IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.13861 of 2010 and M.P.No.1 of 2010 Indian Agricultural Research Institute Regional Station, rep by Head Wellington-643 231. .. Petitioner Vs. 1.The Regional Provident Fund Commissioner, Dr.Balasundaram Road, Coimbatore. 2.The Assistant Commissioner, Employees' Provident Funds, Dr.Balasundaram Road, Coimbatore. 3.The Enforcement Officer, District Office, Coonoor. 4.The Employees' Provident Funds Appellate Tribunal, New Delhi. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the impugned order dated 13.04.2010 in Appeal No.ATA 742(13)/2003 on the file of the fourth respondent and to quash the same and consequently to forbear the respondents from taking any proceedings under the Employees' Provident Fund Act pending disposal of the above appeal on the file of the fourth respondent. For Petitioner : .Mr.S.R.Sundaram For Respondents : Mr.V.Vibhishanan for RR 1 to 3 https://hcservices.ecourts.gov.in/hcservices/ ORDER 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. https://hcservices.ecourts.gov.in/hcservices/ 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 of the appeal or on any other date to which such hearing may be adjourned, the appellant does not appeal when the appeal is called for hearing, the Tribunal may, in is discretion either dismiss the appeal for default or hear and decide it on merit. (2)Where an appeal has been dismissed for default and the appellant files an appeal within thirty days from the date of dismissal and satisfies the Tribunal that there was sufficient cause for his nonappearance when the appeal was called for hearing, the Tribunal shall make an order setting aside the order dismissing the appeal and restore the same: Provided, however, where the case was disposed of on merits the decision shall be not re-opened except by way of review." 7.It is not the case as if the petitioner institute was not represented before the Tribunal. On the other hand, they had engaged a counsel representing them before the Tribunal in its Camp sitting. In Damodaran Pillai Vs. South Indian Bank Limited reported in 2005 (7) SCC 300, the Supreme Court had held that if a person is represented through an Advocate, his knowledge of the order shall be presumed. Notwithstanding the dismissal, the petitioner did not file any application within the time period. https://hcservices.ecourts.gov.in/hcservices/ 8.An elaborate argument was addressed by Mr.S.R.Sundaram by referring to series of judgments, which are as follows: (a)2002 (4) L.W. 157 (A.Aruljothi Vs. The Deputy Commissioner of Labor, Salem and another) (b)AIR 1976 SC 105 (Mangu Ram and another Vs. Municipal Corporation of Delhi) (c)2002(146) E.L.T. 273 (All.) (Jai Hind Bottling Company (P) Ltd. Vs. Commissioner (Appeals) C.Ex., Allahabad) (d)1998 (98) E.L.T. 591 (All.) (Eureka Forbes Ltd. Vs. Union of India) (e)(2004) 4 SCC 252 (Gopal Sardar Vs. Karuna Sardar) (f)1971 Crl.L.J. 710 (Vol.77, C.N.207) (Silchar Municipal Board Vs. Rakhal Chandra Roy) (g)AIR 2002 SC 749 (Shaik Saidulu alias Saida Vs. Chukka Yesu Ratnam and others) (h)AIR 1995 SC 2272 (Mukri Gopalan Vs. Cheppilat Puthanpurayil Aboobacker) (i)(2009) 5 SCC 791 (Commissioner of Customs and Central Excise Vs. Hongo India Private Limited and another) (j)AIR 1967 Madras 109 (V 54 C 29) (Trustees of the Port of Madras Vs. Mettur Chemical and Industries Ltd., Salem) (k)AIR 1967 Madras 194 (V 54 C 58) (Trustees of the Port of Madras Vs. M/s.Simpson and Co. Ltd., Madras and others) 9.But, this court is not inclined to accept the said submissions. Firstly, the question of application of Section 5 in this case is not available as the statutory rule itself is prescribed only 30 days. Secondly, even if assuming that there was delay, there is no difference between a private person and a Governmental institution. The petitioner has not even shown any sufficient cause. 10.The Supreme Court in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 has held as follows: "14.We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for https://hcservices.ecourts.gov.in/hcservices/ redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. 15.The expression “sufficient cause” employed in Section 5 of the Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard-and-fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate—Collector (L.A.) v. Katiji7, N. Balakrishnan v. M. Krishnamurthy2 and Vedabai v. Shantaram Baburao Patil8. 16.In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasising that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay—G. Ramegowda v. Land Acquisition Officer9, State of Haryana v. Chandra Mani3, State of U.P. v. Harish Chandra10, State of Bihar v. Ratan Lal Sahu11, State of Nagaland v. Lipok AO12 and State (NCT of Delhi) v. Ahmed Jaan13. 11.In view of the same, it is unnecessary to go into details of the decisions referred to by the petitioner. In view of the clear legal position, this court is not inclined to read into the provisions of the Act and Rules anything different from its original intention. Hence the writ petition will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition stands closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vvk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Regional Provident Fund Commissioner, Dr.Balasundaram Road, Coimbatore. 2.The Assistant Commissioner, Employees' Provident Funds, Dr.Balasundaram Road, Coimbatore. 3.The Enforcement Officer, District Office, Coonoor. 4.The Employees' Provident Funds Appellate Tribunal, New Delhi. 1 cc to Mr.V. Vibhishanan, Advocate, Sr. 32613 1 cc to Mr.S.r. Sundaram, Advocate, Sr. 32203 W.P.NO.13861 of 2010 VD (CO) kk 16/6 https://hcservices.ecourts.gov.in/hcservices/