-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.3183 OF 2006 APPEAL NO.3183 OF 2006 APPEAL NO.3183 OF 2006 Employees’ State Insurance Corporation ...Appellant vs. M/s.Datta Digamber Shahakari Vahtuk Kamgar Sanstha Ltd. ...Respondent Mr.H.V.Mehta for the Appellant Mr.Kiran Bapat i/b Mr.Avinash Fatangare for the Respondent CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : FEBRUARY 7, 2008 : FEBRUARY 7, 2008 : FEBRUARY 7, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Considering the limited controversy involved in the Appeal, the same is taken up for final hearing. 2. The appellant has taken an exception to the impugned Judgment and order dated 29th September 2006 passed by the learned Judge of the Employees’ State Insurance Court, Pune. By the said order, an application under section 75 of the Employees’ State Insurance Act,1948 (hereinafter referred to as the said Act) was partly allowed by the learned Judge of the E.S.I. Court. The challenge in the application under section 75 of the said Act was to the order passed under section 45-A of the said Act. One of the grounds on which the Respondent has partly succeeded is recorded in the paragraph 12 of the Judgment of the trial court which reads as thus : -2- "12. Moreover, there cannot be second opinion that as per the provisions of section 77 (1A)(b), the cause of action in respect of claim by the Corporation for recovering contributions (including interest and damages) from the principal employer shall be deemed to have arisen on the date on which such claim is made by the Corporation for the first time, provided that no claim shall be made by the Corporation after five years of the period to which the claim relates. It means the cause of action arose on the date on which the claim for recovery of contribution is made for the first time and the claim for recovery of contribution must be within five years of the period to which it relates and the claim after five years is barred by limitation. It is also settled position of law that the ESI Corporation will be debarred from making any claim after five years from the date on which it has arisen by virtue of section 77 (1A) (b) proviso." 2. By holding that the claim for contribution for the period between April 1991 to December 1996 is barred by the provisions of section 77(1-A) (b) of the said Act, the Application filed by the respondent has been partly allowed. 3. The question whether the limitation provided under the provisions of clause (b) of section 77 (1-A) of the said Act is applicable to the demand made under section 45-A of the -3- said Act is no longer res integra. In the decision of the Apex Court in case of E.S.I. Corporation vs. C.C.Santhakumar [ 2007 (112) FLR 636] the Apex Court has held that the said decision will not apply to the demand made under section 45-A of the said Act. The Apex Court, however, held that the E.S.I. court will have to decide the question whether the demand was made within a reasonable time. 4. Thus, the ground on which a part of the claim made by the Respondent is allowed is contrary to the law laid down by the Apex Court in the aforesaid decision. In view of this position, the order impugned deserves to be quashed and set aside by remanding the application to the trial court. 5. Hence, I pass the following order : i) Impugned judgment and Order dated 29th September 2006 is quashed and set aside and the application (ESI) No. 14 of 2004 is restored to the file of the trial court. ii) The parties are directed to appear before the trial court on 17th March 2008 at 11.00 a.m. The tribunal will decide the application afresh in the light of law laid down by the Apex Court in case of ESI Corporation Vs. Santhakumar (supra). -4- iii) All contentions of the parties on merits of the dispute are kept open. iv) It will be open for the parties to apply to the trial court for amendment of the pleadings. v) Appeal is partly allowed in above terms with no order as to costs. JUDGE JUDGE JUDGE