(Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the Central Government Industrial Tribunal cum Labour Court, Chennai in EPFA No.534 of 2017, quash its order dated 11.04.2019 and directing the Central Government Industrial Tribunal cum Labour Court, Chennai to entertain the appeal filed by the Petitioner.)(through video conference)1. Heard Mr. Anand Gopalan, Learned Counsel appearing for the Petitioner and Mr. V. Sundareswaran, Learned Standing Counsel appearing for the Respondent and perused the materials placed on record, apart from the pleadings of the parties.2. The Respondent by Order No. CHN/84602/PDC/Group/Regl/2015 dated 26.02.2015 had levied penal damages against the Petitioner under Section 14-B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the 'Act' for short). The Petitioner was entitled to prefer appeal against that order under Section 7-I of the Act within a period of 60 days in terms of Rule 7(2) of the Employees' Provident Fund Appellate Tribunal (Procedure) Rules, 1997, before the Appellate Authority, who has been empowered to condone delay in filing such appeal for an extended period of 60 days, if sufficient cause for not preferring appeal within that period is made out. According to the Petitioner, the Order No. CHN/84602/PDC/Group/Regl/ 2015 dated 26.02.2015 passed by the Respondent had not been served by post and that its copy was handed over to the representative of the Petitioner during his visit to the office of the Respondent on 06.07.2015. The appeal against that order had been presented on 03.08.2015 by the Petitioner before the Employees' Provident Fund Appellate Tribunal, New Delhi, which was designated as the Appellate Authority under the Act at that point of time. Later, the Central Government Industrial Tribunal -cum- Labour Court, Chennai has been notified as the Appellate Authority under the Act and that appeal has been transferred to its file as EPFA No. 534 of 2017. When the matter came up for hearing on 11.04.2019, the Appellate Authoirty was of the view that though the Petitioner contended that there was no delay on its part in filing the appeal as the impugned order was served on it personally on 06.07.2015, such plea could not be accepted for want of proof as not a single scrap of document had been filed by the Petitioner in that regard, and it was observed that the appeal is not admitted. Aggrieved thereby, the Petitioner has filed this Writ Petition assailing the order dated 11.04.2019 in EPFA No. 534 of 2017 passed by the Appellate Authority and for directng that the appeal filed by the Petitioner be entertained. It has been brought to notice that after the filing of this Writ Petition, the Appellate Authority by final order dated 25.07.2019 in EPFA No. 534 of 2017 has dismissed that appeal by holding that it has been preferred beyond the maximum period of limitation of 120 days prescribed for the same.3. It is apparent on perusal of the impugned order dated 11.04.2019 as well as the final order dated 25.07.2019 in EPFA No. 534 of 2017 that the Appellate Authority has proceeded on the assumption that the limitation for filing the appeal against the order in terms of Rule 7(2) of the Employees' Provident Fund Appellate Tribunal (Procedure) Rules, 1997, has to be computed from the date it bears in the absence of any evidence produced by the Petitioner to show that it had been received on a later date as claimed. In this context, reference must be made, at once, to the authoritative pronouncement of the Hon'ble Supreme Court of India in Collector of Central Excise, Madras -vs- M/s. M.M. Rubber and Co., Tamil Nadu [(1992) Supp (1) SCC 471] where the date from which limitation has to be reckoned for the purpose of filing appeal against an order by an aggrieved person has been succinctly explained as follows:-“12. It may be seen therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed therefor. The order or decision of such authority comes into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is the date on which the order or decision was passed or made : that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locus paetentiae. Normally that happens when the order or decision is made public or notified in some form or when it can be said to have left his hand. The date of communication of the order to the party whose rights are affected is not the relevant date for purposes of determining whether the power has been exercised within the prescribed time.13. So far as the party who is affected by the order or decision for seeking his remedies against the same, he should be made aware of passing of such order. Therefore courts have uniformly laid down as a rule of law that for seeking the remedy the limitation starts from the date on which the order was communicated to him or the date on which it was pronounced or published under such circumstances that the parties affected by it have a reasonable opportunity of knowing of passing of the order and what it contains. The knowledge of the party affected by such a decision, either actual or constructive is thus an essential element which must be satisfied before the decision can be said to have been concluded and binding on him. Otherwise the party affected by it will have no means of obeying the order or acting in conformity with it or of appealing against it or otherwise having it set aside. This is based upon, as observed by Rajmannar, C.J. in Muthia Chettiar -vs- CIT [ILR 1951 Mad 815 : AIR 1951 Mad 204 : (1951) 19 ITR 402] “a salutary and just principle”. The application of this rule so far as the aggrieved party is concerned is not dependent on the provisions of the particular statute, but it is so under the general law.....18. Thus if the intention or design of the statutory provision was to protect the interest of the person adversely affected, by providing a remedy against the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as commencing from the date of communication of the order. But if it is a limitation for a competent authority to make an order the date of exercise of that power and in the case of exercise of suo moto power over the subordinate authorities' orders, the date on which such power