# Sahara Prime City Ltd v. The Central Government Industrial Tribunal & Ors

- **Citation:** (2024) 6 ILRA 34
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-06-20
- **Case number:** Writ C No. 4810 of 2024
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sahara-prime-city-ltd-v-the-central-government-industrial-tribunal-ors-52151
- **Pages:** 16

## Headnote

A. Civil Law - The Limitation Act, 1963 -
Section 5 - Delay Condonation - if there is
any
possible
way
which
may
be
permissible under the law to allow the
application for condonation of delay to
hear and decide the lis or issue or
controversy or dispute before the court of
law or tribunal etc. on merits, that very
application must be allowed so that the
controversy or dispute etc. before the
competent court of law could be decided
on merits - technical approach rejecting
the lis or issue or controversy or dispute
etc. on the ground of limitation should be
avoided and the endeavour of the Tribunal
etc. should be to decide the issue etc. on
merits (Para 31)

B.
Employees'
Provident
Fund
and
Miscellaneous Provisions Act, 1952
-
Tribunal (Procedure) Rules, 1997 - Section
7(2) - Appeal - Delay Condonation - Any
person aggrieved by an order passed by
any authority under the Act may, within
60 days from the date of issue of the
order, prefer an appeal to the Tribunal -
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.
C. Civil Law - The Limitation Act, 1963 -
Section 14 - In computing the period of
limitation, the time during which the
plaintiff has been prosecuting with due
diligence and in good faith another civil
proceeding, in a court which, due to defect
of jurisdiction or other cause of a similar
nature, is unable to entertain it, shall be
excluded.

D. Petitioner challenged the order dated
31.03.2021
passed
by
the
Assessing
Officer/Regional
Provident
Fund
Commissioner-II/EPFO - Appeal should
have been filed within 120 days i.e. on or
before 31.07.2021 - Appellate Tribunal at
Lucknow was not functional when the
impugned order was passed Petitioner, in
6 All. Sahara Prime City Ltd. Vs. The Central Government Industrial Tribunal & Ors.
35
the critical condition of Covid-19 and
without any other efficacious or statutory
remedy, filed a writ petition before the
High Court of Delhi on 13.09.2021 - After
the Tribunal became functional in 2023,
the petition was dismissed as withdrawn
on 28.03.2023, with liberty to approach
the Tribunal - Petitioner filed the statutory
appeal
immediately
thereafter
on
31.03.2023 - Appeal was dismissed as
being barred by the period of limitation -
Held - Delay in filing the statutory appeal
should have been condoned in light of S.
14 of the Limitation Act - Additionally, the
Hon'ble Apex Court in Suo Motu Writ
Petition (Civil) No. 3 of 2020 in re:
Cognizance for Extension of Limitation
directed that in cases where the limitation
would have expired during the period
between 15.03.2020 till 28.02.2022, all
persons shall have a limitation period of
90 days from 01.03.2022 - Impugned
order was quashed, and the Appellate
Tribunal was directed to decide the appeal
on merits (Para 31, 32, 33)

Allowed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,904 of 49,175. This is a partial read: ask again with offset=39904 for what follows._

34 INDIAN LAW REPORTS ALLAHABAD SERIES

4. In view of the order proposed to be
passed in this writ petition, issuance of
notice to the opposite party no. 4 is
dispensed with.

5.

Learned
Additional
Government Advocate looking to the
gravity of punishment being less than
seven
years
has
stated
that
the
provisions of Section 41-A Cr.P.C.
shall be strictly followed in terms of
judgment
rendered
by
Hon'ble
Supreme Court of India in a case
reported in (2014) 8 SCC 273: Arnesh
Kumar
vs.
State
of
Bihar
and
another.

6. The present petition deserves to be
disposed of in terms of the statement made
by learned A.G.A.

7. Accordingly, this petition is
disposed of in view of the provisions of
Section 41-A Cr.P.C. and the law as laid
down by Apex Court in the case of Arnesh
Kumar (supra).
----------
(2024) 6 ILRA 34
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.06.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ C No. 4810 of 2024

Sahara Prime City Ltd. ...Petitioner
Versus
The
Central
Government
Industrial
Tribunal & Ors. ...Respondents

Counsel for the Petitioner:
Nirmit Srivastava, Aakchad Nath, Amrandra
Nath Tripathi, Chandra Kant Rai, Rahul
Sajan Yadav
Counsel for the Respondents:
Akhilesh Pratap Singh

A. Civil Law - The Limitation Act, 1963 -
Section 5 - Delay Condonation - if there is
any
possible
way
which
may
be
permissible under the law to allow the
application for condonation of delay to
hear and decide the lis or issue or
controversy or dispute before the court of
law or tribunal etc. on merits, that very
application must be allowed so that the
controversy or dispute etc. before the
competent court of law could be decided
on merits - technical approach rejecting
the lis or issue or controversy or dispute
etc. on the ground of limitation should be
avoided and the endeavour of the Tribunal
etc. should be to decide the issue etc. on
merits (Para 31)

B.
Employees'
Provident
Fund
and
Miscellaneous Provisions Act, 1952
-
Tribunal (Procedure) Rules, 1997 - Section
7(2) - Appeal - Delay Condonation - Any
person aggrieved by an order passed by
any authority under the Act may, within
60 days from the date of issue of the
order, prefer an appeal to the Tribunal -
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.
C. Civil Law - The Limitation Act, 1963 -
Section 14 - In computing the period of
limitation, the time during which the
plaintiff has been prosecuting with due
diligence and in good faith another civil
proceeding, in a court which, due to defect
of jurisdiction or other cause of a similar
nature, is unable to entertain it, shall be
excluded.

