1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1368 OF 2008 FIRST APPEAL NO. 1368 OF 2008 FIRST APPEAL NO. 1368 OF 2008 IN APPLICATION (ESI) NO. 34 OF 2000 The Regional Director Employees’ State Insurance Corporation, Mumbai. ... Appellant (Orig. Opponent) Versus M/s. Chaitali Leo Burnett Pvt.Ltd. & Anr. Respondents Mr. H.V. Mehta, advocate, for the appellant. Mr. R.N.Shah, Advocate i/b. Mr. Piyush Shah for respondents. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 16th July, 2008. DATE: 16th July, 2008. DATE: 16th July, 2008. P.C. P.C. P.C. 1. Heard the learned Counsel for the parties. 2 2. To state in brief, the respondents were the advertising agency having employed certain persons. According to the appellant, they were liable to deposit contribution under the Employees State Insurance Act, 1948. Admittedly, in Dattaram Advertising vs. ESI Corporation, this High Court had held that the advertising agency is not a shop and, therefore, is not liable to contribute towards the employees insurance. However, the Supreme Court in ESIC vs. R.K.Swami and others, by Judgment dated 28.10.2003 held that advertising agency falls within the meaning of "shop" and therefore, they are liable to contribute under the ESI Scheme. In view of this Judgment of the Supreme Court, the respondent NO.3 is liable to deposit the contribution for the period from October 1985 to September 1993 for which they have not deposited because of the High Court Judgment. The amount was actually deposited on 2.8.1994. After that on 6.4.95, the appellant issued a notice to the respondents to show cause why for the delay in payment for the period from October 1995 to September, 1993, they should not be required to pay interest and damages. After that the appellant passed an order holding the respondents liable to pay Rs.78,310/- towards damages for delay in payment of the contribution for the aforesaid period under 3 Section 85-B of the said act. That order was challenged by the respondents by filing Application (ESI) No.34 of 2000 before the Employees Insurance Court, Mumbai. After hearing the parties, the learned Judge of the Employees Insurance court held that the respondents were covered and protected from payment of contribution in view of the Judgment of this Court in Dattaram Dattaram Dattaram Advertising Pvt.Ltd. Bombay vs. Regional Director, Advertising Pvt.Ltd. Bombay vs. Regional Director, Advertising Pvt.Ltd. Bombay vs. Regional Director, Maharashtra Employees State Insurance Corporation, 1986 Maharashtra Employees State Insurance Corporation, 1986 Maharashtra Employees State Insurance Corporation, 1986 II LLN page 346 II LLN page 346 II LLN page 346 and therefore, they should not be held liable for delay in depositing that amount. The learned Judge held that the respondents could be liable to deposit the amount only after the Judgment of the Supreme Court. In view of this, the learned Judge came to the conclusion that the appellant could not claim damages for the delay in depositing from 1985 to September 1993 when the field was held by the judgment of this Court in Dattaram Advertising vs. Regional Dattaram Advertising vs. Regional Dattaram Advertising vs. Regional Director. Director. Director. Therefore, the Application was allowed and the impugned order passed by the Appellant was set aside. Against that order, this Appeal is preferred. 3 The learned Counsel for the appellant contends that the respondent was expected to deposit the amount within a month or two after the Judgment of the Supreme Court, but the amount was actually deposited on 2.8.1994 4 and thus there was inordinate delay of at least 7 years and 8 months. He further contends that had he deposited the amount within one or two months, the respondents could claim benefit of the High Court Judgment and they could not be deemed to have caused any delay. However, they did not deposit the amount within reasonable time of one or two months and therefore they should be held liable for the delay right from 1985. I am unable to accept this contention. In my considered opinion, if the respondent could be given one or two months time after Judgment of Supreme Court to deposit the amount, the delay can be treated only from 1.1.1994 till the amount was actually deposited. However, the order passed by the appellant for damages does not reveal that he had calculated damages only for the period of 7 months i.e. from 1.1.1994. The said damages appears to have been calculated from 1985 which cannot be permitted. After going through the impugned order, I find no illegality or impropriety . Therefore, I find no substance in the present appeal. 5. In the result, the Appeal stands dismissed. However, the appellant shall be at liberty to pass fresh order for delay of 7 months in depositing the arrears of the contribution, after giving opportunity of hearing to the respondents. 5 (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)