Allahabad High Court
M/S Kushang Security And House Keeping ... vs Presiding Officer Central Government ... on 19 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1643, (2019) 163 FACLR 892, (2019) 5 ALL WC 4847, (2019) 8 ADJ 805 (ALL)
Author: Y.K.Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 3 Case :- WRIT - C No. - 6196 of 2019 Petitioner :- M/S Kushang Security And House Keeping Private Limited Respondent :- Presiding Officer Central Government Industrial Tribunal Cum Labour Court And Another Counsel for Petitioner :- Virendra Singh Counsel for Respondent :- Sachindra Upadhyay,C.S.C.,Jagdish Pathak Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Virendra Singh, learned counsel for the petitioner and Sri Jagdish Pathak, learned counsel for the respondent no. 2.
2. The present petition has been filed seeking quashing of the order dated 4.2.2019 passed by the Presiding Officer, Central Government, Industrial Tribunal cum Labour Court, Kanpur in an appeal preferred under Section 7-I of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (Act No. 19 of 1952), (hereinafter referred to as 'the EPF Act') registered as Appeal No. A.T.A. (Misc.) No.03/19. The petitioner has also sought to challenge the earlier order of levy of damages under Section 14-B and interest under Section 7-Q of the EPF Act dated 19.10.2015 passed by the Assistant Provident Fund Commissioner, Employees Provident Fund Organization, Kanpur (in short 'APFC').
3. The records of the case indicate that the petitioner establishment, having Registration No. UP/39140 had failed to pay the provident fund dues for the period 08.09.2012 to 31.12.2014. A Quantification Notice No. 180510 dated 10.1.2015 was issued, and after several opportunities being granted to the petitioner which were not availed, the APFC passed an order (Levy Order No. 174530) dated 19.10.2015 in respect of the remittance for the period 09/12 to 12/2014 levying an amount of Rs.1,33,282/-as damages under Section 14-B and an amount of Rs.1,89,937/- as interest under Section 7-Q of the EPF Act. An order dated 22.5.2017 levying damages and interest for a subsequent period was also passed against the petitioner establishment.
4. The petitioner establishment preferred an appeal under Section 7-I of the EPF Act, registered as Appeal No. A.T.A. (Misc.) No.03/19, against the two orders dated 19.10.2015 and 22.05.2017 referred to above. The appellant also prayed for stay of the operation of the aforementioned orders as well as notices dated 4/11.01.2017, 09.10.18 and 19.11.18.
5. Objections were filed by the APFC Kanpur (respondent in the appeal) strongly opposing the maintainability of the appeal and submitting that the appeal was highly belated and that the validity of two separate orders could not be challenged in a joint appeal. On the question of limitation reliance was placed upon the judgments in the case of Lotus Chemicals Pvt. Ltd. Vs. Asst. Provident Fund Commissioner, (Compl.), Rourkela1 and M/s Port Shramik Co-operative Enterprises Ltd. Vs. Employees Provident Fund Organization2.
6. The Presiding Officer upon a consideration of the facts of the case came to the conclusion that both the appeals preferred were highly belated and the challenge raised to two separate orders dated 19.10.2015 and 22.05.2017 by means of a single appeal was not permissible and further that legality of the three notices could not be examined in the appeal. Accordingly, it came to the conclusion that neither the appeal could be admitted nor any relief could be granted and the appeal was disposed vide order dated 04.02.2019. Aggrieved against the aforementioned order, the present petition has been filed.
7. Heard learned counsel for the parties and perused the records.
8. The sole contention of the counsel for the petitioner is that the dismissal of the appeal in terms of the order dated 04.02.2019, on the ground of delay is wholly illegal, and that the delay in filing of the appeal ought to have been condoned in the interest of justice.
9. Counsel appearing for the respondent no. 2 APFC has supported the order passed in appeal by submitting that the levy of damages under Section 14-B and interest under Section 7-Q had been made after due notice and opportunity to the petitioner establishment and that the appeals being beyond the statutory period of limitation have rightly been rejected.
