Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 371/2015
EMPLOYEE STATE INSURANCE CORPORATION ..... Appellant
Through: Mr. K.P. Mavi, Advocate
versus
SKYLARK CAGERS INTERNATIONAL ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
O R D E R
% 28.10.2015
CM No.24659/2015 (Exemption) and CM No.24658/2015
(Exemption)
1. Allowed subject to just exceptions.
FAO 371/2015 and CM No.24657/2015 (condonation of delay of 557
days in filing the appeal)
2. The captioned application has been moved by the appellant to
seek condonation of delay of 557 days in filing the accompanying
appeal.
2.1 A perusal of the application would show that the appellant
claims that it became aware of the impugned judgment dated
28.01.2014, only on, 13.07.2015.
2.2 There are also averments to the effect that thereafter the process
of obtaining certified copies and legal opinion of the concerned
advocate was triggered. It is averred that the certified copy of the
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impugned order was obtained on 28.08.2015.
2.3 It is further submitted that on 02.09.2015, the competent
authority directed that the legal opinion be obtained from the
concerned advocate for instituting the appeal.
2.4 An averment has also been made to the affect that the
explanation was sought for from the Social Security Officer and the
dealing assistant concerning the delay in obtaining the certified copy
of the judgment.
2.5 Apparently, on 23.09.2015, the opinion of the concerned
advocate was obtained. Resultantly, a decision was taken on
28.09.2015 by the competent authority to file an appeal in the matter.
2.6 It is in this background that the record was made available to
the concerned advocate on 06.10.2015 which led to the institution of
the present appeal. The instant appeal was finally instituted on
08.10.2015.
3. I must record here that according to the Registry, the delay in
filing the appeal amounts to 528 days and not 557 days as calculated
by the appellant.
3.1 Notwithstanding the above, what has clearly come through, is
that, the entire process of obtaining the certified copy began only after
13.07.2015. The learned counsel for the appellant submits that the
delay was on account of the Social Security Officer and the dealing
assistant not attending to their duties as required of them. For this
purpose, the learned counsel adverted to the averments made in
paragraph 6 of the captioned application.
3.2 As noted hereinabove by me, the only averment made is that an
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explanation was sought for the delay. The nature of explanation
sought or the response of the officers concerned has not been set out
in the application. This averment by itself, to my mind, is too broad
for this court to condone the delay between 28.01.2014 and
13.07.2015 which comprises of a substantial part of the total period of
delay, that has occurred, in the institution of the appeal. This delay is
of nearly 18 months.
4. That apart, on merits, the trial court has primarily allowed the
petition of the respondent / plaintiff on the ground that after
01.06.2010, there has been an amendment to the provisions of Section
45A of the Employees State Insurance Act, 1948 (in short the Act).
For the sake of convenience the said Section, as amended, is
extracted hereinbelow :-
“45A. Determination of contributions in certain cases
(1) Where in respect of a factory or establishment no returns,
particulars, registers or records are submitted, furnished or
maintained in accordance with the provisions of section 44 or
any Inspector or other official of the Corporation referred to in
80
sub-section 45 is [prevented in any manner] by the principal
or immediate employer or any other person, in exercising his
functions or discharging his duties under section 45, the
Corporation may, on the basis of information available to it, by
order, determine the amount of contributions payable in
respect of the employees of that factory or establishment:
4
[ PROVIDED that no such order shall be passed by the
Corporation unless the principal or immediate employer or the
person in charge of the factory or establishment has been given
a reasonable opportunity of being heard.]
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5
[Provided further that no such order shall be passed by the
Corporation in respect of the period beyond five years from
the date on which the contribution shall become payable.]
(2) An order made by the Corporation under sub-section (1)
shall be sufficient proof of the claim of the Corporation under
section 75 or for recovery of the amount determined by such
4
order as an arrear of land revenue under section 45B [or the
recovery under section 45C to section 45-I]...”
4.1 This provision is required to be read with Section 77(1-A) and
Explanation (b) alongwith the proviso appended thereto. For the sake
of convenience, the relevant part of Section 77(1-A) is, adverted to
herein below :
77. Commencement of proceedings. — (1) The proceeding
before an Employees’ Insurance Court shall be commenced
by application.
[(1-A) Every such application shall be made within a period
of three years from the date on which the cause of action
arose.
Explanation. — For the purpose of this sub-section, —
(a) the cause of action in respect of a claim for benefit shall
not be deemed to arise unless the insured person or in the
case of dependants’ benefit, the dependants of the insured
person claims or claim that benefit in accordance with the
regulations made in that behalf within a period of twelve
months after the claim became due or within such further
period as the Employees’ Insurance Court may allow on
grounds which appear to it to be reasonable ;
1 [(b) the cause of action in respect of a claim by the Corpo-
ration for recovering contributions (including interest and
damages) from the principal employer shall be deemed to
have arisen on the date on which such claim is made by the
Corporation for the first time :
Provided that no claim shall be made by the Corporation after
five years of the period to which the claim relates ; (c) the
cause of action in respect
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(c). x x x x x
(2). x x x x x”
4.2 The learned counsel for the appellant has submitted that in so
far as Section 77(1-A) of the Act is concerned, same has been
interpreted by the Supreme Court in its judgment passed in ESI
Corporation Vs. C.C. Santh Kumar, (2007) 1 SCC 584 .
4.3 It is therefore the submission of the learned counsel for the
appellant, based on the ratio of the aforementioned judgment that for
carrying out proceedings under Section 45A, no period of limitation is
applicable, especially in the circumstance that in the instant case the
period for which contribution is sought precedes the date of
amendment (i.e. 01.06.2010) made qua said Section.
4.3 Mr. Mavi, at this juncture, indicated that the period involved is
31.03.2006 till 01.04.2007. It is, therefore, Mr. Mavi’s contention
that the aforementioned judgment of the Supreme Court would be
applicable to the facts of the present case.
4.4 In my view, this submission cannot be accepted for the reason
that the amendment to Section 45A clearly stipulates that no order
under the said provision can be passed by the appellant (i.e. the
corporation) in respect of the period beyond 5 years from the date on
which contribution became payable. Even according to the appellant,
contribution became payable only when the notice of demand was
issued which, admittedly, in this case was issued on 21.01.2013. If
one were to calculate the period of demand, it cannot by any stretch
cover the period involved, which is, 01.04.2006 to 31.03.2007.
4.5 I may only indicate here that according to the appellant, it had
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carried out inspection of the respondent’s / plaintiff’s record,
apparently, on 09.10.2011. In this connection, the appellant had also
stated before the trial court that a letter dated 29.08.2012 was issued
to the respondent /plaintiff. The trial court has noted in the impugned
judgment that both these aspects were not proved. In fact, admittedly,
the appellant did not lead any evidence in the matter. Therefore, the
only marker which was available to the trial court was the date of the
demand notice which , as indicated above, is admittedly, 21.01.2013.
4.6 Having regard to the aforesaid, it is quite clear that the
judgment of the Supreme Court is not applicable in the facts of the
case as, an amendment to Section 45A of the Act, has interceded, in
the meanwhile.
5. For the aforesaid reasons, I find no merit in the appeal. The
application for condonation of delay is also bereft of any substance.
Accordingly, both the application for condonation of delay as well as
the appeal are dismissed.
RAJIV SHAKDHER, J
OCTOBER 28, 2015
yg
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