JUDGMENT
Thottathil B. Radhakrishnan, J.
1. Ext. P4 order of the Appellate Tribunal under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, hereinafter referred to as the “Act” dismissing an application to condone the delay in filing a statutory appeal challenging an order under Section 14B of the Act levying damages, is under challenge.
2. Ext. Pl order, levying damages, issued on 28-2-2003, was served on the appellant on 7-4-2003 and the appellant despatched an appeal on 4-8-2003, that is, a day before 5-8-2003, the date on which 120 days would expire from 7-4-2003, the date on which Ext. Pl order was communicated to the petitioner. By the impugned Ext. P4 order, the Tribunal has held that the delay in this case is beyond 60 days, which cannot be condoned in view of the proviso to Sub-rule (2) of Rule 7 of the Employees’ Provident Funds Appellate Tribunal (Procedure) Rules, 1997, for short, hereinafter, the “Rules”.
3. Rules 7(2) and 4(1) of the Rules are relevant in the context. Rule 7(2) of the Rules reads as follows:
Any person aggrieved by a notification issued by the Central Government or 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 notification/order, prefer an appeal to the Tribunal.
Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the prescribed period, extend the said period by a further period of 60 days.
Rule 4(1) of the Rules reads as follows:
4. Procedure for filing appeals.– (1) An appeal to the Tribunal shall be presented in Form 1 by the appellant in person or by an agent or by a duly authorised legal practitioner to the registry or any other officer authorised in writing by the Registrar to receive the same or be sent by registered post with acknowledgement duly addressed to the Registrar of the Tribunal.
4. Section 14B of the Act provides power to recover damages. The first proviso thereto provides that before levying and recovering such damages, the employer shall be given a reasonable opportunity of being heard. Section 8 provides, inter alia, that if the amount of damages recoverable under Section 14 is in arrear, it may be recovered in the manner provided. Section 7(1) which provides for appeals to the Appellate Tribunal, inter alia, provides appeal against an order under Section 14B. A reading of these provisions will show that the levy and recovery of damages under Section 14B is essentially one that can be enforced or appealed against only after the order passed under Section 14B is communicated to the employer, So much so, Rule 7(2) of the Rules quoted above cannot be read to restrict the right of appeal of the appellant to institute the appeal, to expire on the termination of 60 days from the date of the order. The date of the order occurring in Rule 7(2) has necessarily to be understood as from the date of due service of the order on the employer.
5. Due principles of the rule of fair hearing by an appellate authority includes the right to file an appeal within the period prescribed, to run from the date on which the order to be impugned in the appeal reaches the hands of the aggrieved person. That apart, Sub-rule (2) of Rule 7 uses the expression “prefer an appeal” and not “file an appeal”. This distinction, though subtle, is relevant in determining the point of time from which a right of appeal starts to run, particularly, when prescriptions as to periods of limitation have to be strictly construed since it impairs the right to open a lis. Rule 4(1) quoted above provides for the appeal being sent by registered post with acknowledgement, duly addressed to the Registrar of the Tribunal as one of the modes of filing the appeal. In such circumstances, an appeal preferred by despatch through registered post with acknowledgement on the 60th day of service of the decision impugned in the appeal, is an appeal duly preferred.
6. Applying the above to the facts of this case, it can be seen that the appeal was preferred on 5-8-2003 before the expiry of 120 days from 7-4-2003, the date on which the order impugned in the appeal was served on the writ petitioner. So much so, the bar under the proviso to Rule 7(2) of the Rules does not apply in this case. Hence, the application to condone the delay was within the time prescribed under the proviso to Rule 7(2) of the Rules. So the finding in the impugned Ext. P4 order that the delay in this case is beyond 60 days, is wrong. The same is well within 60 days and hence could have been considered for condonation under Sub-rule (2) of Rule 7 of the Rules.
6. The reason stated in the application to condone the delay was that the petitioner expected to the Government to waive the damages by virtue of an amnesty scheme. It is also pointed out that even this Court had directed consideration of similar appeals. In such circumstances, the appeal of the petitioner deserves to be entertained and considered on merits, whatever be its outcome. Hence, the application to condone delay of the period, which was lesser than 60 days ought to have been allowed. In any view of the matter, ends of justice require that the said application was allowed and the appeal considered on merits.
7. In the result, the impugned order, Ext. P4, is quashed and the appellate authority is directed to treat the application for condonation of delay as allowed and decide Ext. P2 appeal of the petitioner against Ext. Pl order on merits. This shall, however, be done within a period of six months from the date of receipt of a certified copy of this judgment. Needless to say, the petitioner shall be given an opportunity of being heard before a final decision is taken.
Writ Petition is allowed. No costs.