IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 Ins.APP.No. 11 of 2005() ------------------------ IC.57/2003 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANTS: OPPOSITE PARTIES ----------------------------------------- 1. THE REGIONAL DIRECTOR, ESI CORPORATION, PANCHADEEP BHAVAN, N.S. ROUND, THRISSUR-20. 2. THE RECOVERY OFFICER, ESI CORPORATION, TRICHUR. BY ADV. SRI.T.V.AJAYAKUMAR RESPONDENTS: APPLICANT: -------------------------------- M/S. SEA PEARL ENTERPRISES, CHANDIROOR P.O., ALAPPUZHA, REPRESENTED BY ITS MANAGING PARTNER, K.A. AHAMEDKUTTY. BY ADV. SRIR.AZAD BABU THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 19/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = INS.APPEAL NO. 11 OF 2005 = = = = = = = = = = = = = = = Dated this the 19th day of September, 2008. J U D G M E N T This appeal is preferred against the judgment of the Employees Insurance Court, Alappuzha in I.C.57/03. There was a demand made towards contribution on certain payment made by the applicants during the period from 4/94 to 3/95. C-18 notice is dated 31.10.02. The E.I. Court in the light of the Full Bench decision of this Court in ESI Corporation v. Excel Glasses Ltd. (2003 (3) KLT 42) held that the claim is barred by limitation and therefore allowed the application. It is against that decision the Corporation has come up in appeal. 2. Learned counsel for the Corporation has brought to my notice the decision of the Apex Court reported in E.S.I. Corporation v. Santhakumar (2007 (1) KLT 133 (SC) where the Apex Court while considering S.45A and S.77 (1A) and (b) of the E.S.I Act has come to the conclusion that there cannot be any limitation under these sections so far as Ins. Appeal 11 OF 2005 -:2:- the Corporation is concerned against the establishments and the question of limitation will arise only when the E.S.I Corporation approaches the Court for any remedial measures. In the very same decision the Apex Court also held that the concept of reasonable time has also to be taken into consideration. 3. Learned counsel for the respondent before me strongly contends that there is considerable delay and so the concept of reasonable time would be in his favour thereby dis-entitling the E.S.I Corporation to initiate action. A perusal of the memorandum of appeal would reveal that the E.S.I Corporation has started requesting respondents herein to produce documents and it can be seen that notices were issued on 21.10.97, 16.9.98, 14.6.99, 21.9.99, 7.11.01 and 1.8.02. In spite of the same respondents did not produce any document and ultimately order was passed. The concept of reasonable time should be made use of when it is found that the E.S.I Corporation is negligent in initiating action. But when the E.S.I Corporation has issued notices calling upon the respondents herein to produce documents and by Ins. Appeal 11 OF 2005 -:3:- non-production of the document makes it difficult to take a proper decision then the delay caused by the respondents cannot be taken for holding that there is period of limitation to be applied. Therefore the said contention of the learned counsel for the respondent is negatived. Therefore the appeal is allowed and the finding of the E.I. Court is set aside and it is held that there is no limitation. 4. Since the whole matter has been approached on the question of law, the factual contentions would not have been properly considered especially when the respondents herein did not respond to the notice. Therefore I direct the E.S.I Corporation to give notice to the respondents, hear the matter including the factual objections, then take a decision and thereafter proceed in accordance with law for realisation of the amount. Ins. Appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-