IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8513 of 2009(H)
1. M/S. DAVINA RETREATS PRIVATE LIMITED,
... Petitioner
Vs
1. THE EMPLOYEES PROVIDENT FUND
... Respondent
2. THE ASST. PROVIDENT FUND COMMISSIONER,
3. THE RECOVERY OFFICER,
4. THE EMPLOYEES PROVIDENT FUND APPELLATE
For Petitioner :SRI.ANIL NARAYANAN
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :17/03/2009
O R D E R
S. Siri Jagan, J.
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W. P (C) No. 8513 of 2009
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Dated this, the 17th March, 2009.
J U D G M E N T
The petitioner is an establishment, which was sought to be
covered under the Employees Provident Funds and Miscellaneous
Provisions Act. Ext. P1 order was passed by the 2nd respondent
assessing contributions payable by the petitioner under the Act. The
petitioner claims that they have engaged an advocate to file an
appeal before the Tribunal against that order. But, unfortunately,
according to the petitioner, the advocate did not file the appeal. The
petitioner knew about the non-filing of the appeal only when
prosecution notice was issued to the petitioner. By that time, the
period prescribed for filing an appeal even with a petition to condone
delay had expired. The petitioner therefore seeks the following
reliefs:
“i. Issue a writ of certiorari or any other appropriate writ,
direction or order calling for the records leading to Exhibit P1, P5
and P7 orders and quash the same orders.
ii. Issue a writ of mandamus or any other appropriate writ,
direction or order directing the 4th respondent Tribunal to
condone the delay in filing the appeal being filed by the petitioner
under Section 7-I of the EPF and MP Act and consider the appeal
and the petitions filed along with the same on merits as if they
were filed in time.
iii. Issue a writ of mandamus or any other appropriate writ,
direction or order declaring that the petitioner is not bound to
pay any amount pursuant to Ext. P1 order passed by the 2nd
respondent.
iv. Issue a writ of mandamus or any other appropriate writ,
direction or order staying the operation and implementation of
Exhibit P1, P5 and P7 orders until the appeal and petitions being
filed by the petitioner before the Employees provident Fund
Appellate Tribunal, New Delhi are considered and order was are
passed.”
2. The petitioner’s contention is that this Court has ample
W.P.C. No. 8513/09. -: 2 :-
powers to direct the Tribunal to entertain a time barred appeal. The
petitioner relies on the decision of Danda Rajeshwari v. Bodavula
Hanumayamma and others, (1996) 6 SCC 199.
3. A Division Bench of this Court has, in Assistant
Commisioner of Central Excise v. Krishna Poduval, 2005 (4) KLT
947, held that this Court in exercise of powers under Article 226 of
the Constitution of India cannot direct the Tribunal to interfere an
appeal when the period for which the Tribunal can condone delay in
filing of the appeal has also expired. This Court has categorically held
that Article 226 cannot be invoked to resurrect a time barred appeal.
The decision relied on by the petitioner is not applicable to the facts of
this case. If the petitioner has a grievance against the advocate, it is
for them to proceed against the advocate appropriately. The default
on the part of the advocate, even if true, is no ground to direct
consideration of a time barred appeal by the Tribunal for considering
which Tribunal has no power under law.
In the above circumstances, the writ petition is dismissed.
Sd/- S. Siri Jagan, Judge.
Tds/
[True copy]
P.S to Judge.