(Judgment reserved on 2.12.2009) (Judgment delivered on 7.1.2010) Case :- WRIT - C No. - 62147 of 2009 Petitioner :- M/S General Sales And Service Thru' Its Prop. Respondent :- Union Of India Thru' Secry. Ministry Of Labour And Another Petitioner Counsel :- Ajay Kumar Singh,Ashish Kumar Singh Respondent Counsel :- A.S.G.I,Dhananjay Awathi Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the parties at the admission stage. As pure question
of law pertaining to limitation was involved hence learned counsel for
Presiding Officer, Employees’ Provident Fund Appellate Tribunal (EPFAT),
and Assistant Provident Fund, Commissioner, Varanasi respondent nos. 2 and
3 agreed for final disposal of the writ petition at the admission stage.
This writ petition is directed against orders dated 5/6.5.2009, 7.7.2009,
20.7.2009 and 9.11.2009. Through the last order EPFAT, New Delhi has
dismissed petitioner’s appeal which was registered as A.T.A. No.753 (14) of
2009 – M/s General Sales and Service vs. Assistant Provident Fund
Commissioner, Varanasi as barred by time. Through the said appeal, which
had been filed on 5.11.2009, order dated 5.5.2009 was challenged. Through
the order dated 5/6.5.2009 passed by Assistant Provident Fund Commissioner,
Varanasi (which was challenged in appeal) petitioner was directed to pay
Rs.12,43,000 and odd as E.P.F. Dues. The tribunal held that as per Rule-7 of
the E.P.F. Appellate Tribunal (Procedure) Rules, 1997 appeal could be filed
within sixty days from the date of the order and the tribunal had the power to
extend the time to further sixty days and beyond that the tribunal had no
power to condone the delay hence appeal was barred by time. The argument
of learned counsel for the petitioner appellant that Section 14 of Limitation
Act was applicable and by virtue of the said Section period spent in
prosecuting the writ petition which had earlier been filed against the order
dated 5.5.2009 should be excluded was rejected by the tribunal by holding
that the said provision was not applicable.
Against the order dated 5/6.5.2009 petitioner had filed restoration application
on 1.6.2009 which was rejected on 7.7.2009 treating the restoration
application as review application. Thereafter petitioner filed writ petition
no.40574 of 2009. The writ petition was dismissed on 10.8.2009 on the
ground of alternative remedy of appeal. True copy of the judgment passed in
the said writ petition is Annexure-22 to this writ petition. Against the
judgment of the High Court Special Leave Petition was filed before the
Supreme Court which was dismissed on 26.10.2009 without assigning any
reason. Order of this court dated 10.8.2009 passed in earlier writ petition is
quoted below:
“Heard learned counsel for the petitioner and Shri Amit Negi, counsel for respondent no.2.
At the outset it has been submitted by counsel for the respondent that the petitioner has an
alternative remedy to approach the appellate tribunal under Section 7-I of the Employees’
Provident Fund and Misc. Provisions Act 1952.
The petition is accordingly dismissed on the ground of alternative remedy.”
In respect of applicability of Section 14 of Limitation Act, learned counsel for
the petitioner has cited an authority of the Supreme Court reported in
Consolidated Engg. Enterprises vs. Principal Secy., Irrigation Deptt.
2008 (7) SCC 169. In the said authority it has been held that benefit of
exclusion of time under Section 14 (Limitation Act) is available where an
application under Section 34(3) (Arbitration and Conciliation Act 1996) is
pursued in a court without jurisdiction.
To the same effect is the authority of the Supreme Court reported in
Gulbarga University vs. Mallikarjun S. Kodagali 2008 A.I.R. S.C.W.
6389. However, the above authorities have been given in the context of
Arbitration Act and are not applicable to the appeals under E.P.F. Act. Under
Arbitration Act objections under Section 34(3) are filed in civil court while
appellate tribunal under E.P.F. Act or for that matter any authority underE.P.F. Act cannot be termed as civil court or even court in the general sense
of the word.
In my opinion even though no provision of the Limitation Act applies to the
proceedings in question however, the petitioner is entitled to the exclusion of
the time which it spent in prosecuting the writ petition and thereafter S.L.P.
before the Supreme Court.
The heading of Section 14, Limitation Act is as follows:
“Exclusion of time of proceeding bonafide in court without jurisdiction.”
High Court has got full jurisdiction to entertain writ petition against any order
passed by any authority where part of cause of action arises in the State in
which the High Court is situate. Earlier writ petition cannot be said to be not
maintainable. This court has full jurisdiction to judge the validity of the order
which was challenged in appeal. However, on the earlier occasion, the court
refused to exercise the jurisdiction on the ground of availability of alternative
remedy. In such situation the writ court can very well direct for exclusion of
time during which writ petition remained pending vide “Danda Rajeshwari
v. Bodavula Hanumayamma” AIR 1997 SUPREME COURT 1541 para-3
of which is quoted below:
“3. The remedy is statutory remedy and limitation is one of the candidates to entertain election
petition. By judicial order the limitation cannot be nullified. In support thereof, he placed
reliance on the judgment of this Court in Union of India v. Kirloskar Pneumatic Co. Ltd. ,
(1996) 4 SCALE 317 : (1996 AIR SCW 2398). We find no force in his contention. It is not his
case that the High Court lacks jurisdiction to entertain the writ petition against the election of
a Sarpanch and declaration of the result of the election of a Sarpanch. etc. The High Court
exercising its power under Article 226 of the Constitution declined to interfere in the election
disputes since alternative remedy of filing election petition and adjudication has been provided
in the relevant statutory rules. Far from saving that the High Court has no jurisdiction, High
Court exercised self restraint in exercise of the power under Article 226 and directed the
parties to avail of alternative remedy. In this case, admittedly, the elections of Sarpanch was
held and result was declared on June 24, 1995 and the writ petition was filed on June 25, 1995.
