IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 Ins.APP.No. 13 of 2007 & CROSS OBJECTION 27/2009 ----------------------------------------------------------------------- IC.54/2004 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT/RESPONDENT ---------------------------------------- THE REGIONAL DIRECTOR, E.S.I. CORPORATION, PANCHADEEP BHAVAN, THRISSUR-20. BY ADV. SRI.P.SANKARANKUTTY NAIR RESPONDENT(S): APPLICANT ------------------------ S.MOIDU, SUSHARA MANZIL, K.S.R.T.C. ROAD PERUMBAVOOR. ADV. SRI.P.THOMAS GEEVERGHESE THIS INSURANCE APPEAL & CROSS OBJECTIN HAVING COME UP FOR ADMISSION ON 10/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... Ins.A.No.13 OF 2007 & Cross Objection No.27 of 2009 ............................................. Dated this the 10th day of November, 2009 J U D G M E N T The insurance appeal as well as the cross objection are filed against the order of the Employees' Insurance Court, Alappuzha in I.C.No.54/2002. As per the said order, the learned Judge held that the applicant is liable to pay Rs.11,098/= as ESI contribution on omitted wages relating to the period from 1976 to 1982 with interest at the prescribed rate from 5.6.2002 onwards. 2. The crux of the matter relates to the question regarding the manner in which action has been initiated by the Corporation. It is true that by virtue of the decision of the Apex Court in Employees State Insurance Corporation v. Santhakumar (2007 (1) KLT 133) , the principle laid down is that only when the E.S.I authorities approach the court for ventilation of their grievances, the question of limitation may arise. But in all other cases, when they initiated action against the establishments, none of the provisions of the ESI Act will prescribe the limitation and therefore there cannot : 2 : Ins.A.No.13 OF 2007 & Cross Objection No.27 of 2009 be a bar by law of limitation in such claims. But, the Hon'ble Supreme Court had clearly stated that a reasonable period would depend upon the factual circumstances of the case concerned. There cannot be any empirical formula to determine that question. The court/authority considering the question whether a period is reasonable or not has to take into account the surrounding circumstances and relevant factors to decide the question. So when a demand for contribution is made after a lapse of about 10 years, certainly the theory and concept of a reasonable period has to be considered and one has to find out whether there are really sufficient reasons for the delayed initiation of the proceedings against the establishment. I make it very clear that it is that theory which has to be looked into and not the question of limitation. But, unfortunately, the matter has not been considered in that ankle for which both sides may have to furnish particulars and evidence. If it is ultimately found that the concept of a reasonable period is there, then as held by a Division Bench of this Court, there is no discretionary jurisdiction vested with the ESI Corporation to : 3 : Ins.A.No.13 OF 2007 & Cross Objection No.27 of 2009 waive the interest or claim the interest from a particular period because it is a statutory mandate that has to be complied with. 3. Therefore, the order under challenge is set aside and the matter is remitted back to the E.I.Court for consideration of the question whether the concept of reasonable period when considered is sufficient to waive the prolonged period of 10 years delay in making the demand and thereafter can decide regarding other points raised in the matter in the light of the decisions on the point referred to above which are made available before the court. It is also made clear that if that reasonable period theory is interpreted in favour of the E.S.I. Corporation, then necessarily the mandate is to demand interest after the grace period and not otherwise. E.I Court shall issue notice to the parties fixing the date of appearance. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 4 : Ins.A.No.13 OF 2007 & Cross Objection No.27 of 2009