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TMI Blog2005 (7) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions contained in Rule 7(2) of the Employees Provident Fund Appellate Tribunal (Procdure) Rules, 1977 (hereinafter referred to as 'the Rules') as ultra vires being in contravention of the provision contained in Section 7-I(2) of the Act and to hold that the provision contained in Section 5 of the Limitation Act is applicable to the Tribunal for the purpose of condensation of delay. 3. In the petition filed by the Assistant Regional Provident Fund Commissioner, respondent No. 3 is the petitioner in writ petition No. 16324 of 2004 and both the petitioners are arising out of the same order and hence the petitions are heard and disposed together. 4. Writ Petition No. 4544 of 1999 was placed for hearing before the learned Single Judge and on 31.8.2004, the learned Single Judge was of the opinion that the decision rendered by learned Single Judge of this Court in U.P. State Road Transport Corporation. Regional Provident Fund Commissioner in CWP No. 1381/1988 decided on 27.9.2001 wherein the view is taken that the appeal can be filed only within a period of 120 days and if the appeal is filed beyond the period of 120 days, the delay in filing the appeal cannot be condon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention was also raised about absence of geographical proximity between the two units as also the staff between the two units was not inter-transferable and working conditions were also different. It was also contended that the quality control of both the units being independent and manage by their respective managers as also the provisions contained in Section 16(1)(d) being available for infancy protection of 5 years is applicable with effect from 1.4.1993. 8. On appreciation of the material placed before the Assistant Provident Fund Commissioner and hearing the representatives of the company as well as the department, the Assistant Provident Fund Commissioner held that unit at NOIDA which commenced its production 30.3.1999 shall not be entitled to a fresh infancy benefits for three years, such a benefit having already availed by the Company in respect of its Bombay factory. The Company was directed to produce all relevant records, as indicated in the notice under Section 7A of the Act. 9. It is thereafter proceedings were held under Section 7A of the Act for determination of the dues payable by the Company and after hearing the Company the different amounts were dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contended that the appeal was hopelessly time barred and after the period of 60 days granted for preferring an appeal, if there is a delay of 60 days then such delay can be condoned and no further. 14. The Tribunal expressed an opinion that the power of the Tribunal to condone the delay under Section 5 of the Indian Limitation Act, 1963, is not curtailed by the Legislature. It is done by rule making authority, which has been authorised to prescribonly limit action for filing an appeal. Therefore, the provisions under the Employees' Provident Funds Appellate Tribunal (Procedure) Rules, 1997, only to condone a delay of 60 days is ultra vires and is void. Therefore, it held that the Tribunal has jurisdiction to condone any delay, if it is satisfactorily explained. Even on merits, the Tribunal held:- It is quite clear that only ownership is common and that way control of the Directors will also be common but local management and supervisory control and other things necessary for running the factory at Noida are quite distinct and different. Taking of the loan by the employer to set up this factory does not support that the loan has been taken by factory at Bombay. The sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early as possible, it was left by the legislature to fix 'such time' for preferring an appeal. Section 21(2)(b) refers to the time within which an appeal shall be filed and in view of this it was submitted that in absence of any power, it was not open to prescribe a specific period for condensation of delay in sub-rule (2) of Rule 7 of the Act in exercise of the powers conferred under sub-section (1) of Section 21 of the Act. 18. The Legislature left it open to the rule making authority to prescribe time for preferring an appeal. However, at the same time the rule making authority while prescribing the period of limitation for preferring an appeal also provided a period during which if there is a delay, the same can be condoned if the Tribunal is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the prescribed period. However, the limitation was placed that that can be done if there is a delay of a further period of 60 days. 19. In our opinion, it cannot be said that the rule making authority has exceeded its limit while prescribing the period of limitation. Like the provisions in other statutes for condoning the delay, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Collector of C.E. Chandigarh v. Doaba Co-operative Sugar Mills. , Supreme Court pointed out that the authorities functioning under the Act are bound by the provision of the Act. If the proceedings are taken under the Act by the Department, the provisions of limitation prescribed in the Act will prevail. In the case of Mills India Limited v. Assistant Collector of Customs 1987(3) ELT 641 (SC), the Court observed that the Customs Authorities acting under the Act were no justified in disallowing the claim as they were bound by the period of limitation provided there in the relevant provisions of the Customs Act, 1962. 23. The Court in the aforesaid case pointed out that the period of limitation prescribed by the Act for filing an application being different from the period prescribed under the Limitation Act, by virtue of Section 29(2) of the said Act, it shall be deeded as if the period prescribed by the different Act is the period prescribed by the schedule to the Limitation Act. However, it would be difficult to say that Section 5 of the Limitation Act is intended to be made applicable in view of the proviso to Section 128 of the Customs Act. 24. The Court is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only can be condoned subject to satisfaction and not beyond that. From an examination of Rule 7 of the Rules, it is very clear that Section 5 of the Limitation Act is expressly excluded as a specific provision is made in Rule 7. 28. The Division Bench in the case of Delta Impex (supra) considered the case of Mohd. Ashfaq v. State Transport Appellate Tribunal wherein the Apex Court had an occasion to examine Section 58(2) of the Motor Vehicles Act, 1939, its proviso and sub-section (3) for renewal of permits and pointed out as under:- This clearly means that if the application for renewal is beyond time by more than 15 days, the Regional Transport Authority shall not be entitled to entertain it, or in other words, it shall have no power to condone the delay. There is thus an express provision in sub-section (3) that delay in making an application for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applicability of Section 5 in cases where an application for renewal is delayed by ore than 15 days. 29. In the case of Commissioner of Sales Tax v. Parson Tools and Plant, 35 STC 413, the Apex Court pointed out as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired to examine is that the period during which delay can be condoned is specifically prescribed, and it has not left open to extend further, then by an express exclusion of Section 5 of the Limitation Act beyond the period prescribed under a different statute cannot be applied. 