10. The sole ground which has been raised in the present writ petition is with regard to the question of limitation in filing of the appeal under the provisions of EPF Act.
11. The question which thus falls for consideration is as to whether the time limit granted in terms of the statutory provisions under the EPF Act and the rules made thereunder with regard to filing of an appeal can be extended beyond the period prescribed by granting benefit of the provisions of Section 5 of the Limitation Act, 1963.
12. In order to appreciate the rival contentions the relevant statutory provision with regard to filing of appeal under Section 7-I of the EPF Act may be adverted to.
"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 7-A, or Section 7-B(except an order rejecting an application for review referred to in sub-section (5) thereof), or Section 7-C, or Section 14-B, 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."
13. The power to make rules including the power to make rules in respect of the form and the manner in which, and the time within which, an appeal shall be filed before a Tribunal and the fees payable for filing such appeal is provided for under Section 21 of the EPF Act. The relevant provision is being extracted below :-
"21. Power to make Rules- (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters namely :-
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(b) the form and the manner in which, and the time within which, an appeal shall be filed before a Tribunal and the fees payable for filing such appeal."
14. In exercise of powers conferred under sub-section (1) of Section 21 of Act No. 19 of 1952 ''The Employees Provident Fund Appellate Tribunal (Procedure) Rules, 1997'' have been made. The procedure including the time period for filing an appeal is provided under Rule 7 of the aforementioned Rules, 1997.
"7. Fee, time for filing appeal, deposit of amount due on filing appeal.-- (1) Every appeal filed with the Registrar shall be accompanied by a fee of Rupees five hundred to be remitted in the form of Crossed Demand Draft on a nationalized bank in favour of the Registrar of the Tribunal and payable at the main branch of that Bank at the station where the seat of the said Tribunal situate.
(2) Any person aggrieved by a notification issued by the Central Government or an order passed by the Central Government or any other authority under the Act, may within 60 days from the date of issue of the notification/order, prefer an appeal to the Tribunal:
Provided that the Tribunal may if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the prescribed period, extend the said period by a further period of 60 days:
Provided further that no appeal by the employer shall be entertained by a Tribunal unless he has deposited with the Tribunal (a Demand Draft payable in the Fund and bearing) 75 per cent of the amount due from him as determined under Section 7-A:
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."
15. A plain reading of the aforementioned statutory provisions indicates that in terms of sub-section (2) of Section 7-I every appeal under sub-section (1) is to be filed in such form and manner, within such time and is to be accompanied by such fees, as may be prescribed. Further, Rule 7 of the Rules, 1997 provides that the appeal may be preferred within 60 days from the date of issue of the order, provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the prescribed period, extend the said period by a further period of 60 days.
16. It is seen that the initial period for filing of appeal is 60 days which can be extended by the EPF Appellate Tribunal for another 60 days only when there is sufficient cause and not otherwise. In this regard, reference may be made to the judgment in the case of M/s Port Shramik Co-operative Enterprise Ltd. Vs. Employees Provident Fund Organisation2. The relevant observations made in the judgment are as follows :-
"3.......The period of limitation for filing an appeal against an order passed under Section 7-A or Section 14-B of the Employees' Provident Funds and Miscellaneous Provisions Act is 60 days. If the appellant satisfies the Tribunal that it was prevented by sufficient cause from not filing the appeal within the said period of 60 days, in appropriate case, the Tribunal has the power to condone the delay of another 60 days. Thus, even if the Tribunal wanted to condone the delay it could not condone it beyond a period of 60 days."
