# M/s Kushang Security and House Keeping Pvt. Ltd v. Presiding Officer Central Government Industrial Tribunal Cum Labour Court and Anr

- **Citation:** (2019) 2 ILRA 1785
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-19
- **Case number:** Writ- C No. 6196 of 2019
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-kushang-security-and-house-keeping-pvt-ltd-v-presiding-officer-central-44675
- **Pages:** 17

## Headnote

Sri Sachindra

A.
Employees
Provident
Funds
and
Miscellaneous provisions Act, 1952 -
Section 7-I (2) - EPF is a special law-
limitation of filing an Appeal is 60 days
and further extended only for a specified
period of 60 days and no further.

Held: - Even if the provisions of the Limitation
Act may be held to have not been expressly
excluded the principle of implied exclusion would
apply in terms of the nature of the subject
matter, the purpose and the scheme of the Act.
The provisions contained under the Limitation
Act, 1963 would therefore not be applicable for
seeking extension of time beyond the statutory
time period of 60 days from the date of issue of
the notification/order, extendable by a further
period of 60 days, upon the Tribunal being
satisfied that the appellant was prevented by
sufficient cause from preferring the appeal within
the prescribed period. The maximum period for
filing the appeal would be thus 120 (60+60)
days from the date of the issuance of the
notification/order
which
is
sought
to
be
challenged. (Para 33)

Writ Petition dismissed (E-9)

List of Cases Cited: -

## Text

_Characters 0–39,952 of 55,722. This is a partial read: ask again with offset=39952 for what follows._

2 All. M/s Kushang Security and House Keeping Pvt. Ltd. Vs Presiding Officer Central
 Government Industrial Tribunal cum Labour Court and Anr.

1785
the
U.P.
Industrial
Disputes
Act
in
considering reinstatement of a workman.
This finding is also based on fallacious
reasoning. Conviction in a criminal case, that
too, relating to acts of vandalism and assault
on the property of the petitioner-Employers
and their officials is always a relevant
consideration that any employer would bear
in mind. It is relevant under Clause 45.0.0. of
the Standing Orders. It is not necessary that it
should find express mention in the U.P.
Industrial Disputes Act, or for that matter in
any other statute to enable the petitioners to
exercise that power. In the totality of
circumstances, this Court is of opinion that
the impugned award cannot be sustained and
is liable to be quashed.

60. In the result, the writ petition
succeeds and is allowed. The impugned
award dated 06.09.2018 (published on
22.12.2018) passed by the Labour Court,
U.P., Bareilly in Adjudication Case no.21 of
2017, is hereby quashed. There shall be no
order as to costs.
----------
(2019)10ILR A.1785

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2019

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ- C No. 6196 of 2019

M/s Kushang Security and House
Keeping Pvt. Ltd. ...Petitioner
Versus
Presiding Officer Central Government
Industrial Tribunal Cum Labour Court
and Anr. ...Respondents

Counsel for the Petitioner:
Sri Virendra Singh.

Counsel for the Respondents:
Sri Sachindra

A.
Employees
Provident
Funds
and
Miscellaneous provisions Act, 1952 -
Section 7-I (2) - EPF is a special law-
limitation of filing an Appeal is 60 days
and further extended only for a specified
period of 60 days and no further.

Held: - Even if the provisions of the Limitation
Act may be held to have not been expressly
excluded the principle of implied exclusion would
apply in terms of the nature of the subject
matter, the purpose and the scheme of the Act.
The provisions contained under the Limitation
Act, 1963 would therefore not be applicable for
seeking extension of time beyond the statutory
time period of 60 days from the date of issue of
the notification/order, extendable by a further
period of 60 days, upon the Tribunal being
satisfied that the appellant was prevented by
sufficient cause from preferring the appeal within
the prescribed period. The maximum period for
filing the appeal would be thus 120 (60+60)
days from the date of the issuance of the
notification/order
which
is
sought
to
be
challenged. (Para 33)

Writ Petition dismissed (E-9)

