: Shekhar B. Saraf

                                           1


Ct.
No.   04.02                      W.P. 467 (W) of 2020
23    2020                        M/s. Warsi Traders & Anr.
                                           -Versus-
 5                        The Regional Provident Fund Commissioner,
akb                                     Kolkata & Ors.

              Mr. Bhaskar Sen
              Mr. Subhashish Dutta             ...For the Petitioner

              Mr. Anil Kumar Gupta             ...For the Respondents

This is an application under Article 226 of the Constitution of India wherein the writ petitioner is aggrieved by an order dated April 04, 2016 passed by the Presiding Officer, Employees' Provident Fund Appellate Tribunal (hereinafter referred to as the 'Tribunal') under Section 14B of the Employees' Provident Fund & Miscellaneous Provisions Act, 1952 (hereinafter referred to as the 'said Act'). By way of this order the Tribunal had dismissed the appeal of the petitioner on the ground that the same had not been filed within the period of limitation provided under Rule 7(2) of Employees' Provident Fund & Appellate Tribunal (Procedure) Rules, 1997 (hereinafter referred to as the 'said Rules').

Mr. Bhaskar Sen, learned Senior Advocate appearing on behalf of the petitioner submits that the said Rule is onerous in nature and ultra vires the said Act. He submits that Section 7-I of the said Act does not provide for any particular period within which the appeal is required to be filed. He accordingly submits that Section 5 of the 2 Limitation Act would apply and as sufficient cause was shown the delay should have been condoned by the Tribunal. He further submits that the petitioner who is a proprietor of a company is suffering from cancer and the said fact was placed before the Tribunal. However, the Tribunal did not consider the same and dismissed the appeal on the ground that the same was highly time barred. Mr. Sen submits that the appeal had been filed within eight months of the impugned order, that is, approximately after 120 days of expiry of the extended limitation period. Mr. Sen also relies on a judgement delivered in a writ petition, bearing W.P. 11632 (W) of 2016 on July 27, 2016 by a Co-ordinate Bench of this High Court in the case of M/s. M.P. Siotani & Sons (HUF) Vs. The Regional Provident Fund Commissioner & Ors. wherein the Court had directed the Tribunal to rehear the matter on merits wherein the Tribunal had dismissed the appeal of the writ petitioner on the ground of limitation.

Mr. Anil Kumar Gupta, learned Counsel appearing on behalf of the respondents submits that the Rule 7(2) is required to be followed in its entirety otherwise the same would become otiose.

I have heard learned Counsel appearing on behalf of the parties and perused the materials placed on record.

The Supreme Court and the Calcutta high Court in several matters have held that if an Act provides for an appropriate period of limitation the same should be adhered to. However, Section 7-I of the said Act does not specifically provide for a period of limitation. The same is only provided in the Rules.

In my view, since no specific period of limitation is provided under the said Act, the Tribunal should have considered Rule 21 along with Rule 7 and examined whether sufficient grounds have been made out for seeking condonation of delay. The same not having been done the impugned order is quashed and set aside with direction upon the Central Government Industrial Tribunal & EPF Appellate Tribunal (hereinafter referred to as the 'Appellate Tribunal') to hear the matter on merits within a period of six weeks from date.

The petitioner is directed to communicate the order passed in Court today to the Appellate Tribunal within a week from date.

It is further made clear that no coercive action shall be taken by the Provident Fund Authorities against the petitioner with regard to the subject matter till a decision is made by the Appellate Tribunal.

With the aforesaid observation, the writ petition is disposed of.

Since, no affidavit-in-opposition has been called for, the allegations made in the writ petition are deemed to have not been admitted by the respondents.

There will be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties, on priority basis.

( Shekhar B. Saraf, J.)