V. Sreekumar v. Regional Provident Fund Commissioner, Employees' Provident Fund Organisation, Regional Office, Thiruvananthapuram; Recovery Officer, Employees' Provident Fund Organisation, Regional Office, Thiruvananthapuram; Union of India; Employees' Provident Fund Appellate Tribunal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** ## **WP(C).No.31480 OF 2012(H)** ## **PETITIONER:** ## **V.SREEKUMAR** **SON OF P.G.VASUDEVAN PILLAI, MANAGING PARTNER, NEELA SUPER BAZAR (MARGIN FREE MARKET), NEAR TOWN UP SCHOOL, BTS ROAD, ATTINGAL, THIRUVANANTHAPURAM-695101.** **BY ADVS.** **SRI.B.ASHOK SHENOY SRI.K.V.GEORGE SMT.C.G.PREETHA SRI.P.N.RAJAGOPALAN NAIR** ## **RESPONDENTS:** - **1 THE REGIONAL PROVIDENT FUND COMMISSIONER EMPLOYEES PROVIDENT FUND ORGANISATION, REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695004.** - **2 THE RECOVERY OFFICER EMPLOYEES PROVIDENT FUND ORGANISATION, REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695004.** - **3 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF LABOUR, SHRAM SHAKTI BHAVAN, RAFI MARG, NEW DELHI-110001.** - **4 EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL CORE 2, 4TH FLOOR, SCOPE MINAR, LAXMI NAGAR DISTRICT CENTRE, LAXMI NAGAR, NEW DELHI-110092.** ## **BY ADV. SMT.T.N.GIRIJA, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.31480 OF 2012(H) 2 ## **JUDGMENT** ## **Dated this the 30th day of March 2021** Establishment of the petitioner was covered as per the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, hereinafter called, 'Act, 1952' and the consequent Rules thereto and Regulations framed thereunder. The grievance of the petitioner is that the Provident Fund Authorities have included the partners of the firm so as to arrive at the conclusion that the firm has 20 employees and thereby liable to be covered under the provisions of the Act, 1952. According to the petitioner, petitioner did not prefer an appeal since in Exhibit P1 order itself there is clear arbitrariness and illegality liable to be interfered with by this Court under Article 226 of the Constitution of India. 2. Learned counsel has also invited my attention to Exhibit R1(a) order passed by the Employees' Provident Fund Appellate Tribunal, New Delhi, in ATA No.659(7)2004, wherein the determination order was set aside and the matter was remanded back directing the EPF authority to determine the staff strength of the appellant by excluding the partners and appellant was directed to appear before the authority within the time frame fixed in the said order. It is also contended that rule 7(2) of the Tribunal (Procedure) Rules, 1997 is illegal, ultravirus, void and unenforceable since it prescribes a special limitation period WP(C).No.31480 OF 2012(H) 3 overlooking the provisions of the Limitation Act, 1963. It is also contended that excluding the partners of the firm, the partnership firm is not having sufficient employee strength so as to covered under the Act, 1952. 3. On the other hand, on the basis of the counter affidavit filed by the Regional Provident Fund Commissioner, learned counsel appearing for the respondents, submitted that the determination order passed by the Regional Provident Fund Commissioner is in accordance with law. To substantiate the said contentions, the muster roll as well as various other documents are produced to show that the firm has 21 employees other than the partners and further that as contended by the petitioner, the partners are not included in the final determination order passed by the Employees' Provident Fund Commissioner. 4. I have heard learned counsel for petitioner, learned counsel appearing for respondent and perused the pleadings and materials on record. 5. The first question that comes up for consideration is, whether any manner of interference is warranted to Exhibit P1 order passed by the Regional Provident Fund Commissioner ? On going through Exhibit P1, I am of the considered opinion that, the conclusions were arrived at by the statutory authority, taking into account various factual circumstances and documents that were maintained by the firm. It is clear that as per the attested copy of the muster roll for the period 5/2002, the employees strength of the establishment was 21. This aspect is not particularly disputed in the writ petition and moreover, WP(C).No.31480 OF 2012(H) 4 Exhibit R1(e) & (f) documents produced by the 1[st] respondent dated 22.1.2004 viz., the list of employees of Neela Super Bazar, it is clear that as on 5/2002, there were 21 employees in the partnership firm. Therefore, going by the provisions of law, it can be seen that there is no error in Exhibit P1 order passed by the statutory authority and the employees' strength was sufficient enough to cover the establishment as per the provisions of Act, 1952. 