List of Cases Cited: -

1. Lotus Chemicals Pvt. Ltd. Vs Asst. Provident
Fund Commissioner, (Compl.), Rourkela, 2018
(157) FLR 440 (Ori.H.C.)

2. M/s Port Shramik Co-operative Enterprises
Ltd. Vs Employees Provident Fund Org., 2018
(156) FLR 363 (Cal.H.C.)

3.
Asst.
Regional
Provident
Fund
Commissioner, Meerut Vs Employees Provident
Fund Appellate Tribunal & ors., 2006 (108) FLR
35 (Del.H.C.)
1786 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Commissioner of Sales Tax, U. P., Lucknow Vs M/s
Parson Tools & Plants, Kanpur, (1975) 4 SCC 22

5. Dr. A.V. Joseph Vs Asst. Provident Fund
Commissioner & anr. 2009 (122) FLR 184
(Ker.H.C.)

6. C.B. Sharma Vs Employees' Provident Funds
Appellate Tribunal & ors.2012 (135) FLR
637(P.&H.H.C.)

7. Saint Soldier Modern Senior Secondary
School
Vs
Regional
Provident
Fund
Commissioner, 2014 (142) FLR730 (Del.H.C.)

8. Bihar Shiksha Pariyojna Parishad
Vs
Regional
Provident
Fund
Commissioner,
Employees' Provident Fund Org. & anr.,
2017(155) FLR 657(Pat.H.C.)

9. Bihar St. Industrial Development Corp. Vs
Employees Provident Fund org. & anr.,
2017(154) FLR 88(Pat.H.C.)

10.
Bihar
State
Industrial
Development
Corporation Vs. Employees' Provident Fund
Organization, Patna and another, 2017 (154)
FLR 534 (Pat.H.C.)

11.Commissioner of Customs & Central Excise Vs
Hongo India Pvt. Ltd. & anr., (2009) 5 SCC 791

11. Patel Brothers Vs St. of Assam & ors.,
(2017) 2 SCC 350

12. Hukumdev Narain Yadav Vs Lalit Narain
Mishra, (1974)2 SCC 133

13. St. of H. P. & ors. Vs Tritronics India Pvt.
Ltd., 2018 SCC OnLine HP 757

14. Bengal Chemists & Druggists Association
Vs Kalyan Chowdhury, (2018) 3 SCC 41

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Virendra Singh, learned
counsel for the petitioner and Sri Jagdish
Pathak, learned counsel for the respondent
no. 2.

2. The present petition has been filed
seeking quashing of the order dated 4.2.2019
passed by the Presiding Officer, Central
Government, Industrial Tribunal cum Labour
Court, Kanpur in an appeal preferred under
Section 7-I of the Employees' Provident
Funds and Miscellaneous Provisions Act,
1952 (Act No. 19 of 1952), (hereinafter
referred to as 'the EPF Act') registered as
Appeal No. A.T.A. (Misc.) No.03/19. The
petitioner has also sought to challenge the
earlier order of levy of damages under
Section 14-B and interest under Section 7-Q
of the EPF Act dated 19.10.2015 passed by
the Assistant Provident Fund Commissioner,
Employees Provident Fund Organization,
Kanpur (in short 'APFC').

3. The records of the case indicate
that the petitioner establishment, having
Registration No. UP/39140 had failed to
pay the provident fund dues for the period
08.09.2012
to
31.12.2014.
A
Quantification Notice No. 180510 dated
10.1.2015 was issued, and after several
opportunities
being
granted
to
the
petitioner which were not availed, the
APFC passed an order (Levy Order No.
174530) dated 19.10.2015 in respect of
the remittance for the period 09/12 to
12/2014
levying
an
amount
of
Rs.1,33,282/-as damages under Section
14-B and an amount of Rs.1,89,937/- as
interest under Section 7-Q of the EPF Act.
An
order
dated
22.5.2017
levying
damages and interest for a subsequent
period was also passed against the
petitioner establishment.

4. The petitioner establishment
preferred an appeal under Section 7-I of
the EPF Act, registered as Appeal No.
2 All. M/s Kushang Security and House Keeping Pvt. Ltd. Vs Presiding Officer Central
 Government Industrial Tribunal cum Labour Court and Anr.

1787
A.T.A. (Misc.) No.03/19, against the two
orders dated 19.10.2015 and 22.05.2017
referred to above. The appellant also
prayed for stay of the operation of the
aforementioned orders as well as notices
dated
4/11.01.2017,
09.10.18
and
19.11.18.

