IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 Ins.APP.No. 83 of 2005() ------------------------ JUDGMENT IN I.C.NO.81/2002 DATED 9/06/2005 OF THE EMPLOYEES' INSURANCE COURT,ALAPPUZHA .................... APPELLANTS/OPP. PARTIES: ------------------------- 1. THE REGIONAL DIRECTOR, E S I CORPORATION, PANCHADEEP BHAVAN, N S ROUND, THRISSUR-20. 2. THE RECOVERY OFFICER, ESI CORPORATION, PANCHADEEP BHAVAN, THRISSUR-20. BY ADV. SMT.T.D.RAJALAKSHMI, SC, ESI CORPN. RESPONDENT/APPLICANT: --------------------- M/S.SECURE WELL, LIBI BUILDINGS, JEWS STREET EXTENSION, KOCHI 682 035, REPRESENTED BY ITS MANAGING PARTNER MR.K.I.GEORGE. BY ADV. SRI.A.V.XAVIER - R1 THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 30/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: scm M.N.KRISHNAN, J. -------------------------- Ins. Appeal No. 83 OF 2005 --------------------- Dated this the 30th day of July, 2008 JUDGMENT This appeal is preferred against the judgment of the Employees' Insurance Court, Alappuzha, in I.C.81/02. The applicant before the court below was a partnership firm engaged in running of security services. The question that arises for determination is whether various allowances paid by the applicant to the security personnel employed by them namely traveling allowances, washing allowances, clothing allowances and house rent allowances etc. would come under the definition of wages or not for a period from 4/1984 to 7/1990. 2. Relying on a Full Bench decision of this court reported in E.S.I. Corporation v. Excel Glasses Ltd. [2003 (3) KLT 42 (F.B.)] the court below held that it is barred by limitation and no action can be initiated in a case where it is claimed after a period of five years. But that position has been changed and the decision of this court has been reversed by the Apex court in Employees State Insurance Ins. Appeal No.83/05 2 Corporation v. Santhakumar [2007 (1) KLT 133]. The Apex court held as follows: “If the period of limitation, prescribed under proviso (b) of S.77 (1A) is read into the provisions of S.45A, it would defeat the very purpose of enacting Sections 45A and 45B. The prescription of limitation under S.77(1A)(b) of the Act has not been made applicable to the adjudication proceedings under S.45A by the legislature, since such a restriction would restrict the right of the Corporation to determine the claims under S.45A and the right of recovery under S.45B and further, it would give a benefit to an unscrupulous employer. The period of five years fixed under Regulation 32(2) of the Regulations, is with regard to maintenance of registers of workmen and the same cannot take away the right of the Corporation to adjudicate, determine and fix the liability of the employer under S.45A of the Act, in respect of the claim other than those found in the register of workmen, maintained and filed in terms of the Regulations. S.77 of the Act relates to commencement of proceedings before the ESI Court . The proviso to sub-s. 77 of the Act cannot independently give any meaning without reference to the main provision, namely, S.77 of the Act. Therefore, the 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 ESI Court and to no other proceedings”. 3. From the decision it is clear that the 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 support of claim made by the Corporation before the ESI Court and no other proceedings. Apex court also held that the concept of a reasonable period would depend upon the factual circumstances of the case concerned. There cannot be any emphirical formula to determine that question. The authority Ins. Appeal No.83/05 3 considering the question whether the period is reasonable or not has to take into account the surrounding circumstances and relevant factors to decide that question. So in the light of this authoritative pronouncement, there cannot be a summarily rejection on the ground of limitation. It has to be considered in the light of the Apex court decision. I therefore set aside the order passed by the court below and remand the case back to the said court for fresh consideration in the light of the enunciated principles in Employees State Insurance Corporation v. Santhakumar [2007 (1) KLT 133] and thereafter to consider the larger question which has arisen for consideration before the court. ESI Court shall issue notice to the parties fixing the date of hearing. I make it clear that both parties are entitled to agitate their respective points afresh. The appeal is disposed of accordingly. M.N.KRISHNAN, JUDGE vps Ins. Appeal No.83/05 4