Delhi High Court - Orders
M/S Reliable Air Conditioning vs Assistant P.F. Commissioner And ... on 7 April, 2021
Author: Jyoti Singh
Bench: Jyoti Singh
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 07.04.2021
+ W.P.(C) 12783/2019 & CM APPL. 52243/2019
M/S RELIABLE AIR CONDITIONING ..... Petitioner
Through: Mr. Anand Shankar, Advocate
versus
ASSISTANT P.F. COMMISSIONER
AND ANOTHER ..... Respondents
Through: Mr. Puneet Garg, Advocate
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JYOTI SINGH, J.
1. Present writ petition has been filed under Articles 226/227 of the Constitution of India by the Petitioner seeking the following prayers:
"a. Issue a writ or any similar order/directions in the nature of Writ of Certiorari for quashing and setting aside the impugned recovery order dated-12th July 2019 (Annexure-P1), issued by, Asst. P.F. Commissioner (Recovery Officer) arising out of the orders dated- 08.10.2018 passed U/s-14B & 7Q of EPF & MP Act 1952.
b. Issue a writ or any similar order/directions in the nature of Writ of Certiorari condoning 267 days delay in filing statutory appeal before Central Government Industrial Tribunal Delhi against orders dated- 08.10.2018 passed U/s-14B & 7Q of EPF & MP Act 1952."W.P.(C) 12783/2019 Page 1 of 39
CASE OF THE PETITIONER
2. Petitioner is a partnership firm engaged in the business of maintenance of Air Conditioners in Delhi NCR and extends its services to various Government and Corporate offices. Petition is filed through one of its partners Shri Karam Singh.
3. Proceedings were initiated by the Assistant Provident Fund Commissioner under Section 14B and 7Q of the Employees' Provident Fund & Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'Act') on account of non-payment of statutory dues within the prescribed time, for the period between 03/2007 to 11/2017 and accordingly a demand notice dated 22.06.2018, accompanied by composite calculation sheets was sent to the Petitioner. After receipt of the demand notice and summons for appearance, Petitioner engaged Shri Yashpal Khattar, a Labour Law Consultant to take care of the matter, who, assured the Petitioner that he shall appear before the concerned Commissioner and defend the case. Petitioner handed over the relevant documents to Mr. Khattar, however, he failed to appear during the proceedings due to his continuous ill-health. The fact of his ill-health and non-appearance was never communicated to the Petitioner and as a result, the Petitioner did not make alternate arrangement and was proceeded ex-parte. The fact that the Consultant was genuinely unwell is fortified by the fact that he expired in close proximity and his death certificate has been placed on record. Thus, the non-appearance of the Petitioner was bonafide and beyond his control as he was not aware that the Representative was not attending the proceedings. Yet the orders dated 08.10.2018 under Sections 14B and 7Q of the Act, respectively, determining Rs. 11,42,647/- towards damages and Rs. 5,67,081/- towards interest, have been passed, ex-parte.
W.P.(C) 12783/2019 Page 2 of 394. Subsequently, a Recovery notice dated 12.07.2019 was issued by the Recovery Officer, alleging that the Petitioner had failed to pay the amounts due, specified in the certificate dated 12.04.2019 issued by the Authorised Officer under Section 8 of the Act, amounting to total of Rs. 17,10,278/- including cost and charges. Vide the said notice, the Petitioner was called upon to deposit the said amount in favour of the RPFC, Delhi (North) and appear before the Recovery Officer on 22.07.2019, to show cause, why action should not be taken by committing to civil prison, in execution of the certificate.
5. On receipt of the notice, Petitioner consulted another Legal Consultant in August, 2019, who opined that the notice must have been preceded by some orders passed for damages and interest under Sections 14B and 7Q of the Act and advised the Petitioner to trace out the same. On 01.09.2019, Petitioner was able to trace out the orders dated 08.10.2018 and contacted a counsel on 10.09.2019 to take necessary steps to contest the case. Present petition was thereafter prepared and filed with the prayers as aforesaid.
6. The impugned orders are ex-parte orders, passed without giving an opportunity of being heard to the Petitioner and representing its case, imposing huge monetary liability upon the Petitioner and entailing other serious consequences that may arise on account of non-compliance of the orders, including committing to civil prison. Petitioner never received any adjournment notice during the proceedings and could not appear before the APFC. Even otherwise the impugned notice is without giving reasonable opportunity to the Petitioner to file a statutory appeal before the Employees' Provident Fund Appellate Tribunal (hereinafter referred to as 'Tribunal') W.P.(C) 12783/2019 Page 3 of 39 under provisions of Section 7-I of the Act. Due to lack of knowledge of non-appearance of the Consultant, Petitioner was unable to avail the remedy of statutory appeal under the Act, before the Tribunal, as the limitation period of 60 days, provided under Rule 7(2) of the Tribunal (Procedure) Rules, 1997 (hereinafter referred to as 'Rules') expired on 18.12.2018 and further period of 60 days under Proviso to Rule 7(2), upto which the delay can be condoned by the Tribunal, on sufficient cause being shown, expired on 16.02.2019.
7. The ex-parte orders were received by the father of one of the partners of the Petitioner Firm on 26.10.2018, but the same were misplaced by him. It was only on 01.09.2019 that the orders were traced, but by this time the period of limitation including the maximum period upto which the delay can be condoned by the Tribunal had expired and thus the Petitioner did not file the statutory appeal before the Tribunal as the same would have been a futile exercise.