5. Objections were filed by the APFC
Kanpur (respondent in the appeal) strongly
opposing the maintainability of the appeal
and submitting that the appeal was highly
belated and that the validity of two separate
orders could not be challenged in a joint
appeal. On the question of limitation reliance
was placed upon the judgments in the case of
Lotus Chemicals Pvt. Ltd. Vs. Asst.
Provident Fund Commissioner, (Compl.),
Rourkela1 and M/s Port Shramik Cooperative Enterprises Ltd. Vs. Employees
Provident Fund Organization2.

6. The Presiding Officer upon a
consideration of the facts of the case came
to the conclusion that both the appeals
preferred were highly belated and the
challenge raised to two separate orders
dated 19.10.2015 and 22.05.2017 by
means of a single appeal was not
permissible and further that legality of the
three notices could not be examined in the
appeal. Accordingly, it came to the
conclusion that neither the appeal could
be admitted nor any relief could be
granted and the appeal was disposed vide
order
dated
04.02.2019.
Aggrieved
against the aforementioned order, the
present petition has been filed.

7. Heard learned counsel for the
parties and perused the records.

8. The sole contention of the counsel
for the petitioner is that the dismissal of
the appeal in terms of the order dated
04.02.2019, on the ground of delay is
wholly illegal, and that the delay in filing
of the appeal ought to have been
condoned in the interest of justice.

9. Counsel appearing for the
respondent no. 2 APFC has supported the
order passed in appeal by submitting that
the levy of damages under Section 14-B
and interest under Section 7-Q had been
made after due notice and opportunity to
the petitioner establishment and that the
appeals being beyond the statutory period
of limitation have rightly been rejected.

10. The sole ground which has been
raised in the present writ petition is with
regard to the question of limitation in
filing of the appeal under the provisions
of EPF Act.

11. The question which thus falls for
consideration is as to whether the time
limit granted in terms of the statutory
provisions under the EPF Act and the
rules made thereunder with regard to
filing of an appeal can be extended
beyond the period prescribed by granting
benefit of the provisions of Section 5 of
the Limitation Act, 1963.

12. In order to appreciate the rival
contentions
the
relevant
statutory
provision with regard to filing of appeal
under Section 7-I of the EPF Act may be
adverted to.

"7-I. Appeals to Tribunal. -
(1)
Any
person
aggrieved
by
a
notification
issued
by
the
Central
Government, or an order passed by the
Central Government or any authority,
under the proviso to sub-section (3), or
1788 INDIAN LAW REPORTS ALLAHABAD SERIES
sub-section (4), of Section 1, or Section 3,
or sub-section (1) of Section 7-A, or
Section 7-B(except an order rejecting an
application for review referred to in subsection (5) thereof), or Section 7-C, or
Section 14-B, may prefer an appeal to a
Tribunal against such notification or
order.

(2) Every appeal under subsection (1) shall be filed in such form and
manner,
within
such
time
and
be
accompanied by such fees, as may be
prescribed."

13. The power to make rules
including the power to make rules in
respect of the form and the manner in
which, and the time within which, an
appeal shall be filed before a Tribunal and
the fees payable for filing such appeal is
provided for under Section 21 of the EPF
Act. The relevant provision is being
extracted below :-

"21. Power to make Rules- (1)
The
Central
Government
may,
by
notification in the Official Gazette, make
rules to carry out the provisions of this
Act.

(2) Without prejudice to the
generality of the foregoing power, such
rules may provide for all or any of the
following matters namely :-

xxxxxx

(b) the form and the manner in
which, and the time within which, an
appeal shall be filed before a Tribunal and
the fees payable for filing such appeal."

14. In exercise of powers conferred
under sub-section (1) of Section 21 of Act
No.
19
of
1952
''The
Employees
Provident
Fund
Appellate
Tribunal
(Procedure) Rules, 1997'' have been
made. The procedure including the time
period for filing an appeal is provided
under Rule 7 of the aforementioned
Rules, 1997.

