IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SEVENTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION No.12987 of 1999 Between: J.K.Paul Secretary -cum- Correspondent Paul's Upper Primary School Unit of Paul's Educational Society Christian Colony, Warangal ..... PETITIONER AND 1 The Employees Provident Fund Appellate Tribunal at New Delhi 2 The Central Provident Fund Commissioner Employees Provident Fund Organisation Hudco, Visala 14, Bikkaji, Kamapakes, New Delhi-66 3 The Regional Provident Commissioner (Enforcement ) Officer of the RPFC Barakatpura, Hyderabad 4 The Asst. Provident commissioner Sub-Regional Office Warangal .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ or order or direction or writ, more particularly one in the nature of Writ of Mandamus declaring the action of the 1st respondent in rejecting petitioner appeal as time barred without excluding the time lapsed before the Wrong Forum as illegal, bad, contrary to law of limitation and arbitrary and consequently set aside the order of 1st Respondent by condoning the delay of 8 days and direct the 1st Respondent to number the appeal Counsel for the Petitioner: MR.K.V.BHANU PRASAD Counsel for the Respondents: MR.R.N.REDDY The Court made the following: Form-NIC-OGS/WP{LOBIS} THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION No.12987 of 1999 ORDER: (per Hon’ble Sri Justice V.Eswaraiah) The petitioner Upper Primary School, represented by its Secretary- cum-Correspondent seeks to issue a Writ of Mandamus declaring the action of the 1st respondent/Employees Provident Fund Appellate Tribunal, New Delhi in rejecting the petitioner’s appeal as time barred without excluding the time lapsed before the wrong Forum as illegal, bad, contrary to law of Limitation and arbitrary, and to set aside the order of the 1st respondent by condoning the delay of 8 days and to direct the 1st respondent to number the appeal and dispose of the same, in accordance with law. 2. It is the case of the petitioner that the petitioner-Upper Primary School was started in the year 1984 from I Class to VII class in Christian Colony, Warangal and the same was registered with effect from 01.06.1984 and the total staff employed by the petitioner was 12 to 14 as on 25.02.1993. But the Assistant Provident Fund Commissioner, Warangal conducted an enquiry and passed orders bringing the petitioner’s school within the purview of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as “the Act”) with effect from 02.03.1993 through the coverage intimation dated 04.05.1993 allotting the code No.AP/24038 basing on the coverage particulars furnished by the petitioner on 25.02.1993. It is the case of the petitioner that the 4th respondent erroneously brought the school under the purview of the Act and the said action of the 4th respondent is illegal and arbitrary. However, ultimately as the petitioner failed to comply with the provisions of the Act and the scheme framed thereunder, an enquiry under Sec.7-A of the Act was initiated to determine the dues from the petitioner, and an amount of Rs.15,554/- was assessed as due, for the period from March, 1993 to December 1993 vide proceedings dated 17.03.1994. The petitioner did not pay the said amount. Another enquiry for assessing the dues for the further period of January 1994 was conducted. 3. It is the case of the petitioner that no enquiry was conducted and without hearing the petitioner an order dated 29.04.1998 was passed under Sec.7-A of the Act assessing the dues as Rs.1,37,152- 65ps. But it is the case of the respondents that after giving reasonable opportunity and as the petitioner failed to pay the amount determined from March 1993 to December 1993 of Rs.15,554, another enquiry was conducted and after hearing the petitioner alone the said order dated 29.04.1998 was passed under Sec.7-A. 4. It is stated that the petitioner received the said order on 06.05.1998, against which he preferred appeal before the 2nd respondent/Central Provident Commissioner on 27.06.1998 within 60 days. It is the case of the petitioner that the appellate Tribunal was constituted 1½ years ago and prior to the establishment of the Tribunal, the 2nd respondent was vested with the powers to deal with the appeals. Without knowing the establishment of the Tribunal, the petitioner filed appeal before the 2nd respondent wrongly and the 2nd respondent forwarded the papers to the 3rd respondent i.e. the Regional Provident Fund Commissioner, Hyderabad and the 3rd respondent intimated the petitioner that appeal lies to the 1st respondent/appellate Tribunal against the orders of the 4th respondent. It is stated that the 3rd respondent while rejecting the appeal erroneously held that the petitioner has employed more than 19 employees, but, however, it was observed that if the petitioner was aggrieved by the order of the 4th respondent, he is at liberty to approach the appellate Tribunal. After receiving the order of the 4th respondent dated 29.04.1998, said to have been received by the petitioner on 06.05.1998, an appeal was filed before the 1st respondent/appellate Tribunal on 10.02.1999. The appellate authority rejected the appeal as time barred by the impugned order dated 19.04.1999. Aggrieved by the same, this writ petition is filed contending that against the order of the 2nd respondent dated 29.04.1998 received by the petitioner on 06.05.1998, the petitioner filed appeal before the wrong Forum on 06.09.1998, and as soon as receiving the intimation from the 3rd respondent that appeal lies against the orders of the 4th respondent before the 1st respondent/Tribunal alone, the petitioner filed review before the 2nd respondent which was dismissed on 26.11.1998, against which the appeal was filed before the Tribunal on 10.02.1999. Thus, it is the case of the petitioner that the time spent before the wrong Forum has to be excluded and if the time is excluded the delay is only 8 days and therefore, the action of the Tribunal in rejecting the appeal as time barred is illegal and arbitrary. 