6. Petitioner has basically challenged rule 7(2) of the Tribunal (Procedure) Rules, 1997 as a justification to the petitioner not preferring an appeal in contemplation of the provisions of the Act against the final determination order passed by the Regional Provident Fund Commissioner. Merely because a special limitation is prescribed under the Procedure Rules in order to prefer an appeal, that by itself cannot be said to be unconstitutional or arbitrary, liable to be interfered with by this Court in a proceeding under Article 226 of the Constitution of India. Moreover, a limitation is prescribed under law in order to secure finality to a proceeding and merely because a special limitation is prescribed to prefer an appeal, that doesn't mean that the procedure prescribed for the purpose of preferring an appeal becomes arbitrary and illegal. 7. This question was considered by the Apex Court in **Chattisgarh State** **Electricity Board v. Central Electricity Regulatory Commission** (2010(2)KLT SN 34 (C.No.43) SC] and held as follows: - “12. In Hukumdev Narain Yadav v. L.N. Mishra (1974) 2 SCC 133, this Court WP(C).No.31480 OF 2012(H) 5 interpreted Section 29(2) of the Limitation Act in the backdrop of the plea that the provisions of that Act are not applicable to the proceedings under the Representation of the People Act, 1951. It was argued that the words "expressly excluded" appearing in Section 29(2) would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. While rejecting the argument, the three-Judge Bench observed: "...........what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation.(emphasis supplied) 13. Section 34(3) of the Arbitration and Conciliation Act, 1996, which is substantially similar to Section 125 of the Electricity Act came to be interpreted in Union of India v. Popular Construction Company (2001) 8SCC 470. The precise question considered in that case was whether the provisions of Section 5 of the Limitation Act are applicable to an application challenging an award under Section 34 of the Arbitration and Conciliation Act, 1996. The twoJudge Bench referred to earlier decisions in ManguRam v. Municipal Corporation of Delhi (1976) 1 SCC 392, VidyacharanShukla v. Khubchand Baghel AIR 1964 SC 1099, Hukumdev NarainYadav v. L.N. Mishra (supra), Patel Naranbhai Marghabhai v. Dhulabhai Galbabhai (1992) 4 SCC 264 and WP(C).No.31480 OF 2012(H) 6 ## held: "12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are "but not thereafter" used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase "but not thereafter" wholly otiose. No principle of interpretation would justify such a result. 16. Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award "in accordance with" sub-section (2) and sub-section (3). Subsection (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, sub-section (3) would not be an application "in accordance with" that subsection. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that "where the time for making an application to set aside the arbitral award under Section 34 has expired ... the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court". This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to "proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow" (Section 17). Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the WP(C).No.31480 OF 2012(H) 7 court's powers by the exclusion of the operation of Section 5 of the Limitation Act."(emphasis supplied). 14. In Singh Enterprises v. C.C.E., Jamshedpur and others (supra), the Court interpreted Section 35 of Central Excise Act, 1944, which is pari materia to Section 125 of the Electricity Act and observed: " The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short "the Limitation Act") can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days' time can be granted by the appellate authority to entertain the appeal. The proviso to sub- section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period." (emphasis supplied) WP(C).No.31480 OF 2012(H) 8 The same view was reiterated in Commr. of Customs, Central Excise v. Punjab Fibres Ltd. (2008) 3 SCC 73. 15. In Commissioner of Customs and Central Excise v. Hongo India Private Limited and another (2009) 5 SCC 791, a three-Judge Bench considered the scheme of the Central Excise Act, 1944 and held that High Court has no power to condone delay beyond the period specified in Section 35-H thereof. The argument that Section 5 of the Limitation Act can be invoked for condonation of delay was rejected by the Court and observed: "30. In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under Section 35-G and reference application to the High Court under Section 35-H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act. 32. As pointed out earlier, the language used in Sections 35, 35- B, 35EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence WP(C).No.31480 OF 2012(H) 9 of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. 35. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court." (emphasis supplied) 16. In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of WP(C).No.31480 OF 2012(H) 10 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. 