IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 Ins.APP.No. 14 of 2005() ------------------------ IC.1/2000 of DY.COMMR.AGRL.IT & STAT,KOLLAM .................... APPELLANT/OPP.PARTY : ---------------------------------- THE REGIONAL DIRECTOR, E.S.I. CORPORATION, THRISSUR. BY ADV. SMT.T.D.RAJALAKSHMY, SC, ESI CORPN. RESPONDENT/APPLICANT : ------------------------------------- SRI.N.BHAGAVAL SINGH, MANAGING PARTNER, M/S. SRINIVAS & COMPANY, KOTTIYAM. THIS INSURANCE APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- Ins. Appeal No. 14 OF 2005 --------------------- Dated this the 1st day of July, 2008 JUDGMENT This appeal is preferred against the order of the Employees Insurance Court, Kollam, in Insurance Case No. 1/00. The Insurance Court held that the claim for the period 28.3.1981 till 13.9.1995 is barred by limitation for the reason that the Corporation failed to establish that the applicant was served with any notice prior to Ext.A2 order dated 20.12.99 claiming contribution for that period. The Insurance Court held that in the light of the decision reported in ESI Corporation v. Excel Glasses Ltd. [2003 (3) KLT 42] proviso to section 77(1-A)(b) of the ESI Act debarred the Corporation from making any claim after 5 years from the date on which it had arisen. The said decision has been reversed by the Apex court in the decision reported in Employees State Insurance Corporation v. Santhakumar [2007 (1) KLT 133 (SC)]. 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 Ins. Appeal No.14/05 2 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 E.S.I.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 E.S.I.Court and to no other proceedings.” 2. In the light of the said decision, the prescription of limitation has not been made applicable to the adjudication proceedings under section 45A. Therefore the finding of the ESI Court that the claim made is unsustainable, is liable to be set aside. 3. The order of insurance court is modified. I hold that the respondent in the appeal is liable to pay contribution for the period from 30.5.76 to 28.3.81 and also from 29.3.81 till 30.9.95. I make it clear that the quantum of compensation etc., can be fixed after hearing the respondent in accordance with law. The appeal is allowed and is disposed of accordingly. M.N.KRISHNAN, JUDGE vps Ins. Appeal No.14/05 3