D. Petitioner challenged the order dated
31.03.2021
passed
by
the
Assessing
Officer/Regional
Provident
Fund
Commissioner-II/EPFO - Appeal should
have been filed within 120 days i.e. on or
before 31.07.2021 - Appellate Tribunal at
Lucknow was not functional when the
impugned order was passed Petitioner, in
6 All. Sahara Prime City Ltd. Vs. The Central Government Industrial Tribunal & Ors.
35
the critical condition of Covid-19 and
without any other efficacious or statutory
remedy, filed a writ petition before the
High Court of Delhi on 13.09.2021 - After
the Tribunal became functional in 2023,
the petition was dismissed as withdrawn
on 28.03.2023, with liberty to approach
the Tribunal - Petitioner filed the statutory
appeal
immediately
thereafter
on
31.03.2023 - Appeal was dismissed as
being barred by the period of limitation -
Held - Delay in filing the statutory appeal
should have been condoned in light of S.
14 of the Limitation Act - Additionally, the
Hon'ble Apex Court in Suo Motu Writ
Petition (Civil) No. 3 of 2020 in re:
Cognizance for Extension of Limitation
directed that in cases where the limitation
would have expired during the period
between 15.03.2020 till 28.02.2022, all
persons shall have a limitation period of
90 days from 01.03.2022 - Impugned
order was quashed, and the Appellate
Tribunal was directed to decide the appeal
on merits (Para 31, 32, 33)

Allowed. (E-5)

List of Cases cited:

1. Consolidated Engg. Enterprises Vs Irrigation
Deptt. (2008) 7 SCC 169;

2. Laxmi Srinivas R. & P. Boiled Rise Mill Vs St.
of Andhra Pradesh & anr. 2022 SCC Online 1790

3. M.P. Steel Corporation versus CCE (2015) 7 SCC 58

4. M/s Associated 10 Auto-mobile Vs Central
Government Industrial Tribunal cum Labour
Court & ors. 2023 LLR 682

5. Rauzagaon Chini Mills Ltd. Vs St. of U.P. &
ors. 2019 SCC Online All 5541

6. Amit Metaliks Ltd. & ors. Vs Central
Government
Industrial
Tribunal-Cum-Labour
Court & anr. 2023 SCC Online Cal 5551

7. Ketan vs Parekh Vs Special Director
Directorate of Enforcement & anr. (2011) 15
SCC 30.
8. Oil & Natural Gas Corp. Ltd. Vs Gujarat
Energy Transmission Corporation Ltd & Ors.,
Civil Appeal No. 1315 of 2010 dt 01.03.2017

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Shri Amrendra Nath
Tripathi,
learned
counsel
for
the
petitioner
assisted
by
Shri
Rahul
Tripathi and Shri Nirmit Srivastava,
learned counsels for the petitioner and
Shri Akhilesh Pratap Singh, learned
counsel for the respondent nos. 2 and 3.

2. There is no need to issue notice
to the opposite party no.1 as the
opposite party no.1 is an appellate
Tribunal.

3. By means of this petition, the
petitioner has prayed following main
relief(s):-

"(I.)
To
issue
a
writ
of
certiorari quashing/setting aside the
impugned
judgment/order
dated
18.04.2024 passed by the Opposite
Party No. 1 in appeal No. 18 of 2023 in
Re: Sahara Prime City Ltd. Vs. Central
Board of Trustees, (EPFO) and Ors, as
contained in Annexure No. 1.

(II.) A writ, order or direction
in the nature of Certiorari quashing the
assessment order dated 30.03.2021
along
with
its
corrigendum
dated
31.03.2021 passed by Opposite Party
No. 3, as contained in Annexure No. 2
to the petition."

4. At the very outset, Shri Tripathi
has drawn attention of this Court
towards SA-1 of the supplementary
affidavit filed on 18.6.2024, which is
36 INDIAN LAW REPORTS ALLAHABAD SERIES
the show cause notice, before issue of
arrest warrant under Form No. CP-25
dated
31.5.2024,
issued
by
the
Recovery Officer, Regional Office,
Lucknow
of
Employees'
Provident
Fund Organization.

5. Shri Tripathi has submitted that
earlier the warrant was issued on
19.1.2024 but at that point of time, the
order was reserved by the appellate
Tribunal in Appeal No. 18 of 2023
(Sahara Prime City Limited vs. CBT &
others) and also in Appeal No. 20 of
2023 (Sahara Net Corp. Limited vs.
CBT
&
another),
therefore,
after
passing the impugned appellate order in
both the Appeals on 18.4.2024, that
warrant has lost its efficacy.

6.

