IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 Ins.APP.No. 19 of 2005() -------------------------------- IC.7/2001 of E.I.COURT, KOLLAM .................... APPELLANT/OPP.PARTY : ------------------------------------ THE REGIONAL DIRECTOR, E.S.I.CORPORATION, THRISSUR. BY ADV. SMT.T.D.RAJALAKSHMY, SC, ESI CORPN. RESPONDENT/APPICANT : --------------------------------------- M/S. HOTEL BRIGHT, KOTTIYAM, KOLLAM. BY ADV. SRI.BECHU KURIAN THOMAS THIS INSURANCE APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- Ins. Appeal No. 19 OF 2005 --------------------- Dated this the 8th day of July, 2008 JUDGMENT This appeal is preferred by the ESI Corporation against the judgment of the Employees Insurance Court, Kollam in Insurance Case No. 7/2001 . The prayer in the application was for setting aside two communications dated 30/7/2000 and 17/1/2001 issued to the respondent herein claiming contribution on omitted wages for the period from 1/4/95 to 31/3/96. The Insurance Court found that the applicant hotel is covered under the provision of the Act with effect from 1/4/96 on the basis of the preliminary report. According to the Corporation, the claim with effect from 1/4/95 stands covered as a result of Ext. B4 inspection report dated 29/12/98. The applicant attacked the claim on the main ground that the claim is barred by limitation as per the proviso of section 77(1A)(b) of the Act as it is made after 5 years from the date on which it had arisen. The court below found that the contribution for the period after 5 years from 1/4/95 is barred by limitation in the light of the decision of this court reported in ESI Corporation v. Excel Glasses Ltd.(2003(3)KLT 42(F.B). But it has to be stated now that the said decision has been reversed by the Apex court by the judgment reported in Employees State Insurance Corporation v. Santhakumar [2007 (1) KLT 133 (SC)]. It is held therein that Employees State Insurance act, S.45(A) & 77(1A)(b)-proviso to clause (b) of S.77(1A) Ins. Appeal 19/05 2 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 ESI Court and to no other proceedings. It has held that the prescription of limitation has not been made applicable to adjudication proceedings under S.45A.” 2. In the light of the same, the finding that the said claim is barred by limitation under first point is set aside and ordered accordingly. So far as second point is concerned, the court felt that there was arbitrariness and it was against the spirit of S.45(A) of the Act proceedings were initiated and therefore to quash Ext.A2 and B5. However, it made it clear that the Corporation will be at liberty to proceed against the applicant to claim contribution for this period in accordance with law after giving proper notice and affording opportunity to the applicant to make out his case, if the Corporation is so advised. In the light of my finding that there is no limitation I feel the Corporation can proceed as envisaged under law for realisation of the amount. I make it clear that it must give notice and sufficient opportunity before finally adjudicating the matter. The Insurance Appeal is allowed accordingly. M.N.KRISHNAN, JUDGE vps Ins. Appeal 19/05 3