1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 3457 OF 2009 IN FIRST APPEAL (Stamp) NO.20107 Of 2009 Abdul Shakur Umar Sahigara & Co. ...Appellants (Org.Applicants) Vs. The Regional Director, The Employees State Insurance Corn. Respondent (Og.Opponent) Mr.S.D.Naidu i/b. M/s. C.R.Naidu & Co., Advocates for the appellants. Mr. H.V.Mehta with Mr. P.M.Palshikar, Advocates, for the respondent. CORAM: J.H.BHATIA,J. DATE 21st November,2009. P.C. 1. This is an Application for condonation of delay of more than four years in filing the appeal against the judgment of the Insurance Court under the Employees State Insurance Act (for short, the ESI Act )passed on 31.1.2005 in Application (ESI) No.128/1984. The appellant is a partnership firm 2 having its head office at Mumbai. It deals in supari and other spices. The plaintiff has branches at Mangalore, Cuttack and Calcutta. At Mumbai, the appellant has only two employees, while it has at Calcutta 9,at Cuttack 11 and Mangalore 1 employees. The total number of employees at the head office and three branches was found to be 22 and therefore, Regional Directr ESI passed order under Section 44A demanding some money towards contribution for insurance of the employees. The Judgment was delivered against the appellant in the Application No.(ESI) No.128/1984 by the impugned order dated 31.1.2005. At the same time, 5 more applications were pending before the Insurance Court. One was decided on 27.4.2009, two were decided on 28.4.2009 and two were decided on 29.4.2009. The contention of the appellant was that at the head office located in Mumbai, the number of employees is less than 20 and therefore, the provisions of the ESI Act is not applicable. In the impugned order dated 31.1.2005, the 3 Insurance Court held that all the 22 employees working at Mumbai as well as 3 other branches will have to be clubbed together for the application of the ESI act. That order wa not challenged for a long time. While deciding the five remaining applications, in April 2009, the Insurance Court held that the questing as to whether employees of all the four places could be clubbed had become res judicata and could not be re-opened. However, on the point of contribution, the applications were partly allowed. Being not satisfied, the appellant has already preferred five appeals, which are pending for admission. 2. In this Application for condonation of delay, it is contended that the legal advice was given to them not to prefer appeal at that stage because five more applications were pending decision and therefore the appellant had not taken decision to prefer an appeal but after decision of those matters, it is found necessary to challenge 4 the order dated 21.1.2005 and hence the delay. 3. Heard the learned Counsel. 4. The learned Counsel for the respondent vehemently contended that nobody could have given legal advice not to prefer an appeal against the judgment in 2005 and even if wrong advice is given, this could not be a ground for condonation of delay. On the other hand, Mr. Naidu the learned Counsel for the appellant, contended that if the facts and legal position are taken into consideration, the ESI Act could not have been made applicable to the appellant and the appellant would not be covered by the said Act inspite of the notification issued by the Government of Maharashtra in 1978 and if the head office itself is not covered, the employees working in the branches outside the State of Maharashtra would also not be clubbed with them and this goes to the root of the case, because if the appellant is ot 5 covered by the ESI Act, the order passed by the respondent is a nullity and not enforceable. It will not be necessary at this stage to consider the merits of the argument advanced by Mr. Naidu while deciding the application for condonation of delay only. In First Appeal No.696 of 2001 (H. Fillunger & Co. Pvt.Ltd. Pune vs. The Employees State Insurance Corporation, Pune) decided by the learned Single Judge of this Court on 22.2.2005, it has been held that if the Pune Head office did not have 20 or more employees, the ESI notification could not be applied to that establishment and therefore, employees working at different branches outside the State could not be clubbed. 5. Mr. Mehta, the learned Counsel for the respondent relied upon certain authorities to oppose this contention, including the Transport Corporation of India vs.Employees State Insurance Corporation and another AIR 2000 SC 238 and Employees State Insurance Corporation vs. South 6 Eastern Roadways, Hyderabad F.J.R.113 Vol.63. However, in both the cases, the head office itself had more than 20 employees and it was covered by the notification under ESI Act and therefore, it was held that the employees working at different branches even in other States would also be covered. It is not necessary to consider at this stage whether the view taken by the learned Single Judge of this Court is correct or not, but fact remains that such a view has been taken by this Court and the learned Counsel for the respondent could not point out any other authority contrary to the same. If it is so, the ESI Act could not be applicable and the respondent could not have jurisdiction to pass any order. In view of this, I find that inspite of long delay, the matter needs to be considered and therefore delay deserves to be condoned. I hasten to add that the observations made in this order are only for the purpose of deciding the application for condonation of delay and not for deciding the appeals, which are yet to 7 be admitted. 6. For the aforesaid reasons, the Applications are allowed. The delay is condoned. (J.H.BHATIA,J.)