Learned
counsel
for
the
petitioner has, precisely, assailed the
impugned judgement and order dated
18.4.2024 passed by the Appellate
Tribunal in Appeal No. 18 of 2023 in
re: Sahara Prime City Ltd. Vs. Central
Board of Trustees, (EPFO) and others
on the ground that the aforesaid
appellate order has been passed solely
on the ground that the appeal filed by
the appellant is barred by the period of
limitation, as provided under Rule 7(2)
of the Tribunal (Procedure) Rules,
1997. Notably, the appeal had been
filed challenging the orders dated
30.3.2021 and its corrigendum order
dated 31.3.2021 passed by the opposite
party no.3, Assessing Officer/Regional
Provident Fund Commissioner-II/EPFO,
Lucknow. Undisputedly, the period of
limitation to file an appeal is 60 days
and further extended period is 60 days,
therefore, as per statutory prescription,
the aforesaid appeal should have been
filed on or before 31.7.2021.

7. To clarify the controversy in
hand, Shri Tripathi has drawn attention
of this Court towards Annexure Nos. 24
and 25 which are the orders dated
03.06.2021 and 04.06.2021 respectively
passed by the Division Bench of this
Court in Misc. Bench No. 11379 of
2021.

8. For the convenience, the
aforesaid orders dated 03.06.2021 and
04.06.2021
respectively
are
being
reproduced hereunder:-

"The case has been taken up
through Video Conferencing.

Heard learned counsel for the
petitioner as well as Sri Akhilesh
Pratap
Singh,
learned
counsel
appearing for opposite party Nos.2 to 4.

Learned
counsel
for
the
petitioner submits that on the basis of
impugned
recovery
certificate
the
opposite parties are pressing hard to
recover
the
alleged
outstanding
amount, although the petitioner has
already preferred an appeal under
Section7-I of Employees' Provident
Funds and Miscellaneous Provisions
Act,
1952
before
the
Central
Government Industrial Tribunal (in
short "CGIT") against the order dated
23.03.2021, pursuant to which recovery
proceedings
have
been
initiated,
alongwith an application for waiver of
the deposit. In appeal interim relief has
also been sought. It is also stated that
learned Tribunal is not functional at
present as there is no Presiding Officer.

Learned
counsel
for
the
opposite party Nos.2 to 4 may seek
instructions in the matter particularly
6 All. Sahara Prime City Ltd. Vs. The Central Government Industrial Tribunal & Ors.
37
as to whether the Central Government
Industrial Tribunal is functional at
present or not and as to whether the
cases listed before it are being heard or
not. He may also seek instruction as to
whether during the pendency of the
appeal of the petitioner the opposite
parties are going to press for recovery
on the basis of impugned recovery
certificate or not.

Put
up
tomorrow
i.e.
04.06.2021."

XXX

"The case is taken up through
Video Conferencing.

Heard Mr. Akhilesh Kalra,
learned counsel for the petitioner as
well as Sri Akhilesh Pratap Singh,
learned counsel for the opposite parties
no.2 to 4.

The instant writ petition has
been filed seeking following reliefs:

"(i) Issue a writ order or
direction in the nature of certiorari
quashing
the
recovery
certificate
dated
17.05.2021
annexed
as
Annexure No.1.

(ii) Issue a writ order or
direction in the nature of mandamus
directing the respondent not to take any
coercive steps pursuant to the order
dated 23.03.2021 during till disposal of
Appeal pending before the Appellate
Tribunal
against
the
order
dated
23.03.2021;

(iii) Ad-interim mandamus to
the aforesaid effect.

(iv) Any order or direction
may also be passed as this Hon'ble
Court deems fit in the facts and
circumstances of the case."

Mr. Akhilesh Kalra, learned
counsel for the petitioner submitted that
petitioner is a Public Limited Company
dealing in Insurance Business. The
petitioner-company
is
under
the
supervisory
control
of
Insurance
Regulatory and Development Authority
of
India
(in
short
"IRDA").
The
provisions of the Insurance Act, 1938
and
Insurance
Regulatory
and
Development Authority Act, 1999 and
the
rules
and
regulations
made
thereunder
are
applicable
to
the
petitioner-company. It is submitted that
after providing Provident Fund Code
numbers to the petitioner vide letter
dated 11.01.2013 the respondent no.2
issued a notice dated 15.04.2013 under
Section 7A(3) of Employees' Provident
Fund and Miscellaneous Provisions
Act, 1952 (in short "Act of 1952") to the
petitioner. After conclusion of enquiry,
which required under Section 7A of the
Act
of
1952,
the
enquiry
officer
submitted
his
report
before
the
respondent no.2 on 22.03.2021. It is
also stated that after submission of
enquiry report the petitioner requested
for awarding an opportunity to crossexamine the enquiry officer, however,
the said opportunity was not provided
and
the
respondent
no.2
without
providing the reasonable opportunity to
the petitioner passed the order dated
23.03.2021, whereby determined the
amount
due
from
petitioner.
The
amount determined by respondent No.2
vide
order
dated23.03.2021
is
Rs.62,48,07,169.00 (Sixty Two Crore
Forty Eight Lac Seven Thousand One
38 INDIAN LAW REPORTS ALLAHABAD SERIES
Hundred Sixty Nine Only). It is also
stated that the respondent no.2 has
passed the order dated 23.03.2021
without
considering
the
material
evidence on record as also without
providing reasonable opportunity of
hearing.