"7. Fee, time for filing appeal,
deposit of amount due on filing appeal.-
- (1) Every appeal filed with the Registrar
shall be accompanied by a fee of Rupees
five hundred to be remitted in the form of
Crossed Demand Draft on a nationalized
bank in favour of the Registrar of the
Tribunal and payable at the main branch
of that Bank at the station where the seat
of the said Tribunal situate.

(2) Any person aggrieved by a
notification
issued
by
the
Central
Government or an order passed by the
Central
Government
or
any
other
authority under the Act, may within 60
days from the date of issue of the
notification/order, prefer an appeal to the
Tribunal:

Provided that the Tribunal may
if it is satisfied that the appellant was
prevented by sufficient
cause from
preferring
the
appeal
within
the
prescribed period, extend the said period
by a further period of 60 days:

Provided further that no appeal
by the employer shall be entertained by a
Tribunal unless he has deposited with the
Tribunal (a Demand Draft payable in the
Fund and bearing) 75 per cent of the
amount due from him as determined
under Section 7-A:

Provided also that the Tribunal
may for reasons to be recorded in writing,
waive or reduce the amount to be
deposited under Section 7-O."

15. A plain reading of the
aforementioned
statutory
provisions
indicates that in terms of sub-section (2)
of Section 7-I every appeal under subsection (1) is to be filed in such form and
2 All. M/s Kushang Security and House Keeping Pvt. Ltd. Vs Presiding Officer Central
 Government Industrial Tribunal cum Labour Court and Anr.

1789
manner, within such time and is to be
accompanied by such fees, as may be
prescribed. Further, Rule 7 of the Rules,
1997 provides that the appeal may be
preferred within 60 days from the date of
issue of the order, provided that the
Tribunal may, if it is satisfied that the
appellant was prevented by sufficient
cause from preferring the appeal within
the prescribed period, extend the said
period by a further period of 60 days.

16. It is seen that the initial period
for filing of appeal is 60 days which can
be extended by the EPF Appellate
Tribunal for another 60 days only when
there
is
sufficient
cause
and
not
otherwise. In this regard, reference may
be made to the judgment in the case of
M/s
Port
Shramik
Co-operative
Enterprise
Ltd.
Vs.
Employees
Provident Fund Organisation2. The
relevant
observations
made
in
the
judgment are as follows :-

"3.......The period of limitation
for filing an appeal against an order
passed under Section 7-A or Section 14-B
of the Employees' Provident Funds and
Miscellaneous Provisions Act is 60 days.
If the appellant satisfies the Tribunal that
it was prevented by sufficient cause from
not filing the appeal within the said period
of 60 days, in appropriate case, the
Tribunal has the power to condone the
delay of another 60 days. Thus, even if
the Tribunal wanted to condone the delay
it could not condone it beyond a period of
60 days."

17. In the case of Assistant
Regional
Provident
Fund
Commissioner, Meerut Vs. Employees
Provident Fund Appellate Tribunal
and others3, an appeal to the Appellate
Tribunal was filed after 165 days from the
date of the order of the EPF Authority and
the delay was condoned by the Appellate
Authority in view of the provisions under
Section 5 of the Limitation Act, 1963.
Upon a challenge being raised the order
condoning the delay was set aside and it
was held that when the period of 60 days
was provided under Rule 7 (2) and a
further period of 60 days for condoning
the delay is allowed under the proviso to
the said rule only then that much period
could be condoned. It was held that
applicability
of
Section
5
of
the
Limitation Act was specifically excluded.
The relevant observations made in the
judgment are as follows :-

"8.......On behalf of the Assistant
Provident Fund Commissioner before the
Tribunal, a preliminary objection was raised
to the effect that the appeal is barred by
time. The appeal was preferred after more
than 160 days and the Tribunal had no
jurisdiction to condone the delay beyond 60
days. The appeal was presented on
11.1.1999 though the order dated 10.7.1998
was received by the appellant on 20.7.1998.
Thus it took 165 days in preferring the
appeal. In view of the provisions contained
in Section 7-I(2) of the Act read with Rule
7(2) of the Rules, the appeal was required to
be preferred within 60 days to the Tribunal.
It was submitted that the Tribunal on being
satisfied that the appellant was prevented by
sufficient cause in preferring the appeal
within the prescribed period of 60 days,
may extend the said period by a further
period of 60 days and thus in all the appeal
was required to be preferred maximum
within a period of 120 days and not
beyond that. Section 7-I (2) of the Act
reads as under:
1790 INDIAN LAW REPORTS ALLAHABAD SERIES

"An appeal under sub-section
(1) shall be filed in such form and
manner,
within
such
time
and
be
accompanied by such fees, as may be
prescribed."