Power of the Government on the process of electoral rolls was challenged in a batch of writ
petitions. The writ petition in question is also one of such writ petitions. Under the
circumstances, the High Court though it is expedient that since elections were already held,
the disputed questions of facts would be canvassed in an election petition as provided in Rule
3 of the Rules, the High Court rightly declined to investigate into disputed question of facts
and refused to go into the question relegating the parties to pursue the remedy of election
dispute. In view of this the High Court has rightly directed filing of the election petition within
three weeks from the date of disposal of the writ petition and further directed the Tribunal not
to go in the question of limitation and instead decide the matter on merits. This Court in
Kirloskar Pneumatic Co. s case (1996 AIR SCW 2398 at P. 2400) held as under :
“According to these sub-sections, a claim for refund or an order of refund can be made only in
accordance with the provisions of Section 27 which inter alia includes the period of limitation
mentioned therein. Mr. Hidayatullah submitted that the period of limitation prescribed by
Section 27 does not apply either to a suit filed by the importer or to a writ petition filed by him
and that in such cases the period of limitation would be three years. Learned counsel refers to
certain decisions of this Court to that effect. We shall assume for the purposes of this appeal
that it is so, not withstanding the fact that the said question is now pending before a larger
Constitution Bench of nine judges along with the issue relating to unjust enrichment. Yet the
question is whether it is permissible for the High Court to direct the authorities under the Act
to act contrary to the aforesaid statutory provision. We do not think it is, even while acting
under Article 226 of the Constitution. The power conferred by Article 226/227 is designed to
effectuate the law, to enforce the Rule of law and to ensure that the several authorities and
organs of the State act in accordance with law. It cannot be invoked for directing the
authorities to act contrary to law. In particular, the Customs authorities, who are the creatures
of the Customs Act. cannot be directed to ignore or act contrary to Section 27, whether before
or after amendment. May be the High Court or a Civil Court is not bound by the said
provisions but the authorities under the Act are. Nor can there be any question of the High
Court clothing the authorities with its power under Article 226 or the power of a Civil Court.
No such delegation or conferment can ever be conceived. We are, therefore, of the opinion
that the direction contained in clause (3) of the impugned order is unsustainable in law. When
we expressed this view during the hearing Mr. Hidayatullah requested that in such a case the
matter be remitted to the High Court and the High Court be left free to dispose of the writ
petition according to law.”
The ratio of the said decision has no bearing to the facts of this case. Therein, rules prescribed
limitation to claim refund and the application was filed after limitation. The High Court had
directed refund ignoring the limitation. In that context, it was held that no direction or
mandamus could be issued to the authorities for disobeying the law.”
Something which could be done while dismissing the earlier writ petition on
the ground of alternative remedy on 10.8.2009 can very well be done now
also in this writ petition.
Two more authorities were cited one by learned counsel for the petitioner and
the other by learned counsel for E.P.F. Authorities. Learned counsel for the
petitioner cited National Winder vs. Presiding Officer, E.P.F. Appellate
tribunal (writ petition no.66766 of 2005 decided on 7.7.2006). In the said
authority it was held that the period of 60 days prescribed for filing appeal
under Section 7-I of E.P.F. Act starts from the date of communication or
knowledge of the order. Learned counsel for E.P.F. authorities cited a Full
Bench authority of this court reported in Commissioner of Income Tax vs.
Mohd. Farooq 2009(8) ADJ 39 (FB). In the said authority it was held that
Section 5 Limitation Act does not apply to proceedings under Income Tax
Act. None of these authorities deal with the point on which this writ petition is
being allowed.
Accordingly, writ petition is allowed. Impugned order passed by the appellate
tribunal dated 9.11.2009 is set aside. The matter is remanded to the appellate
tribunal to decide the question of limitation after excluding the period during
which writ petition and thereafter S.L.P. remained pending. Petitioner is
directed to appear before the appellate tribunal on 5.2.2010 alongwith
certified copy of this judgment failing which this writ petition shall be
deemed to have been dismissed.
This writ petition has been allowed without issuing notice or hearing private
respondent nos. 4,5 and 6 for the reason that staying the recovery and issuing
notice to them would have been more detrimental to them. However, if they
feel aggrieved by this order they are at liberty to apply for its recall.
Until 5.2.2010 recovery proceedings pursuant to the order challenged in
appeal shall remain stayed. On 5.2.2010 appellate tribunal may pass suitable
orders regarding stay until decision on delay condonation application and if
the delay is condoned then thereafter till the disposal of the appeal. If
respondents nos. 4 to 6 are parties in the appeal then appellate tribunal shall
issue notice to them before hearing the matter.
Order Date :- 7.1.2010
RS