8. The calculation made for the period 03/2007 to 11/2017 as per the impugned orders and demand notice is incorrect as the actual period of delay has not been taken while levying damages. No reason has been given in the order for assessing the damages on the higher side. Para 32A of the EPF Scheme, 1952 provides that where an employer makes default in payment of any contribution to the Fund, or in transfer of accumulations required to be transferred by him under Sections 15(2) or 17(5) of the Act etc., the Central P.F. Commissioner or such other officer as may be authorised by the Central Government may recover from the employer by way of penalty, damages at the rate given in the table. The table given in the said para is as follows:
W.P.(C) 12783/2019 Page 4 of 39 Sl Period of Delay Rates of
No. Damages
(% arrears p.a)
I Less than two months 5 (five)
Ii Two months and above but less than 10 (ten)
four months
Iii Four months and above but less 15 (fifteen)
than six months
Iv Six month and above 25 (Twenty five)
9. As per the Statute, the minimum percentage of damages that can be levied is 5% and the maximum is 25%, but as the order indicates, without applying its mind, the concerned Authority has levied the maximum percentage of damage. Even otherwise, there are several other discrepancies in the calculation sheet, which is a mechanically computer generated sheet, without verifying the monthly wages, due dates of payments, dates of deposit of cheques/DDs and period of delays etc. Order does not indicate if the delay has been calculated from the date of presentation of the cheque/DD or from the date of realisation of the amount. What does appear is that the delay is calculated from the date of credit of dues, which is against the law, as after presentation of the cheque, procedure of credit was beyond the control of the Petitioner. While imposing damages Respondents ought to have considered the aspect of mens rea, holistically and pragmatically to see if there was a wilful default and mischief, on the part of the Petitioner so as to attract the liability of damages, but such exercise was not undertaken. Since there was no wilful default on the part of the Petitioner to remit the statutory dues and the delay had occurred on account of late receipt of payments from its clients, levy of interest was also wrong and the order under Section 7Q of the Act is illegal.
W.P.(C) 12783/2019 Page 5 of 3910. Petitioner is undergoing a huge financial crunch and is unable to pay the amount levied on account of damages and interest on belated payments and non-payment will lead to serious consequences in law. Consequently, it is argued that the recovery notice be quashed and set aside.
11. Reliance is placed on a judgement of the Coordinate Bench in W.P.(C) 9273/2019 titled M/s. Seasons Furnishings Ltd. vs. Assistant P.F. Commissioner Regional Office Delhi East & Anr. decided on 27.08.2019, wherein a challenge was laid before this Court to orders passed under Sections 14B and 7Q of the Act and the consequential recovery notice. In the said case, Petitioner had contended that he was prevented from assailing the assessment order passed under Section 7A of the Act before the Tribunal as both the assessment order and the recovery order were sent to the erstwhile address of the Petitioner and was not received by him despite the change of address being communicated to the Respondent therein. Court has allowed the writ petition granting liberty to the Petitioner to file an appeal before the Tribunal within one week and in case of so filing a direction to the Tribunal has been issued to entertain the appeal de hors the limitation. CASE OF THE RESPONDENTS
12. The Act is a beneficial legislation for social security to employees working in any Scheduled industry or a class of Establishments employing 20 or more persons on any day and provides for compulsory deduction of PF from employees and a contribution from the employer which is deposited in the workers' account in the EPF office. The contributions and the PF have to be deposited by the employer by the 15th of next month in which the employee has worked in the Establishment. Failure to deposit the legitimate dues of the workers attracts provisions of Section 8 of the Act for initiation W.P.(C) 12783/2019 Page 6 of 39 of recovery action. Through a quasi judicial process dues of the workers are assessed under Section 8 of the Act and Section 14B of the Act provides imposition of damages, while Section 7Q of the Act provides for levy of interest on delayed payments. Supreme Court in Civil Appeal Nos. 6893-6894/2009 titled Maharashtra State Cooperative Bank Limited vs. APFC & Ors. decided on 08.10.2009 while interpreting the expression 'any amount due from an employer' has observed that the said expression appearing in Section 11(2) has to be interpreted keeping in view the object of the Act and liability of the employer to pay interest in case the payment of the amount due is delayed as also to pay damages, if there is default in making contributions, is justified, else every employer will conveniently refrain from making contributions to the Fund and any other interpretation would frustrate the object of introducing the deeming provision and non-obstante clause in Section 11(2) of the Act. The interest component payable under Section 7Q and damages leviable under Section 14B of the Act form a part of the amount due from an employer for the purpose of Section 11(2) of the Act and are statutorily payable by the Petitioner.
13. Petition is otherwise not maintainable and is liable to be rejected out-rightly as the order under Section 14B is an appealable order Section 7-I of the Act. Limitation period for filing the appeal is 60 days under Rule 7(2) of the Rules and under Proviso to the said Rule, Tribunal has the power to condone delay upto 60 days, on 'sufficient cause' being shown by an Appellant. Tribunal has no power to condone the delay beyond 120 days as prescribed under the Rules. In the instant case, Petitioner has not availed the remedy of statutory appeal and cannot be permitted to invoke the writ jurisdiction, only because the appeal is now time-barred.
W.P.(C) 12783/2019 Page 7 of 3914. Division Bench of this Court in Assistant Regional Provident Fund Commissioner vs. Employees Provident Fund Appellate Tribunal 2005 (83) DRJ 647 relying upon the judgment in Commissioner of Sales Tax, UP, Lucknow vs. Prason Tools & Plants, Kanpur (1975) 4 SCC 22 and various other judgements has held that provisions of Section 5 of the Limitation Act are excluded and cannot be called upon in aid for condoning delay, beyond a total period of 120 days.
15. It is not open to the Petitioner to contest the levy of interest by an order passed under Section 7Q levying interest for belated payments. Interest on belated payments is levied under a statute and a specified rate has been provided, leaving no discretion to the Competent Authority and the order passed under Section 7Q is neither an appealable order nor subject to challenge in the present petition. The only remedy available to the Petitioner is to file objections to the computation of the amount and that too not before this Court by way of a writ petition, but before the Assessing Officer. Reliance is placed on the judgement of the Supreme Court in Arcot Textile vs. RPFC (2013) 16 SCC 1.
16. Contention of the Petitioner that there is violation of principles of natural justice as he was given no opportunity of hearing is misconceived. It is admitted by the Petitioner that notice/summons for the proceedings under Sections 14B and 7Q of the Act were received by the Petitioner and a Legal Consultant was also engaged to represent the Petitioner and contest the case. A vague plea has been taken in the petition with no details or documents or even dates, regarding the engagement of Mr. Khattar or his ill-health. Even assuming that the consultant was engaged and was unwell, it was the duty of the Petitioner to diligently prosecute its case and be in regular touch with the W.P.(C) 12783/2019 Page 8 of 39 Consultant and monitor the proceedings.