9. Rule making authority under
Section 21 is entitled to make rules to
carry out the provisions of this Act by
issuing a notification in the Official
Gazette. Sub-clause (b) of sub-section (2)
of Section 21 reads as under:

"....the form and the manner in
which, and the time within which, an
appeal shall be filed before a Tribunal and
the fees payable for filing such appeal....."
10. Rule 7(2) reads as under:

"Any person aggrieved by a
notification
issued
by
the
Central
Government or an order passed by the
Central
Government
or
any
other
authority under the Act, may within 60
days from the date of issue of the
notification/order prefer an appeal to the
Tribunal :

Provided that the Tribunal may,
if it is satisfied that the appellant was
prevented by sufficient
cause from
preferring
the
appeal
within
the
prescribed period, extend the said period
by a further period of 60 days."

11. It is in view of the aforesaid
provisions, it was 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.

12. 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..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...

13. Learned counsel for the
Company submitted that sub-clause (b) of
sub-section (1) of Section 21 provides the
rule making authority to prescribe time
limit within which an appeal shall be filed
before the Tribunal. Legislature only
authorized the rule making authority to
make a provision for prescribing a period
for preferring an appeal, however, the rule
also provided a further period of 60 days
by proviso to sub-rule (2) of Rule 7 of the
Rules. In view of this, it was contended
that proviso is ultra vires the provisions
contained in the Act. It was further
submitted that if the proviso is ultra vires
the provisions contained in the Act, then
the Limitation Act, 1963 will apply. In the
submission of learned counsel for the
Company, the Tribunal has rightly held
that the law of limitation is applicable. It
was submitted that Section 7-I of the Act,
if read it becomes very clear that subsection (2) of Section 7-I also refers such
time within which the appeal is to be
filed.

14. The Act is a labour
legislation wherein provision is made for
provident funds to be deposited by the
employer. Section 7-D to 7-H provide for
the Appellate Tribunal, the term of the
office of the Presiding Officer of
Tribunal, salary, allowances and other
terms and conditions of Presiding Officer
and the staff of the Tribunal. Section 7-I
provides for appeals to the Tribunal. The
Chapter further provides procedure before
the Tribunal, assistance of a legal
practitioner,
right
of
hearing
or
rectification of an order, finality of orders
of the Tribunal, deposit of amount due on
filing an appeal, transfer of cases, the
2 All. M/s Kushang Security and House Keeping Pvt. Ltd. Vs Presiding Officer Central
 Government Industrial Tribunal cum Labour Court and Anr.

1791
manner of recovery, recovery certificate,
validity of the certificate and such other
things. It provides penalties, offences by
companies,
enhanced
punishment
in
certain cases and offences under the Act
to be cognizable. It also provides the
Court which shall try the offences. Thus a
special mechanism is indicated in the Act
itself.

15. With a view to see that the
proceedings are disposed of as 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 condonation 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.

16. 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.

17. 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,
the rule making authority thought it fit to
provide some period if there is a sufficient
cause and the Tribunal is satisfied that the
applicant 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 that provision is
made 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
vires 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 vires 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 period in case of
difficulty.

18. It is required to be noted that
in case of Delta Impex v. Commissioner
of Customs, decided on 13.2.2004, this
Court had an occasion to examine the
question raised by the applicant which
reads as under:

"Whether
the
provision
of
Section 128 of the Customs Act, 1962
completely
bars
the
Commissioner
(Appeals) from condoning the delay
beyond the period of 30 days even in a
deserving case and that despite the order
made by the Commissioner (Appeals) is it
incumbent upon the Tribunal to consider
the appeal on merits?"

19. There also it was submitted
that considering the provisions contained
in section 29(2) of the Indian Limitation
1792 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, 1963 (hereinafter referred to as 'the
Limitation Act') read with section 5
thereof, irrespective of the fact that the
matter was under the Customs Act, the
appellate
authority
ought
to
have
condoned the delay, examined the matter
on merits and it could not have dismissed
the appeal on the ground that the
Commissioner
(Appeals)
can
only
condone the delay, if an appeal is
presented within a period of 30 days after
the statutory period of 60 days in view of
section 128 of the Act.