Learned
counsel
for
the
petitioner further submitted that being
aggrieved
by
the
order
dated
23.03.2021
the
petitioner
has
approached the Appellate Tribunal by
filing a statutory appeal under Section
7-I of the Act of 1952. This appeal was
filed by the petitioner within the time
prescribed under the statute. In the
appeal the interim relief has also been
sought. The appeal has been filed along
with an application for waiver of predeposit as the Appellate Tribunal is
empowered to waive the conditions of
pre-deposit, as provided under the Act.

It is further submitted that
immediately after filing of the appeal
the opposite party no.2 initiated the
recovery proceedings for recovering the
amount as determined vide order dated
23.03.2021 passed by respondent no.2,
which is subjudice before the Appellate
Tribunal in the appeal filed by the
petitioner.

Learned
counsel
for
the
petitioner has also stated that being
aggrieved by initiation of the recovery
proceedings
during
pendency
of
statutory appeal, wherein interim relief
has also been sought by the petitioner
as also the fact that the Appellate
Tribunal at Lucknow is vacant, where
the appeal has been preferred by the
petitioner, and the Central Government
Industrial Tribunal, Kanpur (in short
"CGIT") is holding the charge of
Appellate Tribunal, Lucknow, however,
due to the Covid-19 pandemic the
Appellate Tribunal at Lucknow is not
functional therefore the appeal as well
as application for waiver preferred by
the petitioner within time are pending
consideration
before
the
Appellate
Tribunal, as such, the petitioner has
approached this Hon'ble Court for the
reliefs sought in the writ petition and if
in the given facts and circumstances of
the case indulgence is refused by this
Hon'ble Court then in that event the
petitioner would suffer irreparable loss
and injury. It is also submitted that
considering the situation of the entire
State on account of Covid-19 pandemic
this Court in Public Interest Litigation
(PIL) No.564 of 2020, vide order dated
26.03.2020 issued certain directions to
prevent the miscarriage of justice. The
relevant
portion
of
order
dated
26.03.2020 is reproduced as under:

"Only with the view to ensure
that citizens are not deprived of their
right to approach the Courts of law, we
propose to exercise our jurisdiction
under Articles 226 and 227 of the
Constitution of India by issuing certain
directions. The directions are required
to be issued to ensure that litigants
should not suffer on account of their
inability to approach the Courts of law.
We issue the following directions:

(i) All interim orders passed
by the High Court of Judicature at
Allahabad as well as at Lucknow, all
the
District
Courts,
Civil
Courts,
Family
Courts,
Labour
Courts,
Industrial Tribunals and all other
Tribunals in the State over which this
Court has power of superintendence,
6 All. Sahara Prime City Ltd. Vs. The Central Government Industrial Tribunal & Ors.
39
which have been expired subsequent to
19th March, 2020 or are due to expire
within a period of one month from
today, will continue to operate upto
26th April, 2020. We, however, make it
clear that those interim orders which
are not of a limited duration and are to
operate till further orders will remain
unaffected;

(ii) If the Criminal Courts in
the State have granted bail orders or
anticipatory bail for a limited period
which are likely to expire in one month
from today, the said orders will stand
extended for a period of one month
from today;

(iii) If any orders of eviction,
dispossession or demolition are already
passed by the High Court, District or
Civil Courts, the same shall remain in
abeyance for a period of one month
from today;

(iv) Considering the fact that it
will be practically impossible for the
citizens to approach the Courts for
redressal of their grievances for a
period of twenty one days specified in
the order of the Ministry of Home
Affairs dated 24th March 2020, we
sincerely
hope
that
the
State
Government, Municipal Authorities and
the agencies and instrumentalities of
the State Government will be slow in
taking action of demolition and eviction
of persons.

This order be published in the
official
website
of
this
Court.
A
softcopy of this order shall be sent to
all concerned Courts and Tribunals; the
learned Advocate General; the learned
Additional Solicitor General of India;
the learned Assistant Solicitor General
of India; State Public Prosecutor and
the Chairman of Bar Council of Uttar
Pradesh."

Learned
counsel
for
the
petitioner further submitted that in the
facts and circumstances of the case as
also taking into account the spirit of the
order dated 26.03.2020, passed by this
Court in Public Interest Litigation
(PIL) No.564 of 2020, the interest of the
petitioner may kindly be protected
during pendency of the statutory appeal
else the purpose of filing of appeal
against the order of respondent no.2
dated 23.03.2021 would become a futile
exercise by the petitioner. The prayer is
to allow the writ petition.

At this juncture, it would be
appropriate to mention here that after
considering
the
relevant
materials
available
on
record
as
also
the
submissions made by learned counsel
for the parties this court has passed the
following order on i.e. 3.6.2021:

"The case has been taken up
through Video Conferencing.

Heard learned counsel for the
petitioner as well as Sri Akhilesh
Pratap
Singh,
learned
counsel
appearing for opposite party Nos.2 to 4.

