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 under E.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