20. In case 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 Miles India Limited
v. Assistant Collector of Customs, the
Court
observed
that
the
Customs
Authorities acting under the Act were not
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.

21. 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 deemed 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.

22. The Court is required to
examine the scheme of the special law,
and the nature of the remedy provided
therein. Considering these aspects, the
Court will have to find out whether the
Legislature
intended
to
provide
a
complete code by itself which along
should govern the matters provided by it.
On
examination
of
the
relevant
provisions, if it becomes clear that the
provisions of section 5 of the Limitation
Act are necessarily excluded, then the
said provisions cannot be called in aid to
supplement the provisions of the Act. It is
open to the Court to examine whether and
to what extent the nature of the provisions
contained in the Limitation Act in
comparison with the scheme of the special
law are excluded from operation. When a
specific period is provided and a further
period of 60 days by way of extended
period only then that much period can be
condoned.

23. In the instant case, a
separate period of limitation is provided,
as also the period for which delay can be
condoned. The Legislature was aware
about the provisions contained in section
5 of the Limitation Act, yet with an
intention to curb the delay in labour
matters, Legislature left it to the Rule
making authority to make a provision for
limitation. Rule making authority under
the Statute has specifically provided that
after the statutory period, if there is delay
of 60 days, on showing sufficient grounds
for delay of 60 days, that can be
condoned. Thus applicability of section 5
of the Limitation Act is specifically
excluded.

24. The expression ''expressly
excluded'' in sub-section (2) of section 29
of the Limitation Act means an exclusion
by express words, i.e. by express
reference and not exclusion as a result of
logical process of reasoning. In the instant
case, there is no question of implied
2 All. M/s Kushang Security and House Keeping Pvt. Ltd. Vs Presiding Officer Central
 Government Industrial Tribunal cum Labour Court and Anr.

1793
exclusion but, it specifically provides a
different period of limitation, as also the
period during which, if delay has
occurred, it could be condoned.

25.
With
regard
to
the
applicability of sections 4 to 24 of the
Limitation Act (inclusive) one will have
to refer to sub-section (2) of section 29 of
the Limitation Act, 1963. It specifically
states that these provisions shall apply
only so far as and to the extent to which,
they are not expressly excluded by special
or local law. Reading the language of
Rule 7 of the Rules and section 5 of the
Limitation Act, it is very clear that
extension of time for a period 60 days
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.

xxxxxxx

38. In the instant case, there is
clear intention of the Legislature for
asking the rule making authority to
prescribe the time during which an appeal
shall be filed. When the time is to be
prescribed, it is open for the rule making
authority to prescribe extended period
also. If the extended period is provided,
the provisions would not become bad or
ultra vires the provisions contained in the
Act, as it is only an enabling provision.

39. It is also clear that an
opinion
was
expressed
before
the
Legislature, that in the opinion of the
Government the provision should be
made
for
granting
provident
fund
facilities not only to the employees in
industrial establishments, but also to the
employees in commercial and other
undertakings. An assurance was given
that
the
Government
would
take
appropriate measures. It is thereafter the
Act came to be enacted. Reading the
provisions contained in the Act, it covers
large number of employees. Employer, as
indicated in the Act, has to make
contributions to the fund in the manner
indicated in section 6. Section 7-A of the
Act empowers the authority to decide a
dispute about the applicability of the Act
if raised and to determine the amount due
from any employer, as indicated in subclause (b) of sub-section (1) of section 7A of the Act. The officer empowered to
conduct an inquiry under sub-section (2)
of section 7-A of the Act in this behalf
having the powers as are vested in Code
under the Civil Procedure Code, 1908 for
trying a suit in respect of the matters
indicated therein. How the order is to be
reviewed is indicated under section 7-B.
Section 7-C refers to determination of
escaped amount. An order made by
authority was 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 background the provisions of the
Act are to be examined.

