IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 Ins.APP.No. 80 of 2005(A) ----------------------------------- EIC. NO.49/2001 of EMPLOYEES' INSURANCE COURT, KOZHIKODE .................... APPELLANTS/OPP. PARTIES ------------------------------------------- 1. THE REGIONAL DIRECTOR, E S I CORPORATION, THRISSUR. 2. THE RECOVERY OFFICER, ESI CORPORATION, THRISSUR. BY ADV. SMT.T.D.RAJALAKSHMI, SC, ESI CORPN. RESPONDENTS/RESPONDENTS: ---------------------------------------------- 1. MOHAMMED HANEEFA, PARTNER, INTERNATIONAL TOURIST HOME, RAILWAY STATION ROAD, CALICUT. 2. K.H.KHADEEJA, W/O.BASHEER AHAMMED, 5/54, VIDYA NAGAR, KASARAGOD. BY THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 11/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N.KRISHNAN, J. -------------------------- Ins. Appeal No. 80 OF 2005 --------------------- Dated this the 11th day of August, 2008 JUDGMENT This appeal is preferred against the order passed by the Employees' Insurance Court, in E.I.C. 49/01. By the said order, the court found that the clubbing of Hotel International Tourist Home and International Hotel covering under the ESI Act treating it as a single unit is legal and proper and it is declared that the claim for contribution is valid for the period from 29.6.1996 onwards only. 2. The said finding limiting it to the date from 1996 was on account of the interpretation given to Section 77 (1A) (b) of the Employees State Insurance Act in the light of a Full Bench decision of this court reported ESI Corporation v. Excel Glasses Ltd. [2003 (3) KLT 42 (F.B)]. In that case this court held that beyond a period of five years it cannot be proceeded with. But that position is changed now in the light of the Apex court decision in Employees State Insurance Corporation v. Santhakumar [2007 (1) KLT 133]. The Apex court held as follows: Ins. Appeal 80/05 2 “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. So in the light of the said decision what has been laid down is that the limitation period of five years only relates to a claim made by the ESI Corporation before the court and that there will not be any limitation for any action to be initiated by the ESI Corporation under the provisions of the said Act. In that decision the Apex court reversed the Full Bench decision of this court reported in ESI Corporation v. Excel Glasses Ltd. [2003 (3) KLT 42 (F.B)]. So in Ins. Appeal 80/05 3 the light of the said decision of the Apex court, the finding of the court below that the claim is barred by limitation cannot be sustained. 4. Then the next question to be decided is from which period it has to be calculated. In para 20 of the award the court below found that “Therefore coverage can be made clubbing the employment strength in the hotel and tourist home with reference to September '94. So the clubbing has come into force from September 1994 and from that period demand can be made. But some reasonable period etc. has been mentioned in the Apex court's decision. Therefore the ESI Corporation has to give notice to the other side suggesting the amount, hear them and then fix the amount in accordance with law in the light of the Apex court's decision reported in Employees State Insurance Corporation v. Santhakumar [2007 (1) KLT 133]. The Insurance Appeal is disposed of accordingly. M.N.KRISHNAN, JUDGE vps