17. Ample opportunity was given to the Petitioner to appear in the proceedings. Vide letter dated 22.06.2018, Petitioner was called upon to appear for a hearing on 11.07.2018. However, none appeared for the petitioner and the case was adjourned to 30.07.2018. Even on the said date, there was no appearance and subsequently, the proceedings were adjourned to several dates, i.e. 13.08.2018, 05.09.2018, 10.09.2018, 12.09.2018, 24.09.2018 and 03.10.2018. Department officials also attempted to contact the partner Shri Charanjeet Singh on his mobile number and while he committed that he would attend the proceedings with the requisite Demand Draft, but failed to do so. It is also relevant that before passing the ex-parte order, Petitioner was informed through an e-mail on 25.09.2018 to attend the inquiry on 03.10.2018, with a warning that if he failed to attend the same, determination shall be made ex-parte. Copy of the adjournment notice was sent to the Petitioner, even earlier, on 13.07.2018, which was undelivered and therefore Petitioner was informed via e-mail and a text message on his mobile, on 28.08.2018.
18. The final order was duly received by the Petitioner through one of its partners and he was also telephonically informed of the same. It is only vaguely stated in the petition that the order was misplaced, which is not a sufficient reason and in any case the Petitioner has not even attempted to avail the statutory remedy and file an appeal before the Tribunal.
19. Financial crunch cannot be a ground to avoid payment of damages as held by the Supreme Court in Organo Chemicals Industries & Anr. vs. Union of India 55 FJR 283, M/s. Hindustan Times Limited vs. Union of India & Ors. AIR 1998 SC 688 and Arvind Mills vs. R.M. Gandhi 1982 W.P.(C) 12783/2019 Page 9 of 39 LIC 344(Guj.DB)
20. I have heard the learned counsels for the parties and examined their contentions.
21. From the pleadings of the parties, the undisputed facts that emerge are that proceedings were initiated by the Competent Authority under Sections 14B and 7Q of the Act for levy of damages on account of default in payment of Provident Fund contributions, Employees' Pension Contribution, Insurance Fund Contribution and Administrative Charges under the EPF Scheme, 1952/EDLID Scheme and for levy of interest on delayed payment. The default pertains to the period 03/2007 to 11/2017 and the total amount assessed towards damages vide the final order dated 17.10.2018, is Rs.11,42,647/-. Vide a separate order dated 08.10.2018 under Section 7Q of the Act, simple interest @ 12% per annum has been levied, payable from the date on which the contributions became due till the date of actual payment and the amount assessed is Rs. 5,67,081/-.
22. It is equally undisputed that summons for appearance were received by the Petitioner before the Competent Authority for proceedings under Section 14B of the Act and due to non-appearance on several dates, the orders were passed ex-parte. The orders were received by Shri Charanjeet Singh, one of the partners of the Petitioner Firm, who also happens to be the father of the other partner, namely, Shri Karam Singh, and has filed the supporting affidavit in the present petition. The order was admittedly received on 22.10.2018, but, as per the case set up by the Petitioner, misplaced by Shri Charanjeet Singh. A notice dated 12.07.2019 was received by the Petitioner, calling upon the Petitioner to deposit the arrears as specified in the certificate dated 12.04.2019, failing which the orders W.P.(C) 12783/2019 Page 10 of 39 were to be executed by arrest and imprisonment and this triggered the filing of the present petition.
23. Perusal of the reliefs sought by the Petitioner, which have been extracted above in the earlier part of the judgement, indicate that the Petitioner has sought twofold reliefs before this Court in a petition under Articles 226/227 of the Constitution of India. The first relief is for quashing and setting aside the recovery order/ notice dated 12.07.2019 and the second is for condoning 267 days' delay in filing the statutory appeal before the Tribunal, against the orders dated 08.10.2018 passed under Sections 14B and 7Q of the Act. What is clearly evident is that the Petitioner has not laid a challenge to the orders dated 08.10.2018 imposing damages as well as interest on delayed payment under Section 14B and Section 7Q of the Act, respectively. This Court therefore need not detain itself by delving into the merits or demerits and the legality or otherwise of these orders. Insofar as the relief of setting aside the recovery notice is concerned, the same is a fallout of and consequential to the orders passed under Sections 14B and 7Q of the Act and is in the nature of execution of the said orders. In the absence of challenge to the orders dated 08.10.2018, this Court cannot entertain a challenge to a recovery notice and therefore the relief sought in prayer (a) is not tenable before this Court.
24. Insofar as the relief of condonation of delay in filing statutory appeal is concerned, in order to decide this issue the Court would require to examine the relevant provisions of the Act including the power of this Court to entertain such a relief.
25. The Act is a beneficial legislation for providing social security to employees working in the Establishment to which the Act applies. As per W.P.(C) 12783/2019 Page 11 of 39 the scheme of the Act as well as the EPF Scheme, 1952, as amended, an employer is required to mandatorily deduct the employee's share of the dues under the Act and deposit the same with the Employees' Provident Fund Department along with its own contribution, by a stipulated period of time, on a monthly basis. Default in the deposits, attracts the penalty of damages under Section 14B of the Act and liability to pay simple interest @ 12% per annum or such higher rates, as may be specified in the Scheme, on account of delayed payment from the date on which the amount becomes due till its actual payment. Section 7-I of the Act provides for statutory appeals to a Tribunal by any person aggrieved by a Notification issued by the Central Government or an order passed by the Central Government or an Authority under proviso to Section 1(3) or 1(4) or Section 3 or Section 7A(1) or Section 7B or Section 7C or Section 14B of the Act. The section was inserted by Act 33 of 1988 with effect from 01.07.1997. Section 7-I of the Act is as follows:
"7-I. 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 sub-section (3), or sub-section (4) of section 1, or section 3, or sub-section (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 sub-section (1) shall be filed in such form and manner, within such time and be accompanied by such fees, as may be prescribed."