40. 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
1794 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

18. In the aforementioned case of
Assistant Regional Provident Fund
Commissioner, Meerut (supra) reference
was made to the judgment in the case of
Mohd. Ashfaq Vs. State Transport
Appellate Tribunal U.P. and others4,
where in the context of the provisions
under the Motor Vehicles Act, 1939, it
was held as follows :-

"8......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 subsection (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
more than 15 days......."

19. Similar observations were made
in the case of The Commissioner of
Sales Tax, Uttar Pradesh, Lucknow Vs.
M/s Parson Tools and Plants, Kanpur5,
wherein it was stated as follows :-

"22. Thus the principle that
emerges is that if the Legislature in a
special statute prescribes a certain period
of limitation for filing a particular
application thereunder and provides in
clear terms that such period on sufficient
cause being shown, may be extended, in
the maximum, only upto a specified timelimit and no further, then the tribunal
concerned has no jurisdiction to treat
within limitation, an application filed
before it beyond such maximum timelimit specified in the statute, by excluding
the time spent in prosecuting in good faith
and due diligence any prior proceeding on
the analogy of Section 14(2) of the
Limitation Act."

20. Rule 7 (2) of the Rules, 1997
again came up for consideration in the
case of Dr. A.V.Joseph Vs. Assistant
Provident Fund Commissioner and
another6 and it was held that the
maximum period for filing an appeal is
only 120 days from the date of the
impugned
order.
The
relevant
observations made in the judgment are as
follows :-

"10. Section 7-I(2) of the Act
provides that every Appeal under subsection (1) shall be filed in such form and
manner,
within
such
time
and
be
accompanied by such fees, as may be
prescribed. Rule 7(2) of the Employees'
Provident
Funds
Appellate
Tribunal
(Procedure) Rules, 1997 states that any
person aggrieved by a notification issued
by the Central Government or an order
passed by the Central Government or any
other authority under the Act, may within
60 days from the date of issue of the
notification/order, prefer an appeal to the
Tribunal. The 'first proviso' thereunder
further stipulates that the Tribunal may, if
it is satisfied that the appellant was
prevented by sufficient
cause from
preferring
the
Appeal
within
the
prescribed period, extend the said period
by a further period of 60 days. In short,
the maximum period for filing the Appeal
2 All. M/s Kushang Security and House Keeping Pvt. Ltd. Vs Presiding Officer Central
 Government Industrial Tribunal cum Labour Court and Anr.

1795
is only 120 days from the date of the
impugned
proceedings/order
(60+60).
When the statute confers the power on the
Authority to condone the delay only to a
limited extent, it can never be widened by
any Court contrary to the intention of the
law makers...."

21. In the case of C.B.Sharma Vs.
Employees' Provident Funds Appellate
Tribunal and others7, the appeal filed
nine months after the date of the order
passed
by
the
Commissioner
was
dismissed and the challenge raised to the
order passed by the Tribunal was turned
down with the following observations :-

"9. In terms of the rule, period
of 60 days has been provided for filing the
appeal before the Tribunal. For sufficient
reasons the Tribunal can extend the period
for further 60 days. Once the petitioner
undisputedly had the knowledge of the
order passed by the Commissioner on
16.2.2009, the appeal filed nine months
thereafter had rightly been dismissed by
the Tribunal as time barred."

22. The question as to whether the
Appellate Tribunal was vested with any
power to condone the delay in filing the
appeal beyond the prescribed period again
came up for consideration in the case of
Saint Soldier Modern Senior Secondary
School Vs. Regional Provident Fund
Commissioner8 and it was held that there
was no such power with the Appellate
Tribunal. The observations made in the
judgment are as follows :-

"8. A perusal of the section 7-I
of the Act and Rule 7 of the Rules would
reveal that the time period for filing an
appeal is within 60 days from the date of
issue of the notification/order, provided,
the Tribunal, if satisfied that for certain
sufficient cause, the appeal could not be
preferred within the period of 60 days,
then, the period to file appeal can be
extended to 60 days thereafter. Suffice to
state, the provision does not vest any
power with the Tribunal to condone a
delay beyond that period.....

9. From the above decision of
the Supreme Court, even in the case in
hand, it is clear from the provisions of the
Act, which is a special statute, a certain
period of limitation is prescribed for filing
the appeal. In the eventuality, the appeal
is not filed within the said period, the
power to condone the delay is for a
further period of 60 days and no
more......."

