SCA/24069/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 24069 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SOLSONS EXPORTS (P) LTD. - Petitioner(s) Versus THE REGIONAL PROVIDENT FUND COMMISSIONER & 1 - Respondent(s) ========================================================= Appearance : MR MURALI N DEVNANI for Petitioner(s) : 1, RULE NOT RECD BACK for Respondent(s) : 1 - 2. MR NIRAL R MEHTA for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 11/08/2008 ORAL JUDGMENT In this petition, the petitioner has challenged order dated 28.7.2006 passed by respondent No.1 asking the petitioner to pay Rs. 4,12,617/- and Rs. 1,46,818/- towards damages etc., on account of SCA/24069/2007 2/8 JUDGMENT delayed payment of contribution towards P.F. The petitioner has also challenged order dated 29.5.2007 passed by the Employees Provident Fund Appellate Tribunal (hereinafter referred to as “PF Tribunal”) whereby the PF Tribunal rejected the appeal preferred by present petitioner against the above referred order of respondent No.1 on the ground that the appeal and the application praying for condonation of delay was filed by the petitioner after expiry of statutory limitation period under the Act and even beyond the maximum period which could be condoned by the tribunal in exercise of its powers. The tribunal being of the opinion that it does not have jurisdiction to condone delay of more than 60 days above time fixed for filing appeal, rejected the delay condonation application and consequently the appeal also came to be rejected. Aggrieved by the said orders, the petitioner is before this Court. 2. Mr. Murali Devnani appears for the petitioner and Mr. Niral Mehta appears for the respondents. 3. The petition, essentially, involves highly disputed questions of facts and on that sole ground, SCA/24069/2007 3/8 JUDGMENT normally, the petition would not deserve to be entertained. However, with a view to ensuring that substantial justice is done to the litigant the grievance of the petitioner is examined without entering into disputed questions of fact. 4. The record of the petition shows that this Court has, since 18th September, 2007 passed various orders, however the controversy is not resolved and it appears that the petitioner harbours a grievance that despite the fact the payment towards P.F. Contribution and damages is made, though belatedly, the respondent No.1 Commissioner has not taken the same into account and the challans presented by the petitioner have been ignored by him and unjustified demand of alleged dues is made. 5. The petitioner also makes a grievance that it had approached the authority with a representation to review or reconsider the order and reconcile the accounts by taking into account the documents submitted by it which demonstrate that the amounts in question have been already paid. 6. The authority, on the other hand, appears to SCA/24069/2007 4/8 JUDGMENT be claiming that the challans and other documents being shown by the petitioner are not in respect of the period and/or amount in question. However, none of the orders by the Commissioner appear to be specifically dealing with the details flowing from the challans, claimed to have been submitted by the petitioner for scrutiny in juxtaposition with the demand by the impugned order dated 28th July, 2006. It appears that a comparative examination and findings by the authority is also not made or is not available on record. Considering this difficulty, the Court, as mentioned above, has passed various orders from time to time requiring the authority to deal with the aforesaid aspect. It appears that the buck is being passed from one side to the other and no clarity is coming out. 7. It is not possible for this Court, while exercising jurisdiction under Article 226 and 227 of the Constitution of India, to examine such disputed questions arising from the challans on which the petitioner is placing reliance and the demand which the respondent No.1 has pressed in service. This is an issue which is required to be gone into, in proper details and objectively, either by the office of the SCA/24069/2007 5/8 JUDGMENT Commissioner or the Appellate Tribunal. 8. By virtue of one of the orders passed by the Court, the petitioner has been required to deposit the amount in question. Accordingly, Rs. 5 lakhs have been already deposited by the petitioner with the respondent No.1 Commissioner. Hence, the amount in question is already secured in the hands of the Commissioner. 9. Under the circumstances, it should not be improper to direct that the grievance of the petitioner should be decided on merits rather than dismissing it on ground of delay. The respondent authorities have claimed that the department has provided the relevant details to the petitioner employer explaining the calculation on the basis of which the demand is raised and has repeatedly asked the petitioner-employer to deal with the said details and to submit necessary and relevant documents, so as to establish that the principal amount of contribution, penalty and damages for the relevant period as distinguished from the period prior to, and subsequent to, is made, however as per the claim of SCA/24069/2007 6/8 JUDGMENT the respondent authority the petitioner-employer has failed to submit such details and establish such distinction. On the other hand, it is the claim of the petitioner that it has given the necessary details but the same have not been considered by the department. This issue, however, is required to be considered and this Court is of the view that in peculiar set of facts it would not be just to dispose off the claim and grievance of the petitioner merely on ground of limitation and delay. 10. It is true, that the Tribunal has taken a view that it has a limited power to condone the delay and the said larger issue as to whether the P.F. Appellate Tribunal has the power to condone delay beyond the maximum 60 days' period or not, is not raised before this Court in this petition. It is not in dispute that the petitioner approached the appellate authority belatedly. The petitioner tried to state the reasons explaining the delay, however the tribunal, being of the view of that it has no jurisdiction to condone delay for more than 60 days, did not go into the reasons urged by the petitioner in support of the request for condoning the delay. SCA/24069/2007 7/8 JUDGMENT 11. This Court, considering the prominent fact that the petitioner has already deposited the amount in question, is of the view that it would be in the interest of justice if the Tribunal examines the matter on merits so that the petitioner's grievance may not remain unaddressed on merits and in the event the employer is right that the amount in question has already been deposited then it may not be saddled with the same liability once over again. Therefore, in the opinion of this Court the delay deserves to be condoned, but not without cost to the respondent. However, this Court at this stage will not quantify the cost and the P.F.Appellate Tribunal is directed to appropriately quantify cost and the petitioner is directed to pay such cost as may be determined by the Tribunal. It is in the interest of justice that the issue is considered on merits by the Appellate Tribunal. For the aforesaid purpose, the Tribunal is directed to consider the Appeal of the petitioner on merits and the order dated 29.5.2007 passed by the Tribunal on the delay condonation application is set aside and the Tribunal is directed to consider the appeal on merits. The petitioner shall again present on the record of the PF Tribunal SCA/24069/2007 8/8 JUDGMENT the same appeal which it had submitted earlier. On receipt of the appeal, the PF Tribunal will decide the same on merits after hearing the petitioner and respondent No.1. The amount deposited by the petitioner shall remain as deposit with respondent and shall be subject to the final order of P.F. Tribunal. 12. This petition is partly allowed and with the aforesaid direction, it is disposed off. Rule made absolute to the aforesaid extent. Costs to be as per the earlier direction in this order. [ K.M. Thaker, J. ] rmr.