M/S-GOOD WRENCH SERVICES vs. ASSISTANT PROVIDENT FUND COMMISSIONER E.P.F. ORGANIZATION

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on February 24, 2014

+ W.P.(C) 1237/2014

M/S-GOOD WRENCH SERVICES ..... Petitioner

Through: Mr.M.K.Verma, Advocate

versus

ASSISTANT PROVIDENT FUND COMMISSIONER E.P.F.
ORGANIZATION ..... Respondent
Through: None

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO

V.KAMESWAR RAO, J. (Oral)

CM No. 2578/2014

Exemption allowed, subject to all just exceptions.
Application stands disposed of.

W.P. (C) 1237/2014

1. The challenge in this writ petition is to the order dated January
08, 2014 whereby the Employees Provident Fund Appellate Tribunal
dismissed the appeal filed by the petitioner on the ground of limitation
as the same was filed with a delay of 576 days.

2. The appeal was filed by the petitioner challenging the orders
dated September 12, 2008 under Section 7A of the Employees
Provident Fund and Miscellaneous Provisions Act, 1952 (Act, in
short) and February 28, 2012 under Section 7B of the Act.

W.P.(C) 1237/2014 Page 1 of 8



3. The appeal was filed by the petitioner on December 10, 2013,
which is almost after a period of one and half year from the date of
order under Section 7B of the Act.

4. I note that the Tribunal has noted the Judgment of this Court in
Shree Shyamkamal Industries Private Limited Vs. Union of India,
Civil Writ Petition No. 16324 of 2004 decided on July 27, 2005. It
also relied upon the Judgment of the Division Bench of this Court in
Delta Impex Vs. Commissioner of Customs (Cus. AC No. 9/2003) ,
decided on February 13, 2004.

5. While relying upon the Judgment of the Division Bench of this
Court in the case of Shree Shyamkamal Industries Private Limited
(supra), the Tribunal concluded as under:
“ 5. The extent and scope of „law of
limitation applicable to judicial proceedings
entertained by this Tribunal are considered by the
Hon‟ble High Court of Delhi in the case of Shree
Shyamkamal Industries Pvt. Ltd. Vs. UOI (CWP No.
16324 of 2004 decided on 27-07-2005). The Hon‟ble
High Court of Delhi held as follows:-
“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
W.P.(C) 1237/2014 Page 2 of 8



was prevented by sufficient cause from preferring the
appeal within the prescribed period. However, the
limitation was placed 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 authority though it fit to provide
some period if there is a sufficient cause and the
Tribunal is satisfied that the appellant was prevented
from preferring the appeal on such cause to extend
the period of limitation. This provision is an enabling
provision. It does not take away the right of a person
of preferring an appeal but on the contrary it enables
a party who could not prefer an appeal within the
prescribed period for sufficient reasons. However, at
the same time, keeping in mind that the provision is
make for a weaker section, disputes must be resolved
at the earliest, therefore, restricted the period i.e. that
if the delay is of 60 days then to that extent delay can
be condoned. Therefore, in our opinion, the provision
cannot be said to be ultra virus of the provisions of
the Act as the provision for condonation of delay is
made to help the litigant who might be facing genuine
difficulties. It is difficult to say that the proviso to
sub-rule (2) of Rule 7 is bad. If that is declared as
bad or ultra virus Section 7-I or Section 21 (1)(b) of
the Act, it can be said that the period of limitation
prescribed is bad for want of not providing extended
W.P.(C) 1237/2014 Page 3 of 8



period in case of difficulty”.

6. This issue has come up earlier before this Court as well in
University of Delhi Vs. Vijay Prakash Vijay & Ors. , Writ Petition
(Civil) 350/2014 decided on January 20, 2014, wherein this Court,
relying upon the Judgments as rendered by this Court as well as by the
Madras High Court and the High Court of Gujarat, has observed as
under:
“5. I have considered the submissions of the
learned counsel for the petitioner. The issue is no
more res integra. A Single Judge of this court in the
case Prudential Spinners Ltd. Vs. Employees
P.F.Appellate Tribunal, 142 (2007) Delhi Law
Times 361, while dealing with a similar provision
under Employees Provident Fund and Miscellaneous
Provisions Act, 1952 wherein an appeal is required
to be filed in the similar manner as has been
provided in Section 7(7) of the Act, has held as
under:
“12. Having gone through the records and
given my thoughtful consideration to the
submissions made by the learned Counsel for
the parties, this Court cannot but arrive at the
conclusion that there is no error, infirmity or
perversity in the impugned order dated 13th
November, 2006 passed by the tribunal. The
tribunal has rightly adopted and applied the
law as laid down by a Division Bench of this
Court in the case of Assistant Provident Fund
Commissioner, Meerut (supra), which holds the
field as on date. In view of a specific provision
contained in Rule 7(2) of the Rules, the tribunal
could not have condoned the delay beyond a
maximum period of 120 days as sought to be
contended by the petitioner. There is no force
in the plea of the petitioner that the aforesaid
W.P.(C) 1237/2014 Page 4 of 8



