E.S.I.C. vs S.N. Tiwari

K.S. Garewal, J.—Employees State Insurance Corporation has filed this application u/s 5 of the Limitation Act seeking condonation of 37 days delay in filing the appeal against S.N. Tewari's acquittal on the ground that the complainant in this case was a public servant, therefore, the provisions of Section 378 sub-section (5) of the Code of Criminal Procedure would apply which provide that an application for leave to appeal could be entertained upto six months. The complainant was a functionary of the Corporation and was no doubt a public servant.

Learned counsel for the appellant relies on the provision of Section 93 of the Employees State Insurance Act, 1948 in support of his argument that this section would necessarily make the complaint one filed by a public servant because all officers and servants of the Corporation would be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code.

Learned counsel for the respondent has referred to the Delhi High Court judgment reported as Municipal Corporation of Delhi v. Dhani Ram and Another, 1988 (1) RCR (Crl.) 300 : 1988 Cri.L.J. 789 whereunder it was held that the Municipal Corporation of Delhi was not a public servant. Hence period of limitation in an appeal against acquittal under the provisions of the Prevention of Food Adulteration Act, would be 60 days from the date of the acquittal and not six months.

There can be no dispute that officers and servants of the Corporation are public servants and are covered u/s 21 of the IPC but that could not make the complaint filed by one of them as filed by a public servant. The complaint was filed by the Employees State Insurance Corporation, therefore, period of limitation in this case was 60 days and not six months.

In view of the above, we are unable to agree with the learned counsel for the applicant that the appeal was within time. The application is dismissed. Consequently, application for leave to appeal is also dismissed.

Appeal dismissed.