Karnataka High Court
Dharak Limited, Bangalore vs The Regional Director, Employees' ... on 23 November, 2001
Equivalent citations: [2002(92)FLR705], ILR2001KAR5674, 2002(2)KARLJ446
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
JUDGMENT N.S. Veerabhadraiah, J.
1. This appeal and the cross-objection arise out of the order passed by the E.S.I. Court dated 5-9-1988 dismissing the application filed under Section 75 of the E.S.I. Act, as barred by limitation.
2. The brief facts of the case are as follows:
The E.S.I. Corporation called upon M/s. Dharak Limited, to pay contribution for the period 1982-83 by demand letter dated 11-7-1984 to pay Rs. 5,722-13 paise. Since contribution amount was not paid, an order under Section 45-A was passed dated 28-9-1984. The management having kept quiet for a period of 6 years, filed an application under Section 75 of the E.S.I. Act on 17-8-1990 questioning the order passed by the E.S.I. Court. The E.S.I. Court considering the provisions of Section 77 held that the application filed is barred by limitation and accordingly dismissed. It is this order which is now questioned in the present appeal. At the same time, the E.S.I. Corporation has also filed cross-objection. It appears to be on the safer side.
3. The main contention of the learned Counsel for the appellant is that Section 77 is not applicable. Therefore, the dismissal of the application filed under Section 75 is not sustainable.
4. On the other hand, the learned Counsel Sri M. Papanna, relying on the provisions of Section 77(1-A) of the E.S.I. Act contended: to initiate any proceedings before the E.S.I. Court, the period of limitation prescribed is 3 years. In this case, the proceedings under Section 75 of the E.S.I. Act were initiated nearly after 6 years. Therefore, the E.S.I. Court has rightly dismissed the application and the impugned order does not suffer from any infirmities. Accordingly, prayed to dismiss the appeal.
5. The point for consideration that arises is:
"Whether the impugned order of the E.S.I. Court dismissing the application filed under Section 75 of the E.S.I. Act does suffer from any infirmities as such?"
6. It is not in dispute that an order under Section 45-A of the E.S.I. Act came to be passed on 28-9-1984 directing M/s. Dharak Limited, to pay the contribution amount. Before passing the order under Section 45-A of the E.S.I. Act, correspondence has taken place and it is after verifying the records, the said order came to be passed.
7. The contention of the appellant is that dismissal of the petition filed under Section 75 of the E.S.I. Act is not sustainable.
8. Section 77(1) and (1-A) of the E.S.I. Act, 1948 thus reads:
"77. Commencement of proceedings.--(1) The proceedings before an Employees' Insurance Court shall be commenced by application.
(1-A) Every such application shall be made within a period of three years from the date on which the cause of action arose".
A reading of Section 77(1-A) of the E.S.I. Act that any proceedings initiated before the E.S.I. Court either under Section 77 of the E.S.I. Act or any other provisions after a period of limitation of 3 years from the date of cause of action accrued is liable to be dismissed. In the present case, it is not in dispute the cause of action has arisen on 29-8-1984 on which day an order under Section 45-A of the Act came to be passed. Whereas, the appellant having no diligence in the matter approached the E.S.I. Court with an application under Section 75 of the E.S.I. Act on 17-8-1990 which is on the face of record, is barred by limitation.
9. The E.S.I. Court after considering the relevant provisions of Section 77(1-A) of the E.S.I. Act dismissed the application, which in my opinion does not suffer from any infirmities so as to interfere with.
10. It is contended by the learned Counsel Sri M. Papanna that while dismissing the petition, the E.S.I. Court has erred in recording the finding on Issue No. 1 that the mining operation is specifically excluded from the purview of the E.S.I. Act and the Corporation has no power to levy contribution and therefore prayed to set aside the said finding by allowing cross-objection.
11. When the E.S.I. Court has recorded the finding that the application itself is barred by limitation, the Court further examining the matter on merits was unnecessary.
12. With the said observation, the cross-objection is disposed of. So also the appeal is dismissed.