Learned
counsel
for
the
petitioner submits that on the basis of
impugned
recovery
certificate
the
opposite parties are pressing hard to
recover
the
alleged
outstanding
amount, although the petitioner has
already preferred an appeal under
Section7-I of Employees' Provident
Funds and Miscellaneous Provisions
Act,
1952
before
the
Central
Government Industrial Tribunal (in
40 INDIAN LAW REPORTS ALLAHABAD SERIES
short "CGIT") against the order dated
23.03.2021,
pursuant
to
which
recovery
proceedings
have
been
initiated, alongwith an application for
waiver of the deposit. In appeal
interim relief has also been sought. It
is also stated that learned Tribunal is
not functional at present as there is no
Presiding Officer.

Learned
counsel
for
the
opposite party Nos.2 to 4 may seek
instructions in the matter particularly
as to whether the Central Government
Industrial Tribunal is functional at
present or not and as to whether the
cases listed before it are being heard or
not. He may also seek instruction as to
whether during the pendency of the
appeal of the petitioner the opposite
parties are going to press for recovery
on the basis of impugned recovery
certificate or not.

Put
up
tomorrow
i.e.
04.06.2021."

On a query being put in the
light of the order dated 3.6.2021, as
quoted above, Mr. Alhilesh Pratap
Singh, learned counsel appearing on
behalf of respondents no.2 to 4 could
not dispute that the Appellate Tribunal
at Lucknow is vacant and in regard to
the second query it is submitted that the
process of recovery would be taken up
as per the procedure prescribed under
the Act and the Rules made thereunder
as there is no stay from any competent
court of law on the issue of recovery of
the amount determined by respondent
no.2 vide order dated 23.03.2021.

We
have
considered
the
submissions made by parties counsel
and perused the material available on
record.

It is undisputed between the
parties that against the order dated
23.03.2021 passed by respondent no.2
the petitioner has preferred an appeal
before
the
Appellate
Tribunal
at
Lucknow, within time, along with an
application for waiver and in the
appeal the petitioner has sought interim
relief. It is also not disputed that the
appellate tribunal at Lucknow is vacant
and CGIT, Kanpur is holding the
charge
of
Appellate
Tribunal
at
Lucknow. It is further not in dispute
that the delay in disposal of the
application for waiver or interim relief
or appeal is not on account of fault or
dilatory
tactics
adopted
by
the
petitioner. The appeal is statutory
appeal under Section 7-I of the Act of
1952.

Considering
the
admitted
position that the Appellate Tribunal at
Lucknow is vacant and the Appeal,
which has been filed within time, can
not be heard nor the application for
dispensation of pre-deposit, which is
said to have been filed along with
Appeal, could be heard and in the given
facts the delay, if any, for non-disposal
of the same is not attributable to the
petitioner as also that the petitioner
who has a right of statutory appeal can
not be burdened with financial liability
under the impugned order without the
appeal being heard, it is provided that
Appellate Tribunal at Kanpur, which is
holding
the
charge
of
Appellate
Tribunal at Lucknow, as stated in para
43 of the writ petition, shall consider
and the decide the Appeal of the
petitioner
filed
along
with
the
6 All. Sahara Prime City Ltd. Vs. The Central Government Industrial Tribunal & Ors.
41
application for waiver of the statutory
deposit with expedition say within a
period of six weeks from today, as per
law. The interim relief in the appeal, if
any, may also be decided considering
the urgency in the matter. The Appellate
Tribunal may hold virtual hearing, if
required. Till six weeks from today the
opposite parties shall not take any
coercive measure to recover the amount
determined vide order dated 23.03.2021
passed by the respondent No.2. In the
proceedings
before
the
Appellate
Tribunal the petitioner shall not take
unnecessary adjournments.

With
the
aforesaid
observations/
directions,
the
writ
petition is disposed of."

9. Shri Tripathi has submitted that
by means of the aforesaid order dated
03.06.2021, the Division Bench of this
Court directed the learned counsel for
the opposite party nos. 2 to 4 to seek
specific instructions as to whether the
Central Government Industrial Tribunal
is functional or not and also as to
whether the cases listed before it are
being heard or not. On the basis of the
instructions, the Division Bench has
passed an order on 04.06.2021 to the
effect
that
the
appellate
Tribunal,
Lucknow is vacant and the appeal
which has been filed within time cannot
be
heard
nor
the
application
for
dispensation of pre-deposit, which is
said to have been filed along with the
appeal, could be heard. Though the
CGIT, Kanpur is holding the charge of
Appellate Tribunal, Lucknow.

10. In light of the aforesaid
admitted
position,
the
present
petitioner, instead of filing an appeal
before
the
appellate
Tribunal
at
Lucknow, has approached the High
Court of Delhi by filing a writ petition
on 13.9.2021 bearing Writ Petition (C)
No. 11387 of 2021 (Sahara Prime City
Ltd. vs. Union of India and others).
Notably, that writ petition at the High
Court of Delhi has been dismissed
being withdrawn vide order dated
28.3.2023 which reads as under:-

"1. Petitioner inter alia seeks
to
impugn
section
7-O
of
the
Employees'
Provident
Fund
and
Miscellaneous Provisions Act, 1952 and
seeks
quashing
of
orders
dated
30.03.2021 passed by the Central Board
of Trustees.

