AI Structured Summary
Not yet generated for this judgment
Judgment
F.M. Reis, J.—Heard Shri Mrs. A. Agni, learned Counsel appearing for the appellants and Mr. V. Palekar, learned Counsel appearing for the respondents. All the above appeals were taken up together for hearing as the counsels appearing for the respective parties have pointed out that a common question of law arises in the above appeals. The Appeal Under ESI No. 5/2004 came to be admitted by this Court by order dated 29.07.2004 on the following substantial questions of law :
(a) Whether there is any period of limitation provided in the ESI Act in respect of claim for damages.
(b) Whether the amendment to the ESI Act of the year 1989 is retrospective in nature and whether for a claim in respect of period prior to 1989, provisions of Section 77(1)(b) can be made applicable.
The Appeal Under ESI No. 6/2004 came to be admitted by this Court by order dated 29.07.2004 on the following substantial questions of law :
(a) Whether the Employees State Insurance Act makes any provision of limitation for the purpose of claiming damages u/s 45-B of the Employees State Insurance Act.
(b) Whether there is no bar for limitation to make a claim by the Corporation for payment of damages.
(c) Whether the period as referred to in Sec. 77 of the E.I. Act is the limitation for filing case before the Employees Insurance Court and there is no time limit for recovery of damages and whether the amendment to the Employees Insurance Act of the year 1989 is retrospective and whether for a claim in respect of period prior to 1989 provisions of Section 77(1)(b) can be made applicable.
(d) Whether the proviso to Section 77 refers to claim arising out of cause of action and not the claim arising out of contribution due and period of 5 years referred to in Cl. B of Section 77 of sub. Section 1A cannot be interpreted as 5 years of the period in relation to which amount of contribution is due.
The Appeal Under ESI No. 7/2004 came to be admitted by this Court by order dated 29.07.2004 on the following substantial questions of law.
(a) Whether there is no bar for limitation to make a claim by the Corporation and the cause of action for contribution would arise only after the decision of the Insurance Court under sec. 75 of the Act and until then cause of action cannot be said to have arisen and whether there is no bar of limitation for demanding payment of contribution.
(b) Whether the period as referred to in sec. 77 of the E.I. Act is the limitation for the purpose of cause of action for commencement of proceedings before the Employees Insurance Court and there is no time limit for recovery of contribution amount.
(c) Whether the proviso to sec. 77 refers to claim arising out of cause of action and not the claim arising out of contribution due and period of 5 years referred to in Cl. B of sec. 77 of sub sec. 1A cannot be interpreted as 5 years of the period in relation to which amount of contribution is due and whether when even as per the reasoning of the Trial Court part of the claim was within limitation whether the entire claim could be termed as time barred.
Mrs. A. Agni, learned Counsel appearing for the appellants has assailed the impugned judgments passed by the Court below on the ground that there is no period of limitation prescribed in the Act to claim the contribution under ESI Act. The learned Counsel further pointed out that the provisions of Section 77 of the said Act are applicable only in cases where a claim is put forward before the Court and such period does not hold good for recovery by the appellants from the concerned employer. The learned Counsel further pointed out that in the Appeal Under ESI Nos. 5/2004 and 6/2004, the recovery sought to be made by the appellants is on account of damages whereas in Appeal Under ESI No. 7/2004, the amount sought to be claimed by the appellant is on account of the contribution by the employer in accordance with ESI Act. The learned Counsel further pointed out that there is no period of limitation prescribed under the ESI Act for the recovery of such amount and as such the impugned judgments cannot be sustained and deserve to be quashed and set aside. The learned Counsel in support of her submissions has relied upon the judgment of the Apex Court reported in 2007(1) SCC page 584 in the case of ESI Corpn. V/s C.C. Santhakumar. The learned Counsel as such submitted that the impugned judgments deserve to be quashed and set aside and the matters be directed to be heard by the Court below in accordance with law.
On the other hand, Shri V. Palekar, learned Counsel appearing for the respondents has fairly accepted the position that in view of the judgment of the Apex Court in the case of ESI Corpn. V/s C.C. Santhakumar, (supra ), law is well settled that in claiming damages and for claiming contribution from the employer under the provisions of the Act, Section 77 of the said Act is not applicable and in fact there is no period of limitation prescribed under the Act for such recovery. The learned Counsel further pointed out that in any event, it does not preclude the respondents from raising the contention that the appellants are not entitled for such amount on account of delay and laches. The learned Counsel further pointed out that all the contentions of the respondents on merits of the claim put forward by the respondents are to be decided by the Court below in accordance with law.
I have considered the submissions of the learned Counsels for the respective parties and perused the judgment of the Apex Court in the case of ESI Corpn. V/s C.C. Santhakumar, (supra ) as well as the records in the present proceedings. On perusal of the impugned judgments, it cannot be disputed that the claim put forward by the appellants in Appeal Under ESI Nos.5/2004 and 6/2004 are for recovery of damages under the provisions of the said Act. As far as the claim put forward in Appeal Under ESI No. 7/2004 it is for recovery of the contribution payable by the employer. Considering that there is no factual dispute on that count, I find that the point involved in the present proceedings to the effect that there is no period of limitation prescribed for recovery of such amount is no longer res-integra. The Apex Court in the said judgment at paras 23 and 29 has held thus :
Similarly, no limitation is provided in Chapter VII. It deals with the imposition of penalty or levy of damages upon failure to pay contributions. It consists of sections from 84 to 86-A.
Section 77 of the Act relates to commencement of proceedings before the ESI Court. The proviso to sub-section (1-A)(b) of Section 77 of the Act cannot independently give any meaning without reference to the main provision, namely, Section 77 of the Act. Therefore, the proviso to clause (b) of Section 77(1-A) 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 ESI Court and to no other proceedings.
Considering the said judgment of the Apex Court, I find that the impugned judgments cannot be sustained as the same came to be passed only on the ground that the recovery sought to be made by the appellants is barred by law of limitation in view of Section 77 of the said Act. The Apex Court has categorically held in the said judgment in the case of ESI Corpn. V/s C.C. Santhakumar, ( supra ) that the provisions of Section 77 of the said Act are applicable only to claims made before the ESI Court and no other proceedings. Hence, the impugned judgments cannot be sustained and deserve to be quashed and set aside.
With regard to the contention of the learned Counsel appearing for the respondents to the effect that the appellants are not entitled to claim the amount on the ground of delay and laches it is a matter which is to be decided by the Court below after hearing the parties in accordance with law. This aspect cannot be dealt with by this Court in the present appeals nor any such contention was raised before the Court below whilst disposing of the proceedings by the impugned judgments. Considering the facts and circumstances of the case, I pass the following :-
ORDER
(i) The impugned judgments dated 11.05.2004 passed in Appeal Under ESI Nos. 5/2004 and 6/2004 and judgment dated 23.04.2004 passed in Appeal Under ESI No. 7/2004 are quashed and set aside and the Employees Insurance Case Nos. 14/2000, 15/2000 and 58/2000 are restored to the files of the learned Employee''s State Insurance Court, North Goa, Panaji.
(ii) The learned Judge is directed to decide the said cases a fresh after hearing the parties in accordance with law.
(iii) All the contentions of the parties on merits are left open.