Rajasthan High Court - Jaipur
Every Ware Services, Through Its Power ... vs Employees Provident Fund Organisation ... on 8 May, 2025
Author: Bhuwan Goyal
Bench: Bhuwan Goyal
[2025:RJ-JP:19422-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil First Appeal No. 1/2022
Every Ware Services, through its Power of Attorney Holder,
Ashutosh Tripathi S/o Sh. Hari Prasad Tripathi R/o 80/426,
Shankracharya Marg, Agarwal Farm, Mansarovar, Jaipur.
----Appellant/Plaintiff
Versus
1. Employees' Provident Fund Organisation, C/o R.P.F.C.
Nidhi Bhwan, Jyoti Nagar, Jaipur.
2. Employees Provident Fund Organization C/o R.P.F.C.,
Nidhi Bhwan, 14, Bikaji Kama Place, New Delhi-110066
----Respondent/Defendant
For Appellant(s) : Ms. Ritu Tripathi
For Respondent(s) : Mr. Ram Karan Verma
HON'BLE MR. JUSTICE AVNEESH JHINGAN
HON'BLE MR. JUSTICE BHUWAN GOYAL
Judgment
08/05/2025
AVNEESH JHINGAN, J:
1. This appeal is directed against decision of the Commercial Court, Jaipur dated 23.09.2021 dismissing the suit of the appellant-plaintiff (hereinafter referred to as 'appellant') on the ground of limitation.
2. The relevant facts are that the appellant was successful bidder for computer maintenance etc. in Jaipur, Jodhpur, Udaipur, and Kota for the Employees Provident Fund Organization (for brevity 'EPFO'). The contract was for the period from 14.05.2003 to 13.05.2004. The work order was terminated qua Jodhpur and Jaipur vide communication dated 23.07.2003 and 24.11.2003 (Downloaded on 16/05/2025 at 11:19:11 PM) [2025:RJ-JP:19422-DB] (2 of 5) [CFA-1/2022] respectively. Aggrieved of the revocation of the work order, the appellant approached this Court by filing SBCWP No.7237 of 2004. The writ petition was allowed on 09.05.2005. The special appeal No.625/2005 filed by the respondent-defendant (hereinafter referred to as 'respondent') was disposed of by Division Bench of this Court on 05.07.2006, relegating the appellant to the alternative remedy. The certified copy of the order was received on 12.07.2006. On 30.06.2009, the appellant served a notice under Section 80 of Civil Procedure Code on respondent. On 01.09.2009, the suit was filed. The commercial court vide impugned judgment dismissed the suit as time barred holding that EPFO is not a government department and the period of notice shall not be excluded for computation of limitation.
3. Learned counsel for the appellant submits that the letter head of EPFO mentions Ministry of Labour, Government of India. The contention is that EPFO is State under Article 12 of the Constitution of India, therefore, notice u/s 80 of CPC was necessitated and section 15 of the Limitation Act, 1963 (for short 'the Act of 1963') shall come into operation.
4. Per contra the work order was for the period from 14.05.2003 to 13.05.2004 and the cause of action arose by revocation of work order in July and November, 2003 whereas, the suit was filed in the year 2009.
5. Heard learned counsel for the parties and perused the record.
6. Section 80 CPC requires serving of notice of two months before filing a suit by or against the government. There is a provision for seeking waiver of notice.
(Downloaded on 16/05/2025 at 11:19:11 PM) [2025:RJ-JP:19422-DB] (3 of 5) [CFA-1/2022] 6.1. Section 15 of the Act of 1963 stipulates exclusion of time in computing the period of limitation. One of the circumstances is where notice has been given, the notice period is to be excluded.
