1 wp-4322-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION W.P. NO. 4322 OF 2009 M/s.Drillco Metal Carbides Ltd. ..Petitioner Vs. Union of India and Ors. ..Respondents .... Mr. Ashok Shetty Adv. for Petitioner Mr. Suresh Kumar Adv. for Respondent Nos.2 and 3. .... CORAM : SMT.V.K.TAHILRAMANI,J. DATE : SEPTEMBER 30, 2009 P.C.: 1. Heard the learned counsel for the Petitioner-Company and the learned counsel for the contesting Respondent Nos.2 and 3. 2. The Petitioner has prayed for quashing of the order dated 6.10.2008 passed by Respondent No.4 i.e. Employees Provident Fund appellate Tribunal in A.T.A. No.711(9) of 2008. By the said order, the appellate Tribunal dismissed the appeal preferred by the Petitioner on the ground that there was enormous delay and the appeal is barred by limitation. 3. In the said appeal, the Petitioner had challenged the order dated 22.2.2002 passed by the Regional Provident Fund Commissioner and 2 wp-4322-09 the order dated 18.2.2003 passed in the Review Petition filed by the Petitioner. The Review Petition was not considered as copy thereof was received after 45 days from making of the order. The said orders were passed under Sections 7-A and 7-B of the Employees Provident Fund and Misc. Provisions Act, 1952 and they were passed by the Assistant Provident Fund Commissioner for assessing the provident fund dues. 4. The appeal was filed on 3.10.2008 along with an application for condonation of delay. The appellate Tribunal observed that after the order dated 18.2.2003 was passed the appellant filed writ petition No. 1685 of 2003 before the Bombay High Court, Aurangabad Bench, but the same was dismissed on 21.7.2003 with liberty to petitioner to take recourse as permissible in law. The appellant also filed a writ petition No.5353 of 2008 in the Mumbai High Court and the same was dismissed as withdrawn on 12.8.2008. Thereafter, the present appeal has been filed. The Tribunal has further observed that the appellant had assigned no other reason for condonation of delay. The Tribunal observed that it has power to condone the delay upto 60 days and if the Tribunal is satisfied that the appellant was prevented by sufficient cause from preferring appeal within the prescribed period, it can extend the said period by a further period of 60 days. It further observed that it can only condone the delay within that period and not beyond that 3 wp-4322-09 period. Thus, the Tribunal observed that the appeal had been filed after an enormous delay and for such delay, no reasons had been assigned, hence, appeal came to be dismissed as being barred by limitation. 5. The learned counsel for the Petitioner submitted that being aggrieved by the order dated 22.2.2002 Review Petition came to be preferred within time. It was sent to the address of Respondent No.3 Assistant Provident Fund Commissioner at Nasik. The specific case of the Respondent-authorities is that it was not received by them. It is submitted that the copy of the same was not received by the Assistant Provident Fund Commissioner at Nasik as it was forwarded to the old address. The Petitioner was not aware about the new address, hence, it was sent to the earlier address. It is submitted that the Petitioner addressed the communication to the earlier address bonafidely and had the said Review Petition been considered, the Petitioner would have been able to put his case properly before the authority. 6. As far as the order dated 22.2.2002 is concerned, it is seen that appropriate course for the Petitioner to challenge the said order was to file an appeal. However, that was not done by the Petitioner and the Petitioner chose to file Review Petition. The said Review Petition was also not sent to the correct address. 7. Being aggrieved by the order dated 18.2.2003 the Petitioner preferred 4 wp-4322-09 Writ Petition No.1685 of 2003 before this Court. The said Writ Petition came to be disposed of by order dated 20.9.2003. In paragraph 7 of the said order, it is stated thus ``no case is made out for interference. Writ Petition stands rejected ”. However, thereafter, the learned counsel for the Petitioner prayed for liberty to file substantive appeal. The Petitioner was granted liberty to take recourse to the remedies as are available in law. Though liberty was granted to the petitioner in 2003, he did not file an appeal. Thus, no steps were taken by the Petitioner till 2008 i.e. when the Appeal No.A.T.A. No.711(9) of 2008 came to be filed by