Patna High Court
Regional Director,Employees'State ... vs M/S Anurag Cenima(P)Ltd on 7 March, 2014
Author: Amaresh Kumar Lal
Bench: Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.144 of 2009
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1. Regional Director, Employees' State Insurance Corporation through its
Regional Director, Panchdeep Bhawan, R-Block (Jawahar Lal Nehru Marg),
Patna-800001.
2. The Recovery Officer, ESIC, Panchdeep Bhawan, R-Block (J. L. Nehru Marg),
Patna- 800001.
Opposite Parties.... .... Appellant/s
Versus
M/S Anurag Cenima (P) Ltd. Mahalpur, At + P.O.- Bihar Sharif, District- Nalanda
through Krishns Kumar, Managing Director.
Petitioner.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. ANSHUMAN, Adv.
For the Respondent/s : Mr. Purushottam Kumar Jha, Adv.
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CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
C.A.V. JUDGMENT
Date: 07 -03-2014
1. The appellants have preferred this appeal under Section
82(2) of the Employees State Insurance Act, 1948 (hereinafter
referred to as the „Act‟) against the judgment and order dated
22.12.2008passed by the Presiding Officer of ESI Court, Patna in ESI Case No. 2 of 1998.
2. In this appeal the appellants have raised the following questions for consideration:-
(i) Whether the impugned judgment is contrary to the law laid down by the Hon‟ble Supreme Court in the case of ESI Corporation vs. C. C. Santhakumar, reported in (2007) 1 SCC 584.
(ii) Whether the demand was time barred under Section Patna High Court MA No.144 of 2009 dt.07-03-2014 2/8 77(1-A) of the Act ?
3. The case of the petitioner-respondent is that the petitioner is Managing Director of Anurag Cinema Private Ltd, Mahalpar, Biharsharif registered under Bihar Shop and Establishment Act, 1953. Routine inspection has been made by the ESI Insurance Corporation but in the year 1982 the petitioner was asked by the Corporation to file a declaration in Form-01. In pursuant to that Form-01 was submitted on 30.5.1992. The petitioner voluntarily started depositing employees‟ contribution from the year 1994. Though, the total number of employees in the cinema house has also been below 20. Vide letter No. P/42-6376-211/12.6.96 dated 6.6.1996 show cause notice was served to the management demanding contribution amount of Rs.21,641.66/- for the contribution period 27.7.1980 to 31.3.1984. It was protested by the petitioner-respondent on the ground that provisions of ESI are not attracted and the demand is arbitrary illegal and unjustified.
4. The case of opposite parties-appellants is that the case is barred by law of limitation, estoppel, waiver and acquiescence. Cinema house of the petitioner-respondent covered under the provision of the ESI as the employer (petitioner) had engaged 19 persons which is supported by Attendance Register. There are five Patna High Court MA No.144 of 2009 dt.07-03-2014 3/8 restaurants working in the premises of the cienema hall which comprises 9 employees and one cycle stand engaging one employee. The total number of employee is 29. Survey was conducted on 5.1.1984 and the Inspector found 19 persons employed. Employer was communicated regarding the facts of recoverage under the Act on 27.7.1980. Therefore, the cinema hall falls within the purview of Section 1(5) of the Act with effect from 27.8.1980. The petitioner was intimated that the establishment has been allotted a Code No. 42- 6376-121 and asked to make compliance within the provisions of the Act. There is no provision of voluntary contribution under the Act. Under Section 2 A of the Act it is mandatory for every employer to get himself registered under the provisions of the Act and make compliance. Accordingly, the petitioner made compliance with the provision of the Act in the year 1994. Though, he was required to make compliance since the date of its coverage i.e. 27.7.1980. The show-cause notice in Form-C-18 vide letter N0. P/42- 6376/211/12.6.1996. The petitioner was asked to present himself with necessary documents to explain his case before the Deputy Director, ESI, Patna on 11.7.1996 at 11.a.m. against the above notice the appellant appeared on 27.7.1996 and requested that since he has received the notice only on 15.7.1996, he may be given further time to present himself and accordingly hearing was postponed for 14.8.1996 Patna High Court MA No.144 of 2009 dt.07-03-2014 4/8 at 11 a.m., but thereafter the petitioner never appeared to present his case. The determination of contribution has been done under Section 45 A of the Act and the employer has been given due opportunity of being heard.
