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2011 Supreme(Mad) 2660
High Court of Judicature at Madras
K. CHANDRU
Indian Agricultural Research Institute Regional Station, rep by Head Wellington
Versus
The Regional Provident Fund Commissioner, Dr. Balasundaram Road & Others
W.P.NO.13861 of 2010 & M.P.No.1 of 2010
Decided on : 07-06-2011
For the Petitioner:S.R. Sundaram, Advocate.
For the Respondents:R1 to R3 - V. Vibhishanan, Advocate.
The law of limitation is founded on public policy, and the courts have the power to condone the delay if sufficient cause is shown for not availing the remedy within the stipulated time.
Headnote:
Employees Provident Fund - Challenge to order of Employees' Provident Fund Appellate Tribunal - Employees Provident Fund Act, Section 7-A, Section 7-I, Section 7-O, Rule 15 of EPF Appellate Tribunal (Procedure) Rules 1997 - The court discussed the application of Section 5 of the Limitation Act, the power of the Tribunal to extend the time for filing an application, and the presumption of knowledge of an order when represented by an Advocate. The court also referred to various judgments to support its decision.
Fact of the Case:
The petitioner, Indian Agricultural Research Institute, challenged an order passed by the Employees' Provident Fund Appellate Tribunal, which held that the application to restore the dismissed appeal was barred by limitation.
Finding of the Court:
The court dismissed the writ petition, stating that the statutory rule prescribed a 30-day limit for filing an appeal, and the petitioner failed to show sufficient cause for the delay.
Issues: Challenge to order of Employees' Provident Fund Appellate Tribunal, application of Section 5 of the Limitation Act, power of the Tribunal to extend time for filing an application, presumption of knowledge of an order when represented by an Advocate.
Ratio Decidendi: The court found that the statutory rule prescribed a 30-day limit for filing an appeal, and the petitioner failed to show sufficient cause for the delay.
Final Decision: The writ petition was dismissed, and there was no order as to costs.
1. The petitioner is the Indian Agricultural Research Institute represented by its Head of Regional Station at Wellington, Nilgiris District. They have filed the present writ petition seeking to challenge an order passed by the fourth respondent Employees' Provident Fund Appellate Tribunal, New Delhi made in A.T.A.No.742(13)/2003, dated 13.04.2010. By the impugned order, the Tribunal held that the application filed by the petitioner institute to restore the dismissed appeal was clearly barred by limitation.
2. When the matter came up on 15.07.2010, private notice was directed to be served to respondents 1 to 3. Pending notice, an interim stay was granted. On notice, the respondents have filed a counter affidavit, dated 17.02.2011.
3. It is seen from the records that the petitioner institute was covered by the Employees Provident Fund Act. An order under Section 7-A was passed by the respondents determining the amount payable at Rs.29,274/-. An appeal was filed under Section 7-I of the Employees Provident Fund Act. For waiver of the condition of pre-deposit, an application was also filed under Section 7-O. The said application was allowed and the appeal was taken on file. The respondents were directed to file their counter. The said institute was represented by its counsel who was Mr.T.A.Selvaraj, Advocate and Special Public Prosecutor-CBI. Hearing of the appeal was fixed on 3.7.2009 at Coimbatore. The counsel had also attended the hearing. On the date of the hearing, the AAO from the office of the petitioner was also deputed. In a further hearing on 7.7.2009, again the institute was represented. But, when the matter came up on 1.2.2010, the Tribunal found that there was no representation and that for want of prosecution, it dismissed the appeal.
4. Thereafter, the petitioner institute had filed an application to set aside the dismissal order and for restoration of appeal to be heard on merits. Since there was a delay in filing the appeal, a condonation of delay application was also filed. The reason found in the said order was that the institute was situated at Wellington and that the consent of the headquarters was to be taken for attending the proceedings. Hence they could not make any representation and that before the consent to be obtained, the matter was dismissed. The Tribunal held that law of limitation requires such an application should be filed within 30 days. There was no power vested with the Tribunal to extend the time for filing the application. Therefore, in the absence of any power, the Tribunal cannot set aside the order. Challenging the same, the writ petition came to be filed.
5. The respondents in their counter affidavit had stated that the petitioner had engaged a counsel to represent them at Coimbatore. Therefore they were clearly on default on the hearing on 10.2.2010. When the appeal was dismissed for default, under Rule 15 of the Employees Provident Fund Appellate Tribunal Rules, 1997, an application can be filed within 30 days only and not thereafter. The Tribunal had relied upon a judgment of the Supreme Court in Commissioner of Customs and Central Excise Vs. Hongo India Private Limited and another reported in 2009 (5) SCC 791 for the purpose that in the absence of any clause to condone the delay by showing sufficient cause after the period prescribed there is complete exclusion of Section 5 of the Limitation Act. In paragraph 35, the Supreme Court had observed as follows:
"35...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."
6. Under Section 7(i)(2), an appeal by the Tribunal shall be covered by such time as may be prescribed. Rule 15 of the EPF Appellate Tribunal (Procedure) Rules 1997 reads as follows:
"15. Action on appeal for appellant's default.-(1)Where on the date fixed for hearing