26. By virtue of the provisions of Section 7-I(2) of the Act read with Rule 7(2) of the Tribunal (Procedure) Rules, the limitation period for filing W.P.(C) 12783/2019 Page 12 of 39 the appeal before the Tribunal is 60 days from the date of issue of the Notification/Order sought to be impugned. Under the Proviso to Rule 7(2) of the Rules, Tribunal has the power to condone the delay in filing the appeal upto a further period of 60 days, provided the Appellant is able to show 'sufficient cause' that prevented him from preferring the appeal within the prescribed period of limitation i.e. 60 days. Rule 7(2) of the Rules is as follows:
"7. Fee, time for filing appeal, deposit of amount due on filing appeal-
1. xxx xxx xxx
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 witin 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 7-O."W.P.(C) 12783/2019 Page 13 of 39
27. The law on the powers of the Tribunal to condone the delay when a maximum period is prescribed under a statutory provision, is no longer res integra. The issue came up in 2005 before a Division Bench of this Court in Assistant Regional Provident Fund Commissioner (supra). In the said case, the Assistant Regional Provident Fund Commissioner had filed a writ petition before this Court for quashing an order made by the Tribunal being W.P.(C) 4544/1999. The Court was of the opinion that the earlier decision by another Single Bench of this Court in U.P. State Road Transport Corporation vs. Regional Provident Fund Commissioner in CWP 1381/1988 decided on 27.09.2001 wherein a view was taken that the delay in filing the appeal beyond 120 days could not be condoned, required reconsideration and the matter was thus placed before the Division Bench. The Company Shri Shyam Kamal Industries also filed a writ petition being Civil Writ No. 16324/2004 praying for a declaration that Rule 7(2) of the Rules be declared ultravire and to hold that provisions of Section 5 of the Limitation Act shall be applicable to the Tribunal for condoning the delay. The Tribunal had in the said case held that it had the jurisdiction to condone the delay in filing the appeal by applying Section 5 of the Limitation Act. The Division Bench examined the issue elaborately and also relied on several judgements on the said aspect. The Division Bench posed to itself the following question:
" 33. What the Court is required to examine is that the period during which delay can be condoned is specifically prescribed, and it has not left open to extend further, then by an express exclusion of Section 5 of the Limitation Act beyond the period prescribed under a different statute cannot be applied."W.P.(C) 12783/2019 Page 14 of 39
28. The following observations of the Division Bench are relevant:
"16. 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 7-1 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 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.
17. 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 sub-rule (2) of Rule 7 of the Act in exercise of the powers conferred under sub-section (1) of Section 21 of the Act.
18. 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.
19. In our opinion, it cannot be said that the rule making authority has exceeded its limit while prescribing the period of W.P.(C) 12783/2019 Page 15 of 39 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 that the proviso to sub-rule (2) of Rule 7 is bad. If that is declared as bad or ultra vires Section 7-1 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.
xxx xxx xxx
24. 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 alone 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.
W.P.(C) 12783/2019 Page 16 of 3925. 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.
26. The expression "expressly excluded" in sub-section (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.
27. With regard to the applicability of sections 4 to 24 of the Limitation Act (inclusive) one will have to refer to sub-section (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 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."
29. Examining the issue of the vires of Rule 7(2) of the Rules, the Division Bench further held as under:
"40. 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 W.P.(C) 12783/2019 Page 17 of 39 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.
41. 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 sub-section (1) of Section 7A of the Act. The officer empower to conduct an inquiry under sub-section (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 back ground the provisions of the Act are to be examined.
42. 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 Legislature left it to the Rule making authority to prescribe the time by specifically referring that an appeal under sub-section (1) shall be filed within such time as also specifically referring in Section W.P.(C) 12783/2019 Page 18 of 39 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.
xxx xxx xxx
44. Learned counsel appearing for the Provident Fund Authorities submitted that in view of the aforesaid decision when a special statute has provided special period of limitation as also a specified period, as extended period, it must receive a liberal and broader construction and not a rigid and a narrow one. It was submitted at the cost of repetition that the legislation being for the benefit of a working class to avoid delay at the instance of employer, the Legislature has permitted restriction in time for preferring an appeal by prescribing separate period of limitation which includes condonation of delay. In our opinion, it requires no interference."
30. It is thus clear from a reading of the aforesaid judgement that keeping in view that the Act was a labour welfare Legislation, where expeditious disposal of cases was of the utmost necessity, Legislature left it to the Rule making Authority to prescribe the time to prefer an appeal and the Rule making Authority has carefully and cautiously not only prescribed a limitation period of 60 days for filing an appeal under Rule 7(2) of the Rules but also provided a further maximum period of 60 days upto which the delay in filing the appeal can be condoned on sufficient cause being shown. The Tribunal has not been bestowed the power to condone the delay beyond 60 days for filing an appeal.
31. The question that now arises is that if the Tribunal has no power to condone a delay beyond the period prescribed under the Rules, can this W.P.(C) 12783/2019 Page 19 of 39 Court be called upon to condone the delay and permit the Petitioner to file an appeal before the Tribunal, as is being sought. In my view, the answer to the question can only be in the negative. In this context I may usefully refer to a judgement of this Court in Delta Impex v. Commissioner of Customs 2004 SCC OnLine Del 100, where the Division Bench had an occasion to deal with a similar provision under a different Statute, being Section 128 of the Customs Act, 1962, which barred the Commissioner (Appeals) from condoning the delay beyond a period of 30 days. Relevant passages from the judgement are as follows :
"10. 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 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 Act in the instant case.
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13. 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 alone 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 Limitation Act in comparison with the scheme of the special law are excluded from operation. When Section 128 of the Customs Act specifically provides the W.P.(C) 12783/2019 Page 20 of 39 period of limitation and a further period of 30 days only during which the applicant was prevented by sufficient cause from presenting an appeal can be condoned, meaning thereby that the legislature has given a mandate that delay could be condoned only for the specified period, prescribed in the proviso to section 128 of the Act, and not further.
14. 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 taxation matters, it has specially provided that after the statutory period, if there is delay of 30 days, on showing sufficient grounds for delay of 30 days, that can be condoned and no further. Thus, applicability of Section 5 of the Limitation Act is specifically excluded.