judgment rendered by the Division Bench is in
"jeopardy" and has lost its binding force as a
precedent merely because leave to appeal has
been granted by the Supreme Court in a Special
Leave Petition pending before it, as admittedly,
there is no stay operating against the order
impugned in the aforesaid Special Leave
Petition. In this view of the matter, this Court is
bound to follow the judgment rendered by a
Division Bench of this Court referred to
hereinabove, and also followed by two single
Judges in the cases of Manu Tea Valley
Company and Megacity Cement Pvt. Ltd,
referred to hereinabove. Reliance placed by the
learned Counsel for the petitioner on the
judgments of the Supreme Court in the cases of
N. Balakrishnan (supra) and Smt. Rani Kusum
(supra) is also misconceived for the reason that
the general observations with regard to
extension/enlargement of time in condoning the
delay, cannot be imported into statutes which
not only prescribe a specific period of
limitation but also further goes on to prescribe
a period for condoning the delay, if any, in
preferring the appeal. It may also be noted that
in the case of N.Balakrishnan (supra), the
observations of the court were in the context of
condensation of delay under Section 5 of the
Limitation Act which provision has been held
by the Division Bench in the case of Assistant
Provident Fund Commissioner, Meerut (supra)
to be expressly excluded in considering an
application made under the provisions of the
Act and Rules, in view of existence of a specific
provision of Rule 7(2) made in the Rules, for
limitation.
13. In view of the fact that limitation is
prescribed by a specific Rule, and condensation
has also to be considered within the purview of
that Rule alone and the provisions of the
W.P.(C) 1237/2014 Page 5 of 8

6. It is noted that the same very provision i.e.
Section 7(7) of the Act under similar circumstances
came up for consideration before the Madras High
Court in W.P. No. 14533 of 2001 decided on June 08,
2010 titled „The Commissioner, Udumalaipet
Municipality Vs. Rajammal and Ors.‟, wherein the
Appellate Authority under the Act rejected the
application for condonation of delay filed by the
Municipality by holding that the appellate authority
W.P.(C) 1237/2014 Page 6 of 8



had no power to condone the delay of 60 days. I also
note that a similar issue had come up for
consideration before the High Court of Gujarat at
Ahmedabad in the case of „Surendranagar Dudhrej
Nagar Palika Vs. Motiben Danabhai‟, Special Civil
Application Nos. 9335, 9344, 8577, 8578 and 8579 of
2002 decided on May 01, 2003, wherein the Nagar
Palika could not file the appeal before the Appellate
Authority on the ground that period of limitation of
120 days had expired. The Nagar Palika invoked the
jurisdiction of the High Court challenging the order
of the Controlling Authority. The High Court in Para
13 considered the issue, whether an application under
Section 5 of the Limitation Act, 1963 to condone the
delay of more than 120 days in preferring the appeal,
is applicable. The High Court was of the following
view:

“13. As per Section 7 of the Gratuity Act,
1972 any person aggrieved by an order under
Section 4 may within 60 days from the date of
receipt of the order, prefer an appeal to the
appropriate Government or such other
authority as may be specified by the
appropriate Government in this behalf.
Provided that the appropriate Government or
the appellate authority as the case may be,
may, if it is satisfied that the appellant was
prevented by sufficient cause from preferring
the appeal within the said period of 60 days,
extend the said period of further period of 60
days. The further provision is that appeal is
required to be filed after depositing the
amount as determined by the Controlling
Authority under Section 4(4) of the Gratuity
Act, 1972. The law on this point is very clear
to the effect that once the Limitation is
prescribed under the statutory provision, then
appellate authority is not entitled to invoke
Section 5 of the Limitation Act, 1963 to
condone the delay of more than 120 days in
W.P.(C) 1237/2014 Page 7 of 8

petition. The same is dismissed.

8. No costs.
CM No. 2577/2014

In view of the dismissal of the writ petition, this application is
also dismissed as infructuous.

(V.KAMESWAR RAO)
JUDGE

FEBRUARY 24, 2014
akb
W.P.(C) 1237/2014 Page 8 of 8