Writ Petition No.4607 of 2014

9th March, 2015.

Petitioner Counsel: Shri SHRIKANT SAOJI
Respondent Counsel: Mrs. B.P. MALDHURE

Cases Cited:
Housing Board, Haryana Vs. Housing Board Colony Welfare Association and Ors., (1995) 5 SCC 672 [Para 4,10]
Bhagmal and ors. Vs. Kunwar Lal and Ors., 2010 ALL SCR 2244=AIR 2010 SC 2991 [Para 4,10]
Prabhakar Kerba Dubbewar Vs. State of Maharashtra and Ors., 2009 Cri.L.J. 2595 [Para 4,10]
D. Saibaba Vs. Bar Council of India and Anr., 2003(4) ALL MR 1186 (S.C.)=(2003) 6 SCC 186 [Para 8]

JUDGMENT

JUDGMENT :- The short issue that arises for consideration in this writ petition is whether the period of sixty days for preferring an appeal under the provisions of Section 45-AA of the Employees' State Insurance Act, 1948 (for short 'the said Act') should be reckoned from the date of such order or whether such period should be counted from the date of its actual communication.

2. Rule. Heard finally with consent of learned counsel for the parties.

3. In proceedings under Section 45-A of the said Act, the Deputy Director, Employees State Insurance Corporation directed the petitioner to pay contribution towards the Employees State Insurance for the period from 1-9-2009 to 30-9-2010. This order dated 22-3-2013 was dispatched by the office of the respondent no. 1 to the petitioner by Registered Post Acknowledgment Due on 22-3-2013 and the same was received by the petitioner - society on 28-3-2013. The petitioner - society preferred appeal under the provisions of Section 45-AA of the said Act on 22-5-2013. Along with said appeal, a demand draft for an amount of Rs. 30,000/- was also remitted. On 29-5-2013, the respondent no. 1 informed the petitioner that as aforesaid appeal had been submitted after period of sixty days, the same could not be considered by the competent authority. The petitioner, therefore, moved another application seeking review of aforesaid order. But, by communication dated 29-4-2014, said request was not considered by the respondent no. 1. Accordingly, the petitioner has impugned the order dated 22-3-2013 and the action of respondent no. 1 in refusing to entertain the appeal, in the alternate, it is also prayed that the order passed under Section 45-A of the said Act be set aside.

4. Shri Shrikant Saoji, learned counsel appearing for the petitioner submitted that appeal under Section 45-AA of the said Act was preferred within the period of sixty days from receipt of order passed under Section 45-A of the said Act. He submitted that the period of sixty days ought to be reckoned from the date of receipt of the order and not from the date when it was actually passed. He, therefore, submitted that the appeal had been filed within period of sixty days from 28-3-2013 when the order passed under Section 45-A of the said Act was actually received. In support of aforesaid submission, the learned counsel relied upon the decisions of the Hon'ble Supreme Court in the case of Housing Board, Haryana Vs. Housing Board Colony Welfare Association and ors. reported in (1995) 5 SCC 672 and Bhagmal and ors. Vs. Kunwar Lal and ors. reported in AIR 2010 SC 2991 : [2010 ALL SCR 2244]. He also relied upon the judgment of learned Single Judge of this Court in the case of Prabhakar Kerba Dubbewar Vs. State of Maharashtra and ors. reported in 2009 Cri.L.J. 2595.

5. Learned counsel for the respondents relied upon the affidavit in reply filed on record. It was submitted that as the appeal was filed beyond the period of sixty days, the same was rightly not entertained by the appellate authority. It is further stated that order under Section 45-A of the said Act was passed on 22-3-2013 and the same was immediately sent to the petitioner by registered post on the same day. The appeal, therefore, that was filed on 22-5-2013 was after two days from the statutory period of limitation of sixty days. It is further urged that the expression "the date of such order" in Section 45-AA of the said Act has to be strictly construed and the period of limitation should be calculated from the date of the order. Learned counsel, therefore, sought for dismissal of the writ petition.

6. The learned counsel for the petitioner in reply relied upon the notings made by the respondent no. 1 while considering the appeal filed by the petitioner. He submitted that on 23-5-2013, a note was put up that the appeal was barred by limitation of sixty days.

7. I have carefully considered the aforesaid submissions and I have also gone through the documents filed on record. Provisions of Section 45-AA of the said Act, being relevant are reproduced hereunder.

