Appeal No 313 of 1993
From the Judgment and Order dated 9101992 of the Karnataka High Court in Election Petition No 8 of 1991
PN Misra for the Appellants
RN Narasimha Murthy EC Vidyasagar and Gopal Singh for the Respondents
The Judgement of the Court was delivered by BP JEEVAN REDDY J Heard the counsel for the parties
Leave granted
This appeal raises the question whether Section 5 of the is applicable to a recrimination notice given under Section 97 of the Representation of People Act 1951
The learned Single Judge of the Karnataka High Court has held that it does not
His view is questioned by the returned candidate first respondent in the election petition before us
The first respondent in the Election Petition who shall hereinafter be referred to as appellant  was declared elected from Koppal parliamentary constituency during the general elections held for the 10th Lok Sabha
He contested on the Congress 1 ticket
The election petitioner referred to hereinafter as the first respondent had also contested from the said constituency on the ticket of Janata Dal
Having lost the election the first respondent filed an election petition No 8 of 1991 for a declaration that the election of the appellant from the said parliamentary constituency was void and for a further declaration that he himself has been duly elected therefrom
Since the appellant and some other respondents to the election petition could not be served in the ordinary course the High Court directed publication of notice in a Kannada Daily Newspaper
It was so published on 4111991 fixing the date of appearance of the respondents on 25111991
The appellant first respondent in the election petition ap peared before the High Court on 4111991 and sought time for filing his written statement which he did on 6111992
Thereafter on 2111992 he submitted the recrimination notice under Section 97 of the Act
By the said notice the appellant expressed his intention to give evidence to prove that 316 the election of the first respondent would have been void if he had been  he returned candidate and a petition had been presented calling in question his election
Along with the recrimination notice he filed an application under Section 5 of the requesting the High Court to condone the delay in filing the same for the reasons stated therein
According to the proviso to Section 97j notice of such intention should have been given to the High Court within 14 days from the date of commencement of trial
Admittedly the appellant gave notice under Section 971 beyond the period of 14 days and hence the application under Section 5
For a proper appreciation of the question arising herein it would be appropriate to notice the relevant provisions of the Representation of People Act besides Section 292 of the 
First the provisions of the Representation of People Act
Section 97 reads as follows 97
Recrimination when seat claimed 1 When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he has within fourteen days from the date of commencement of the trial given notice to the High Court of Ins intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively
2Every notice referred to in sub section 1 shall be accompanied by the statement and particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner
 Sub section 1 of Section 97 permits the returned candidate or any other party to give evidence in an election petition seeking a declaration that any candidate other than the returned candidate has been duly elected to 317 prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election
Sub section 2 says that such a notice shall be accompanied by a statement and particulars required by Section 83 in the case of an election petition and shall also be signed and verified in the same manner
Proviso to sub section 1 says that such a notice shall be given within fourteen days from the date of commencement of trial and the security and further security referred to in Sections 117 and 118 respectively is furnished
The expression commencement of trial has been defined in Explanation to Sub section4 of Section 86
The Explanation reads For the purposes of this sub section and of Section 97 the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition According to the said definition the notice of the recrimination should have been given in this case within fourteen days of 41191
Admittedly it was submitted beyond the said period
Section 83 deals with contents of petition
According to sub section 1 an election petition a shall contain a concise statement of the material facts on which the petitioner relies b shall set forth particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of all the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each of such practice and c shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure 1908 for the verification of pleadings
The proviso to sub section 1 says that where a petitioner alleges any corrupt practice the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such practice and particulars therein
Sub section 2 says that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition
Section 117 requires the election petitioner to deposit in the High Court at the time of presenting an election petition a sum of Rs 2000 as security for the costs of the petition in accordance with the rules of the High Court
Section 118 says that no person shall be entitled to be joined as a respondent under Sub section 4 of Section 86 unless he has given such security for costs as the High Court may direct
