M.K. Auto Industries vs Employees'' Provident Fund Appellate Tribunal and Others

V.K. Shali, J. 1. Issue notice to the Respondents.

Mr. K.C. Baliariya, proxy counsel accepts notice on behalf of the Respondents. With the consent of the learned Counsel for the parties, the writ petition is heard and disposed off on merits.

Learned Counsel for the Petitioner has contended that there is an error apparent on the face of the record in the impugned order inasmuch as Respondent No. 2/Regional Provident Fund Commissioner-II passed an order on 11th March, 2004, which was challenged by the Petitioner before the Employees Provident Fund Appellate Tribunal by filing an appeal on 13th May, 2004.

According to Rule 7(2) of Employees'' Provident Funds Appellate Tribunal (Procedure) Rule, 1997 a period of 60 days is prescribed for filing of the appeal. This period can be further condoned upto maximum of 60 days provided the Tribunal is satisfied that the Appellant was prevented by a ''sufficient cause'' from preferring an appeal.

The contention of the learned Counsel for the Petitioner is that if the period of limitation is calculated from 12th March, 2004 and the appeal has been filed at best on 62nd and 63rd day before the Appellate Tribunal which is well within the extended period of 60 days & the Tribunal could have condoned the delay and decided the appeal on merits.

In para 3 of the order dated 22nd October, 2008, the Appellate Tribunal has observed that there is a delay of 367 days, which it contended is factually incorrect. In addition to this, it was urged before this Court that the appeal having been filed on 13.5.2004 and thereafter the same remaining pending with the Appellate Tribunal for years, it would have been proper for the Appellate Tribunal to decide the appeal on merits rather than on technicalities.

Proxy counsel for Mr. R.C. Chawla, learned Advocate for the Respondent requested for an adjournment on the ground that Mr. Chawla is not well. However, the request was disallowed and proxy counsel given hearing. I have heard the learned Counsel for the Petitioner and perused the record. I feel that since the issue involved in the matter is very short and instead of adjourning the matter, the writ petition can be disposed of.

There is no dispute that the period of limitation prescribed under Rule 7(2) of Employees'' Provident Funds Appellate Tribunal (Procedure) Rule, 1997 the appeal has to be filed within 60 days from the date of the order which is impugned. The said period can be further extended at the discretion of the Appellate Tribunal provided the Tribunal is satisfied that the Appellant was prevented by ''sufficient cause'' from filing the appeal within the original period of 60 days. This period can be condoned upto a maximum of another 60 days.

In the instant case, the impugned order shows that the appeal was filed on 13th May, 2004 against the order of Respondent No. 2 dated 11th March, 2004 which would mean that the appeal was filed on 62/63rd day & thus there was a delay of maximum of 3 days. The delay was so insignificant that I feel it should have been condoned by Appellate Tribunal and the appeal ought to have been heard on merits. The observation passed by the learned Appellate Tribunal in para 2 of the impugned order that there is a delay of 367 days does not fit in with the factual matrix given in first para of the Petitioner.

There is another ground which warrants that the Appellate Tribunal instead of being hyper technical and in dismissing the same on the question of limitation, ought to have decided the appeal on merits, this is that the appeal admittedly has been filed in the year 2004 and has remained pending with the learned Appellate Tribunal for almost five years. The law of limitation has been constantly construed liberally by the Courts to advance the substantial justice and to decide the matters on merits rather on technicalities.

In the light of the aforesaid legal position, I feel that it will be in the interest of justice in case the impugned order dated 22.10.2008 is set aside and the delay is condoned and the matter is remand back to the Appellate Tribunal with the direction to decide the appeal of the Petitioner on merits.

With these directions, the present writ petition stands disposed of.

It is contended by the learned Counsel for the Petitioner that during the pendency of the appeal, there was a stay against the operation of the orders dated 21st October, 2008 and 31st October, 2003 passed by Respondent No. 2. Since the Petitioner was enjoying the benefit of interim stay during the pendency of the appeal, the said stay order will be continued till the appeal is decided on merits by the learned Appellate Tribunal or till such time as the interim order is not specifically modified by the learned Tribunal. Parties are directed to appear before the learned Appellate Tribunal on 15.04. 2009.

With these directions the writ petition stands disposed off.