IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:1.2.2008 Coram The Honourable Mr.Justice F.M.IBRAHIM KALIFULLA W.P.No.177 of 2008 and M.P.No.No.1 of 2008 Easy Weld Electrodes(P) Ltd, rep.by Director Thiru L.Jebaraj, Gummidipoondi-601 201, Tiruvallur District. .. Petitioner vs. The Recovery Officer, Employment Insurance Corporation, No.143, Sterling Road, Chennai-600 034 .. Respondent Petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorari calling for the records relating to the notice issued in No.TN/RECY/CP-25/51-58085- 64 passed by the respondent dated 19.1.2006 and quash the same as illegal, improper, against law, arbitrary and violation of principles of natural justice. For Petitioner : Mr.M.V.Muralidaran For Respondent : Mr.K.C.Ramalingam ORDER In this writ petition the petitioner seeks to challenge the proceedings of the respondent dated 9.1.2006, which is a show cause notice for issuance of warrant of arrest, under Rule 73(1) of Income Tax Act 1961, read with Section 45-C to 45-I of the ESI Act, 1948. 2. The issue relates to non-payment of ESI contribution for the period from 1.5.1994 to 31.3.2001. According to the petitioner, contributions were duly paid on 13.12.2006. 3. The learned counsel for the respondent states that before issuance of the show cause notice for arrest, an order under https://hcservices.ecourts.gov.in/hcservices/ Section 45-A of the ESI Act has been passed and that if at all the petitioner is aggrieved, they will have to work out their remedy under Section 75 of the ESI Act. Learned counsel would however point out that the said order under Section 45-A was passed as early as on 24.2.2003. 4. As rightly contended by the learned counsel for the respondent, unless the petitioner challenges the said order of determination passed by the respondent under Section 45-A of the Act, no relief can be granted to the petitioner in this writ petition as against the impugned show cause notice for arrest. ESI Act provides the remedy under Section 75 to challenge any determination made under Section 45-A of the Act. Under Section 77 (1-A) of the Act, a period of three years has been fixed by way of limitation for preferring any application before the Commissioner of ESI Court under Section 75 of the Act. 5. The learned counsel for the petitioner would contend that the petitioner company was originally under the management of one Mr.L.Mamtha Muthu and that there was a memorandum of understanding dated 21.7.1993, under which, the management has already been entrusted with the deponent to the affidavit filed in support of the writ petition and that even after the memorandum of understanding there were further litigation perpetrated by the said Mr.L.Mamtha Muthu, which caused a serious dislocation in the affairs of the company and in that process, the order passed by the respondent under Section 45-A of the Act could not be challenged in time. 6. As far as the said grievance of the petitioner is concerned, it is for the petitioner to explain the same before the appropriate ESI Court. The learned counsel for the respondent would however contend that apart from prescribing a period of three years time for preferring an application before the Employee's State Insurance Court, as stipulated under Section 77(1-A) of the Act, there is no provision for condonation of delay for preferring the application beyond the prescribed period of three years. Such a stand of the respondent based on Section 77 of the Act cannot be disputed. But it cannot be held that on that score there can be no remedy for the petitioner to move the ESI Court. 7. A conspectus reading of Sections 74 to 83 falling under Chapter VI of the Employees' State Insurance Act discloses that the Employees' State Insurance Court would fall within the definition of 'civil Court' and consequently, the provisions of the Limitation Act, in particular Section 5 of the Act, can very well be applied. 8. Under Section 74 of the Act, the State Government has been empowered to constitute an ESI Court by issuing appropriate notification in the Official Gezette. Sub-Section (3) of Section 74 https://hcservices.ecourts.gov.in/hcservices/ states as to who can be posted as a Judge of the Employees' State Insurance Court. The said Section makes it clear that a judicial officer or legal practitioner of five years standing would be qualified to be a Judge of the ESI Court. Section 75 prescribes the matters that can be decided by the Employees' State Insurance Court, such as matters relating to any dispute that may arise as between an employee and employer or employer and the State Insurance Corporation and with reference to the payment of contribution, the status of an employee, the coverage of an establishment etc. Under Sub-Section(3) of Section 75 it is specifically provided that in respect of matters covered by Section 75(1), (2), (2-A), (2-B) of the Act, no civil Court can have any jurisdiction. Sections 76 & 77 regulate the institution and commencement of the proceedings before the Employees' State Insurance Court. 