Section 861 declares that the 318 High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117
 There is no provision in the Representation of People Act 1951 making all or any of the provisions of the applicable to the proceedings under the Act
The appellant however relies upon Section 292 of the 
According to him by virtue of the said provision all the provisions contained in Sections 4 to 24 both inclusive apply to the proceedings under the Act including the recrimination notice under Section 97
Sub section2 of Section 29 which alone is relied upon before us reads Where any special or local law prescribes for any suit appeal or application a period of limitation different from the period prescribed by the Schedule the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit appeal or application by any special or local law the provisions contained in Sections 4 to 24 inclusive shall apply only insofar as and to the extent to which they are not expressly excluded by such special or local law In HN Yadav vs LN Misra   this court held that the words expressly excluded  occurring in Section 292 of the do not mean that there must necessarily be express reference in the special or local law to the specific provisions of the  the operation of which is sought to be excluded
It was held that if on an examination of the relevant provisions of the Special Act it is clear that the provisions of the are necessarily excluded then the benefits conferred by the cannot be called in aid to supplement the provisions of the Special Act
That too was a case arising under the Representation of People Act and the question was whether Section 5 of the is applicable to the filing of the election petition
The test to determine whether the provisions of the applied to proceedings under Representation of People Act by virtue of Section 292 was stated in the following words The applicability of these provisions has therefore to be judged not from the terms of the but by the provisions of the Act relating to the fifing of election 319 petitions and their trial to ascertain whether it is a complete code in itself which does not admit of the application of any of the provisions of the mentioned in Section 292 of that Act On an examination of the provisions of the Representation of People Act and the earlier decisions of the Court it was held that the Representation of People Act is a self contained code and accordingly it was concluded that the provisions of section 5 of the do not govern the filing of election petitions
or their trial
 This decision in our view practically concludes the question before us inasmuch as the Act equates a recrimination notice to an election petition
The language of Section 97 makes the said fact abundantly clear
The relevant words are the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election
 The proviso to sub section 1 applies the provisions of Sections 117 and 118 to such a recrimination notice
It may be noticed that for non compliance with the requirement of Section 117 an election petition is liable to be dismissed by virtue of sub section 1 of section 86
Sub section 2 of Section 97 further says that the notice referred to in sub section 1 shall be accompanied by the statement and particulars required by Section 83 in the case of an election petition and shall be signed and verified in like manner
 We may also say that the proviso to sub section 1 of Section 97 which requires such a notice to be given to the High Court within fourteen days of the date fixed for the respondents to appear before the High Court to answer the claim or claims reading the definition of commencement of trial into it has also a particular meaning and object behind it
The idea is that the recrimination notice if any should be filed at the earliest possible time so that both the election petition and the recrimination notice are tried at the same time
The recrimination notice is thus comparable to an election petition
If Section 5 does not apply to the filing of an election petition it does not equally apply to the filing of the recrimination notice
In view of the above position we do not think it necessary to deal with the several decisions cited before us relating to the interpretation of Sub section 2 of Section 29 of the 
The counsel for the appellant brought to our notice a decision of this 320 Court holding that the provisions of the Section 122 of the Limitation Act 1908 are applicable to an appeal under Section 116A of the Representation of People Act 1951 viz VC Shukla vs Khubchand Baghel and Ors 1964 6 SCR129
It is also brought to our notice that certain High Courts have taken the view that both Section 5 and Section 122 of the Limitation Act are applicable to the proceedings under the Act
Reference is to  1968 Calcutta 69 and 1976 89 Madras La Weekly 32
So far as the decision of this court in VC Shukla is concerned it is a decision dealing with the applicability of the provision in Section 122 of the Limitation Act to an appeal preferred under Section 116A and not with the filing of an election petition
The said decision was considered and distinguished in HN Yadav on the above basis
At page 42 of the SCR the Division Bench which decided HN Yadav distinguished the decision in VC Shukla in the following words  Vidyacharan Shukla s case supra is one which dealt with an appeal under the Act while what we have to consider is whether the Limitation Act is at all applicable to elec tion petitions under the Act
