High Court Kerala High Court

The Assistant Regional Director vs Sri.Roy.M.Mathew on 1 April, 2009

Kerala High Court
The Assistant Regional Director vs Sri.Roy.M.Mathew on 1 April, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Ins.APP.No. 37 of 2008(A)


1. THE ASSISTANT REGIONAL DIRECTOR,
                      ...  Petitioner
2. THE RECOVERY OFFICER, E.S.I.CORPORATION,

                        Vs



1. SRI.ROY.M.MATHEW, MOTHOOTTU HOUSE,
                       ...       Respondent

                For Petitioner  :SRI.T.V.AJAYAKUMAR

                For Respondent  :SRI.P.RAMAKRISHNAN

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :01/04/2009

 O R D E R
            M.SASIDHARAN NAMBIAR,J.
          ===========================
         INS.APPEAL NO. 37    OF 2008
          ===========================

     Dated this the 1st day of April,2009

                   JUDGMENT

Respondents in I.C.14/1996 before the

Employees Insurance Court, Kollam are the

appellants. The applicant therein is the

respondent. Respondent filed the application

under Section 75 and 77 of Employees State

Insurance Act challenging the demand made by

the appellants. When the Employees Insurance

Court rejected his contentions and dismissed

the application,respondent filed MFA 1208/1999.

As per judgment dated 12.7.2005, this court

upheld the claim of the appellant Corporation

that first respondent is liable to pay

contribution for the omitted wages. But the

appeal was allowed to the limited extent of

considering the question of bar of limitation

on the demand made, as it was contended that

INSA 37/2008 2

the claim raised by the appellant Corporation is

barred under proviso to Section 77(1A) (b) of the

Employees State Insurance Act. After remand the

E.I. Court relying on the Full Bench decision of

this Court in E.S.I. Corporation v. Excel Glasses

Ltd (2003(3) KLT 42 declared that the claim for

contribution for the omitted wages is sustainable

only with regard to five years prior to the date

of demand and the claim beyond that period is

unsustainable. The appeal is filed by the ESI

Corporation challenging the judgment.

2. Learned counsel appearing for the

appellants and respondent were heard.

3. The E.I. Court relying on the Full Bench

decision in E.S.I. Corporation Case (supra) held

that the Corporation is entitled to claim arrears

only for a period of five years prior to the date

of demand in view of Section 77(1A) (b) of E.S.I.

Act. As rightly pointed out by the learned counsel

appearing for the appellant that decision was

INSA 37/2008 3

overruled by the Apex Court in Employees State

Insurance Corporation v. Santhakumar (2007(1) KLT

133.

4. The Full Bench of this court had held that

a plain reading of the statutory provision

contained in Section 77 and the Regulation show

that the Corporation can make a claim within five

years from the date on which that had arisen and if

the proviso to Section 77(1A)(b) was construed as

the period for the Corporation to approach the E.I.

Court, it would be open to the Corporation to make

a claim at any time and if that is permitted the

employer would be greatly handicapped as it would

not have the records for a period beyond five

years. Their Lordships of the Supreme Court

disagreed with the view and construing the

provisions of Section 77(1A) held:-

“29. S.77 of the Act relates

to commencement of proceedings

before the E.S.I. Court. The

INSA 37/2008 4

proviso to sub-section 77 of

the Act cannot independently

give any meaning without

reference to the main

provision, namely S.77 of the

Act. Therefore, he proviso to

Clause (b) of S.77 (1A) of the

Act, fixing the period of five

years for the claim made by the

Corporation, will apply only in

respect of claim made by the

Corporation before the E.S.I.

          Court   and    to   no    other

          proceedings."

It was also held that Section 75(2) empowers the

Corporation to apply to E.S.I Court to determine a

dispute against an employer where it was satisfied

that such a dispute exists and if there is no

dispute in the determination either under Section

45A(1) or under Section 68, the Corporation can

INSA 37/2008 5

straightaway go for recovery of the arrears. Their

Lordships also held that proviso to Section 77

(1A)(b) would apply only to a case where the

Corporation approaches the E.S.I. Court under

section 75(2). In the light of the decision of

the Supreme Court the finding of the E.I Court is

not sustainable.

5. Learned counsel appearing for respondent

then pointed out that even if proviso to Section 77

(1A)(b) is not applicable, the claim for

contribution should have been raised by the

Corporation within a reasonable period and as the

reasonable period depends on the facts of the case

and the E.I. Court did not consider this aspect,

E.I. Court may be directed to consider whether the

demand made was within a reasonable period.

6. The Supreme Court in the said decision

considered the question whether the concept of

reasonable time can be read into the provision,

eventhough it is not specifically provided. After

INSA 37/2008 6

elaborately considering the meaning of reasonable

time, it was held that the factual aspect has to be

examined to decide whether the claim is made within

a reasonable period. As in this case, that

question was not considered and focus was made only

on Section 77(1A) (b) of E.S.I Act. Hence the

employer was permitted to move the E.S.I. Court

within a period of two months and the E.S.I. Court

was directed to determine whether demand was raised

within a reasonable period of time or considering

the question of prejudice, if any, for the delayed

action taken by the Corporation. As this question

was not considered by the E.I.Court and the E.I.

Court solely relied on the Full Bench decision of

this court which was subsequently overruled by the

Apex Court, the question is to be considered

afresh.

The appeal is allowed. The order passed by the

E.I. Court in I.C.NO.14/1996 dated 6.6.2006 is set

aside. E.I. Court, Kollam is directed to

INSA 37/2008 7

determine whether the demand raised by the

Corporation is within a reasonable period of time

and whether the delayed action taken by the

Corporation has resulted any prejudice to the

respondent. It is made clear that respondent has

to deposit the amount covered by the demand less

the disputed amount then only E.I. Court need

consider the question.

M.SASIDHARAN NAMBIAR
JUDGE
tpl/-

M.SASIDHARAN NAMBIAR, J.

———————

W.P.(C).NO. /06

———————

JUDGMENT

SEPTEMBER,2006