17. In the case of Assistant Regional Provident Fund Commissioner, Meerut Vs. Employees Provident Fund Appellate Tribunal and others3, an appeal to the Appellate Tribunal was filed after 165 days from the date of the order of the EPF Authority and the delay was condoned by the Appellate Authority in view of the provisions under Section 5 of the Limitation Act, 1963. Upon a challenge being raised the order condoning the delay was set aside and it was held that when the period of 60 days was provided under Rule 7 (2) and a further period of 60 days for condoning the delay is allowed under the proviso to the said rule only then that much period could be condoned. It was held that applicability of Section 5 of the Limitation Act was specifically excluded. The relevant observations made in the judgment are as follows :-
"8.......On behalf of the Assistant Provident Fund Commissioner before the Tribunal, a preliminary objection was raised to the effect that the appeal is barred by time. The appeal was preferred after more than 160 days and the Tribunal had no jurisdiction to condone the delay beyond 60 days. The appeal was presented on 11.1.1999 though the order dated 10.7.1998 was received by the appellant on 20.7.1998. Thus it took 165 days in preferring the appeal. In view of the provisions contained in Section 7-I(2) of the Act read with Rule 7(2) of the Rules, the appeal was required to be preferred within 60 days to the Tribunal. It was submitted that the Tribunal on being satisfied that the appellant was prevented by sufficient cause in preferring the appeal within the prescribed period of 60 days, may extend the said period by a further period of 60 days and thus in all the appeal was required to be preferred maximum within a period of 120 days and not beyond that. Section 7-I (2) of the Act reads as under:
"An 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."
9. Rule making authority under Section 21 is entitled to make rules to carry out the provisions of this Act by issuing a notification in the Official Gazette. Sub-clause (b) of sub-section (2) of Section 21 reads as under:
"....the form and the manner in which, and the time within which, an appeal shall be filed before a Tribunal and the fees payable for filing such appeal....."
10. Rule 7(2) reads as under:
"Any person aggrieved by a notification issued by the Central Government or an order passed by the Central Government or any other authority under the Act, may within 60 days from the date of issue of the notification/order prefer an appeal to the Tribunal :
Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the prescribed period, extend the said period by a further period of 60 days."
11. It is in view of the aforesaid provisions, it was contended that the appeal was hopelessly time barred and after the period of 60 days granted for preferring an appeal, if there is a delay of 60 days then such delay can be condoned and no further.
12. The Tribunal expressed an opinion that the power of the Tribunal to condone the delay under Section 5 of the Indian Limitation Act, 1963, is not curtailed by the Legislature..Therefore, the provisions under the Employees' Provident Funds Appellate Tribunal (Procedure) Rules, 1997, only to condone a delay of 60 days is ultra vires and is void. Therefore, it held that the Tribunal has jurisdiction to condone any delay, if it is satisfactorily explained...
13. Learned counsel for the Company submitted that sub-clause (b) of sub-section (1) of Section 21 provides the rule making authority to prescribe time limit within which an appeal shall be filed before the Tribunal. Legislature only authorized the rule making authority to make a provision for prescribing a period for preferring an appeal, however, the rule also provided a further period of 60 days by proviso to sub-rule (2) of Rule 7 of the Rules. In view of this, it was contended that proviso is ultra vires the provisions contained in the Act. It was further submitted that if the proviso is ultra vires the provisions contained in the Act, then the Limitation Act, 1963 will apply. In the submission of learned counsel for the Company, the Tribunal has rightly held that the law of limitation is applicable. It was submitted that Section 7-I of the Act, if read it becomes very clear that sub-section (2) of Section 7-I also refers such time within which the appeal is to be filed.
14. The Act is a labour legislation wherein provision is made for provident funds to be deposited by the employer. Section 7-D to 7-H 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-I 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.
15. With a view to see that the proceedings are disposed of as early as possible, it was left by the Legislature to fix ''such time'' for preferring an appeal. Section 21(2)(b) refers to the time within which an appeal shall be filed and in view of this it was submitted that in absence of any power, it was not open to prescribe a specific period for condonation of delay in 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.
16. The Legislature left it open to the rule making authority to prescribe time for preferring an appeal. However, at the same time the rule making authority while prescribing the period of limitation for preferring an appeal also provided a period during which if there is a delay, the same can be condoned if the Tribunal is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the prescribed period. However, the limitation was placed that that can be done if there is a delay of a further period of 60 days.
