IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 WP(C).No. 8513 of 2009(H) ------------------------- PETITIONER(S): --------------- M/S. DAVINA RETREATS PRIVATE LIMITED, T.C.68/2054, LAGOONA DAVINA, PACHALLOOR.P.O., THIURUVANANTHAPURAM IDISTRICT, REP. BY ITS MANAGING DIRECTOR, MRS.DAVINA TAILOR. BY ADV. SRI.ANIL NARAYANAN SRI.S.D.ASOKAN RESPONDENT(S): --------------- 1. THE EMPLOYEES PROVIDENT FUND ORGANISATION, KERALA REGION, REP. BY THE REGIONAL PROVIDENT FUND COMMISSIONER, BHAVISHYANIDHI BHAVAN, PATTOM, THIRUVANANTHA- PURAM-4. 2. THE ASST. PROVIDENT FUND COMMISSIONER, BHAVISHYANIDHI BHAVAN,PATTOM, TRIVANDRUM-4. 3. THE RECOVERY OFFICER, EMPLOYEES PROVIDENT FUND ORGANISATION, BHAVISHYANIDHI BHAVAN, PATTOM, TRIVANDRUM-4. 4. THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, NEW DELHI, REP. BY ITS REGISTRAR. BY ADV. SMT. T.N. GIRIJA, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 8513 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 17th March, 2009. J U D G M E N T The petitioner is an establishment, which was sought to be covered under the Employees Provident Funds and Miscellaneous Provisions Act. Ext. P1 order was passed by the 2nd respondent assessing contributions payable by the petitioner under the Act. The petitioner claims that they have engaged an advocate to file an appeal before the Tribunal against that order. But, unfortunately, according to the petitioner, the advocate did not file the appeal. The petitioner knew about the non-filing of the appeal only when prosecution notice was issued to the petitioner. By that time, the period prescribed for filing an appeal even with a petition to condone delay had expired. The petitioner therefore seeks the following reliefs: “i. Issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Exhibit P1, P5 and P7 orders and quash the same orders. ii. Issue a writ of mandamus or any other appropriate writ, direction or order directing the 4th respondent Tribunal to condone the delay in filing the appeal being filed by the petitioner under Section 7-I of the EPF and MP Act and consider the appeal and the petitions filed along with the same on merits as if they were filed in time. iii. Issue a writ of mandamus or any other appropriate writ, direction or order declaring that the petitioner is not bound to pay any amount pursuant to Ext. P1 order passed by the 2nd respondent. iv. Issue a writ of mandamus or any other appropriate writ, direction or order staying the operation and implementation of Exhibit P1, P5 and P7 orders until the appeal and petitions being filed by the petitioner before the Employees provident Fund Appellate Tribunal, New Delhi are considered and order was are passed.” 2. The petitioner's contention is that this Court has ample W.P.C. No. 8513/09. -: 2 :- powers to direct the Tribunal to entertain a time barred appeal. The petitioner relies on the decision of Danda Rajeshwari v. Bodavula Hanumayamma and others, (1996) 6 SCC 199. 3. A Division Bench of this Court has, in Assistant Commisioner of Central Excise v. Krishna Poduval, 2005 (4) KLT 947, held that this Court in exercise of powers under Article 226 of the Constitution of India cannot direct the Tribunal to interfere an appeal when the period for which the Tribunal can condone delay in filing of the appeal has also expired. This Court has categorically held that Article 226 cannot be invoked to resurrect a time barred appeal. The decision relied on by the petitioner is not applicable to the facts of this case. If the petitioner has a grievance against the advocate, it is for them to proceed against the advocate appropriately. The default on the part of the advocate, even if true, is no ground to direct consideration of a time barred appeal by the Tribunal for considering which Tribunal has no power under law. In the above circumstances, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/ [True copy] P.S to Judge.