KERALA STATE DEFENCE SERVICE CO-OPERATIVE HOUSING SOCIETY LIMITED NO.4343, ANANDA BHAVAN, SOUTH RAILWAY STATION ROAD, KOCHI - 682 016, represented by its Secretary, V. VIJAYAKUMARI v. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, KOCHI; THE ASSISTANT PROVIDENT FUND COMMISSION (COMPLIANCE) EMPLOYEES PROVIDENT FUND ORGANISATION, KOCHI; UNION OF INDIA represented by the Secretary to Government, Ministry of Labour, SHRAM SHAKTI BHAVAN, NEW DELHI; EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** # **MONDAY, THE 10TH DAY OF NOVEMBER 2014/19TH KARTHIKA, 1936** ## **WP(C).No. 29615 of 2014 (B)** **----------------------------** ## **PETITIONER(S):** **---------------------** **THE KERALA STATE DEFENCE SERVICE CO-OPERATIVE HOUSING SOCIETY LIMITED NO.4343, ANANDA BHAVAN, SOUTH RAILWAY STATION ROAD, KOCHI - 682 016 REPRESENTED BY ITS SECRETARY, V. VIJAYAKUMARI.** **BY ADVS.SRI.B.ASHOK SHENOY SRI.K.V.GEORGE SRI.P.N.RAJAGOPALAN NAIR SRI.P.S.GIREESH** ## **RESPONDENT(S):** **----------------------------** **1. THE ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, 36/685A, BHAVISHYANIDHI BHAVAN, KALOOR, KOCI- 682 017.** **2. THE ASSISTANT PROVIDENT FUND COMMISSION (COMPLIANCE) EMPLOYEES PROVIDENT FUND ORGANISATION, 36/685A, BHAVISHYANIDHI BHAVAN, KALOOR, KOCHI-682 017.** **3. UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF LABOUR, SHRAM SHAKTI BHAVAN, RAFI MARG, NEW DELHI - 110 001.** **4. EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL, CORE 2, 4TH FLOOR, SCOPE MINAR, LAXMI NAGAR DISTRICT CENTRE, LAXMI NAGAR, NEW DELHI - 110 092.** **R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R BY SRI.A.RAJASIMHAN,SC,EPF ORGANISATION** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 29615 of 2014 (B)** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **EXT.P1 COPY OF AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND KERALA STATE FINANCIAL ENTERPRISES LTD., DATED DECEMBER 2013.** **EXT.P2 COPY MONTHLY CHALLAN CUM RETURN FOR THE MONTH OF APRIL 2011 SUBMITTED BY PETITIONER TO 1ST RESPONDENT.** **EXT.P3 COPY OF MONTHLY CHALLAN CUM RETURN FOR THE MONTH OF SEPTEMBER 2014 SUBMITTED BY PETITIONER TO 1ST RESPONDENT.** **EXT.P4 COPY OF LETTER DATED 19.10.2014 SUBMITTED BY PETITIONER TO 1ST RESPONDENT.** - **EXT.P5 COPY OF PROSECUTION NOTICE NO.KR/KCH/13896/AB 14(2)/2013 DATED 21.6.13 ISSUED BY 1ST RESPONDENT TO PETITIONER.** - **EXT.P6 COPY OF REPLY LETTER DATED 12.7.13 SUBMITTED BY PETITIONER TO 1ST RESPONDENT.** - **EXT.P7 COPY OF ORDER NO.KR/KCH/13896/Enf 1(3)/ 2013 DATED 18.7.13 ISSUED BY 1ST RESPONDENT TO PETITIONER.** **EXT.P8 COPY OF NOTICE NO.KR/KC/13896/RECOVERY/2014-15 DATED 11.7.14 ISSUED BY 2ND RESPONDENT TO PETITIONER.** **RESPONDENTS EXHIBITS: NIL** **// TRUE COPY //** **P.A TO JUDGE.** **SB** **'CR'** ## **K. VINOD CHANDRAN, J. ===================== W.P.(C) No.29615 of 2014 - B ====================== Dated this the 10[th] day of November, 2014** ## **J U D G M E N T** The petitioner is aggrieved with the proceedings of the Assistant Provident Fund Commissioner, Kochi, issued at Ext.P7. Admittedly, the petitioner, had been engaging its members, as per contract entered into with other establishments, one of which is produced at Ext.P1. The petitioner had been deducting provident fund contributions and paying the same to the respondent Organisation. While so, the petitioner discontinued the contributions and hence an enquiry under 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for brevity, 'the EPF Act') was initiated. 2. The petitioner was issued with notice, and though initially the notice could not be served, subsequently, it was acknowledged and there was appearance on behalf of the Society. Repeated adjournments were sought for and no documents were produced by the petitioner before the W.P.(C) No.29615 of 2014 - B **2** enquiry officer. 3. The petitioner merely filed Ext.P4 wherein, it was stated that amounts were remitted for the year 2010-11 and a remittance was made as on 18.10.2012 also, which would satisfy the entire dues. No objections to the notice was filed and in such circumstance, the enquiry officer under the EPF Act issued Ext.P7 proceedings, which was despatched on 18.07.2013. The petitioner does not have a contention that the petitioner did not receive Ext.P7 proceedings. The petitioner did absolutely nothing to challenge the same, especially when an appeal was provided under Section 7-I of the EPF Act. 4. The petitioner also did not pay off the contribution as indicated in Ext.P7. It was in such circumstance that penal proceedings were initiated against the petitioner and notice issued to show cause as to why a warrant of arrest should not be issued. The same is challenged before this Court. It goes without saying that, by the time the writ petition was filed, the period of limitation for filing an appeal was over. W.P.(C) No.29615 of 2014 - B **3** 5. The petitioner, to maintain the writ petition, despite having not availed of the remedy under Section 7-I of the EPF Act, takes up a plea that the provision under Rule 7(2) of the Employees Provident Funds Appellate Tribunal (Procedure) Rules 1997 is not one, which is sanctioned by the Act. Or more specifically, there is no provision in the Act whereby a period of limitation or a specific time for delay condonation could be prescribed and in such circumstance, Section 5 of the Limitation Act, 1963 would be applicable, is the plea urged. 