C B SHARMA Vs. EMPLOYEES PROVIDENT FUND

JUDGEMENT

(1.) Challenge in the present writ petition is to the order dated 17.11.2009 passed by the Employees' Provident Fund Appellate Tribunal, New Delhi (for short, 'the Tribunal') dismissing the appeal filed by the petitioner against the orders dated 14.1.2008 and 27.12.2007 passed by the Assistant Provident Fund Commissioner, Haryana, Faridabad, under Sections 7-Q and 14B of the Employees Provident Fund & Miscellaneous Provisions Act, 1952 (for short, 'the EPF Act'), as time barred. Learned counsel for the petitioner submitted that the petitioner was earlier carrying on his business from premises bearing House No. 1337, sector 28, Faridabad. It was rented premises. Later on, he constructed his own building and shifted to the new place of business bearing Plot No. 454, Sector 21-D, Faridabad in March 2002. The impugned order was passed by the Assistant Provident Fund Commissioner on 27.12.2007 without serving any notice to the petitioner, as the notices were sent to him on his old address. When the petitioner came to know about the passing of the order, immediately he filed appeal before the Tribunal. However, the same has been dismissed as time barred vide order dated 17.11.2009. The petitioner should have been heard on merits. Delay in depositing the provident fund was on account of the fact that the petitioner firm was in financial crises due to recession.

(2.) On the other hand, learned counsel for respondent Nos. 2 and 3 submitted that notices were sent to the petitioner at the address available on record in the office of the Provident Fund Commissioner. The petitioner firm was brought under the provisions of the Act with effect from 1.7.1995. In case there was any change of address, the petitioner was duty bound to bring it to the notice of the office immediately. The Provident Fund Commissioner cannot be said to be at fault in not sending the notice at the changed address of the petitioner when it was not informed in the office.

(3.) Learned counsel for respondent Nos. 2 and 3 further submitted that after the passing of the impugned order on 27.12.2007, the petitioner had represented to the Regional Provident Fund Commissioner, Faridabad, vide communication dated 26.3.2009 and stated that because of poor financial conditions, he will not be able to pay the damages in lumpsum, rather the same will be paid in installment of Rs. 1 lack per month from April 2009 onwards. In terms thereof, some cheques issued by the petitioner were cleared, whereas one of the cheques was dishonoured on account of which a complaint under Section 138 of the Negotiable Instruments Act (for short the Act').has also been filed against the petitioner. The aforesaid letter of the petitioner clearly established that he was in knowledge of the order passed by the Assistant Provident Fund Commissioner under section 14B of the Act in March 2009. In fact, the petitioner admitted therein that he had received information about the passing of the order on 16.2.2009 through M/s Havell's India Limited, Faridabad. Still as is evident from the impugned order passed by the Tribunal, the appeal was filed on 16.11.2009 i.e. nine months after the date of knowledge of the order passed against the petitioner. In terms of the provisions of Section 7(i) of the Act read with Employees' Provident Fund Appellate Tribunal Procedure Rule, 1997 (hereinafter to be referred as the Rules), the period of filing of appeal to the Tribunal is sixty days. The Tribunal has been empowered to condone the delay in filing the appeal further for a period of sixty days. Delay could not be condoned as even the maximum period for which delay could be condoned had already expired. There was nothing wrong in the order passed by the Tribunal whereby the appeal had been dismissed on account of delay.