Thirdly section 292 of the new Limitation Act does not now give scope for this controversy whether the two limbs of the old section are independent or integrated
No doubt section 5 would now apply where section 292 is applicable to even applications and petitions unless they are expressly excluded
Even assuming that the Limitation Act applies to election petitions under the Act what has to be seen is whether section 5 is excluded from application to such petitions
 The Division Bench then proceeded to examine whether the applicability of Section 5 is excluded in the matter of filing of an election petition and came to the conclusion that it was so excluded
This aspect has already been dealt with hereinabove
So far as the decisions of the High Courts are concerned we cannot agree with them in so far as the applicability of Section 5 to filing on election petition andor recrimination notice is concerned in view of the decision of this Court in HN Yadav
For the above reasons the appeal fails and is accordingly dismissed with costs
NPV Appeal dismissed


Summary:
The Respondent Hotel which was also running a Bar for sometime closed down its business after several years
Th Inspectors of the appellant Corporation verified the records of the establishment and reported that at certain point of time the employment strength of the establishment including the bar was more than 19
Therefore the establishment was treated as covered provisionally under the Employees State Insurance ESI Act 1948
Since the final date of coverage could be decided only after verifying all the records the Respondent was asked to produce them
The Respondent did not avail the opportunity afforded to it Though the Respondent sent Its explanation It was not acceptable to the appellant Corporation and so it passed a detailed order under S45 A calling upon the Respondent to pay the contribution with interest at 6 failing which It would be recovered as arrears of land revenue
Since this order and the reminder thereto did not evoke any response from the Respondent the appellant sent a claim in Form 19 to the District Collector requesting him to recover the said amount The Respondent challenged the proceedings by filling an application under S75 of the Act before the ESI Court which upheld the assessment made by the appellant Corporation but stated that recovery steps were not justified after the closure of the establishment and only prosecution as contemplated section 85 of the Act was attracted
The appellant Corporation preferred an appeal against the said decision of ESI Court The High Court dismissed the appeal and held that since the scheme was made after the closure of the establishment the 219 220 appellant was not justified in proceeding against the Respondent Being aggrieved by the judgment of the High Court the appellant Corporation preferred the present appeal contending that so long as the establishment was covered by the provisions of the Act the Respondent could not circumvent its liability by claiming that before actual recovery proceedings it had closed down the establishment
Allowing the appeal this Court HELD 11
Admittedly the hotel industry like that of the respondent has been notified by the Government thus extending the provisions of the to hotel industry
Therefore on the date of commencement of its business namely 11785 there was a liability on the Respondent to contribute to the ESI fund
Under section 40 the primary liability is on the employer to pay not only his contribution but also the employees contribution
As such the employer can not plead that since he had not deducted the employees  contribution from their wages he could not be made liable for the same
After all when he makes employees  contribution he is entitled to deduct from the wages
Thus by force of the application of the statutory provisions the liability to contribute during the relevant period namely 11785 to 31388 arose
226E G 12
The Insurance Court as well as the High Court have correctly upheld the demand for contribution
But it is rather strange to conclude that the demand could not be enforced against a closed business
If this finding were to be accepted it would not promote the scheme and avoid the mischief
On the contrary it would perpetrate the mischief
Any employer can easily avoid his statutory liability and deny the beneficial piece of social security legislation to the employees by closing down the business before recovery
That certainly is not the indentment of the Act
It is equally fallacious to conclude that because the employees had gone away there is no liability to contribute
It has to be carefully remembered that the liability to contribute arose from the date of commencement of the establishment and is a continuing liability till the closure
The very object of establishing a common fund under section 26 for the benefit of all the employees will again be thwarted if such a construction is put
227D F RM
Lakshmanamurthy vs The Employees  State Insurance Corporation Bangalore  relied on
221 2
The proceeding for the recovery is in respect of the dues of contribution which arose prior to the closure on 31388
Therefore it matters little when notice was issued calling upon the establishment to pay the contribution
Such a notice is only a reminder to the employer to discharge his statutory obligation
The appellant corporation is thus entitled to proceed with the recovery proceedings in accordance with law
227H 228A