7. The issue that the period of notice issued under Section 80 CPC is to be excluded, is no longer res-integra. The Supreme Court in M/s. Disha Constructions & Ors.Vs. State of Goa and Anr. reported in [(2012)1 SCC 690] held :-
"16. In our view, proper interpretation of Section 15(2) of the Act would be that in computing the period of limitation, the period of notice, provided notice is given within the limitation period, would be mandatorily excluded. That would mean a suit, for which period of limitation is three years, would be within limitation even if it is filed within two months after three years, provided notice has been given within the limitation period. In such a case, the period of notice cannot be counted concurrently with the period of limitation. If it is done, then the period of notice is not excluded. Any other interpretation would be contrary to the express mandate of Section 15(2) of the Act."
8. The appellant was bona fidely pursuing the remedy against termination of the work order before the High Court by filing a writ petition, which was allowed. Thereafter, the matter remained pending in intra court appeal preferred by the respondent. The appeal was disposed of on 05.07.2006 relegating the appellant to the alternative remedy and certified copy of the order was made available on 12.07.2006. The limitation for filing the suit shall begin from 12.07.2006 and three years expires on 11.07.2009.
9. There is no dispute raised by the respondent before this Court that EPFO is not State under Article 12 of the Constitution of India. Even otherwise this issue is decided by the Division Bench of Calcutta High Court in Kelvin Jute Company Vs. Krishna (Downloaded on 16/05/2025 at 11:19:11 PM) [2025:RJ-JP:19422-DB] (4 of 5) [CFA-1/2022] Kumar Agarwal & Ors. reported in [2006 SCC Online Cal 82] wherein the decision of the Single Bench was upheld. The appeal against decision of Calcutta High Court was dismissed by the Supreme Court in Kelvin Jute Co. Ltd. Wors. P.F. and Ors. Vs. Krishna Kumar Agarwala & Ors. reported in [2016 INSC 82]. It would be relevant to quote the following paras from the decision of the Division Bench:-
"33. In order to appreciate the objection raised on behalf of the appellants that Kelvin Trust being a Private Trust and as it does not come even with an expanded definition of 'State' within the meaning of Article 12 of the Constitution, it is necessary to analyse the nature of the trust and its functioning in the context of the grievances of the petitioner.
41. It appears that the ld. Judge took all these aspects into consideration while analysing and exploring the status and position of the trust under reference. Learned Judge observed that "though the trust is in respect of PF exempted under section 17 of the 1952 Act, the liability of the trustees are governed by the provisions of the 1952 Act. Every action discharged by the trustees of an exempted PF are controlled and governed by the provisions of the approved scheme and the statute. Their liability is statutory liability. The discharge of their function is a public function." It was observed that "unless the exemption was granted the fund would have been governed by the scheme framed under the 1952 Act. But for the exemption the fund is governed by the scheme approved by the PF Authority. Thus the discharge of the function of the trustees is related to a statutory fund governed by a scheme approved by the Statute. As such the liability discharged is purely a statutory liability. Any infraction thereof is amenable to the provision contained in the 1952 Act. Thus, the trustees for the purpose of discharge of their liability in respect of PF as instrumentality and agency of the State (Downloaded on 16/05/2025 at 11:19:11 PM) [2025:RJ-JP:19422-DB] (5 of 5) [CFA-1/2022] are State within the meaning of Article 12 of the Constitution of India on the principle laid down in Anadi Mukta Sadguru SMVS Trust (supra). As such writ is very much maintainable as against the trustees."
10. It is an admitted case that notice u/s 80 CPC was served upon the respondent on 30.06.2009 i.e. within the limitation to file suit. The suit was instituted on 01.09.2009. Excluding the two months notice period and counting limitation from 12.07.2006, the last day for filing the suit shall be 11.09.2009 whereas, the suit was filed on 01.09.2009.
11. The commercial court erred in dismissing the suit being time barred. Consequently, the impugned judgment dated 23.09.2021 is set aside. The matter is remitted back to commercial court to proceed in accordance with law.
12. The appeal is allowed.
(BHUWAN GOYAL),J (AVNEESH JHINGAN),J
Simple Kumawat /31
Reportable: Yes
(Downloaded on 16/05/2025 at 11:19:11 PM)
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