17. In our opinion, it cannot be said that the rule making authority has exceeded its limit while prescribing the period of limitation. Like the provisions in other statutes for condoning the delay, the rule making authority thought it fit to provide some period if there is a sufficient cause and the Tribunal is satisfied that the applicant was prevented from preferring the appeal on such cause to extend the period of limitation. This provision is an enabling provision. It does not take away the right of a person of preferring an appeal but on the contrary it enables a party who could not prefer an appeal within the prescribed period for sufficient reasons. However, at the same time, keeping in mind that that provision is made for a weaker section, disputes must be resolved at the earliest, therefore, restricted the period, i.e. that if the delay is of 60 days then to that extent delay can be condoned. Therefore, in our opinion, the provision cannot be said to be ultra vires of the provisions of the Act as the provision for condonation of delay is made to help the litigant who might be facing genuine difficulties. It is difficult to say that the proviso to sub-rule (2) of Rule 7 is bad. If that is declared as bad or ultra vires Section 7-I or Section 21(1)(b) of the Act, it can be said that the period of limitation prescribed is bad for want of not providing extended period in case of difficulty.
18. It is required to be noted that in case of Delta Impex v. Commissioner of Customs, decided on 13.2.2004, this Court had an occasion to examine the question raised by the applicant which reads as under:
"Whether the provision of Section 128 of the Customs Act, 1962 completely bars the Commissioner (Appeals) from condoning the delay beyond the period of 30 days even in a deserving case and that despite the order made by the Commissioner (Appeals) is it incumbent upon the Tribunal to consider the appeal on merits?"
19. There also it was submitted that considering the provisions contained in section 29(2) of the Indian Limitation Act, 1963 (hereinafter referred to as 'the Limitation Act') read with section 5 thereof, irrespective of the fact that the matter was under the Customs Act, the appellate authority ought to have condoned the delay, examined the matter on merits and it could not have dismissed the appeal on the ground that the Commissioner (Appeals) can only condone the delay, if an appeal is presented within a period of 30 days after the statutory period of 60 days in view of section 128 of the Act.
20. In case of Collector of C.E. Chandigarh v. Doaba Co-operative Sugar Mills, Supreme Court pointed out that the authorities functioning under the Act are bound by the provision of the Act. If the proceedings are taken under the Act by the Department, the provisions of limitation prescribed in the Act will prevail. In the case of Miles India Limited v. Assistant Collector of Customs, the Court observed that the Customs Authorities acting under the Act were not justified in disallowing the claim as they were bound by the period of limitation provided there in the relevant provisions of the Customs Act, 1962.
21. The Court in the aforesaid case pointed out that the period of limitation prescribed by the Act for filing an application being different from the period prescribed under the Limitation Act, by virtue of Section 29(2) of the said Act, it shall be deemed as if the period prescribed by the different Act is the period prescribed by the schedule to the Limitation Act. However, it would be difficult to say that section 5 of the Limitation Act is intended to be made applicable in view of the proviso to section 128 of the Customs Act.
22. The Court is required to examine the scheme of the special law, and the nature of the remedy provided therein. Considering these aspects, the Court will have to find out whether the Legislature intended to provide a complete code by itself which along should govern the matters provided by it. On examination of the relevant provisions, if it becomes clear that the provisions of section 5 of the Limitation Act are necessarily excluded, then the said provisions cannot be called in aid to supplement the provisions of the Act. It is open to the Court to examine whether and to what extent the nature of the provisions contained in the Limitation Act in comparison with the scheme of the special law are excluded from operation. When a specific period is provided and a further period of 60 days by way of extended period only then that much period can be condoned.