15. The expression "expressly excluded" in sub section 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.
16. With regard to the applicability of sections 4 to 24 of the Limitation Act (inclusive) one will have to refer to sub-section (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 Section 128 of the Customs Act and Section 5 of the Limitation Act, it is very clear that extension of time for a period of 30 days only can be condoned subject to satisfaction and not beyond that. From an examination of Section 128 of the Customs Act, it is very clear that Section 5 of the Limitation Act is expressly excluded as a specific provision is made in Section 128.W.P.(C) 12783/2019 Page 21 of 39
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19. The period of limitation as also condonable period is prescribed and, therefore, if the application is preferred after the expiry of the period indicated in Section 128 and 30 days, the Commissioner was not entitled to condone the delay.
20. Considering the scheme, and language of the Sales Tax Act, it does appear that the application of Section 5 of the Limitation Act, is excluded. This, in the opinion of the Court, is the only possible interpretation as the legislative intent is clear. The period of 60 days is prescribed as limitation for preferring an appeal, secondly the appellate authority has no discretion to extend this period beyond the further period of 30 days, even if sufficient cause is shown. Reading the Section, it is very clear that the Act gives no jurisdiction to the appellate authority to extend the limitation, even in a "suitable" case for a further period of more than thirty days. It is also required to be noted that delay in disposal of revenue matters adversely effects the steady inflow of revenue and financial stability of the State. The scheme of Section 128 of the Act is, therefore designed to ensure speedy and final determination of fiscal matters within a certain time schedule. It may apparently seem that the provision is harsh but merely because the provision is harsh it cannot be said to be bad. Be that as it may, from the scheme of the Act and the language used in Section 128, the intention of the legislature to exclude the unrestricted application of principles of Section 5 is manifestly clear. The provision contained in the Limitation Act, which the legislature did not, after due application of mind, incorporate in the Sales Tax Act, cannot be imported into it by analogy. "The Will of the legislature is the supreme law of the land and commands perfect obedience". (Maxwell on Interpretation of Statute, XI Edn.) W.P.(C) 12783/2019 Page 22 of 39 It is also required to be noted that judicial power is to be exercised for the purpose of giving effect to the will of legislature.
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24. It is also required to be noted that as pointed out by the Supreme Court in case of Parson Tools & Plant (supra) the taxing authorities are not "Court" and therefore. Section 5 of the Limitation Act, 1963, cannot be invoked as that Section empowers the Court to extend the period of limitation on being satisfied. In the case of Parson Tools and Plant (supra) Section 14(2) of the Limitation Act, 1963 was sought to be invoked. However, the Court pointed out that, in terms or in principle, Section 14(2) cannot be invoked for excluding the time spent in prosecuting an application under Section 68 of UP Sales Tax Rules, 1948 for setting aside an order of dismissal of appeal in default in computing the period of limitation by filing a revision under Section 10 of the UP Sales Tax Act, 1948. The Court also held that the appellate authority and the judge (Revisions) Sales tax, exercising jurisdiction under the Sales Tax Act are not Courts but are merely administrative tribunals and therefore Section 14 of the Act does not in terms apply to the proceedings before such Tribunals. Section 10(3) B of the UP Sales Tax Act, 1948 reads as under;
"(3-B). The application under sub-Section (3) shall be made within one year from the date of service of the order complained of, but the revising authority may on proof of sufficient cause entertain an application within a further period of six months".
25. The Supreme Court pointed out that the revising authority has no jurisdiction to extend the limitation for a further period of more than six months. Similar is the situation in the instant case. A further period of 30 days W.P.(C) 12783/2019 Page 23 of 39 can be extended and not further. Thus when the maximum time limit is specified or a condonable period is prescribed, then only the delay within the specified time or condonable period can be condoned, and no further."
32. Recently, the Supreme Court in the case of Assistant Commissioner (CT) LTU, Kakinada & Ors. vs. Glaxo Smith Kline Consumer Health Care Limited 2020 SCC OnLine SC 440 considered if the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution ought to have entertained a challenge to an assessment order on the sole ground that the statutory remedy of appeal against the order stood foreclosed by the law of limitation. Although the case therein was with respect to an assessment order passed under the provisions of Andhra Pradesh Value Added Tax Act, 2005 and Central Sales Tax Act, 1956 but in my view, the ratio of the judgement is squarely applicable to the present case. In the said case, served with an assessment order, Respondent therein did not file an appeal within the statutory period and the appeal was dismissed being barred by limitation as also because no sufficient cause was made out. Respondent then filed a writ petition before the High Court seeking quashing of the assessment order being contrary to law, without jurisdiction and in violation of principles of natural justice. The High Court allowed the writ petition and quashed the order and relegated the Respondent to the Assistant commissioner for reconsideration of the matter afresh. The order of the High Court was challenged by the Assistant Commissioner before the Supreme Court. The provision of law under consideration was Section 31, which is as under:
"31. (1) Any VAT dealer or TOT dealer or any other dealer objecting to any order passed or proceeding recorded by W.P.(C) 12783/2019 Page 24 of 39 any authority under the provisions of the Act other than an order passed or proceeding recorded by an Additional Commissioner or Joint Commissioner or Deputy Commissioner, may within thirty days from the date on which the order or proceeding was served on him, appeal to such authority as may be prescribed:
Provided that the appellate authority may within a further period of thirty days admit the appeal preferred after a period of thirty days if he is satisfied that the VAT dealer or TOT dealer or any other dealer had sufficient cause for not preferring the appeal within that period:
Provided further that an appeal so preferred shall not be admitted by the appellate authority concerned unless the dealer produces the proof of payment of tax, penalty, interest or any other amount admitted to be due, or of such instalments as have been granted, and the proof of payment of twelve and half percent of the difference of the tax, penalty, interest or any other amount, assessed by the authority prescribed and the tax, penalty, interest or any other amount admitted by the appellant, for the relevant tax period, in respect of which the appeal is preferred."