was exercised by making an order are the relevant dates for determining the limitation. The ratio of this distinction may also be founded on the principle that the government is bound by the proceedings of its officers but persons affected are not concluded by the decision.”It would assume significance from the dictum laid down in that ruling that it is crucial to ascertain the actual date on which an order is served on an aggrieved person, having due regard to the extinguishment of the valuable right to appeal against such decision entailing adverse civil consequences, if it has not been exercised within the maximum period of limitation prescribed for the same.4. It is, no doubt, true that the Petitioner had not placed any material before the Appellate Authority to establish that the order No. CHN/84602/PDC/Group/Regl/ 2015 dated 26.02.2015, which was impugned in the appeal in EPFA No. 534 of 2017, had been handed over to him on 06.07.2015 in order to compute limitation from that date, but taking into consideration the principles asseverated in the aforesaid binding decision to which no exception can be taken, it is equally not possible to approve of the unsatisfactory manner in which the Appellate Authority has disbelieved that version of the Petitioner. If the Appellate Authority could not accept the contention that the order appealed against had been handed over in person to the representative of the Petitioner only on 06.07.2015 as claimed without any evidence to butress the same, or if there was a dispute raised by the Respondent regarding the date on which the Petitioner had claimed that the said order had been actually served, it was certainly incumbent upon the Appellate Authority to have called upon the Respondent, who had issued that order, to place materials to show the actual date and the manner in which that order had been delivered to the Petitioner under written acknowledgement for that purpsose. In the instant case, it appears that the Appellate Authority had not carried out that mandatory exercise till the final order dismissing the appeal as time-barred came to be passed.5. Considering these germane aspects of the matter and in order to shorten litigation, this Court during the hearing on 15.07.2020 required the Respondent to produce the records showing the manner and actual date on which the said order No. CHN/84602/PDC/Group/Regl/2015 dated 26.02.2015 was served on the Petitioner along with an affidavit explaining the same. In furtherance thereto, the Respondent has filed Counter-Affidavit dated 05.08.2020 in which it has been stated as follows:-“5. .... it is stated that the order dated 26.2.2015 was dispatched to the address at M/s. Equitas Finance Pvt. Limited, 4th Floor, Temple Tower, No.672, Anna Salai, Nandanam, Chennai 600 035 on 3.3.2015 in which the establishment was functioning. However, Sri M.Robert Gnansekaran, Associate Manager of the establishment appeared on 6.7.2015 and stated that they have not received the order as the establishment has shifted to “Spencer Plaza, 4th Floor, Phase-II, No.769, Anna Salai, Chennai-2 and sought for copy of the order which was provided to him on 6.7.2015. The copy of the order was provided on 6.7.2015.”Conspicuously, that Counter-Affidavit is bereft of the requisite details of postal registration and the Respondent has not produced any proof from the Post Office for having sent that order through `speed post' to the Petitioner or the acknowledgement card or the entries of track consignment from the official website of the Postal Department, which is now made available in public domain. In the Typed-Set filed by the Respondent, an office copy of the Order No. CHN/ 84602/PDC/Group/Regl/2015 dated 26.02.2015 has been produced containing affixture of its office seal of speed post on 03.03.2015 on its first page and with a hand-written endorsement acknowledging its delivery by the representative of the Petitioner on 06.07.2015 on its last page. It also requires to be noticed here that the address of the Petitioner at the end of that order has been typed as 4th Floor, Temple Tower, No.672, Anna Salai, Nandanam, Chennai – 600035, and a handwritten interpolation has been made against the same as shifted to Spencer Plaza, 4th Floor, Phase-II, No.769, Anna Salai, Chennai – 600002. It is well known that Section 27 of the General Clauses Act, 1897, postulates that where a Central Act or Regulations authorized or requires any document to be served by post, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. As already pointed out, inasmuch as no material has been shown for having actually handed over the order to the Post Office for delivering it to the Petitioner, the application of that rule of deemed service cannot be invoked in this case.6. The only possible inference that could be drawn from the incontrovert
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ible fact situation reflected supra is that there is nothing available on record to accept that the Respondent had communicated the Order No. CHN/84602/PDC/Group/ Regl/2015 dated 26.02.2015 to the Petitioner by speed post on 03.03.2015 as claimed and that physical delivery of that order to the Petitioner through any other mode has not been proved at any time earlier prior to the admitted receipt of its copy on 06.07.2015 by its representative at the office of the Respondent. Inasmuch as the appeal had been filed on 03.08.2015, within the prescribed period of limitation of 60 days from that date, it could not have been treated as barred by limitation.7. The result of the foregoing discussion is that the impugned order dated 11.04.2019 as well as the final order dated 26.02.2015 in EPFA No. 534 of 2017 passed by the Appellate Authority cannot be sustained and accordingly, they are set aside. The appeal in EPFA No. 534 of 2017 is restored to file and shall be listed for next hearing before the Appellate Authority on 30.09.2020, on which date the parties shall appear through their respective Counsel to continue the proceedings in that appeal in accordance with law.In the upshot, the Writ Petition is ordered on the aforesaid terms. Cosequently, the connected Miscellaneous Petition is closed. No costs.