wp2975.10 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2975 OF 2010 Mahatma Basweshwar Education Society’s Shri Shambulinga Shivcharya Vidyalaya Through its Secretary Shri Vijaykumar Bhuprao Shete Age 75 years, Occ. Advocate R/o. Ausa Road, Latur, District Latur ...Petitioner Versus 1 The Assistant Provident Fund Commissioner Sub-Regional Office, Bhavishya Nidhi Bhawan Plot No.2, CIDCO, No. 1, Aurangabad ...Respondent 2 Employees Provident Fund Appellate Tribunal ( deleted as per order dated 29.7.2011) ..... Mr. S.V. Natu, advocate for the petitioner Mr. K.B. Chaudhari, advocate for respondent No.1 ..... CORAM: S.V. GANGAPURWALA, J. DATED: 29TH JULY, 2011 JUDGMENT :- 1 At the outset, Mr. Natu, learned counsel for the petitioner seeks leave to delete the respondent No.2. Respondent No.2 stands deleted at the risk of the petitioner. 2 Rule. Rule returnable forthwith. With consent of the parties, wp2975.10 -2- taken up for final hearing. 3 The present petitioner had preferred an appeal before the Appellate Tribunal aggrieved by the order passed by respondent No.1 under section 7-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. The intimation was given to the petitioner for hearing of the appeal to be held at Pune on 7.7.2009. The intimation of the same was received by the petitioner on 6.7.2009. The petitioner sent a telegram seeking adjournment. Thereafter the matter was kept on 15.7.2009. As the petitioner was absent, the matter came to be dismissed for default. Thereafter, the petitioner filed an application for restoration. The said restoration application was rejected on the ground that the same is barred by limitation and it is the petitioner, who failed to ascertain the date and the same amounts to negligence. The petitioner has impugned the said order in the instant writ petition. 4 Shri Natu, learned counsel submits that in fact on 6.7.2009, the petitioner had received the intimation about hearing fixed on 7.7.2009 at Pune. The adjournment was sought and immediately the next date fixed was on 15.7.2009. The petitioner did not have any intimation about the said date as such could not remain present. The learned counsel contents that the petitioner received intimation about dismissal wp2975.10 -3- of the appeal in default on 2.9.2009 and thereafter immediately on 22.9.2009, an application for restoration was filed well within prescribed period of limitation from the date of receipt of communication of the order dismissing the appeal in default. The learned counsel contends that the appellate authority has taken hyper technical approach while rejecting the application for restoration. The appellate Tribunal should have taken into consideration short span of time of the adjourned date. The learned counsel contends that opportunity deserves to be given to the petitioner to contest the appeal on merits. He further contends that 50% of the amount was deposited. 5 Shri Choudhari, learned counsel for respondent No.1 supports the order and submits that it is a case of total lack of diligence on the part of the petitioner. It was the duty of the petitioner to ascertain the next date of hearing. The petitioner can not take advantage of his own wrong. According to learned counsel, the appellate Tribunal has rightly passed the impugned order. 6 So far as the aspect of limitation is concerned, though the intimation is dated 6.8.2009, the petitioner on oath has stated the same is received on 2.9.2009. There is nothing on record to disbelieve the said statement. There is no evidence on record to show that the petitioner had received intimation prior to 2.9.2009. The wp2975.10 -4- Division Bench of this Court in the case of Tularam Govinda Bhogare Vs. State of Maharashtra and another, reported in 2004 (3) All M.R. 167 has observed that the limitation prescribed for filing an application within 30 days from the date of order will have to be read as from the date of communication of the order. In view of the fact that the petitioner has established that order was communicated on 2.9.2009, the restoration application filed on 22.9.2009 will have to be held within limitation. 7 The Tribunal should not have adopted a hyper technical approach. The substantive rights of the parties are involved in the appeal. Moreover, the petitioners have also shown bonafide by depositing 50% of the amount. It is a trite law that when the technical consideration and cause of substantial justice are pitted against each other, the cause of substantial justice shall be sub served. The time gap between two dates was short. In view of the above discussion, the impugned order is quashed and set aside. The appeal bearing No. ATA No. 100(9) 2004 is restored to its original position. The petitioner shall appear before the Appellate Tribunal on 5.9.2011. Rule is made absolute in the above terms. *****