23. In the instant case, a separate period of limitation is provided, as also the period for which delay can be condoned. The Legislature was aware about the provisions contained in section 5 of the Limitation Act, yet with an intention to curb the delay in labour matters, Legislature left it to the Rule making authority to make a provision for limitation. Rule making authority under the Statute has specifically provided that after the statutory period, if there is delay of 60 days, on showing sufficient grounds for delay of 60 days, that can be condoned. Thus applicability of section 5 of the Limitation Act is specifically excluded.
24. The expression ''expressly excluded'' in 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.
25. 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.
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38. In the instant case, there is clear intention of the Legislature for asking the rule making authority to prescribe the time during which an appeal shall be filed. When the time is to be prescribed, it is open for the rule making authority to prescribe extended period also. If the extended period is provided, the provisions would not become bad or ultra vires the provisions contained in the Act, as it is only an enabling provision.
39. It is also clear that an opinion was expressed before the Legislature, that in the opinion of the Government the provision should be made for granting provident fund facilities not only to the employees in industrial establishments, but also to the employees in commercial and other undertakings. An assurance was given that the Government would take appropriate measures. It is thereafter the Act came to be enacted. Reading the provisions contained in the Act, it covers large number of employees. Employer, as indicated in the Act, has to make contributions to the fund in the manner indicated in section 6. Section 7-A 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 7-A of the Act. The officer empowered to conduct an inquiry under sub-section (2) of section 7-A 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 7-B. Section 7-C refers to determination of escaped amount. An order made by authority was challenged before the Appellate Tribunal known as ''Employees Provident Funds Appellate Tribunal". Thus it is a special statute to determine the liability of employer to make his contribution and to pass further orders by the authorities which are to be examined by the Tribunal in case of an appeal. It is in this background the provisions of the Act are to be examined.
40. Considering the language of the Act and the rules, the Scheme, which is meant for weaker section and from the intention of the Legislature, it is clear that the 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 21 about the form and the time within which an appeal shall be filed. It is clear that the Legislature left it to the Rule Making Authority to prescribe total period during which an appeal can be filed, which includes extended period. This being an enabling provision and in consonance with the provision contained in the Act cannot be said to be ultra vires the provisions contained in the Act."
18. In the aforementioned case of Assistant Regional Provident Fund Commissioner, Meerut (supra) reference was made to the judgment in the case of Mohd. Ashfaq Vs. State Transport Appellate Tribunal U.P. and others4, where in the context of the provisions under the Motor Vehicles Act, 1939, it was held as follows :-
"8......This clearly means that if the application for renewal is beyond time by more than 15 days, the Regional Transport Authority shall not be entitled to entertain it, or in other words, it shall have no power to condone the delay. There is thus an express provision in sub-section (3) that delay in making an application for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applicability of Section 5 in cases where an application for renewal is delayed by more than 15 days......."
19. Similar observations were made in the case of The Commissioner of Sales Tax, Uttar Pradesh, Lucknow Vs. M/s Parson Tools and Plants, Kanpur5, wherein it was stated as follows :-
"22. Thus the principle that emerges is that if the Legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only upto a specified time-limit and no further, then the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of Section 14(2) of the Limitation Act."
20. Rule 7 (2) of the Rules, 1997 again came up for consideration in the case of Dr. A.V.Joseph Vs. Assistant Provident Fund Commissioner and another6 and it was held that the maximum period for filing an appeal is only 120 days from the date of the impugned order. The relevant observations made in the judgment are as follows :-
"10. Section 7-I(2) of the Act provides that 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. Rule 7(2) of the Employees' Provident Funds Appellate Tribunal (Procedure) Rules, 1997 states that any person aggrieved by a notification issued by the Central Government or an order passed by the Central Government or any other authority under the Act, may within 60 days from the date of issue of the notification/order, prefer an appeal to the Tribunal. The 'first proviso' thereunder further stipulates that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the Appeal within the prescribed period, extend the said period by a further period of 60 days. In short, the maximum period for filing the Appeal is only 120 days from the date of the impugned proceedings/order (60+60). When the statute confers the power on the Authority to condone the delay only to a limited extent, it can never be widened by any Court contrary to the intention of the law makers...."
