The Manganga Sahakari Sakhar Karkhana Ltd, through Ramchandra Tukaram Kadam Vs the Assistant Provident Fund Commissioner

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
WRIT PETITION NO.2101 OF 2014

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The Manganga Sahakari Sakhar
Karkhana Ltd. ...Petitioner
vs.
The Assistant Provident Fund
Commissioner ...Respondent

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Mr.Uday Warunjikar for the petitioner
Mr.Suresh Kumar for the respondent

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CORAM : A.S.OKA, &
 A.S.GADKARI, JJ.
 DATE : NOVEMBER 5,2014

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P.C.:

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1Heard the learned counsel for the petitioner
and the learned counsel for the respondent. The
order dated 27th July 2004 was passed by the
respondent in the proceeding under section 14B of
the Employees' Provident Funds And Miscellaneous
Provisions Act,1952 (for short “the said Act”). An
appeal was preferred by the petitioner for
challenging the said order before the Employees'
Provident Funds Tribunal by invoking section 7 (I)
of the said Act.

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2By the impugned order, the Appellate Authority
came to the conclusion that against the order dated
13th December 2007, an appeal was preferred on 23rd
July 2004. It was held that the delay for a period
of only 60 days can be condoned by the Tribunal. It

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was held that section 5 of the Limitation Act,1963
(for short `the Limitation Act') will not apply to
the appeal under the said Act.

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3The learned counsel for the petitioner invited
our attention to the provisions of Employees'
Provident Funds Appellate Tribunal (Procedure)
Rules, 1997 (for short `the said Rules'). He
pointed out that the period of limitation as
provided under subRule 2 of Rule 7 is 60 days and
there is a specific power vesting in the Appellate
Tribunal to condone the delay provided the delay is
up to the period of 60 days. Relying upon section
29 of the Limitation Act and in particular sub
section 2 thereof, he urged that the applicability
of section 4 to 24 has not been excluded by the
provisions of the said Act, and therefore, there was
abundant power vesting in the Appellate Tribunal
under section 5 as well as section 14 of the
Limitation Act. He pointed out that the decision of
the Apex Court in the case of Hindustan Times
Limited Vs. Union of India1. He urged that the
Appellate Tribunal could have condoned the delay and
extended the period of limitation.

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4The learned counsel for the respondent
submitted that the issue is no more resintegra. He
placed reliance upon the decision of the Delhi High
Court in the case of Assistant Regional Provident
Fund Commissioner vs. Employees Provident Fund
Appellate Tribunal and others2. He urged that in

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1 (1998) 2 SCC 242

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2 122 (2005) DLT 502

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view of the law laid down by Delhi High Court, no
interference is called for. The learned counsel for
the petitioner submitted that the decision of the
Delhi High Court is not final in the sense that a
Special Leave Petition is pending against the said
decision before the Apex Court.

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5We have carefully considered the submissions.
SubRule 2 of Rule 7 of the said Rules reads thus:

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“(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
fromthedateofissueofthe
notification/order prefer an appeal to the
Tribunal.

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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.

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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.

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Provided also that the Tribunal may for
reasons to be recorded in writing, waive or
reduce the amount to be deposited under
section 7O.”

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6Thus, SubRule 2 of Rule 7 confers power on the
Appellate Tribunal to condone the delay provided the
period of delay does not exceed 60 days. Reliance is
placed on section 29 of the Limitation Act and in
particular subsection 2 thereof. Subsection 2
reads thus:

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“(2)Where any special or local law
prescribes for any suit, appeal or
application a period of limitation different
from the period prescribed by the Schedule,
the provisions of section 3 shall apply as if
such period were the period prescribed by the
Schedule and for the purpose of determining
any period of limitation prescribed for any
suit, appeal or application by any special or
local law, the provisions contained in
sections 4 to 24 (inclusive) shall apply only
insofar as, and to the extent to which, they
are not expressly excluded by such special or
local law.”

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7The submission is that neither in the
provisions of the said Act nor in the provisions of
the said Rules, there is an express exclusion of the
provisions of sections 4 to 24 of the Limitation
Act.

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8The first proviso to SubRule 2 of Rule 7
confers power on the Appellate Tribunal to condone
the delay. The very fact that a provision has been

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made in the Rule conferring a power on the Appellate
Tribunal to condone the delay shows that the
legislature intended to exclude the applicability of
section 5 of the Limitation Act. Moreover, the
legislature has specifically provided that the
Appellate Tribunal can condone the delay provided
it is of a period of maximum 60 days. In any event,
this provision shows that legislature specifically
intended to exclude the power conferred under
section 5 of the Limitation Act to condone delay or
to extend the period of limitation beyond the period
of 60 days. Therefore, on plain reading of the
provisions of the said Act and the said Rules the
petitioner cannot rely upon subsection 2 of section
29. Thus, the applicability of the relevant
provisions of section 5 of the Limitation Act to an
appeal under section 7 (I) of the said Act stands
excluded. Therefore, we find no merit in the
challenge to the impugned order of the Appellate
Tribunal. We accordingly reject the petition.

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9 We make it clear that we have made no
adjudication on merits of the order which is subject
matter of challenge before the Appellate Tribunal.

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(A.S.GADKARI,J.)

The Manganga Sahakari Sakhar Karkhana Ltd, through Ramchandra Tukaram Kadam v. the Assistant Provident Fund Commissioner

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The Manganga Sahakari Sakhar Karkhana Ltd, through Ramchandra Tukaram Kadam v. the Assistant Provident Fund Commissioner

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