17. The judgment in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker (supra) on which reliance has been placed by Shri Ravi Shankar Prasad has no bearing on this case. The issue considered in that case was whether Section 5 of the Limitation Act can be invoked for condoning the delay in filing an appeal under Section 18 of the Kerala Rent Control Act. A two-Judge Bench interpreted Section 18 of the Kerala Rent Control Act and held that even though that section is a special provision, in the absence of any indication of maximum period within which the appeal can be entertained by the Appellate Authority, Section 5 of the Limitation Act would get attracted. It is significant to note that there is no provision in the Kerala Rent Control Act similar to the one contained in proviso to Section 125 of the Electricity Act, Section 34(3) of the Arbitration and Conciliation Act and Section 35(1) or 35H of the Central Excise Act, 1944. Therefore, the ratio of Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker (supra) cannot be invoked for declaring that this Court has the power to entertain an appeal under Section 125 of the Electricity Act after120 days counted from the date of communication of the decision or order of the Tribunal. 18. The next question which requires consideration is as to what is the date of communication of the decision or order of the Tribunal for the purpose of Section 125 of the Electricity Act. The word `communication' has not been defined in the Act and the Rules. Therefore, the same deserves to be interpreted by applying the rule of contextual interpretation and keeping in view the language of the relevant provisions. Rule 94(1) of the Rules lays down that the Bench of the Tribunal which hears an application or petition shall pronounce the order immediately after conclusion of the hearing. Rule WP(C).No.31480 OF 2012(H) 11 94(2) deals with a situation where the order is reserved. In that event, the date for pronouncement of order is required to be notified in the cause list and the same is treated as a notice of intimation of pronouncement. Rule 98(1) casts a duty upon the Court Master to immediately after pronouncement transmit the order along with the case file to the Deputy Registrar. In terms of Rule 98(2), the Deputy Registrar is required to scrutinize the file, satisfy himself that provisions of rules have been complied with and thereafter, send the case file to the Registry for taking steps to prepare copies of the order and their communication to the parties. If Rule 98(2) is read in isolation, one may get an impression that the registry of the Tribunal is duty bound to send copies of the order to the parties and the order will be deemed to have been communicated on the date of receipt thereof, but if the same is read in conjunction with Section 125 of the Electricity Act, which enables any aggrieved party to file an appeal within 60 days from the date of communication of the decision or order of the Tribunal, Rule 94(2) which postulates notification of the date of pronouncement of the order in the cause list and Rule 106 under which the Tribunal can allow filing of an appeal or petition or application through electronic media and provide for rectification of the defects by e-mail or net,it becomes clear that once the factum of pronouncement of order by the Tribunal is made known to the parties and they are given opportunity to obtain a copy thereof through e-mail etc., the order will be deemed to have been communicated to the parties and the period of 60 days specified in the main part of Section 125 will commence from that date. 19. 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 WP(C).No.31480 OF 2012(H) 12 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 e-mail or by filing an application for certified copy.” Following the afore judgment, a Division Bench of this Court in **Rermal Padmanabhan v. Tribunal For Local Self Government Institutions** [2015(3)KLT 201] the power enjoyed by the Tribunal for Local Self Government constituted under the provisions of the Kerala Panchayat Raj Act, 1994 was considered and held that said special limitation prescribed cannot be said to be arbitrary and illegal and therefore, in accordance with law. Taking into account the said aspect also, I am of the considered opinion that petitioner has not made out any case to interfere with the Tribunal (Procedure) Rules, 1997. Needless to say writ petition fails, accordingly it is dismissed. **Sd/-** **SHAJI P.CHALY** smv **JUDGE** WP(C).No.31480 OF 2012(H) 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1: TRUE COPY OF ORDER NO.KR/16876/ENF.1(4)/2012/13324 DATED 9.2.2012 ISSUED BY 1ST RESPONDENT TO PETITIONER** **EXHIBIT-P2: TRUE COPY OF NOTICE NO.KR/16876/RECOVERY/RO/TVM/2012/9912 DATED 7.12.2012 ISSUED BY 2ND RESPONDENT TO PETITIONER.** ## **RESPONDENTS' EXHIBITS** **EXHIBIT R1(a): TRUE COPY OF THE ORDER OF THE EPF APPELLATE TRIBUNAL DATED 15.12.2010 IN ATA NO.659(7) 2004** **EXHIBIT R1(b): TRUE COPY OF THE PERFORMA FOR COVERAGE GIVEN BY THE EMPLOYER.** **EXHIBIT R1(C): TRUE COPY OF THE COPY OF WAGES REGISTER FROM 4/02 TO 8/02.** **EXHIBIT R1(d): TRUE COPY OF THE FORM 5A DOCUMENT BY THE PETITIONER.** **EXHIBIT R1(e): TRUE COPIES OF THE MUSTER ROLL FOR 4/02 & 5/02** **EXHIBIT R1(f): TRUE COPY OF THE LIST OF EMPLOYEES FROM 5/2000 TO 5/02 GIVEN BY EMOLOYER IN HIS LETTER HEAD ON 22.1.2004.**