21. In the case of C.B.Sharma Vs. Employees' Provident Funds Appellate Tribunal and others7, the appeal filed nine months after the date of the order passed by the Commissioner was dismissed and the challenge raised to the order passed by the Tribunal was turned down with the following observations :-
"9. In terms of the rule, period of 60 days has been provided for filing the appeal before the Tribunal. For sufficient reasons the Tribunal can extend the period for further 60 days. Once the petitioner undisputedly had the knowledge of the order passed by the Commissioner on 16.2.2009, the appeal filed nine months thereafter had rightly been dismissed by the Tribunal as time barred."
22. The question as to whether the Appellate Tribunal was vested with any power to condone the delay in filing the appeal beyond the prescribed period again came up for consideration in the case of Saint Soldier Modern Senior Secondary School Vs. Regional Provident Fund Commissioner8 and it was held that there was no such power with the Appellate Tribunal. The observations made in the judgment are as follows :-
"8. A perusal of the section 7-I of the Act and Rule 7 of the Rules would reveal that the time period for filing an appeal is within 60 days from the date of issue of the notification/order, provided, the Tribunal, if satisfied that for certain sufficient cause, the appeal could not be preferred within the period of 60 days, then, the period to file appeal can be extended to 60 days thereafter. Suffice to state, the provision does not vest any power with the Tribunal to condone a delay beyond that period.....
9. From the above decision of the Supreme Court, even in the case in hand, it is clear from the provisions of the Act, which is a special statute, a certain period of limitation is prescribed for filing the appeal. In the eventuality, the appeal is not filed within the said period, the power to condone the delay is for a further period of 60 days and no more......."
23. A similar view was again taken in the case of Lotus Chemicals Pvt. Ltd. Vs. Assistant Provident Fund Commissioner, (Compl.) Rourkela1, wherein it was held as follows :-
"8.......The procedure for filing of appeal has been provided under the provision of Rule 7 of the Employees Provident Fund Appellate Tribunal (Procedure) Rules, 1997, wherein it has been provided under Regulation 7(2) that the appeal may be filed within 60 days from the date of issuance of notification/order, provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from preferring appeal within the prescribed period, may extend the said period by a further period of 60 days, meaning thereby the appeal is to be filed before the appellate Tribunal within a maximum period of 120 days subject to its condonation and beyond that it cannot be extended. It is settled that if any legislation has been provided, it has to be followed in its strict sense and if there is specific time period framed in the legislation to entertain an appeal, the authorities concerned are not supposed to extend that period by assuming the power conferred under the Limitation Act, 1963. Here in the instant case, the maximum period of filing an appeal is 60 days, subject to its condonation for a further period of 60 days, hence the condonation is only to be done for maximum period of 60 days, which suggests that the provision of Limitation Act, 1963 will not be applicable.
9. It is settled position of law that the court of law or the Tribunal is supposed to follow the statutory provision and it cannot be interpreted, if there is no ambiguity and it is settled that the things is to be done as per the statutory provision, hence applying the said principle, it is the considered view of this Court that the Tribunal has not committed any error in passing the order under Section 7-I by rejecting it, since appeal was preferred after delay of 260 days, hence the Tribunal is having no power to condone the said delay period, in view of the provision of Rule 7 of the Employees Provident Fund Appellate Tribunal (Procedure) Rules, 1997 as discussed herein above."
24. Reiterating a similar view, in the case of Bihar Shiksha Pariyojna Parishad Vs. Regional Provident Fund Commissioner, Employees' Provident Fund Organzation and another9, it was held that condonation of delay has to be considered within the purview of the statutory provision and the provisions of the Limitation Act cannot be imported or made applicable into the EPF Act and the Rules, 1997. The relevant observations made in the judgment are extracted below :-
"18. Thus, in view of the fact that the limitation is prescribed by specific Rule 7(2) of 'the Rules' as also in view of the ratio laid down by the Supreme Court in Commissioner of Customs and Central Excise v. Hongo India Private Limited & Anr. (supra) and M/s. Patel Brothers v. State of Assam & Ors. (supra), condonation of delay has also to be considered within the purview of the statutory provision and the provisions of the Limitation Act cannot be imported or made applicable into 'the Act' and 'the Rules'. In that view of the matter, no illegality can be found with the order impugned passed by the Tribunal."