34. Our attention was drawn by learned counsel appearing for the Company to the decision of Mukri Gopalan v. Cheppilat Puthnpurayil Aboobacker . The said decision was considered by this Court in M.R. Tobacco Pvt. Ltd.'s case (supra). In paras 12 and 13, the Court pointed out as under:- 18. Appeal. (1)(a) The Government may, by general or special order notified in the Gazette, confer on such officers and authorities not below the rank of a Subordinate Judge the powers of appellate authorities for the purposes of this Act in such areas or in such classes of cases as may be specified in the order. (b) Any person aggrieved by an order passed by the Rent Control Court may, within thirty days from the date of such order, prefer an appeal in writing to the appellate authority having jurisdiction. In computing the thirty days aforesaid, the time taken to obtain a certified copy of the order appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under any special or local law in connection with any suit, appeal or application. (ii) The said prescription of period of limitation under such special or local law should be different from the period prescribed by the Schedule to the Limitation Act. The Division Bench held that:- In the facts of that case, the Supreme Court held that there was no dispute that the Kerala Rent Act was a special Act or a local law. It was not disputed that it prescribes, for an appeal under Section 18, a period of limitation, which is different from the period prescribed by the Schedule to the Limitation Act. The Court further observed that once the aforesaid two conditions were satisfied, Section 29(2) on its own force would get attracted to appeals filed bbefore the appellate authority under Section 18 of the Limitation Act and that when Section 29(2) applied to appeals under Section 18 of the Limitation Act, for computing the period of limitation prescribed for appeals under that section, all the provisions of sections 4 to 24 of the Limitation Act would apply. Section 5 being one of them would, therefore, also get attracted. The Supreme Court categorically observed as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferring the appeal within the prescribed period, within the meaning of Section 5 of the Limitation Act, stands circumscribed by the limitation imposed on the power of the High Court by the proviso to sub-section (2) of Section 25 of the Act. The discretionary power to condone the delay in filing the revision can be exercised for condoning any delay which does not exceed one month over and above the period liable to be excluded from computing the period of limitation by reference to Sections 4 to 24 of the Limitation Act. 36. Learned counsel for the Company invited our attention to the decision of the Apex Court in the case of Sales Tax Officer, Ponkunnam and Ors. v. K.I. Abraham AIR 1967 S.C.1823 to contend that the Legislature authorised the rule making authority to prescribe rule within which an appeal shall be filed. In the aforesaid case, the assessed did not file declaration forms on or before the prescribed date, i.e. February 16, 1961 but he actually filed the declaration forms on March 8, 1961 before the order of assessment was made. The delay was explained i.e. due to late receipt of declaration forms from the purchaser in Madras. Sub-section (4) of Section 8 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er registered under Section 7 of the Act and every dealer liable to pay under the Act shall submit a return of all his transactions including those in the course of export of the goods out of the territory of India in Form II together with connected declaration forms so as to reach the assessing authority on or before the 20th of each month showing the turnover for the preceding month and the amount or amounts collected by way of tax together with proof for the payment of tax due thereon under the Act: Provided that in cases of delayed receipt of declaration forms, the dealer may submit the declaration forms at any time before the assessment is made: Provided further that the delay in submitting the declaration forms shall not exceed three months from the date of sale in question: Provided also that all declarations forms pending submission by dealers on 2nd May, 1960 shall be submitted not later than 16th February, 1961. 38. The Apex Court pointed out that in the absence of any such time limit, it was the duty of the assessed to furnish the declarations in form C within a reasonable time, and it was the admitted position that the assessed furnished the decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s challenged before the Appellate Tribunal known as 'Employees Provident Funds Appellate Tribunal'. Thus it is a special statute to determine the liability of employer to make his contribution and to pass further orders by the authorities which are to be examined by the Tribunal in case of an appeal. It is in this back ground the provisions of the Act are to be examined. 42. Considering the language of the Act and the rules, the Scheme, which is meant for weaker section and from the intention of the Legislature, it is clear that the Legislature left it to the Rule making authority to prescribe the time by specifically referring that an appeal under sub-section (1) shall be filed within such time as also specifically referring in Section 21 about the form and the time within which an appeal shall be filed. It is clear that the legislature left it to the Rule Making Authority to prescribe total period during which an appeal can be filed, which includes extended period. This being an enabling provision and in consonance with the provision contained in the Act cannot be said to be ultra vires the provisions contained in the Act. 43. Our attention was drawn by learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Act and any other Act, the provisions of the former shall prevail. XXX XXX XXX 41. A statute of limitation bars a remedy and not a right. Although a remedy is barred, a defense can be raised. In construing a special statute providing for limitation, consideration of plea of hardship is irrelevant. A special statute providing for special or no period of limitation must receive a liberal and broader construction and not a rigid or a narrow one. The intent and purport of Parliament enacting the said Act furthermore must be given its full effect. We are, therefore, of the opinion that the provisions of the Limitation Act have no application, so far as directions required to be issued by the Special Court relating to the disposal of attached property, are concerned. 44. Learned counsel appearing for the Provident Fund Authorities submitted that in view of the aforesaid decision when a special statute has provided special period of limitation as also a specified period, as extended period, it must receive a liberal an broader construction and not a rigid and a narrow one. It was submitted at the cost of repetition that the legislation being for the benefit of a workin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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