him. In 2008, again Writ Petition No. 5353 of 2008 came to be preferred before this Court wherein it was inter alia prayed that the orders dated 22.2.2002 and 18.2.2003 and all the recovery proceedings arising therefrom be set aside. The said petition came to be disposed of by order dated 12.8.2008. On 12.8.2008, the learned counsel for the Petitioner sought liberty to withdraw the petition in order to prefer an appeal under the Employees Provident Fund and Misc. Provisions Act, 1952. The said liberty was granted in the order dated 12.8.2008. The learned counsel for the Petitioner submitted that the order was passed on 12.8.2008 and the appeal was filed on 28.9.2008, thus, there was no delay on their part in filing appeal after order dated 12.8.2008. 8. No doubt, this Court by order dated 12.8.2008 granted liberty to file 5 wp-4322-09 appeal. However, as there was delay in filing appeal, an application for condonation of delay had to be filed. The appellate Tribunal would consider the said application and only after the delay is condoned, the appeal would be heard on merits. If the appellate Tribunal is of the opinion that no sufficient cause has been made out for condonation of delay, it was open to the appellate Tribunal to dismiss the appeal on that ground. It is seen that the orders challenged before the Tribunal are dated 22.2.2002 and 18.2.2003. The Petitioner did not file appeal for more than five years. No steps were taken by the Petitioner from 18.2.2003 till 28.9.2008 to file appeal before the appellate Court. In fact this Court had granted liberty in 2003 to file appeal yet no appeal was filed for a period of five years. Granting of liberty to file appeal by this Court in Writ Petition No. 5353 of 2008 does not mean that appellate Tribunal has to condone the delay and hear the appeal. By the said order, only liberty was granted to the Petitioner to file appeal. Thereafter, it was open to the Tribunal to consider whether a case was made out for condonation of delay and to hear the appeal on merits. From 18.2.2003 to 28.9.2008 the Petitioner has not taken any steps to file appeal which clearly shows that the Petitioner was not diligent in taking steps to challenge the impugned orders. The Tribunal was right in observing that there was an enormous delay and no sufficient cause has been made out for the delay. 6 wp-4322-09 9. In view of the above, as far as order dated 6.10.2008 passed by the appellate Tribunal is concerned, no case is made out for interference. The learned counsel for the Petitioner has submitted that in this petition, the Petitioner has not prayed only for setting aside the order dated 6.10.2008, but the Petitioner has also prayed for setting aside the orders dated 22.2.2002, 10.6.2002, 22.9.2004, 16.1.2006. As far as orders dated 22.2.2002, 10.6.2002, 22.9.2004 are concerned, the said orders have been passed four years before. Today, I am not inclined to entertain this petition on the ground of inordinate delay on the part of the Petitioner in challenging these orders. As far as order dated 19.6.2008 is concerned, the said order states that request of Petitioner for grant of opportunity of being heard is considered and the Petitioner was directed to remain present on 11.7.2008 for personal hearing, failing which coercive action would be taken against the Petitioner. However, it is seen that even though the Petitioner was granted opportunity of being heard, Petitioner did not avail of the opportunity and did not remain present on 11.7.2008. In such case, there is no question of interference with this order. In any event, it is seen that in so far as all the orders dated 10.6.2002, 22.9.2004 and 16.1.2006 are concerned, they all emanate from the order dated 22.2.2002. 10.The learned counsel for the Petitioner further submitted that the amounts have not been properly calculated by the Respondents. 7 wp-4322-09 However, it is seen that the calculations are annexed to the order dated 22.2.2002. The Petitioner had not taken any proper steps to challenge the said order till 2008. The learned counsel for the Petitioner was not able to show that such calculations were challenged earlier and the grievance about the calculations was raised in the earlier petition No. 1685 of 2008. Thus, it is seen that first in point of time no such grievance was made by the Petitioner. 11.Looking to all these facts, no case is made out for interference. Writ Petition is dismissed. [ SMT.V.K.TAHILRAMANI,J.]