25. A similar view has been taken in the case of Bihar State Industrial Development Corporation Vs. Employees Provident Fund Organization and another10 and again in Bihar State Industrial Development Corporation Vs. Employees' Provident Fund Organization, Patna and another11.
26. The question with regard to condonation of delay by applying Section 5 of the Limitation Act, 1963, in the context of filing an appeal and reference under the Central Excise Act, came up for consideration in the case of Commissioner of Customs and Central Excise Vs. Hongo India Private Limited and another12, and taking into consideration that the Central Excise Act is a special law and a complete code by itself, it was held that the time limit prescribed for making a reference thereunder is absolute and unextendable by the Court under Section 5 of the Limitation Act, 1963. The relevant observations made in the judgment are as follows:-
"30. In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under Section 35-G and reference application to the High Court under Section 35-H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act.
31. In this regard, it is useful to refer to a recent decision of this Court in Punjab Fibres Ltd, (2008) 3 SCC 73. The Commissioner of Customs, Central Excise, Noida was the appellant in this case. While considering the very same question, namely, whether the High Court has power to condone the delay in presentation of the reference under Section 35-H(1) of the Act, the two-Judge Bench taking note of the said provision and the other related provisions following Singh Enterprises v. CCE [(2008) 3 SCC 70] concluded that: (Punjab Fibres Ltd. case [(2008) 3 SCC 73] , SCC p. 75, para 8) "8. ... the High Court was justified in holding that there was no power for condonation of delay in filing reference application."
32. As pointed out earlier, the language used in Sections 35, 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.
33. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision.
34. Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted, what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to the High Court.
35. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.
36. The scheme of the Central Excise Act, 1944 supports the conclusion that the time-limit prescribed under Section 35-H(1) to make a reference to the High Court is absolute and unextendable by a court under Section 5 of the Limitation Act. It is well-settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Limitation Act.
37. In the light of the above discussion, we hold that the High Court has no power to condone the delay in filing the "reference application" filed by the Commissioner under unamended Section 35-H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismissed the reference on the ground of limitation."
27. The principle of implied exclusion of the Limitation Act by a special law was reiterated in the case of Patel Brothers Vs. State of Assam and others13, where in the context of the provision for filing a revision under the Assam Value Added Tax Act, 2003 it was held that even if there exists no express exclusion in the special law, the court has right to examine the provisions of the special law to arrive at a conclusion as to whether the legislative intent was to exclude the operation of the Limitation Act. The judgment of the High Court rendered in the case of Patel Brothers Vs. State of Assam and others14 was affirmed. The relevant observations made in the judgment are as follows :-
"22. The High Court has rightly pointed out the well-settled principle of law that: (Patel Bros. case [Patel Bros. v. State of Assam, 2016 SCC OnLine Gau 124], SCC OnLine Gau para 19) "19. ... ''the courts cannot interpret a statute the way they have developed the common law "which in a constitutional sense means judicially developed equity". In abrogating or modifying a rule of the common law the courts exercise "the same power of creation that built up the common law through its existence by the Judges of the past". The court can exercise no such power in respect of statutes. Therefore, in the task of interpreting and applying a statute, Judges have to be conscious that in the end the statute is the master not the servant of the judgment and no Judge has a choice between implementing the law and disobeying it.' [Ed.: See Principles of Statutory Interpretation, 14th Edn., p. 26 by Justice G.P. Singh.] "
What, therefore, follows is that the court cannot interpret the law in such a manner so as to read into the Act an inherent power of condoning the delay by invoking Section 5 of the Limitation Act, 1963 so as to supplement the provisions of the VAT Act which excludes the operation of Section 5 by necessary implication".
