IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRD DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.14725 of 2005 Between: Som Phyto Pharma India Ltd., 143-3,SV Coop-Industrial Estate, IDA, Bollaram, Jinnaram Mdl Medak District. Rep.by its Managing Director Mr. D.R. Venkatesh S/o.D. Ramaswamy Iyangar, age-42 years R/o. Hyderabad. ..... PETITIONER AND 1 The Regional Provident Fund Commissioner Regional Office, Bhavishyanidhi Bhavan-3-4-763, Barkatpura Hyderabad. 2 Assistant Provident Fund Commissioner Employees Provident Fund Organisation, Regional Office Bhavishyanidhi Bhavan-3-4-763, Barkatpura Hyderabad. 3 The Employees Provident Fund Appellate Tribunal Rep. by its Presiding Officer New Delhi. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ, order or direction more particularly one in the nature of writ of mandamus declaring the order in A.P/32402/ENF-C-III/Z-XIX/2002 dated 19-10-2000 of the 2nd respondent and the order dated 20-4-2005 in ATA 426 (1)/2001 of the 3rd respondent as illegal, irregular, improper, unjustified and unsustainable and set aside those orders and pass such other order or orders as it may deem fit. Counsel for the Petitioner:MR.Y.VENKATASATYAM Counsel for the Respondents: MR.S.NAGESWARA REDDY The Court made the following : THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.14725 of 2005 ORDER: Petitioner questions the order of the 3rd respondent, dated 20-04-2005 in ATA No.426 (1)/2001 in dismissing the application to condone the delay of 246 days in filing the appeal. It is stated that the petitioner herein filed an appeal on 30-07-2001 against the order of the 2nd respondent, dated 04-09-2000, under Section 7-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (for short “the Act”). It is stated that under Sub-Rule (2) of Rule 7 of the Employees Provident Fund Appellate Tribunal (Procedures) Rules, 1997, the appeal has to be filed within 60 days. But, however, the Tribunal has given the power to condone the delay upto to another 60 days. Therefore, the total period to avail the appeal is four months from the date of receipt of the order. But, in the instant case, the appeal has been filed after eight months from the date of expiry of prescribed period of limitation. It is stated that the period of limitation prescribed is only two months. It is stated that the said Rule in prescribing the period of limitation to condone the delay of two months alone was challenged and the said Rule was upheld by the Division Bench of the Delhi High Court in ASSISTANT REGIONAL PROVIDENT FUND COMMISSIONER, MEERUT Vs. EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL AND OTHERS[1], wherein it was held as follows: “The Court is required to examine the scheme of the special law, and the nature of the remedy provided therein. Considering these aspects, the Court will have to find out whether the Legislature intended to provide a complete code by itself which alone should govern the matters provided by it. On examination of the relevant provisions, if it becomes clear that the provisions of Section 5 of the Limitation Act are necessarily excluded, then the said provisions cannot be called in aid to supplement the provisions of the Act. It is open to the Court to examine whether and to what extent the nature of the provisions contained in the Limitation Act in comparison with the scheme of the special law are excluded from operation. When a specific period is provided and a further period of 60 days by way of extended period only then that much period can be condoned. In the instant case, a separate period of limitation is provided, as also the period for which delay can be condoned. The Legislature was aware about, the provisions contained in Section 5 of the Limitation Act, yet with an intention to curb the delay in labour matters, Legislature left it to the Rule making authority to make a provision for limitation. Rule making authority under the Statue has specifically provided that after the statutory period, if there is delay of 60 days, on showing sufficient grounds for delay of 60 days, that can be condoned. Thus applicability of Section 5 of the Limitation Act is specifically excluded. The expression “expressly excluded” in sub-section (2) of Section 29 of the Limitation Act means an exclusion by express words, i.e. by express reference and not exclusion as a result of logical process of reasoning. In the instant case there is no question of implied exclusion but, it specifically provides a different period of limitation, as also the period during which, if delay has occurred, it could be condoned. With regard to the applicability of Sections 4 to 24 of the Limitation Act (inclusive) one will have to refer to sub-section (2) of Section 29 of the Limitation Act, 1963. It specifically states that these provisions shall apply only so far as and to the extent to which, they are not expressly excluded by special or local law. Reading the language of Rule 7 of the Rules and Section 5 of the Limitation Act, it is very clear that extension of time for a period 60 days only can be condoned subject to satisfaction and not beyond that. From an examination of Rule 7 of the Rules, it is very clear that Section 5 of the Limitation Act is expressly excluded as a specific provision is made in Rule 7.” In the said case, it is stated that there is clear intention of the legislature for asking the rule making authority to prescribe the time, during which an appeal shall be filed. When the time is to be prescribed, it is open for the rule making authority to prescribe extended period also. If the extended period is provided, the provisions would not become bad or ultra vires of the provisions contained in the Act and it is only an enabling provision and, therefore, as the validity of the same rule was upheld, I am of the opinion that the 3rd respondent rightly dismissed the application to condone the delay. In view of the aforesaid judgment of the Division Bench of the Delhi High Court, it cannot be said that the impugned order of the 3rd respondent is illegal and unsustainable. Accordingly, the writ petition is dismissed. However, it is open for the petitioner to make a representation before the 2nd respondent to grant some easy instalments for payment of amounts. If any such representation is filed, it is for the 2nd respondent to consider and dispose of the same in accordance with law. There shall be no order as to costs. ___________ 13-03-2008 Prv ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Regional Provident Fund Commissioner Regional Office, Bhavishyanidhi Bhavan-3-4-763, Barkatpura Hyderabad. 2 Assistant Provident Fund Commissioner Employees Provident Fund Organisation, Regional Office Bhavishyanidhi Bhavan-3-4-763, Barkatpura Hyderabad. 3 The Employees Provident Fund Appellate Tribunal Rep. by its Presiding Officer New Delhi. 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{CHP} [1] 2006-II-LLJ 338