IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15405 of 2007 Modi Steel Limited, E/2 Industrial Area, Patliputra, Patna 13 through its Director, Vijay Singhania ………………… Petitioner Versus 1. The Union of India through Secretary, Ministry of Labour, New Delhi 2. The Recovery Officer, Provident Fund, Patna 3. Assistant Provident Fund Commissioner, Regional Office, R.Block, Road No.6, Patna 4. The Presiding Officer, EPF Appellate Tribunal, New Delhi ……………..Respondents ----------- For the petitioner: M/s V.N.Sahay & Arun Shrivastava, Advocates For the EPF: Mr. Jai Prakash Verma, Advocate. ----------- 6. 12.5.2009 Heard learned counsel for the petitioner and learned counsel for the Employees Provident Fund authorities. The petitioner seeks quashing of the order dated 31.5.2007 (Annexure-1) passed by the Respondent No.4, The Presiding Officer, Employees Provident Fund Appellate Tribunal in Appeal Case No. 743(3)/2006 by which the appeal filed by the petitioner has been dismissed on the point of limitation. The short facts relevant for the decision of the present matter are that the petitioner-factory was registered under the Employees Provident Fund Act, 1952 and was making the necessary payments earlier. On 1.4.2001 the petitioner-factory was closed and it was subsequently declared sick also. Prior to that on 1.9.1998 notice was issued to the petitioner starting the proceeding under Section 7A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952. Subsequently notices were also issued. The petitioner, on 3.9.2003, informed the EPF authorities about the closure of the factory. Thereafter it is claimed that the petitioner had 2 no information about the proceedings until 10.6.2005 when a demand for Rs. 25,93,506/- was received from the Recovery Officer- cum-Assistant Provident Fund Commissioner. The petitioner having been declared sick and registered under the BIFR under the provisions of the Sick Industrial Companies (Special Provisions) Act in the year 2005, accordingly, a prayer was made for stay of the said demand before the Recovery Officer who by his order dated 1.8.2005 stayed the recovery. Subsequently, by order dated 6.9.2005 passed by the successor Recovery Officer, the order of stay of recovery was vacated. The petitioner filed a representation on 26.9.2005 before the Recovery Officer again requesting to keep the recovery in abeyance till disposal of the BIFR proceedings. It is the specific case of the petitioner that the order under Section 7A was never issued or received by it until that time and the said fact is admitted in the counter affidavit where it is stated that the order dated 20.5.2004 under Section 7A of the EPF Act was sent to the petitioner on 20.1.2006. However, the petitioner, finding no action being taken on his representation by the Recovery Officer at all, applied for certified copy of the orders dated 20.5.2004 on 24.11.2005 and immediately upon receipt of the same filed CWJC No. 15740/05 on 13.12.2005 along with an interlocutory application for stay of the certificate proceedings since the EPF Appellate Tribunal was not functioning at that time. Subsequently when the Tribunal started functioning the petitioner filed an appeal before the Tribunal on 12.12.2006 and made a prayer before this Court for withdrawal of CWJC No. 3 15740/2005. For the said reasons by order dated 21.2.2007 (Annexure-2) this Court dismissed the writ application as withdrawn with the observation that the application for condonation of delay in filing the appeal shall be considered appropriately in accordance with law. Thereafter by the impugned order dated 31.5.2007 the Presiding Officer, EPF Appellate Tribunal, New Delhi has dismissed the application for condonation of delay and consequently the appeal also as time barred. Learned counsel for the petitioner submits that the Appellate Tribunal has made a serious error in coming to the conclusion that CWJC No. 15740/2005 filed before this Court earlier had been filed after a delay of 155 days, counting from 20.6.2005 to 12.12.2005, without any justifiable reasons or explanation and accordingly, he found that the application for condonation of delay was liable to be dismissed. It is submitted that the receipt of notice on 10.6.2005 from the Recovery Officer cannot be taken as the date from which the limitation could be counted in terms of Rule 7(2) of the Employees Provident Fund Appellate Tribunal (Procedures) Rules, 1997. It is provided therein that the appeal should be filed within sixty days from the date of issue of the order and on sufficient cause being shown for not preferring the appeal within the said period, the Tribunal may extend the said period by a further period of sixty days. It is thus, submitted that the order dated 20.5.2004 could not have been said to have been issued admittedly until 20.1.2006 and in any case not before the certified copy of the same was 4 received by the petitioner in December, 2005 and thus there was no delay by the petitioner in filing the writ petition. It is further pointed out that the Appellate Tribunal has committed an error of record by holding that the petitioner’s prayer for stay of the recovery proceeding was not acceded to by the respondent-authorities, whereas, as a matter of fact, the stay of the recovery proceedings had been ordered on 1.8.2005 by the Recovery Officer and subsequently vacated on 6.9.2005 against which the petitioner had also filed a representation and on non-consideration of the same he was compelled to apply for certified copy and challenged the proceedings