2. Learned Senior Counsel
appearing for the petitioner submits
that petitioner was constrained to
approach this court for the reason that
the Employee Provident Fund Appellate
Tribunal was not functional for lack of
quorum.

3. It is pointed out by learned
counsel for the respondent that since
the
filing
of
the
petition,
the
constitution of the Tribunal has been
augmented and now the Tribunal is
fully functional.

4. Learned Senior Counsel for
the petitioner accordingly, prays that
the
petition
be
permitted
to
be
withdrawn reserving the liberty of the
petitioner to approach the Tribunal.

5. Learned Senior Counsel
prays that since the petitioner had
approached this court, the petitioner be
granted benefit of the period from
which this petition has been pending
42 INDIAN LAW REPORTS ALLAHABAD SERIES
before this court for the purposes of
computation of limitation.

6. In view of the above, the
petition is dismissed as withdrawn with
liberty to the petitioner as prayed for.
However,
it
is
clarified
that
the
question of limitation for filling the
appeal
would
be
appropriately
considered
by
the
Tribunal
in
accordance with the law."

11. Shri Tripathi has submitted
that
the
learned
counsel
for
the
respondent has itself intimated the High
Court of Delhi that 'now the Tribunal is
fully functional'. On the basis of the
aforesaid intimation by the learned
counsel
for
the
respondent,
the
petitioner requested before the Division
Bench of the High Court of Delhi that
his petition may be dismissed being
withdrawn and he may be given liberty
to file an appeal before the appellate
Tribunal making request that he may be
granted the benefit of period from
which this petition has been pending
before the High Court for the purposes
of
computation of
limitation.
The
Hon'ble High Court of Delhi dismissed
the petition with the aforesaid liberty
making further clarification that the
question of limitation for filing an
appeal
would
be
appropriately
considered by the Tribunal strictly in
accordance with law. After dismissal of
the writ petition by the High Court of
Delhi on 28.3.2023, the petitioner
immediately filed an appeal before the
appellate Court on 31.03.2023.

12. Though Shri Tripathi has fairly
submitted that the appeal, which should
have been filed on or before 31.07.2021
before the appellate authority, could not
be filed within time due to compelling
circumstances i.e., extreme condition of
Covid-19 but has approached the High
Court of Delhi on 13.09.2021 after
some delay. However, he has referred
Annexure-22 which is the order dated
10.01.2022 passed by the Hon'ble Apex
Court in Suo Motu Writ Petition (Civil)
No. 3 of 2020 in re: Cognizance for
Extension of Limitation.

13. Shri Tripathi has referred the
relevant
portion
of
the
aforesaid
judgement of the Hon'ble Apex Court,
which is indicated in para nos. III and
IV which read as under:

"III.
In
cases
where
the
limitation would have expired during
the period between 15.03.2020 till
28.02.2022, notwithstanding the actual
balance period of limitation remaining,
all persons shall have a limitation
period of 90 days from 01.03.2022. In
the event the actual balance period of
limitation remaining, with effect from
01.03.2022, is greater than 90 days,
that longer period shall apply.

IV. It is further clarified that the
period from 15.03.2020 till 28.02.2022
shall also stand excluded in computing
the periods prescribed under Sections 23
(4) and 29A of the Arbitration and
Conciliation Act, 1996, Section 12A of
the Commercial Courts Act, 2015 and
provisos (b) and (c) of Section 138 of the
Negotiable Instruments Act, 1881 and
any other laws, which prescribe period(s)
of limitation for instituting proceedings,
outer limits (within which the court or
tribunal
can
condone
delay)
and
termination of proceedings."

14. Shri Tripathi has further
submitted that considering the extreme
6 All. Sahara Prime City Ltd. Vs. The Central Government Industrial Tribunal & Ors.
43
condition of Covid-19, the Apex Court
has condoned the delay in all the cases
where the period of limitation is
prescribed
w.e.f.
15.3.2020
to
28.02.2022. As per Shri Tripathi, during
the aforesaid period, the petitioner had
approached the High Court of Delhi on
13.09.2021, as stated above.

15. Shri Tripathi has also referred
Section 14 of the Limitation Act, 1963
which provides exclusion of time of
proceeding bona fide in the court
without jurisdiction. To explain this
Section, Shri Tripathi has submitted
that in terms of Section 14 of the
Limitation
Act,
such
period
of
limitation may be excluded if that
period
has
been
consumed
while
approaching any court of law which
has, however, got no jurisdiction to
entertain such petition.

16. Shri Tripathi has further
submitted that even if the petitioner had
not sought time before the High Court
of Delhi for condoning the delay for
which the writ petition was pending at
the High Court of Delhi, even then that
period would have been excluded in
view of Section 14 of the Limitation
Act. He has further submitted that even
Section 29(2) of the Limitation Act
does not specifically bar the aforesaid
eventuality as the aforesaid Section
provides that the provisions contained
in Sections 4 to 24 (inclusive) of the
Limitation Act shall apply only in so far
as the, and to the extent to which, they
are not expressly excluded by such
special or local law.