33. Going by the provision, the statutory appeal was to be filed within 30 days from the date on which the order is served on the assessee and the Appellate Authority is empowered to condone the delay, only if the appeal is filed within a further period not exceeding 30 days and sufficient cause is shown for not preferring the appeal within the prescribed time. Respondent urged that the High Court had ample powers under Article 226 of the Constitution of India to grant relief and in case the relief was not granted it would result in failure of justice. Dealing with the powers of the High Court, in view of an effective alternate remedy prescribed by law, Supreme Court held as under:
W.P.(C) 12783/2019 Page 25 of 39"11. In the backdrop of these facts, the central question is:
whether the High Court ought to have entertained the writ petition filed by the respondent? As regards the power of the High Court to issue directions, orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law (see Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar8 and also Nivedita Sharma v. Cellular Operators Association of India9). In Thansingh Nathmal v. Superintendent of Taxes, Dhubri10, the Constitution Bench of this Court made it amply clear that although the power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self-imposed restraint and not entertain the writ petition, if an alternative effective remedy is available to the aggrieved person. In paragraph 7, the Court observed thus:--
"7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the Taxing Authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very W.P.(C) 12783/2019 Page 26 of 39 amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain selfimposed limitations.
Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."
(emphasis supplied) We may usefully refer to the exposition of this Court in Titaghur Paper Mills Co. Ltd. v. State of Orissa11, wherein it is observed that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute must only be availed of. In paragraph 11, the Court observed thus:--
"11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of W.P.(C) 12783/2019 Page 27 of 39 the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford [(1859) 6 CBNS 336, 356] in the following passage:
There are three classes of cases in which a liability may be established founded upon statute. ... But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.
The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. (1919 AC 368) and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. Ltd. (1935 AC 532) and Secretary of State v. Mask & Co. (AIR 1940 PC 105). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."
(emphasis supplied) W.P.(C) 12783/2019 Page 28 of 39 In the subsequent decision in Mafatlal Industries Ltd. v. Union of India12, this Court went on to observe that an Act cannot bar and curtail remedy under Article 226 or 32 of the Constitution. The Court, however, added a word of caution and expounded that the constitutional Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise its jurisdiction consistent with the provisions of the enactment. To put it differently, the fact that the High Court has wide jurisdiction under Article 226 of the Constitution, does not mean that it can disregard the substantive provisions of a statute and pass orders which can be settled only through a mechanism prescribed by the statute."
34. Supreme Court observed that while the powers are wide but not wider than powers bestowed on the Supreme Court under Article 142 of the Constitution and even while exercising that power, the Court is required to bear in mind the Legislative intent and not to render the statutory provisions otiose. Para 12 of the judgement is as under:
"12. Indubitably, the powers of the High Court under Article 226 of the Constitution are wide, but certainly not wider than the plenary powers bestowed on this Court under Article 142 of the Constitution. Article 142 is a conglomeration and repository of the entire judicial powers under the Constitution, to do complete justice to the parties. Even while exercising that power, this Court is required to bear in mind the legislative intent and not to render the statutory provision otiose. In a recent decision of a three-Judge Bench of this Court in Oil and Natural Gas Corporation Limited v. Gujarat Energy Transmission Corporation Limited13, the statutory appeal filed before this Court was barred by 71 days and the maximum time limit for condoning the delay in terms of Section 125 of the Electricity Act, 2003 was only 60 days. In other words, the appeal was presented beyond the condonable period of 60 days. As a result, this Court could not have condoned the delay of 71 days. Notably, while admitting the appeal, the Court had W.P.(C) 12783/2019 Page 29 of 39 condoned the delay in filing the appeal. However, at the final hearing of the appeal, an objection regarding appeal being barred by limitation was allowed to be raised being a jurisdictional issue and while dealing with the said objection, the Court referred to the decisions in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur14, Commissioner of Customs and Central Excise v. Hongo India Private Limited15, Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission16 and Suryachakra Power Corporation Limited v. Electricity Department represented by its Superintending Engineer, Port Blair17 and concluded that Section 5 of the Limitation Act, 1963 cannot be invoked by the Court for maintaining an appeal beyond maximum prescribed period in Section 125 of the Electricity Act."
35. The Supreme Court relied on an earlier decision of a Three Judge Bench in Oil and Natural Gas Corporation Limited vs. Gujarat Energy Transmission Corporation Limited (2017) 5 SCC 42 where the statutory appeal was barred by 71 days and the maximum time limit for condoning the delay in terms of Section 125 of the Electricity Act, 2003 was 60 days. After examining the issue, the Supreme Court had concluded that Section 5 of the Limitation Act, 1963 could not be invoked by the Court for entertaining an appeal beyond the maximum period prescribed under Section 125 of the Electricity Act, 2003. It would be significant to quote a few passages from the said judgement:
"15. From the aforesaid decisions, it is clear as crystal that the Constitution Bench in Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409, has ruled that there is no conflict of opinion in Antulay case [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602] or in Union Carbide Corpn. case [Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584] with the principle set down in Prem Chand Garg v. Excise Commr., AIR 1963 SC W.P.(C) 12783/2019 Page 30 of 39
996. Be it noted, when there is a statutory command by the legislation as regards limitation and there is the postulate that delay can be condoned for a further period not exceeding sixty days, needless to say, it is based on certain underlined, fundamental, general issues of public policy as has been held in Union Carbide Corpn. case [Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584]. As the pronouncement in Chhattisgarh SEB v. Central Electricity Regulatory Commission, (2010) 5 SCC 23, lays down quite clearly that the policy behind the Act emphasising on the constitution of a special adjudicatory forum, is meant to expeditiously decide the grievances of a person who may be aggrieved by an order of the adjudicatory officer or by an appropriate Commission. The Act is a special legislation within the meaning of Section 29(2) of the Limitation Act and, therefore, the prescription with regard to the limitation has to be the binding effect and the same has to be followed regard being had to its mandatory nature. To put it in a different way, the prescription of limitation in a case of present nature, when the statute commands that this Court may condone the further delay not beyond 60 days, it would come within the ambit and sweep of the provisions and policy of legislation. It is equivalent to Section 3 of the Limitation Act. Therefore, it is uncondonable and it cannot be condoned taking recourse to Article 142 of the Constitution."
36. Relying on this judgement and various other judgements, including the decision of the Constitution Bench in Union Carbide vs. Union of India (1991) 4 SCC 584, the Supreme Court in Assistant Commissioner (supra) held as under:
"14. A priori, we have no hesitation in taking the view that what this Court cannot do in exercise of its plenary powers under Article 142 of the Constitution, it is unfathomable as to how the High Court can take a different approach in the matter in reference to Article 226 of the Constitution. The principle underlying the rejection of such argument by this Court would W.P.(C) 12783/2019 Page 31 of 39 apply on all fours to the exercise of power by the High Court under Article 226 of the Constitution.