5. The learned counsel for the petitioner submits that against the order under Sec.7-A of the Act appeal lies to the appellate Tribunal under Sec.7-I of the Act and Rule-7(2) of the Employees’ Provident Funds Appellate Tribunal (Procedure) Rules 1997 (hereinafter referred to as “the Rules”) within 60 days and the Tribunal empowered to extend further period of 60 days and thus within 120 days an appeal can be filed, and even if there is any delay, the appellate authority is empowered to condone the delay under Sec.5 of the Limitation Act. It is stated that under Sec.29(2) of the Limitation Act, the special provisions of the Provident Fund Act and the Rules made thereunder do not provide any specific/express exclusion of the provisions of the Limitation Act, and therefore, the provisions contained in Secs.4 to 24 of the Limitation Act shall also apply. 6. On the other hand, Sri R.N.Reddy, learned standing counsel appearing for the respondents submits that admittedly the 4th respondent is empowered to pass an order regarding the applicability of the provisions of the Act and also empowered to determine the amount due from the petitioner under the provisions of the Act and the Scheme and accordingly, the 4th respondent passed an order under Sec.7-A on 29.04.1998 which was admittedly received by the petitioner on 06.05.1998, against which appeal lies to the Tribunal under Sec.7-I of the Act. Under Sec.7-I(2) every appeal under Sub-Sec.(1) shall be filed in such form and in manner, within the such time and be accompanied by such fees, as may be prescribed. It is stated that the time to file an appeal under Sec.7-I(2) was prescribed by the Central Government in the Rules called Employees Provident Funds Appellate Tribunal (Procedure) Rules 1997 and under Rule-7(2) of the said Rules any person aggrieved by 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 order, prefer an appeal to the Tribunal, and as per the proviso to Sub-Rule-2 of Rule-7 the Tribunal if satisfied that the appellant was prevented by sufficient cause from preferring appeal within the prescribed period, it is empowered to extend the further period of 60 days. Thus, it is submitted that no doubt under Sec.29(2) of the Limitation Act, wherever the specific period of Limitation is prescribed by the schedule, the provisions of Sec.3 of the Limitation Act applies and the appeals filed after period of Limitation shall be barred by time, but, however, the Limitation prescribed for filing the suit, appeal or application before the Court or authorities the provisions of Secs.4 to 24 of the Limitation Act shall apply, but if there is a specific exclusion of the effect of the provisions to Secs.4 to 24 then the Limitation Act will not apply and the provisions of the special law will alone apply. 7. In support of his contentions, the learned counsel for the respondents has relied on a judgment of the Division Bench of the Delhi High Court in the case of Assistant Regional Provident Fund Commissioner, Meerut vs. Employees Provident Fund Appellate Tribunal[1]. 8. On the other hand, the learned counsel for the petitioner submits that as per the judgment of the Division Bench of this Court in the case of Mahendra Kumar Goyal vs. Addl.Commissioner of Civil Supplies (D.B)[2] as there is no specific exclusion of the operation of the Limitation Act, the Limitation Act applies to the appellate Tribunal. 9. We have considered the rival contentions of both the parties. The question that arises for consideration as to whether the provisions of the Act and the Rules made thereunder which is a special Law excludes the provisions of the Limitation Act. 10. In the case of Assistant Regional Provident Fund Commissioner, Meerut vs. Employees Provident Fund Appellate Tribunal (1 supra) the Division Bench of the Delhi High Court held that Sec.5 of the Limitation Act applies for the period during which the delay can be condoned is specifically prescribed, and if it has not left open to extend further, then by an express exclusion of Sec.5 of the Limitation Act beyond the period prescribed under a different statute cannot be applied. 11. The judgment cited by the learned counsel for the petitioner in the case of Mahendra Kumar Goyal vs. Addl.Commissioner of Civil Supplies (D.B) (2 supra) arises out of the proceedings under the Essential Commodities Act where the period of Limitation was prescribed to file an appeal under Sec.6-C of the Act and there was no any specific exclusion of the application of the Limitation Act and therefore, this Court held that the Limitation Act applies. 