IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16943 of 2010 M/S SHEELA CHITRA MANDIR,DUMRA . Versus THE UNION OF INDIA & ANR . ----------- 2/ 10/01/2011 Heard learned counsel for the petitioner and the Regional Provident Fund Commissioner. The petitioner is aggrieved by order dated 14.7.2010 rejecting his application for restoration of his appeal dismissed for non-prosecution on 6.5.2010. The final order of assessment was passed on 27.8.2002 under Section-7A of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 ((hereinafter referred to as the E.P.F. Act) determining liability. An appeal lies against the same before the Appellate Tribunal under Section-7 I of the E.P.F. Act to be filed within such time as may be prescribed. Rule-7 of the E.P.F. Appellate Tribunal (Procedure) Rules,1997 (hereinafter referred to as the E.P.F. Rules) provides a time limit of 60 days from the date of issue of the order which may, to the satisfaction of the Tribunal, be extended by a further period of 60 days. The order is stated to have been dispatched to the petitioner on 2.9.2002. Under Rule-15 of the E.P.F. Rules, if the appeal is dismissed in default for non-prosecution a restoration application can be filed within 30 days from the date of - 2 - dismissal order and if the Tribunal is satisfied of the justification given for the same it may restore the appeal for hearing on merits. There has to be a distinction between an appeal filed within the period of limitation of 60 days or the extended period of 120 days and an appeal not filed within time. An appeal filed within time and dismissed for non-prosecution will stand in a category different from an appeal filed beyond time and dismissed for non- prosecution. The former will become directly amenable to Rule-15 of the E.P.F. Rules. Any order under Rule-15 thereof in respect of an appeal filed beyond the period prescribed in Rule-7 of the same may amount to restoring an appeal not maintainable in law. Though certain basic facts are not available in the pleadings, learned counsel for the petitioner assisted the Court from the records of the proceedings available with him. He submits that the original order under Rule- 7A was dispatched on 2.9.2002. The appeal was filed on 7.2.2003. He fairly accepts that the appeal itself was not filed within 60 days or in the extended period of 120 days. He, however submits that the petitioner wrongly approached this Court bona fide in C.W.J.C. No.12127/02, disposed on 23.1.2003. This Court observed that the Tribunal shall dispose the matter on - 3 - merits without being influenced by limitation. The Tribunal dismissed the appeal on 23.1.2010 for non- prosecution. The order was dispatched to the petitioner on 17.2.2010. The petitioner filed an application for recall of the order on 11.3.2010 i.e., before 30 days from the date of communication of the order. That has wrongly been rejected on 6.5.2010. The review application preferred against the same has been rejected on 14.7.2010. Placing strong reliance on Rule-15 of the E.P.F. Rules it was submitted that the application for restoration of the appeal having been filed within 30 days from dispatch of the order, the Tribunal erred in passing the orders dated 14.7.2010 and 6.5.2010 which are therefore not in accordance with law and are fit to be set aside and the appeal restored for disposal on merits. Referring to the remedy being pursued before the Writ Court. Placing reliance on Section-14 of the Limitation Act it is submitted that a wrong remedy bona fide being pursued before a wrong forum had to be excluded in computation of the limitation period. Learned counsel for the Provident Fund Department submitted that the initial institution of the appeal itself is acknowledged to be well beyond the period of 120 days. If that be so, the appeal itself was - 4 - incompetent. Any order today for restoration of the appeal may amount to restoring an illegal appeal. On facts, it goes beyond the pale of any controversy that the original appeal itself was not filed within the stipulated period of 120 days. The appeal was therefore clearly barred in law as E.P.F. Act or Rules do not contain any provision for condonation of delay in filing of the appeal before the Tribunal beyond 120 days as distinct from such provision for condonation of delay for restoration of an appeal dismissed for non- prosecution contained in Rule-15.. The Tribunal in this context has aptly referred to the judgement of the Supreme Court reported in (2009) 5 SCC 791 ( COMMISSIONER OF CUSTOM AND CENTRAL EXCISE Versus HANGO INDIAN PRIVATE LIMITED) that it had no jurisdiction in law to condone the delay beyond 120 days. In AIR 1985 SC 1279 (Sakuru Versus Tanaji) dealing with an appeal instituted beyond time prescribed before the Appellate Authority under a Special Act it has been held at paragraph-3 that the provisions of the limitation Act have no application to Tribunals and Quasi Judicial Bodies as they are not Courts under the C.P.C. or Cr.P.C. and unless there is a specific provision incorporated in the Statute itself for condonation of the - 5 - delay, it cannot be done. “3. After hearing both sides we have unhesitatingly come to the conclusion that there is no substance in this appeal and that the view taken by the Division Bench in Venkaiah's case is perfectly correct and sound. It is well settled by the decisions of this Court in Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli (1970) 1 SCR 51 : (AIR 1969 SC 1335), Nityananda M. Joshi v. Life Insurance Corpn. of India (1970) 1 SCR 396 : (AIR 1970 SC 209) and Sushila Devi v. Ramanandan Prasad (1976) 2 SCR 845 : (AIR 1976 SC 177) that the provisions of the Limitation Act, 1963 apply only to proceedings in "Courts" and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified. powers conferred on Courts under the Codes of Civil or Criminal Procedure. The Collector before whom the appeal was preferred by the appellant herein under S. 90 of the Act not being a Court, the Limitation Act, as such, hid no applicability to the proceedings before him. But even in such a situation the relevant special statute may contain an express provision conferring on the appellate authority, such as the Collector, the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that the provisions of S. 5 of the Limitation Act shall be applicable to such proceedings…..”. The second contention that the application for restoration was filed within 30 days from the date of communication, also does not appeal to this Court. The appeal was dismissed for non-prosecution on 23.1.2010. Under Rule-15 the application for restoration of the same was to be filed within 30 days from the date of the order and not the date of communication of the order as provided for in Section-7L with regard to the institution of - 6 - the substantive appeal. The language of Rule-15 being clear there is no occasion for this Court to interpret it in any other manner. There is no merit in this application. It is accordingly dismissed. KC ( Navin Sinha, J.)