15. ..... However, if the writ petitioner choses to approach the High Court after expiry of the maximum limitation period of 60 days prescribed under Section 31 of the 2005 Act, the High Court cannot disregard the statutory period for redressal of the grievance and entertain the writ petition of such a party as a matter of course. Doing so would be in the teeth of the principle underlying the dictum of a three-Judge Bench of this Court in Oil and Natural Gas Corporation Limited (supra). In other words, the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose.
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17. Reliance was then placed on a three-Judge Bench decision of this Court in ITC Ltd. v. Union of India22. In that case, the High Court had dismissed the writ petition on the ground that the petitioner therein had an adequate alternative remedy by way of an appeal under Section 35 of the Central Excise Act. Concededly, this Court was pleased to uphold that opinion of the High Court. However, whilst considering the difficulty expressed by the petitioner therein that the statutory remedy of appeal had now become time barred during the pendency of the proceedings before the High Court and before this Court, the Court permitted the petitioner therein to resort to remedy of statutory appeal and directed the appellate authority to decide the appeal on merits. This obviously was done on the basis of concession given by the counsel appearing for the Revenue as noted in paragraph 2(1) of the order, which reads thus:--
"2. The High Court has dismissed the writ petition filed by the petitioner on the ground that there is an adequate alternative remedy by way of an appeal W.P.(C) 12783/2019 Page 32 of 39 under Section 35 of the Central Excise Act. Learned counsel for the petitioner submits that the petitioner will face certain difficulties in pursuing this remedy:
(1) This remedy may not be any longer available to it because the appeal has to be filed within a period of three months from the date of the assessment order and delay can be condoned only to the extent of three more months by the Collector under Section 35 of the Act. It is pointed out that the petitioner did not file an appeal because the Collector (Appeal) at Madras had taken a view in a similar matter that an appeal was not maintainable. That apart, the petitioner in view of the huge demand involved filed a writ petition and so did not file an appeal.
In the circumstances of the case, we are of the opinion that the ends of justice will be met if we permit the petitioner to file a belated appeal within one month from today with an application for condonation of delay, whereon the appeal may be entertained. Learned counsel for the Revenue has stated before us that the Revenue will not object to the entertainment of the appeal on the ground that it is barred by time.
In view of this direction and concession, the petitioner will have an effective alternative remedy by way of an appeal.
(emphasis supplied) In that case, it appears that the writ petition was filed within statutory period and legal remedy was being pursued in good faith by the assessee (appellant).
18. Suffice it to observe that this decision is on the facts of that case and cannot be cited as a precedent in support of an argument that the High Court is free to entertain the writ petition assailing the assessment order even if filed beyond the W.P.(C) 12783/2019 Page 33 of 39 statutory period of maximum 60 days in filing appeal. The remedy of appeal is creature of statute. If the appeal is presented by the assessee beyond the extended statutory limitation period of 60 days in terms of Section 31 of the 2005 Act and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such."
37. In view of the binding dicta of the Supreme Court in the aforementioned judgements as well as the ratio of the judgement of the Division Bench in Assistant Regional Provident Fund Commissioner (supra), it is clear that this Court cannot allow the second prayer of the Petition, whereby the Petitioner seeks condonation of 267 days' delay in filing the statutory appeal before the Tribunal qua the order dated 08.10.2018 passed under Section 14B of the Act.
38. Insofar as the order dated 08.10.2018 under Section 7Q is concerned, the said order is not appealable and in case the Petitioner has any objections limited to computation of the amount thereunder, it is at liberty to file objection before the Assessing Officer. This is beyond pale of any debate in view of the judgement of the Supreme Court in Arcot (supra) relevant para of which is as under:
"11. First we shall deal with the maintainability of an appeal against an order passed under Section 7-Q of the Act. To address the said controversy it is necessary to appreciate the scheme of the Act. Section 1(3) stipulates that subject to the provisions contained in Section 16 the Act shall apply to every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are employees and to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify W.P.(C) 12783/2019 Page 34 of 39 in this behalf. Sub-section (4) of Section 1 provides that where it appears to the Central Provident Fund Commissioner, whether on an application made in this behalf or otherwise that the employer and the majority of employees in relation to any establishment have agreed that the provisions of this Act should be made applicable to the establishment, he may, by notification in the Official Gazette, apply the provisions of this Act to that establishment on and from the date of such agreement or from any subsequent date specified in that agreement. Section 3 confers power on the Central Government to issue notification directing that the provisions of the Act could apply to such other establishment which has a common Provident Fund with other establishments.
17. On a perusal of the aforesaid provision it is evident that an appeal to the Tribunal lies in respect of certain action of the Central Government or order passed by the Central Government or any authority on certain provisions of the Act. We have scanned the anatomy of the said provisions before. On a studied scrutiny, it is quite vivid that though an appeal lies against recovery of damages under Section 14-B of the Act, no appeal is provided for against imposition of interest as stipulated under Section 7-Q. It is seemly to note here that Section 14-B has been enacted to penalise the defaulting employers as also to provide reparation for the amount of loss suffered by the employees. It is not only a warning to the employers in general not to commit a breach of the statutory requirements but at the same time it is meant to provide compensation or redress to the beneficiaries i.e. to recompense the employees for the loss sustained by them. The entire amount of damages awarded under Section 14-B except for the amount relatable to administrative charges is to be transferred to the Employees' Provident Fund. (See Organo Chemical Industries v. Union of India [(1979) 4 SCC 573 : 1980 SCC (L&S) 92 : AIR 1979 SC 1803] .)