by filing a writ application. Thus, it would not be said that there was no justifiable or sufficient reason explaining the consumption of time from 10.6.2005 to 12.12.2005. In any case, according to learned counsel, the period of limitation could run only after the certified copy of the order dated 20.5.2004 under Section 7A itself was issued to the petitioner in December, 2005 in terms of the Statutory Rules and not earlier. Learned counsel for the EPF authorities, on the other hand seeks to support the impugned order stating that the petitioner was duly served the notice of the proceedings under Section 7A of the Act and thereafter the proceedings had continued and it was the petitioner who had stopped pursuing the same. It is further submitted that the recovery proceedings were initiated after the orders were passed on 20.5.2004 and once the petitioner had become aware of the same on 10.6.2005 on the basis of the notice issued by the Recovery 5 Officer he ought to have taken steps for filing the appeal within the statutory period prescribed. It is also submitted that the recovery proceedings under the EPF and MP Act, 1952 do not come within the purview of Section 22(2) of the Sick Industrial Companies Act and thus there was no question of automatic stay of the recovery proceedings. It is thus submitted that the petitioner had not only committed delay of 155 days in filing the writ petition and the same being not only beyond the statutory period of 60 days in filing the appeal but even beyond the further period of 60 days permitted for condoning the delay, and therefore the learned Appellate Tribunal has rightly rejected the application for condonation of delay and dismissed the appeal also. On a consideration of the rival submissions this Court finds sufficient force in the submission of learned counsel for the petitioner. From a perusal of Rule 7 of the Employees Provident Fund Appellate Tribunal (Procedures) Rules, 1997, it is evident that limitation starts to run only from the date of issue of the order from which the appeal has been preferred. Rule 7 is quoted below:- “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: 6 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 7A: 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.” The above Rules clearly provide that the aggrieved person may prefer appeal before the Tribunal within sixty days from the date of issue of the order. In the present matter it is admitted that the order was not issued to the petitioner until 20.1.2006 by the EPF authorities. However, since the petitioner had applied for certified copy of the order on 24.11.2005 and the same was delivered to him a short while thereafter, it can be taken that the order was issued sometime after 24.11.2005. That being the position, CWJC No. 15740/2005 filed by the petitioner on 13.12.2005, in view of the fact that the Appellate Tribunal itself was non-functional, must be held to have been filed well within the statutory period prescribed for the same. In this regard, the Tribunal has seriously erred in taking the starting point of limitation from 10.6.2005 when the demand notice for Rs. 25,93,506/- issued by the Recovery Officer was received by the petitioner. The said demand notice can in no case take the place of the order dated 20.5.2004 under Section 7A of the 7 EPF Act. The Tribunal has further committed an error of record in holding that the stay petition filed by the petitioner before the Recovery officer was not acceded to whereas the stay was granted on 1.8.2005 by the Recovery Officer which was subsequently vacated on 6.9.2005; even thereafter the petitioner continued to pursue before the Recovery Officer the issue of stay on account of the Company having been registered with the BIFR and thereafter declared sick with effect from 31.3.2001 by the order dated 6.10.2005 of the BIFR in terms of Section 3(1)(o) of the Sick Industrial Companies Act. Only thereafter and finding no further response from the Recovery Officer the petitioner applied for certified copy of the order on 24.11.2005 and immediately after receiving the same had filed CWJC No. 15740/2005 on 12.12.2005. In the said circumstances, it cannot be said that the petitioner had no justifiable reason or explanation for the time consumed from 10.6.2005 to 12.12.2005, as the above narration of facts indicates full justification on the part of the petitioner in pursuing the remedies available to it. In any view of the matter, in terms of the provisions of the Rule 7 of the Statutory Rules since limitation itself starts running from the date of issue of the order hence, the same can at best be counted earliest from the date of the issue of the certified copy of the order dated 20.5.2004 under Section 7A of the Act. In the said circumstances, it has to be held that the petitioner was pursuing bona fide his remedies before this Court against the impugned order dated 20.5.2004 since the Tribunal itself was non-functional and thereafter 8 he also filed the appeal before the Tribunal and withdrew the writ petition for pursuing his appeal. In the said circumstances, it was a fit case for condonation of the delay in filing the appeal before the Tribunal. The writ application is accordingly allowed. The impugned order dated 31.5.2007 (Annexure-1) passed by the Employees Provident Fund Appellate Tribunal is accordingly set aside and the Tribunal is directed to hear and dispose of the appeal filed by the petitioner being ATA No. 743(3)/2006 as expeditiously as possible. S. Pandey (Ramesh Kumar Datta, J.)