IN THE HIGH COURT OF JUDICATURE AT PATNA -------- Letters Patent Appeal No.487 of 2011 -------- Appeal against the judgment and order dated 10-1-2011 passed by a Bench of this Court in C.W.J.C. No. 16943 of 2010. ---------- M/S Sheela Chitra Mandir, Dumraon at Buxar, District- Buxar through its proprietor Sri Shyam Bihari Singh.......................................................... Appellant Versus 1. The Union Of India through the Regional Provident Fund Commissioner, Bihar at Patna, office at R-Block ( Serpentine Road), Road No.6, Patna-800001 2. The Assistant Provident Fund Commissioner (compliance), Bihar, Patna, Office at R- Block (Serpentine Road), Road No.6, Patna-800001..Respts. ----------- For the Appellant :- Mr. Dhanendra Chaubey, Advocate For Respondents :- Mr. R.S. Pradhan, Sr. Advocate ------------- 3 14-10-2011 Heard the parties. The learned single Judge by the order under appeal has declined to interfere with the order of appellate authority under the Employees’ Provident Funds and Miscellaneous Provisions Act,1952 (hereinaft6er referred to as `the Act’). The appellate Tribunal, New Delhi in A.T.A. No. 64(3) 2003 passed an order of dismissal for default on 23-1-2010 on account of non-appearance of counsel for the appellant. The application or appeal for 2 restoration under Rule 15 was also dismissed as it was filed beyond the permissible period of 30 days. The plea of the appellant before the writ court was that he could not attend the appeal or instructed his lawyer to-do-so because of illness. Only when he received the order of dismissal for default, he could file the application or appeal under Rule 15 within 30 days from the date of communication of the order. The learned writ court held that Rule 15 described a limitation of 30 days for filing an application or appeal for restoration from the date of the order of dismissal for default and not from the date of communication of the order. The writ court has further held that it will not be proper to restore the appeal when the same was filed beyond the period of limitation prescribed for substantive appeal. Learned counsel for the appellant has drawn our attention to an order of this Court which is annexure-1 to the writ petition. The said order shows that writ petition preferred by the appellant bearing C.W.J.C. No. 12127 of 3 2002 was disposed of summarily with a direction that if he filed an appeal before the authority within three weeks then the appellate court shall dispose of the appeal on merit without being prejudiced by the limitation. The learned writ court has failed to appreciate the effect of the order dated 23/1/2003 ( annexure-1). The limitation in the substantive appeal could not have been raised as an issue by the respondent. On that account the order under appeal is found to be erroneous and fit to be set aside.We are aware that the application or appeal for restoration under Rule 15 was filed beyond the period of limitation. That will not come in the way of the appellate authority because the earlier order of this Court contained in annexure-1 to the writ petition contained a direction to the appellate court to dispose of the appeal on merits. In that view of the matter the appeal should not have been disposed of in default because Rules 15 and 16 permit the appellate court either to dismiss the appeal for default or to decide ex parte on merits. In view of earlier order of this Court, the learned Tribunal ought to have 4 decided the appeal even ex-parte on merits. In that view of the mater, this appeal is allowed. The order under appeal is set aside. The Appellate Tribunal is directed to restore the appeal and decide the same on merits, after giving an opportunity of hearing to the appellant who must produce a copy of this order before the Appellate Tribunal within four weeks for availing its benefit. Otherwise, the Tribunal may decide the appeal on merits, even ex-parte. Naresh ( Shiva Kirti Singh, J.) ( Shivaji Pandey,J)