23. A similar view was again taken
in the case of Lotus Chemicals Pvt. Ltd.
Vs.
Assistant
Provident
Fund
Commissioner, (Compl.) Rourkela1,
wherein it was held as follows :-

"8.......The procedure for filing
of appeal has been provided under the
provision of Rule 7 of the Employees
Provident
Fund
Appellate
Tribunal
(Procedure) Rules, 1997, wherein it has
been provided under Regulation 7(2) that
the appeal may be filed within 60 days
from
the
date
of
issuance
of
notification/order,
provided
that
the
Tribunal may, if it is satisfied that the
appellant was prevented by sufficient
cause from preferring appeal within the
prescribed period, may extend the said
period by a further period of 60 days,
meaning thereby the appeal is to be filed
before the appellate Tribunal within a
maximum period of 120 days subject to
its condonation and beyond that it cannot
1796 INDIAN LAW REPORTS ALLAHABAD SERIES
be extended. It is settled that if any
legislation has been provided, it has to be
followed in its strict sense and if there is
specific time period framed in the
legislation to entertain an appeal, the
authorities concerned are not supposed to
extend that period by assuming the power
conferred under the Limitation Act, 1963.
Here in the instant case, the maximum
period of filing an appeal is 60 days,
subject to its condonation for a further
period of 60 days, hence the condonation
is only to be done for maximum period of
60 days, which suggests that the provision
of Limitation Act, 1963 will not be
applicable.

9. It is settled position of law
that the court of law or the Tribunal is
supposed to follow the statutory provision
and it cannot be interpreted, if there is no
ambiguity and it is settled that the things
is to be done as per the statutory
provision,
hence
applying
the
said
principle, it is the considered view of this
Court that the Tribunal has not committed
any error in passing the order under
Section 7-I by rejecting it, since appeal
was preferred after delay of 260 days,
hence the Tribunal is having no power to
condone the said delay period, in view of
the provision of Rule 7 of the Employees
Provident
Fund
Appellate
Tribunal
(Procedure) Rules, 1997 as discussed
herein above."

24. Reiterating a similar view, in the
case
of
Bihar
Shiksha
Pariyojna
Parishad Vs. Regional Provident Fund
Commissioner, Employees' Provident
Fund Organzation and another9, it was
held that condonation of delay has to be
considered within the purview of the
statutory provision and the provisions of
the Limitation Act cannot be imported or
made applicable into the EPF Act and the
Rules, 1997. The relevant observations
made in the judgment are extracted below
:-

"18. Thus, in view of the fact
that the limitation is prescribed by
specific Rule 7(2) of 'the Rules' as also in
view of the ratio laid down by the
Supreme Court in Commissioner of
Customs and Central Excise v. Hongo
India Private Limited & Anr. (supra) and
M/s. Patel Brothers v. State of Assam &
Ors. (supra), condonation of delay has
also to be considered within the purview
of the statutory provision and the
provisions of the Limitation Act cannot be
imported or made applicable into 'the Act'
and 'the Rules'. In that view of the matter,
no illegality can be found with the order
impugned passed by the Tribunal."

25. A similar view has been taken in
the case of Bihar State Industrial
Development
Corporation
Vs.
Employees
Provident
Fund
Organization and another10 and again
in Bihar State Industrial Development
Corporation Vs. Employees' Provident
Fund
Organization,
Patna
and
another11.

26. The question with regard to
condonation of delay by applying Section
5 of the Limitation Act, 1963, in the
context of filing an appeal and reference
under the Central Excise Act, came up for
consideration
in
the
case
of
Commissioner of Customs and Central
Excise Vs. Hongo India Private Limited
and
another12,
and
taking
into
consideration that the Central Excise Act
is a special law and a complete code by
itself, it was held that the time limit
prescribed
for
making
a
reference
thereunder is absolute and unextendable
2 All. M/s Kushang Security and House Keeping Pvt. Ltd. Vs Presiding Officer Central
 Government Industrial Tribunal cum Labour Court and Anr.

1797
by the Court under Section 5 of the
Limitation Act, 1963. The relevant
observations made in the judgment are as
follows:-

"30.