In the High Court of Punjab and Haryana at Chandigarh ...... F.A.O. No.4837 of 2010 ..... Date of decision:30.11.2011 Employees' State Insurance Corporation through its Regional Director and another .....Appellants v. M/s Essma Woollen Mills (P) Ltd., Amritsar .....Respondent .... CORAM : HON'BLE MR. JUSTICE MOHINDER PAL ..... 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? ...... Present: Mr. B.S. Bhalla, Advocate for the appellants. Mr. Tarun Thakur, Advocate for the respondent. ..... Mohinder Pal, J. This appeal has been filed by Employees' State Insurance Cor- poration against the impugned order dated 16.2.2009 passed by the Employ- ees' State Insurance Court, Amritsar, allowing the petition filed by the re- spondent under Section 75 (2) of the Employees' State Insurance Act, 1948 (hereinafter referred to as `the Act’) challenging the validity of the order dated 10.11.2004 vide which the respondent was required to pay F.A.O. No.4837 of 2010 [2] `1,82,357/- as damages for the period from 4/83 to 3/87, 4/87 to 5/90, 4/89 to 8/90 and 1990 to 1995. Learned counsel for the appellants has raised a very brief con- tention regarding the legal issue involved in the present appeal, therefore, I do not deem it necessary to notice the facts of the case in detail. It is suf- fice to notice that in the petition filed by the respondent before the Court be- low recovery notice dated July 2004 and notices issued subsequent hereto were under challenge on various grounds raised therein including that the claim made by the appellants was time barred. The learned Court below while referring to the provisions of Section 77 of the Act opined that no re- covery could be effected after the same is beyond the period of five years from the due date and the claim is hopelessly time barred, as such, the de- mand of ESI Corporation of `1,82,357/- was declared illegal, null and void only on the ground of limitation. Other issues on merits were not gone into. Learned counsel for the appellants has referred to the judgment of this Court in Employees' State Insurance Corporation v. M/s Sudershan Tobaccos Private Limited and another , (FAO No.2485 of 2009, decided on 3.12.2009); Employees State Insurance Corporation, Faridabad v. M/s Vinod Iron Foundry , T.T. Road, Samalakha (FAO No.1209 of 1987, de- cided on 23.3.2009) and M/s Essma Woollen Mills Private Limited v. Em- ployees State Insurance Corporation and another (FAO No.5196 of 2010, decided on 7.4.2011) and also the judgment of the Supreme Court in ESI Corpn. v. C.C. Santha Kumar, (2007) 1 Supreme Court Cases 584 to con- tend that the question regarding limitation has been decided in favour of the appellants. Therefore, the case may be remanded to the Employees State In- surance Court, Amritsar to decide the case on merits. F.A.O. No.4837 of 2010 [3] Learned counsel for the respondent could not dispute the proposition of law laid down by this Court in the afore-mentioned judg- ments and also the judgment of the Hon'ble the Supreme Court in ESI Corpn. v. C.C. Santha Kumar (supra) referred to by the learned counsel for the appellants. However, he submitted that if the matter is to be remanded back to the learned Court below all the issues be left open. This Court while deciding the case of Employees' State Insur- ance Corporation v. M/s Sudershan Tobaccos Private Limited and another (supra), has referred the judgment of Hon'ble the Supreme Court in ESI Corpn. v. C.C. Santha Kumar (supra), which deals with the issue regarding limitation for effecting recovery under the Act which was considered by the Supreme Court in the aforesaid judgment and it was opined that there is no period of limitation as such. I have heard learned counsel for the parties and have gone through the records. In ESI Corpn. v. C.C. Santha Kumar (supra), the Supreme Court considered two legal issues. The same have been extracted in paras 11 and 12 of the judgment which are reproduced as under:- “11. In the present case, the controversy centres on the proviso to clause (b) of Section 77 (1-A). The crucial question is, “Does the proviso to Clause (b) of Section 77 (1A) fix the limit of time, in which the Corporation can make a claim from the em- ployer, on the basis of the orders passed under Section 45?" 12. Section 45-A is a part of Chapter IV. Section 77 (1-A) (b) proviso is contained in Chapter VI. The question is whether F.A.O. No.4837 of 2010 [4] there is any connecting link between Chapter IV and Chapter VI.” The relevant paragraphs where the questions were considered are ex- tracted below:- “26. On a plain reading of Sections 45A and 45B in Chapter IV and 75 and 77 in Chapter VI of the Act, as indicated above, there cannot be any doubt that the area and the scope and ambit of Sections 45A and 75 are quite different. 27. If the period of limitation, prescribed under proviso (b) of Section 77(1A) is read into the provisions of Section 45A, it would defeat the very purpose of enacting Sections 45A and 45B. The prescription of limitation under Section 77 (IA)(b) of the Act has not been made applicable to the adjudication pro- ceedings under Section 45A by the legislature, since such a re- striction would restrict the right of the Corporation to determine the claims under Section 45A and the right of recovery under Section 45B and, further, it would give a benefit to an unscru- pulous employer. The period of five years, fixed under Regula- tion 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 Section 45A of the Act, in respect of the claim other than those found in the register of workmen, main- tained and filed in terms of the Regulations. F.A.O. No.4837 of 2010 [5] 28. What Section 75(2) empowers is not only the recovery of the amounts due to the Corporation from the employer by re- course to the E.S.I. Court, but also the settlement of the dispute of a claim by the corporation against the employer. While this is so, there is no impediment for the Corporation also to apply to the E.S.I. Court to determine a dispute against an employer where it is satisfied that such a dispute exists. If there is no dis- pute in the determination either under Section 45A(1) or under Section 68, the Corporation can straightway go for recovery of the arrears. 29. Section 77 of the Act relates to commencement of proceed- ings before the E.S.I. Court. The proviso to subsection (1-A) (b) of Section 77 of the Act cannot independently give any meaning without reference to the main provision, namely, Sec- tion 77 of the Act. Therefore, the proviso to Clause (b) of Sec- tion 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 E.S.I. Court and to no other proceedings. 30. The Legislature has provided for a special remedy to deal with special cases. The determination of the claim is left to the Corporation, which is based on the information available to it. It shows whether information is sufficient or not or the Corpo- ration is able to get information from the employer or not, on the available records, the Corporation could determine the ar- F.A.O. No.4837 of 2010 [6] rears. So, the non-availability of the records after five years, as per the Regulations, would not debar the Corporation to deter- mine the amount of arrears. Therefore, if the provisions of Sec- tion 45A are read with Section 45B of the Act, then, the deter- mination made by the Corporation is concerned. It may not be final so far as the employer is concerned, if he chooses to chal- lenge it by filing an application under Section 75 of the Act. If the employer fails to challenge the said determination under Section 75 of the Act before the Court, then the determination under Section 45A becomes final against the employer as well. As such, there is no hurdle for recovery of the amount deter- mined under Section 45B of the Act, by invoking the mode of recovery, as contemplated in Sections 45C to 45-I.” Perusal of the aforesaid authoritative annunciation of law shows that the view of Full Bench of Kerala High Court is not found correct and that of Madras High Court was approved, therefore, I have no option but to set aside the impugned order passed by the Court below. Ordered accordingly. However, considering the fact that claim made by the respon- dents has not been considered by the learned Court below on any of other grounds raised by them, I deem it appropriate to remit the matter back for fresh consideration of the issues on merits except on the question of limita- tion which stands settled by the Supreme Court and by this Court. The parties through their counsels are directed to appear before the Court below on 16.1.2012 for further proceedings. F.A.O. No.4837 of 2010 [7] November 30, 2011. (Mohinder Pal) Judge *hsp*