9. Section 78 of the Act reads as under: "78. Powers of Employees' Insurance Court – (1) The Employees' Insurance Court shall have all the powers of a Civil Court for the purposes of summoning and enforcing the attendance of witnesses, compelling the discovery and production of documents and material objects, administering oath and recording evidence and such Court shall be deemed to be a Civil Court within the meaning of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)". 10.Under Section 79, the appearance by Legal Practitioner as well as by an officer of a registered trade union has been regulated. Under Section 81 of the Act, an Employees' Insurance Court has been empowered to make a reference to the High Court on any question of law and seek for appropriate decision. Under Section 82, an appeal is provided as against the order of the Employees Insurance Court to the High Court on any substantial question of law. Section 82(4) of the Act specifically stipulates that the provisions of Sections 5 and 12 of the Limitation Act applies to the appeals arising under that Sections. As per Section 83, the High Court has been empowered to grant appropriate interim orders of stay depending upon the facts of each such appeal. 11. Section 5 of the Limitation Act reads as under:- "5.Extension of prescribed period in certain cases- Any appeal or any application, the than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." https://hcservices.ecourts.gov.in/hcservices/ 12. A conspectus reading of the above said provisions contained in Chapter VI of the Employees' State Insurance Act read along with Section 5 of the Limitation Act makes it abundantly clear that the Employees' Insurance Court has got all trappings of the Court as has been stipulated under Section 5 of the Act. In fact, though there is a bar of invocation of the jurisdiction of any 'civil Court' under Sub-Section (3) of Section 75 of the Act, the powers exercisable by the Employees' Insurance Court under Sections 74 to 81 of the Act is sufficient to demonstrate that such Court functions like any other ordinary 'civil Court' and the only purpose appears to be to ensure that the disputes and issues arising under the provisions of the Employees State Insurance Act are dealt with exclusively and expeditiously, in order to arrive at a just conclusion through an adjudicatory process at the earliest point of time. 13. Therefore, though the constitution of an Employees' Insurance Court has been provided for under the Act under Chapter VI, the Court preceded over by a judicial officer or in the event of a legal practitioner with five years experience by posting him as a Judge of such Court, can only function as any other Court of civil nature. Looked at from any angle, it is inescapable that the proceedings of the Employees' Insurance Court can be squarely brought under the expression of 'Court' as stipulated under Section 5 of the Limitation Act and therefore, there can be no difficulty for the ESI Court to deal with the applications filed under Section 5 of the Act. 14. In this context, I wish to rely upon the decision of the Honourable Supreme Court in P.SARATHY VS. STATE BANK OF INDIA (2000) 5 Supreme Court Cases 355, wherein the Supreme Court in paragraphs 13, 14 and 15 has held as under: "13. In Thakur Jugal Kishore Sinha v. Sitamarhi Central Coop.Bank Ltd. this Court, while considering the question under the Contempt of Courts Act, held that the Registrar under the Bihar and Orissa Cooperative Societies Act was a Court. It was held that the Registrar had not merely the trappings of a court but in many respects he was given the same powers as was given to an ordinary civil court by the Code of Civil Procedure including the powers to summon and examine witnesses on oath, the power to order inspection of documents and to hear the parties. The Court referred to the earlier decisions in Bharat Bank Ltd. v. Employees, Maqbool Hussain v. State of Bombay and Brajnandan Sinha v. Jyoti Narain. The Court approved the rule laid down in these cases that in order to constitute a court in the strict sense of the term, as essential condition is that the court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision https://hcservices.ecourts.gov.in/hcservices/ or a definitive judgment which has FINALITY and AUTHORITATIVENES which are the essential tests of a judicial pronouncement. 