M/S.KEYA FOODS INTERNATIONAL PVT. LTD v EMPLOYEES PROVIDENT FUND ORGANISATION - EPFO, REGIONAL OFFICE KOCHI

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`&`** ``` THE HONOURABLE MRS. JUSTICE C.S. SUDHA ``` ``` MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945 ``` ``` WA NO. 779 OF 2021 ``` ``` AGAINST THE JUDGMENT DATED 09.04.2021 IN WP(C) NO.9727 OF 2021 OF HIGH COURT OF KERALA APPELLANT/PETITIONER: ``` ``` M/S.KEYA FOODS INTERNATIONAL PVT. LTD KUTHITYATHODE, THURAVOOR P.O., ALAPPUZHA-688 532, REPRESENTED BY ITS DIRECTOR. ``` ``` BY ADVS. MANU GOVIND RAHUL SURENDRAN ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 THE EMPLOYEES PROVIDENT FUND ORGANISATION - EPFO REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, KALOOR, KOCHI-682 017, REPRESENTED BY THE PROVIDENT FUND COMMISSIONER, KOCHI.`** - **`2 ASSISTANT PROVIDENT FUND COMMISSIONER, KOCHI, EMPLOYEES PROVIDENT FUND ORGANISATION, REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, KALOOR, KOCHI - 682 017.`** - **`3 THE PRESIDING OFFICER THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT, ERNAKULAM - 682 016.`** ``` BY ADV S.PRASANTH R1 & R2 BY SRI.P.VIJAYAKUMAR ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.A.No.779 of 2021 2 **AMIT RAWAL & C.S. SUDHA, JJ. -------------------------------------------------** W.A.No.779 of 2021 **-----------------------------------------------------** Dated this the 12[th] day of February, 2024 ## **JUDGMENT** ## **Amit Rawal , J .** Order of the Assessing Authority passed under Section 7A of the Employees’ Provident Funds & Miscellaneous Provisions Act dated 17[th] of January, 2019 as per the provisions of Section 7-I of the EPF & MP Act is assailable within sixty (60) days and with a condonation of delay if filed within another 60 days (total 120 days). Appeal was preferred after expiry of three months, i.e., on 08[th] of July, 2019; whereas limitation expired in April, 2019. Despite the fact that the Tribunal had passed the order, jurisdiction of this Court was invoked by W.P.(C)No.10669 of 2020. This Court, (one of us [AR(J)] while sitting in Single Bench) dismissed the writ petition vide judgment (Ext.P5) dated 01[st] of June, 2020. 2. Writ Appeal bearing No.195 of 2021 was preferred. Division Bench of this Court permitted the writ W.A.No.779 of 2021 3 petition earlier filed (W.P.(C)No.10669 of 2020) to be withdrawn for, the appellant/petitioner had not assailed the order of the appellate authority/Tribunal. It is in that background Writ Petition bearing No.9727 of 2021 was preferred. 3. Learned Single Bench vide judgment dated 09[th] of April, 2021 in W.P.(C)No.9727 of 2021 held as under:- “ _The respondent Provident Fund Organization had determined the money due from the employer by conducting enquiry under Section 7A of the EPF Act and accordingly order at Ext.P2 came to be passed. The petitioner challenged that order by filing an Appeal bearing no.296 of 2019 and that appeal came to be dismissed on 03.01.2020, Ext.P4 by holding that the same is barred by limitation. The petitioner challenged the order under Section 7A of the EPF Act, Ext.P2, so also the appellate order by filing writ petition bearing number WP(C) 10669/2020, which was dismissed on 01.06.2020, Ext.P5. The said judgment was carried in writ appeal bearing No. 195/2021, was withdrawn by the petitioner, Ext.P6. The petitioner sought liberty to invoke the remedies in the manner known to law._ _4. Now again, the petitioner has come back to this Court challenging the order at Ext.P2 and the appellate order at Ext.P4 on the ground that principles of natural justice are not followed. Such submissions are now not open for the petitioner, particularly when the earlier petition was dismissed and writ appeal was also disposed of as withdrawn. Perusal of the order at Ext.P2 shows that_ W.A.No.779 of 2021 4 _principles of natural justice were followed. The petitioner was noticed, he had appeared and participated in the matter for some time._ _In this view of the matter, the petition is devoid of merit and the same is accordingly dismissed.”_ 4. The contention of the appellant is that the finding rendered by the Single Bench is off the record as in the earlier round of litigation, concededly, there was no challenge to the order of the appellate authority/Tribunal dated 03[rd] of January, 2020. 5. On the other hand, learned counsel appearing on behalf of the respondents submitted that, even if the Single Bench has not noticed regarding the limitation period, there is no denial that in the earlier round there was no challenge to the order of the appellate authority/Tribunal. Second writ petition was not maintainable as delay beyond the period prescribed in the Act cannot be condoned. In support of the contention relied upon the judgment of the Supreme Court in **Assistant Commissioner (CT) LTU, Kakinada & Ors. v** . **M/s.Glaxo Smith Kline Consumer Health Care** W.A.No.779 of 2021 5 **Limited** [AIR 2020 SC 2819] wherein it was mentioned that as per the provisions of Section 29 of the Limitation Act, when the applicability of Limitation is excluded, the provisions prescribed under the statute have to be read in strict sense. 