28. On the point of implied exclusion of the Limitation Act by a special law reference may be had to an earlier judgment in the case of Hukumdev Narain Yadav Vs. Lalit Narain Mishra15, wherein while examining whether the Limitation Act would be applicable to the provisions of the Representation of the People Act, it was observed as follows :-
"17.... what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation."
29. The aforementioned legal position has been reiterated in the case of the State of Himachal Pradesh and others Vs. Tritronics India Private Ltd.16, where the issue involved was as to whether a revision under the Himachal Pradesh Value Added Tax Act, 2005 which was beyond the period of limitation prescribed under the statute could be entertained by applying Section 5 of the Limitation Act, and it was stated as follows :-
"28..... taking into consideration the fact that Himachal Pradesh Value Added Tax Act, 2005, is a complete code in itself, which, in other words, is both a substantive as well as a procedural law and as there is no provision contained in the Act, making the provisions of Limitation Act applicable to the proceedings which are to originate from the Act, we hold that this Court has no inherent power to condone the delay in entertaining a Revision Petition which stands filed beyond the period of limitation prescribed in the Act."
30. In a recent judgment in the case of Bengal Chemists and Druggists Association Vs. Kalyan Chowdhury17, it was held in the context of the Companies Act, 2013, that the limitation for filing an appeal to the Appellate Tribunal which is 45 days under Section 421 (3) plus additional 45 days grace period in terms of its proviso, are mandatory in nature and no further time can be granted beyond this total period.
31. In view of the foregoing discussion, the legal position which emerges that in terms of Section 7-I (2) every appeal is to be filed in such form and manner, within such time and be accompanied by such fees, as may be prescribed. Rule 7 (2) of the Rules, 1997 provides for filing of the appeal within 60 days from the date of issuance of the order. The first proviso thereunder further stipulates that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the prescribed period, extend the said period by a further period of 60 days.
32. It is thus seen that the EPF Act is a special law providing for institution of provident funds, pension fund and deposit-linked insurance fund for employees in factories and other establishments and in terms of the rules framed thereunder a certain period of limitation for filing an appeal having been provided for in clear terms and a further provision having been made for extension of such period only upto a specified time period and no further, the Appellate Tribunal would have no jurisdiction to treat within limitation, an appeal filed before it beyond such maximum time limit specified in terms of the statutory rules.
33. Moreover, in terms of the scheme and the intent of the provisions contained in the EPF Act it is seen that the legislature intended it to be a complete code by itself. As a consequence, even if the provisions of the Limitation Act may be held to have not been expressly excluded the principle of implied exclusion would apply in terms of the nature of the subject matter, the purpose and the scheme of the Act. The provisions contained under the Limitation Act, 1963 would therefore not be applicable for seeking extension of time beyond the statutory time period of 60 days from the date of issue of the notification/order, extendable by a further period of 60 days, upon the Tribunal being satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the prescribed period. The maximum period for filing the appeal would be thus 120 (60+60) days from the date of the issuance of the notification/order which is sought to be challenged.
34. It is a well settled principle of statutory interpretation that where the statute confers power on the authority to condone the delay only to a limited extent the same cannot be stretched or extended beyond what has been provided under the statute.
35. In the instant case, when the time limit is prescribed by the rule making authority for filing an appeal and also the extended period has been provided, and no further extension thereof has been envisaged or contemplated, the Appellate Authority could not have granted any further extension. In view of the aforesaid, the order passed by the Appellate Authority recording its conclusion that the appeal was filed beyond the statutory period of limitation, cannot be faulted with.
36. Counsel for the petitioner has not been able to dispute the aforementioned legal position.
37. No other argument was raised.
38. The writ petition is accordingly held to be devoid of merits and is accordingly dismissed.
Order Date :- 19.8.2019 Pratima (Dr.Y.K.Srivastava,J.)