17. In support of his aforesaid
submissions, Shri Tripathi has drawn
attention of various judgements of the
Apex Court viz., Consolidated Engg.
Enterprises
vs.
Irrigation
Deptt.
reported in (2008) 7 SCC 169; Laxmi
Srinivas R. and P. Boiled Rise Mill
versus State of Andhra Pradesh and
another reported in 2022 SCC Online
1790; M.P. Steel Corporation versus
CCE reported in (2015) 7 SCC 58; M/s
Associated Auto-mobile versus Central
Government Industrial Tribunal cum
Labour Court and others reported in
2023 LLR 682; Rauzagaon Chini Mills
Ltd. Versus State of U.P. and others
reported in 2019 SCC Online All 5541;
Amit Metaliks Limited and another
versus Central Government Industrial
Tribunal-Cum-Labour
Court
and
another reported in 2023 SCC Online
Cal 5551; and Ketan vs. Parekh versus
Special
Director
Directorate
of
Enforcement and another reported in
(2011) 15 SCC 30. However, he has
pressed the relevant para nos. 3 and 4 of
the judgement of the Apex Court in re:
Laxmi Srinivas R. and P. Boiled Rise
Mill versus State of Andhra Pradesh
and another reported in 2022 SCC
Online 1790 which reads under:-

"3. It is an accepted position
that the appellant had filed a writ
petition before the High Court on
24.02.2018, which was not entertained
vide the order dated 07.03.2018 on the
ground
that
the
appellant
should
approach the Appellate Authority. The
appellant is entitled to ask for exclusion
of the said period in terms of Section 14
of the Limitation Act, 1963. Exclusion
of time is different, and cannot be
equated with condonation of delay. The
period
once
excluded,
cannot
be
counted for the purpose of computing
the period for which delay can be
condoned. Of course for exclusion of
44 INDIAN LAW REPORTS ALLAHABAD SERIES
time under Section 14 of the Limitation
Act, 1963, the conditions stipulated in
Section 14 have to be satisfied.

4. In the facts of the present
case, we find that the period from the
date of filing of the writ petition on
24.02.2018 and the date on which it
was dismissed as not entertained viz.
07.03.2018, should have been excluded.
The
writ
proceedings
were
maintainable, but not entertained. Bona
fides of the appellant in filing the writ
petition are not challenged. Further,
immediately after the dismissal of the
writ petition, the appellant did file an
appeal before the Appellate Authority.
On exclusion of the aforesaid period,
the appeal preferred by the appellant
would be within the condonable period.
Accordingly,
we
direct
that
the
application for condonation of delay
filed by the appellant would be treated
as allowed. The delay is directed to be
condoned."

18. To sum up his aforesaid
arguments, Shri Tripathi has submitted
with vehemence that admittedly, the
appellate Tribunal at Lucknow was not
functional, as specific information to
this effect has been given before the
Division Bench of this Court by the
learned counsel for the respondent
itself. The benefit of limitation w.e.f.
15.3.2020 to 18.2.2022 was provided by
the general direction/order of the Apex
Court in re: Cognizance for Extension
of Limitation case (supra) and during
the aforesaid period, the petitioner had
approached the High Court of Delhi on
13.09.2021 for the reason that the
appellate Tribunal was not functional at
Lucknow and when the very fact that
the appellate Tribunal has now been
functional as has been apprised by the
counsel for the respondent itself to the
High Court of Delhi, the petitioner got
his petition dismissed being not pressed
seeking
liberty
to
approach
the
appellate Tribunal making request that
the
period
of
limitation
may
be
exempted for the reason that the
petitioner
was
aware
that
as
per
statutory bar, the appeal could have not
been filed after a lapse of 120 days and
the petitioner filed an appeal before the
Appellate Tribunal at Lucknow on
31.03.2023, immediate after dismissal
of his writ petition on 28.03.2023,
therefore, in view of the aforesaid facts
and
circumstances,
dismissing
the
appeal of the petitioner on the ground
of
limitation
is
patently
illegal,
arbitrary and uncalled for.

19. He has further submitted that
on account of the aforesaid impugned
appellate
order,
the
right
of
the
petitioner to be heard on merit on the
substantial issue has been jeopardized,
therefore, Shri Tripathi has requested
that the aforesaid impugned appellate
order may be set aside and the appellate
Tribunal may be directed to hear the
matter of the petitioner on merits.

20. Per contra, Shri Akhilesh
Pratap Singh, learned counsel for the
respondents has submitted that since
there is a statutory bar to approach the
appellate Tribunal within a maximum
period of 120 days, so the petitioner
must approach the appellate Court
within time so prescribed. If the
petitioner
has
not
approached
the
appellate
Tribunal
within
time
so
prescribed, the appellate Tribunal has
rightly dismissed the appeal of the
petitioner on the ground of limitation.
6 All. Sahara Prime City Ltd. Vs. The Central Government Industrial Tribunal & Ors.
45

21. He has referred Section 29(2)
of the Limitation Act, 1963 which
categorically provides that where any
special or local law prescribes for any
suit, appeal or application a period of
limitation different from the period
prescribed
by
the
Schedule,
the
provisions
of
Section
3
of
the
Limitation Act categorically provides
about
the
bar
of
the
limitation,
therefore, in light of Section 29(2) of
the Limitation Act, the appeal of the
petitioner has been rightly rejected by
the appellate Tribunal on the ground of
limitation.