6. We have heard counsel for the parties and appraised the paper book. 7. On an analysis of the judgment of the Single Bench, no doubt, the findings rendered are not as per the fact. on record for, in the earlier round of litigation admittedly the appellant/petitioner had not challenged the order of the Tribunal. Be that as it may. The Division Bench though had granted the liberty for treating the writ petition as withdrawn to file appeal, could not be brought the provisions of Section 7-I of the EPF & MP Act, which reads as under:- _“_ _**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 subsection (4), of section 1, or section 3, or sub-section (1)_ W.A.No.779 of 2021 6 _of section 7A, or section 7B_ _[except an order rejecting an application for review referred to in sub-section (5) thereof], or section 7C, or section 14B, may prefer an appeal to a Tribunal against such notification or order._ _(2) Every 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.”_ 8. On perusal of the aforementioned provision, it is evident that once the applicability of the Limitation Act is excluded by providing a particular period and time to file the appeal cannot be condoned in view of the ratio decendi culled out in the judgment in **Assistant Commissioner (CT) LTU, Kakinada** cited (supra), wherein, in paragraphs 19 and 20, it has been held as under:- _19. Arguendo, reverting to the factual matrix of the present case, it is noticed that the respondent had asserted that it was not aware about the passing of assessment order dated 21.6.2017 although it is admitted that the same was served on the authorised representative of the respondent on 22.6.2017. The date on which the respondent became aware about the order is not expressly stated either in the application for condonation of delay filed before the appellate authority, the affidavit filed in support of the said_ W.A.No.779 of 2021 7 _application or for that matter, in the memo of writ petition. On the other hand, it is seen that the amount equivalent to 12.5% of the tax amount came to be deposited on 12.9.2017 for and on behalf of respondent, without filing an appeal and without any demur − after the expiry of statutory period of maximum 60 days, prescribed under Section 31 of the 2005 Act. Not only that, the respondent filed a formal application under Rule 60 of the 2005 Rules on 8.5.2018 and pursued the same in appeal, which was rejected on 17.8.2018. Furthermore, the appeal in question against the assessment order came to be filed only on 24.9.2018 without disclosing the date on which the respondent in fact became aware about the existence of the assessment order dated 21.6.2017. On the other hand, in the affidavit of Mr. Sreedhar Routh, Site Director of the respondent company (filed in support of the application for condonation of delay before the appellate authority), it is stated that the company became aware about the irregularities committed by its erring official (Mr. P. Sriram Murthy) in the month of July, 2018, which pre−supposes that the respondent must have become aware about the assessment order, at least in July, 2018. In the same affidavit, it is asserted that the respondent company was not aware about the assessment order, as it was not brought to its notice by the employee concerned due to his negligence. The respondent in the writ petition has averred that the appeal was rejected by the appellate authority on the ground that it had no power to condone the delay beyond 30 days, when in fact, the order examines the cause set out by the respondent and concludes that the same was unsubstantiated by the respondent. That finding has not been examined by the High Court in the impugned judgment and order at all, but the High Court was more_ W.A.No.779 of 2021 8 _impressed by the fact that the respondent was in a position to offer some explanation about the discrepancies in respect of the volume of turnover and that the respondent had already deposited 12.5% of the additional amount in terms of the previous order passed by it. That reason can have no bearing on the justification for non−filing of the appeal within the statutory period. Notably, the respondent had relied on the affidavit of the Site Director and no affidavit of the concerned employee (P. Sriram Murthy, Deputy Manager−Finance) or at least the other employee [Siddhant Belgaonker, Senior Manager (Finance)], who was associated with the erring employee during the relevant period, has been filed in support of the stand taken in the application for condonation of delay. Pertinently, no finding has been recorded by the High Court that it was a case of violation of principles of natural justice or non−compliance of statutory requirements in any manner. Be that as it may, since the statutory period specified for filing of appeal had expired long back in August, 2017 itself and the appeal came to be filed by the respondent only on 24.9.2018, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to the respondent at all._ _20. Reverting to the contention that the respondent having failed to assail the order passed by the appellate authority, dated 25.10.2018 rejecting the application for condonation of delay, the assessment order passed by the Assistant Commissioner, dated 21.6.2017 stood merged, need not detain us in view of the exposition of this Court in_ _**Raja Mechanical Company Private Limited vs. Commissioner of Central Excise, Delhi−I** . It is well settled that rejection of delay application by the appellate_ W.A.No.779 of 2021 9 _forum does not entail in merger of the assessment order with that order.”_ 9. In the instant case also the appeal concededly was filed after expiry of three months of the limitation which expired in April, 2019 whereas appeal was filed in July, 2019. Order of the appellate authority/Tribunal dismissing the appeal is perfectly legal and justified. No ground for interference is made out. Writ Appeal is dismissed. Sd/- **AMIT RAWAL JUDGE** Sd/- **C.S. SUDHA** **JUDGE** skj