6. It is to be noticed that Section 7-I (2) specifically confers power on the appropriate Government to prescribe the form in which the appeal is to be filed, the fees which should accompany the appeal memorandum as also the time within which such appeal has to be filed. It is only invoking such powers that the Government has brought out the Rules of 1997, wherein; by sub-rule (2) of Rule 7, a time of 60 days is prescribed for preferring an appeal to the Tribunal and by the proviso a further time of 60 days is provided, in which period, the Tribunal has been conferred W.P.(C) No.29615 of 2014 - B **4** with the power to condone the delay. 7. It is trite that, when the Government has the power to prescribe the time in which an appeal has to be filed, it would also be conferred with the power to prescribe the time, as also confer the Tribunal with the authority, to condone any delay occasioned. If the Government does not provide a period within which a delayed appeal could be filed, then the appellate authority would not be conferred with the power to condone the delay; at all. There can be no assumption then, that Section 5 of the Limitation Act would be attracted. So held a Division Bench of this Court in **Assistant Commissioner of Central Excise** v. **Krishna Poduval [2005 (4) KLT 947]** . 8. This Court has by the decisions reported in **Krishna Poduval** (supra) and **Panopharam** v. **Union of India [2010(3) KLT 149]** also held that, Article 226 cannot be invoked to condone the delay when the statute or the rules framed thereunder specifically prescribes a period within which; the appeal has to be filed and provides for the period within which condonation could be effected by the W.P.(C) No.29615 of 2014 - B **5** appellate authority. 9. Another Division Bench of this Court considered the appeal provision in the Kerala Toddy Workers Welfare Fund Act, 1969 in **Prasad** v. **State of Kerala [1999(2) KLT 531]** . The challenge was against Section 8(5) of the said Act which provided 60 days time for maintaining an appeal and did not provide for any time in which the delay could be condoned. The failure to provide for such delay codonation was challenged as arbitrary and in the alternative; application of Section 5 of the Limitation Act was pleaded. This Court held so:- The special statute does not contain a provision making the provisions of S.5 of the Limitation Act applicable. Therefore, the question of condonation of delay invoking that provision does not arise at all. In the instant case, the period has already been prescribed under the statute. There is no inherent right of appeal as contended by the appellants. 10. Apposite also would be a reference to **Commissioner of Sales Tax, Uttar Pradesh v. Parson Tools and Plants, Kanpur. reported in [(1975) 35 STC 413]** , a passage of which; is quoted in **Krishna Poduval** (supra) and extracted hereunder:- W.P.(C) No.29615 of 2014 - B **6** "Thus the principle that emerges is that if the legislature in a special statue 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 up to a specified time-limit and no further, then the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of S.14(2) of the Limitation Act. We have said enough and we may say it again that where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the court to give full effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the law-giver; more so if the statute is a taxing statute. We will close the discussion by recalling what Lord Hailsham has said recently, in regard to importation of the principles of natural justice into a statute which is a clear and complete code by itself: "It is true of course that the courts will lean heavily against any construction of a statute which would be manifestly fair. But they have no power to amend or supplement the language of a statute merely because in one view of the matter a subject feels himself entitled to a larger degree of say in the making of a decision than a statute accords him. Still less is it the functioning of the courts to form first a judgement on the fairness of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment.: W.P.(C) No.29615 of 2014 - B **7** That surely answers the assumption made by the petitioner, however, in the negative. 11. But for the contention with respect to the invocation of Section 5, nothing is stated as to the jurisdictional aspect, the constitutionality of the provisions or the fundamental injustice, which alone would warrant the invocation of Article 226 of the Constitution of India ( **State of H.P. and others** v. **Gujarat Ambuja Cement Ltd. and another [AIR 2005 SC 3936])** . The grounds raised against the assessment made are all factual which should have been agitated before the original authority, which the petitioner failed to do. Then there was an opportunity to file an appeal, which the petitioner failed to avail of. 12. The challenge raised with respect to the period specified in the rules, has to be negatived since it is sanctioned by the statute. One another aspect to be noticed is that, the petitioner though raising a ground with respect to the illegality of the prescription of specified days, within which only, the Tribunal is conferred with the authority to condone the delay does not even now, has a case, that the W.P.(C) No.29615 of 2014 - B **8** petitioner has preferred an appeal before the Tribunal. The contention raised is merely a ruse to tide over the immediate contingency of threat of arrest and stall the recovery for the present. The writ petition is found to be devoid of merit and the same would stand dismissed. Sd/- **K. VINOD CHANDRAN, JUDGE** SB // true copy // P.A To Judge.