22. Shri Singh has placed reliance
on para nos. 5 to 9 of the Apex Court in
re: Oil & Natural Gas Corp. Ltd. vs.
Gujarat
Energy
Transmission
Corporation Ltd & Ors., Civil Appeal
No. 1315 of 2010 [Judgement & order
dated 01.03.2017], which read as
under:

"5. On a plain reading of the
aforesaid provision, it is clear as
crystal that this Court, if it is satisfied
that the appellant was prevented by
sufficient cause from filing the appeal
within the period of 60 days from the
date of communication of the decision
or order of the appellate tribunal to
him, may allow the same to be filed
within a further period not exceeding
60 days. It is quite clear that this Court
has the jurisdiction to condone the
delay but a limit has been fixed by the
legislature, that is, 60 days.

6.
In
Chhattisgarh
State
Electricity
Board
vs.
Central
Electricity Regulatory Commission &
Ors. (2010) 5 SCC 23, the issue that
arose before this Court was whether
Section 5 of the Limitation Act can be
invoked for allowing the aggrieved
person to file an appeal under Section
125 of the Act after more than 120 days
from the date of communication of the
decision of the tribunal. It adverted to
the anatomy of Section 125 and the
Appellate
Tribunal
for
Electricity
(Procedure, Form, Fee and Record of
Proceedings) Rules, 2007 and opined
thus:-

"25. Section 125 lays down
that any person aggrieved by any
decision or order of the Tribunal can
file an appeal to this Court within 60
days from the date of communication of
the decision or order of the Tribunal.
Proviso to Section 125 empowers this
Court to entertain an appeal filed
within a further period of 60 days if it is
satisfied that there was sufficient cause
for not filing appeal within the initial
period of 60 days. This shows that the
period of limitation prescribed for
filing appeals under Sections 111(2)
and 125 is substantially different from
the
period
prescribed
under
the
Limitation Act for filing suits etc. The
use of the expression `within a further
period of not exceeding 60 days' in
Proviso to Section 125 makes it clear
that the outer limit for filing an appeal
is 120 days. There is no provision in the
Act
under
which
this
Court
can
entertain an appeal filed against the
decision or order of the Tribunal after
more than 120 days."

7. The two-Judge Bench placed
reliance on Singh Enterprises vs.
C.C.E., Jamshedpur & Ors. (2008) 3
SCC 70 and Commissioner of Customs
and Central Excise v. Hongo India
Private Limited & Ar. (2009) 5 SCC 79
46 INDIAN LAW REPORTS ALLAHABAD SERIES
and came to hold that Section 5 of the
Limitation Act cannot be invoked by
this Court for maintaining an appeal
filed against the decision or order of
the tribunal beyond the period of 120
days in view of the prescription under
Section 125 of the Act and the proviso
appended thereto. In that context, the
Court held:-

"Any interpretation of Section
125 of the Electricity Act which may
attract applicability of Section 5 of the
Limitation Act read with Section 29(2)
thereof will defeat the object of the
legislation, namely, to provide special
limitation for filing an appeal against
the decision or order of the Tribunal
and proviso to Section 125 will become
nugatory."

8. After so stating, as we find,
the Court adverted to the concept of
communication and eventually opined:-

"37. The issue deserves to be
considered from another angle. As
mentioned above, Rule 94(2) requires
that when the order is reserved, the
date
of
pronouncement
shall
be
notified in the cause list and that shall
be a valid notice of pronouncement of
the order. The counsel appearing for
the parties are supposed to take
cognizance of the cause list in which
the case is shown for pronouncement.
If title of the case and name of the
counsel is printed in the cause list, the
same will be deemed as a notice
regarding pronouncement of order.
Once the order is pronounced after
being shown in the cause list with the
title of the case and name of the
counsel, the same will be deemed to
have been communicated to the parties
and they can obtain copy through email or by filing an application for
certified copy."

9. The eventual conclusion
that was arrived at by the Court was
that there is no escape from the
conclusion that the appeal, in the said
case, had been filed for more than 120
days from the date of communication
of the tribunal's order and, therefore,
as such the same could not be
entertained."

23. On being confronted as to
whether while rejecting the appeal of
the petitioner, the judgement of the
Apex Court in re: 'Cognizance for
Extension of Limitation case (supra)'
which came on 10.01.2022 has been
considered by the appellate Tribunal or
not, Shri Singh has submitted that
though the petitioner had taken a
specific ground in his appeal, but
citing other similar judgements, the
appellate Tribunal does not find it
proper to return any specific findings
thereon, however, the said judgement
has been indirectly considered by the
appellate Tribunal.

24. On being further confronted on
the point that before the Division Bench
of this Court, the specific information
was provided on 4.6.2021 (supra) to the
effect that no appellate tribunal is
functional at Lucknow at that point of
time, Shri Singh has submitted that
though he was counsel in that case
before the Division Bench of this Court
and has provided the information to the
Court on the basis of instructions so
received
but
some
alternative
arrangement was going on at Kanpur.
However, he has fairly submitted that
6 All. Sahara Prime City Ltd. Vs.