20. On a scrutiny of Section 7-I, we notice that the language is clear and unambiguous and it does not provide for an appeal against the determination made under Section 7-Q. It is well settled in law that right of appeal is a creature of statute, for the W.P.(C) 12783/2019 Page 35 of 39 right of appeal inheres in no one and, therefore, for maintainability of an appeal there must be authority of law. This being the position a provision providing for appeal should neither be construed too strictly nor too liberally, for if given either of these extreme interpretations, it is bound to adversely affect the legislative object as well as hamper the proceedings before the appropriate forum. Needless to say, a right of appeal cannot be assumed to exist unless expressly provided for by the statute and a remedy of appeal must be legitimately traceable to the statutory provisions. If the express words employed in a provision do not provide an appeal from a particular order, the court is bound to follow the express words. To put it otherwise, an appeal for its maintainability must have the clear authority of law and that explains why the right of appeal is described as a creature of statute. (See Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] , Gujarat Agro Industries Co. Ltd. v. Municipal Corpn. of the City of Ahmedabad [(1999) 4 SCC 468] , State of Haryana v. Maruti Udyog Ltd. [(2000) 7 SCC 348] , Super Cassettes Industries Ltd. v. State of U.P. [(2009) 10 SCC 531 :
(2009) 4 SCC (Civ) 280] , Raj Kumar Shivhare v. Directorate of Enforcement [(2010) 4 SCC 772 : (2010) 3 SCC (Civ) 712] , Competition Commission of India v. SAIL [ (2010) 10 SCC 744] .)
21. At this stage, it is necessary to clarify the position of law which does arise in certain situations. The competent authority under the Act while determining the monies due from the employee shall be required to conduct an inquiry and pass an order. An order under Section 7-A is an order that determines the liability of the employer under the provisions of the Act and while determining the liability the competent authority offers an opportunity of hearing to the establishment concerned. At that stage, the delay in payment of the dues and component of interest are determined. It is a composite order. To elaborate, it is an order passed under Sections 7-A and 7-Q together. Such an order shall be amenable to appeal under Section 7-I. The same is true of any composite order a facet of which is amenable to appeal and Section 7-I of the Act. But, if for some W.P.(C) 12783/2019 Page 36 of 39 reason when the authority chooses to pass an independent order under Section 7-Q the same is not appealable.
28. The issue that falls for consideration in this case is when the employer volunteers may be after long delay to pay the dues, can he claim any right to object pertaining to the interest component. On certain occasions the authority on its own may issue a demand notice under Section 7-Q after a long lapse of time by computing the delay committed by the employer in payment of the dues. We repeat at the cost of repetition that it is a matter of computation but sometimes computation is done when the main order is passed and at times an interest component is demanded separately by the competent authority. To say that there cannot be any error at any point of time will be an absolute proposition. There can be errors in computation. It is difficult to hold that when a demand of this nature is made in a unilateral manner and the affected person is visited with some adverse consequences no prejudice is caused.
30. It is highlighted by the respondents that once the amount due is determined the levy of interest is automatic. The rate of interest is stipulated at 12% or at a higher rate if so is provided in the scheme. Despite this, there can be errors with regard to the period and the calculation. It is a statutory power which is exercised by the competent authority under the Act. Once the said authority takes recourse to the measure for computation and sends a bald order definitely the affected person can ask for clarification and when the computation sheet is provided to him he can file an objection. Though, the area of delineation would be extremely limited yet the said opportunity cannot be denied to the affected person.
34. Regard being had to the discussions made and the law stated in the field, we are of the considered opinion that natural justice has many facets. Sometimes, the said doctrine applied in a broad way, sometimes in a limited or narrow manner. Therefore, there has to be a limited enquiry only to the realm of computation which is statutorily provided regard being had to the range of delay. Beyond that nothing is permissible. We are disposed to think so, for when an independent order is passed making a demand, the employer cannot be totally remediless W.P.(C) 12783/2019 Page 37 of 39 and would have no right even to file an objection pertaining to computation. Hence, we hold that an objection can be filed challenging the computation in a limited spectrum which shall be dealt with in a summary manner by the competent authority.
39. A Division Bench of this Court in M/s. Net 4 India Ltd. v. Union of India and Anr. 2016 SCC OnLine Del 4546 following the judgement in Arcot (supra) held as under:
"19. A reading of the aforesaid paragraph would indicate that the authority while exercising power u/s. 7Q has to compute the interest and inform the establishment. Computation sheet has to be furnished. Once the computation sheet is made available to the Establishment, they have the right to file objections before the authorities raising contentions and issues relating to computation of interest. The objections have to be dealt with summarily and decided. Learned counsel for the petitioner accepts that they have not separately filed objections after the order under section 7Q dated 16 February, 2006 was served. He however submits that the petitioner had received show cause notice dated 16 May, 2014 which included the interest payable under section 7Q and a detailed representation dated 31 July, 2014 was made. This included objections to the levy of interest. In particular, attention was drawn to paragraph 4 wherein it is stated that the date of tendering of cheque, including the five days gross period should be taken and counted towards the date of payment, whereas the respondents have treated the date of actual encashment of the cheque as the date of payment. This aspect, it is submitted, has not been examined by the respondents/authorities in the impugned order. It is also submitted that interest has been levied u/s. 7Q for a period from March, 2008 till September, 2008. In view of the decision of the Full Bench in Roma Henny Security Services P. Ltd. (supra) and System Stampings, interest would not have been separately levied u/s. 7Q till 26 Sept, 2008 for it could be included in the damages imposed for the said period u/s. 14B of the Act.W.P.(C) 12783/2019 Page 38 of 39
20. Learned counsel appearing for the respondent/authorities states that the petitioner may make a representation to the authority raising objections with regard to computation of interest u/s. 7Q and on representation being filed, the same would be disposed of by the authorities with a speaking order. Counsel for the petitioner is agreeable. We take the statement made by the counsel for the respondent and the petitioner on record. The petitioner will be at liberty to make a written representation within a period of three weeks from the date copy of this order is made available and thereafter personal hearing would be given to him and a speaking order passed by the respondent authority within a period of four weeks from the date of personal hearing. The petitioner, if aggrieved by the said order, would be entitled to challenge the same in accordance with law."
40. It is evident that the order passed under Section 7Q is not a composite order with the order under Section 14B of the Act and it is thus open to the Petitioner to raise issues of computation/calculation errors before the Competant Authority, if any, and likewise it would be open to the Assessing Authority to decide the same, in accordance with law, if and when such objections are made by the petitioner.
41. The writ petition, along with the accompanying application, is disposed of in the above terms.
JYOTI SINGH, J APRIL 07, 2021 rd W.P.(C) 12783/2019 Page 39 of 39