14. In Pritam kaur v. Sher Singh the proceedings before the Collector under the Redemption of Mortgages (Punjab) Act (2 of 1913) were held to be civil proceedings. It was held that the 'court', contemplated under Section 14 of the Limitation Act, des not necessarily mean the 'civil court' under the Code of Civil Procedure. It was further held that any tribunal or authority, deciding the rights of parties, will be treated to be a 'court'. Consequently, benefit of Section 14 of the Limitation Act was allowed in that case. This decision was followed by the Himachal Pradesh High Court in Bansi Ram v. Khazana. 15.Applying the above principles in the instant case, we are of the opinion that the Deputy Commissioner of Labour (Appeals), which was an authority constituted under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 to hear and decide appeals, was a 'court within the meaning of Section 14 of the Limitation Act and the proceedings pending before him were civil proceedings. It no disputed that the appellant could file an appeal before the Local Board of the Bank, which was purely a departmental appeal. In this view of the matter, the entire period of time from the date of institution of the departmental appeal as also the period from the date of institution of the appeal under Section 41(2) before the Deputy Commissioner of Labour(Appeals) till it was dismissed will, therefore, have to be excluded for computing the period of limitation for filing the suit in question. If the entire period is excluded, the suit, it is not disputed, would be within time.' 15. Applying the principle set out in the above decision of the Honourable Supreme Court, I conclude that even the Employees' Insurance Curt, apart from the apparent fact that it is a judicial Tribunal, it has got necessary power to render a decision or a definite judgement with authoritativeness, which are the essential tests of a judicial pronouncement and that it decides the rights of the parties and thereby, it satisfies the definition of the expression 'Court' as held by the Honourable Supreme Court. Further having regard to Section 78 of the Act, wherein the ESI Court is vested with all the powers of 'civil Court' as provided under the Code of Civil Procedure, Code of Criminal Procedure as well as the Evidence Act, the ESI Court can validly called as a 'Court' for all practical purposes. https://hcservices.ecourts.gov.in/hcservices/ 16. Having regard to my above said conclusions I hold that Section 5 of the Limitation Act can be extended even to the applications filed under Section 75 of the ESI Act to seek for condonation of delay in filing such applications. In the light of my above said conclusion, when the case in hand is examined, though it is stated that the order passed under Section 45-A of the ESI Act as against the petitioner was of the year 2003, the petitioner, while approaching the Employees' Insurance Court under Section 75 can seek for condonation of delay by explaining the reasons for the delay in filing the said application by invoking Section 5 of the Limitation Act and seek for appropriate orders before the said Court. Therefore, this writ petition stands disposed of holding that the petitioner's remedy is only to approach the appropriate Employees' Insurance Court, by challenging the order of determination said to have been passed by the respondent on 24.2.2003 under Section 45-A of the ESI Act under Section 75 of the said Act along with necessary application for condontion of delay, explaining the reasons which prevented the petitioner from approaching the ESI Court within the stipulated time limit of three years prescribed under the Act. In order to enable the petitioner to approach the Employees' Insurance Court, they are granted four weeks time from the date of receipt of copy of this order. For the said period of four weeks, the respondent is directed to keep the impugned order in abeyance. The petitioner can also seek for appropriate interim order before the Employees Insurance Court. It is for the concerned Employees' Insurance Court to consider the petitioner's application for condonation of delay as well as the application for interim orders on its own merits and in accordance with law. This writ petition is ordered on the above terms. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Msk https://hcservices.ecourts.gov.in/hcservices/ To 1. The Recovery Officer, Employment Insurance Corporation, No.143, Sterling Road, Chennai-600 034 2. The Presiding Officer Employees Insurance Court, Chennai. 1 cc to Mr.Muralidharan, Advocate, Sr. 4835 W.P.No.177 of 2008 AKR (CO) kk 15/2 https://hcservices.ecourts.gov.in/hcservices/