45-AA. Appellate authority. - If an employer is not satisfied with the order referred to in section 45-A, he may prefer an appeal to an appellate authority as may be provided by regulation, within sixty days of the date of such order after depositing twenty-five per cent of the contribution so ordered or the contribution as per his own calculation, whichever is higher, with the Corporation :

Provided that if the employer finally succeeds in the appeal, the Corporation shall refund such deposit to the employer together with such interest as may be specified in the regulation.

As per aforesaid provisions, the appeal can be preferred "within sixty days of the date of such order". The question, therefore, is the date from which the period of sixty days has to be reckoned.

8. Under the provisions of Section 45-A of the said Act, the Corporation has to determine the contribution to be paid by an employer after giving a reasonable opportunity of being heard to such employer. It is, therefore, evident that provisions of Section 45-A of the said Act contemplate grant of reasonable opportunity and passing of order thereafter. A right is given to an employer who is not satisfied with the order passed under Section 45-A of the said Act to prefer an appeal within sixty days of such order. While it is the contention of the learned counsel for the petitioner that unless there is actual knowledge of the contents of the order passed under Section 45-A of the said Act, the period of limitation for preferring appeal would not commence. On the other hand, according to the learned counsel for the respondents, the words "the date of such order" have to be strictly construed to mean the date of actual order.

In D. Saibaba Vs. Bar Council of India and anr. reported in (2003) 6 SCC 186 : [2003(4) ALL MR 1186 (S.C.)], a provision similarly worded under Section 48-AA of the Advocates Act, 1961 fell for consideration. Said provision reads as under.

48-AA. Review. - The Bar Council of India or any of its committees, other than its disciplinary committee, may of its own motion or otherwise review any order, within sixty days of the date of that order, passed by it under this Act.

Similar question was considered by the Hon'ble Supreme Court regarding the period from which the limitation would commence. In paragraph 9 of aforesaid decision, it has been observed thus :

9. So far as the commencement of the period of limitation for filing the review petition is concerned we are clearly of the opinion that the expression "the date of that order" as occurring in Section 48-AA has to be construed as meaning the date of communication or knowledge of the order to the review petitioner. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart.

The Hon'ble Supreme Court thereafter proceeded to hold that the expression "the date of that order" would mean actual or constructive knowledge of such order. In paragraph 14, it has been observed thus :

14. How can a person concerned or a person aggrieved be expected to exercise the right of review conferred by the provision unless the order is communicated to or is known to him either actually or constructively ? The words, "the date of that order", therefore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed.

9. From the aforesaid, it is clear that in absence of actual or constructive knowledge of the order sought to be challenged, it cannot be said that the period of limitation would commence from the date of the order itself. It is only after getting actual or constructive knowledge of such order that the party concerned can decide whether to challenge such order or not.

10. In Housing Board, Haryana (supra) relied upon by the learned counsel for the petitioner, similar view has been taken while considering provisions of Section 15 of the Consumer Protection Act, 1986 and the Haryana Consumer Protection Rules, 1988. It was observed that the party adversely affected must have a fair and reasonable opportunity of knowing the text, reasons and contents of the order so as to formulate grounds of attack.

The decision in Bhagmal and ors., [2010 ALL SCR 2244] (supra) takes the view that proceedings filed within 30 days from knowledge of the decree passed ought not to have been dismissed by taking a hyper technical view that condonation of delay was not sought. The learned Single Judge in Prabhakar Kerba Dubbewar (supra) has also construed the reckoning of period of limitation from the date of knowledge of the order.

11. From the aforesaid, it is clear that the petitioner got actual/ constructive knowledge about the order passed under Section 45-A of the said Act only on 28-3-2013 when it was received by the petitioner by Registered Post acknowledgment due. The averments in that regard have not been specifically controverted by the respondents. Hence, the period of limitation for preferring appeal under Section 45-AA of the said Act would commence from 28-3-2013 and therefore, the appeal filed by the petitioner on 22-5-2013 was within period of sixty days of such knowledge. It will, therefore, have to be held that the appeal filed by the petitioner was within the prescribed period of limitation. The impugned order, refusing to accept aforesaid appeal on the ground that it was barred by limitation, therefore, cannot be sustained.

In view of the aforesaid, the following order is passed.

(i) It is held that the appeal filed under Section 45-AA of the Employees' State Insurance Act, 1948 by the petitioner is within the limitation. Accordingly, the appeal shall be entertained and decided on merits.

(ii) The petitioner to redeposit amount of Rs. 30,000/- within a period of four weeks from today.

(iii) The appellate authority shall consider aforesaid appeal in accordance with law on its own merits.

Rule is made absolute in aforesaid terms with no order as to costs.

Ordered accordingly.