12. In the instant case, as rightly contended by the learned counsel for the respondents that an appeal lies to the Tribunal under Sec.7-I(2) against the order passed under Sec.7-A. Every appeal shall be filed within such time as may be prescribed and under Sec.21(2)(b) of the Act, the rule making authority is empowered to prescribe the time within which the appeal shall be filed before the Tribunal and accordingly the rule making authority i.e. the Central Government made the Rules 1997 and under Rule-7(2) of the Rules, the time of 60 days was prescribed to file an appeal to the Tribunal by the aggrieved party, but however, by the proviso, it was expressly provided that the time can be extended for filing appeal on sufficient cause to be shown for a further period of 60 days alone. Thus, we are of the opinion that the provisions of the Limitation Act applies to extend the further period of 60 days alone if sufficient cause is shown after expiry of the appeal period of 60 days. The appeal has to be filed within 60 days and the Tribunal is empowered to condone the delay of another 60 days. 13. We are also of the opinion that wherever limitation is prescribed the appeals are barred by limitation under Sec.3 of the Limitation Act, but, however, subject to the provisions of Secs.4 to 29. Secs.4 to 29 deals with various circumstances for extension of the period or for condonation of the delay. Under Sec.5 of the Limitation Act, if the appellant satisfies the Court or authority that he had sufficient cause for not preferring the appeal, the authority, Tribunal or the Court is empowered to condone the delay. But, under Sec.29(2) where any special law prescribes the period of limitation as different from the period prescribed by the schedule, the provisions of Sec.3 shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special law, the provisions of Secs.4 to 24 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special law. 14. In the instant case the period prescribed under the special law for filing the appeal is no doubt different from the period prescribed by the schedule and if there is express exclusion of the application of the provisions of the Limitation Act, the provisions contained in Secs.4 to 24 of the Limitation Act will not apply, and the provisions as contained in the special law will alone apply. By virtue of the proviso to Sub-Rule-2 of Rule-7 the prescribed time to file an appeal is 60 days and the Limitation Act applies for extension of another 60 days alone and therefore, we are of the opinion that there is express exclusion of the provisions contained in Secs.4 to 24 of the Limitation Act. Therefore, we have no difference of opinion from that of the view taken by the Delhi High Court in the case of Assistant Regional Provident Fund Commissioner, Meerut vs. Employees Provident Fund Appellate Tribunal (1 supra). 15. It is the next contention of the learned counsel for the petitioner that if the period spent before the wrong Forum is excluded, the appeal before the Tribunal is within time. 16. Admittedly, the 4th respondent passed the order on 29.04.1998 which was received by the petitioner on 06.05.1998 and the period of Limitation to file appeal is within two months thereafter i.e. by 06.07.1998. The further period of 60 days can be extended and therefore, the appeal before the Tribunal can be filed by 06.09.1998. But whereas the petitioner filed appeal before the wrong Forum i.e. before the 2nd respondent on 27.06.1998 i.e. within 50 days which was dismissed on the review petition filed by the petitioner. The 3rd respondent passed order of intimation dated 26.11.1998, stating that the appeal lies before the appellate Tribunal and therefore, even assuming that the petitioner is entitled to exclude the time taken by him before the wrong Forum, the appeal has to be filed within 10 days thereafter and therefore the appeal has to be filed on or before 05.12.1998. Even if another 60 days time is extended, the appeal has to be filed before the Tribunal on or before 05.02.1999. But, whereas the appeal has been filed before the appellate Tribunal on 10.02.1999. Even if the period spent before the wrong Forum is excluded as contended by the learned counsel for the petitioner, still there is delay in filing appeal before the appellate Tribunal and therefore, we are of the opinion that the appellate Tribunal has rightly rejected the appeal as barred by time. We do not see any infirmity legal or otherwise to interfere with the said order. 17. The Writ Petition is accordingly dismissed. No order as to costs. _____________________ V.ESWARAIAH,J ____________________________ P.SWAROOP REDDY,J Dated: 07.07.2009 Dsr .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Employees Provident Fund Appellate Tribunal at New Delhi 2 The Central Provident Fund Commissioner Employees Provident Fund Organisation Hudco, Visala 14, Bikkaji, Kamapakes, New Delhi-66 3 The Regional Provident Commissioner (Enforcement ) Officer of the RPFC Barakatpura, Hyderabad 4 The Asst. Provident commissioner Sub-Regional Office Warangal 5 2. 2CCs to 6. 2CD copies [1] 2006(2) LLJ 116 [2] 1997(2) ALT 722 (D.B)