5. It is contended by learned counsel for the appellants that the period of limitation as envisaged under Section 77 of the Act is not applicable in the present case. Since no application was filed by the appellants before the ESI Court for commencement of proceeding under Section 77 of the Act. In view of the decision of Hon‟ble Supreme Court in the case of ESI Corporation vs. C. C. Santhakumar, reported in (2007) 1 SCC 584 (supra), the impugned order is not fit to be sustained.
6. Learned counsel for respondent has submitted that the corporation has made demand for the first time vide Letter No. P/42- 6376 dated 6.6.1996 (Ext. C) for the period 27.7.1980 to 31.3.1984 in the following manner: Rs.350/- per month for 20 employees from 27.7.1980 to 31.3.1984 i.e. 44 months, 5 days with interest @ 7 % on the amount of contribution payable to Rs.21,641.66/-. This demand is barred by limitation under Section 77(b) of the Act. In support of his contention, he has relied upon the decision dated 14th December 2009 passed by the Delhi High Court in FAO No. 342/2009 (ESI Patna High Court MA No.144 of 2009 dt.07-03-2014 5/8 Corporation, New Delhi & Ors. vs. Shri Girdhari Lal Batra). Section 75 of the Act deals with the matter to be decided by the Employees Insurance Court. The relevant provision in this case is Clause (1)(g) of this Section which reads as under:
" Section 75(1)- Matters to be decided by Employees' Insurance Court-(1) If any question or dispute arises as to-
(a) to (ee) xx xx xx
(g) any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate employer or between a person and the Corporation or between and employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act, [ or any other matter required to be or which may be decided by the Employees‟ Insurance Court under this Act], Such question or dispute [subject to the provisions of sub-section (2A)] shall be decided by the Employees‟ Insurance Court in accordance with the provisions of this Act.
(2) xx xx xx xx"
7. According to this Section, if there is dispute between " a principal employer and the Corporation", the same shall be decided by the Act. Section 77 of the Act provides the period during which proceedings can commence before an Employees‟ Insurance Court. Relevant Provisions of this Section reads as under;
"Section 77. Commencement of Proceedings-(1) The proceedings before an
Patna High Court MA No.144 of 2009 dt.07-03-2014 6/8 Employees‟ Insurance Court shall be commenced by application.
(1A)- Every such application shall be made within a period of three years from the date on which the cause of action arose.
Explanation- For the purpose of this sub-section,-
(a) xx xx xx
(b) the cause of action in respect of a 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;
(c) xx xx xx (2)xx xx xx
8. In the present case, the respondent received impugned demand in the year 1996 vide letter dated 6.6.1996 (Ext. C) for the period 27.7.1980 to 31.3.1994. Thereafter, the respondent filed an application under Section 75(1)(g) of the Act. Vide impugned judgment ESI Court decided the petition in favour of respondents holding the demand as perverse and is not sustainable in the eyes of law. The case before the ESI Court is not time barred.
9. In the case of C. C. Santhakumar (supra), the Hon‟ble Supreme Court observed as follows:-
"29. Section 75 of the Act relates to commencement of proceedings before the ESI Patna High Court MA No.144 of 2009 dt.07-03-2014 7/8 Court. The proviso to sub-Section (1-A)(b) of Section 77 of the Act cannot independently give any meaning without reference to the main provison, namely, Section 77 of the Act. Therefore, the proviso to clause (b) of Section 77(1-A) of the Act, 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 the ESI Court and to no other proceedings."
10. The Corporation has been given power of determination of contribution in certain cases under Section 45(A) of the Act. Under Section 45(B) there is provision of recovery of contribution. Any contribution falls under this Act may be recovered as an arrear of land revenue. Under Section 45(C) there is provision for issuance of certificate. There is no limitation for the recovery of arrears. The ESI Corporation has not moved ESI Court and as such the period of limitation provided under Section 77 (1-A) will not apply in this case. The ESI Court has held that it is not clear as to how contribution amount has been determined. It appears from Ext.(C) that 20 employees have been found on the record of the respondent- Establishment and the amount of contribution for per employee has also been made.
11. Considering the facts and circumstances, in my opinion, the impugned order is not fit to be sustained. It is set aside. Since the mater relates to a period for 1980 to 1984 it will be open to the Patna High Court MA No.144 of 2009 dt.07-03-2014 8/8 respondent to move the ESI Corporation for rebate in the amount of interest.
12. In the result, this appeal is allowed.
13. No order as to costs.
(Amaresh Kumar Lal, J) N.A.F.R. Kanchan/-
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