Karnataka High Court
The Esi Corporation vs Sri.B.G. Mohan Rao on 9 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:727
MFA No. 5253 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 5253 OF 2016 (ESI)
BETWEEN:
THE ESI CORPORATION
REPRESENTED BY ITS MANAGER,
ESIC LOCAL OFFICE,
(PRESENTLY KNOWN AS BRANCH OFFICE)
PEENYA, NEAR TVS CROSS,
BENGALURU-560 058.
...APPELLANT
(BY SRI C SHASHIKANTHA, ADVOCATE)
AND:
1. SRI.B.G. MOHAN RAO
S/O GANGARAM RAO,
ESI IP NO.16040051
Digitally signed AGED ABOUT 63 YEARS,
by DEVIKA M RESIDING AT NO.960/3
Location: HIGH 2ND MAIN, VIJAYANANDANAGAR,
COURT OF NANDINI LAYOUT,
KARNATAKA BENGALURU-560 096.
SINCE DEAD REP. BY HIS LRS'
1(a) SMT. VENKUBAI M.,
W/O B.G.MOHAN RAO
AGED MAJOR
1(b) SRI MANJUNATH RAO G.M.
S/O B.G.MOHAN RAO
AGED MAJOR
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MFA No. 5253 of 2016
1(c) POOJA G.M.
D/O B.G.MOHAN RAO
AGED MAJOR
1(d) SRI MAHADEV RAO G.M.
S/O B.G.MOHAN RAO
AGED MAJOR
ALL ARE RESIDING AT 960/3,
2ND MAIN, VIJAYANANDANAGAR
NANDINI LAYOUT
BENGALURU - 560 096.
(AMENDED VIDE COURT ORDER DATED 18.08.2022)
...RESPONDENTS
(BY SRI. ABHISHEK K., ADVOCATE)
THIS MFA IS FILED UNDER SECTION 82(2) OF THE
EMPLOYEE'S STATE INSURANCE ACT, AGAINST THE ORDER
DATED 13.08.2015 PASSED IN ESI APPLICATION NO.45/2013
ON THE FILE OF THE EMPLOYEES STATE INSURANCE COURT,
BANGALORE AND ETC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This miscellaneous first appeal is filed challenging the order dated 13.08.2015 passed on ESI Application No.45/2013 by the Employees State Insurance Court, Bangalore.
2. Heard the learned counsel appearing for the respective parties.
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3. The factual matrix of the case of the respondent/applicant before the ESI Court that he is an insured person under Section 2(9) of the Employees Insurance Act, 1948 as amended from time to time. It is also his case that under the ESI Scheme from June 1993, he has paid contributions up to October 2006 i.e., for 13 years. He has been allotted insurance number as IP No.16040051. It is also his case that the applicant suffered a brain stroke during 2006 and availed treatment from the ESIC dispensary up to 31.05.2007. The applicant was still unwell and was not in a position to carry on his duties. Hence, he approached the local office of the ESI Corporation at Yeshwanthpur for further leave. But, the same was refused inspite of producing the ESB certificate. The applicant represented to the Manager, Local Office, ESIC Peenya, Bangalore vide letter dated 18-21.06.2007 and requested the concerned authority to clarify as to why he was not granted further leave and also to refer the matter for reexamination of his fitness and to take an early action in this regard. The applicant was informed by the respondent to wait for a call letter from ESI Corporation. But the applicant did not receive any call letter and hence, the applicant lodged a -4- NC: 2025:KHC:727 MFA No. 5253 of 2016 complaint with the Medical Superintendent, Model Hospital, Rajajinagar, Bangalore to further extend the monetary benefits. The applicant received a letter dated 31.08.2008 from the Medical Superintendent to again approach the dispensary doctor for further action. The applicant had already waited for 14 months for the call letter and had not received any medical benefits and when nothing came out of it, the applicant being frustrated by the treatment meted out to him, complained to the State Medical Commissioner along with a copy of the Medical Superintendent, Model hospital, Rajajinagar.
4. It is further contend that after repeated follow-up, directions were given by the Deputy Director by way of endorsement on the letter dated 13.08.2008 wherein a direction was issued to the Manager, local office to refer the case to the Medical Board, if necessary. But the matter was never referred to the Medical Board and the monetary benefits from 19.10.2007 to 21.08.2008 were also not paid. The applicant thereafter pursued his case with the Commissioner of State/Regional Director, Medical Director, Binnypet by forwarding a copy of the letter at Annexure-A and the Deputy Director vide letter dated 10.09.2008 directed the Manager, -5- NC: 2025:KHC:727 MFA No. 5253 of 2016 local office, Peenya to refer the matter to the Medical Board. Thereafter, the applicant was asked to appear before the Medical Board on 24.06.2009. The medical board on examination extended the sickness benefit for a period of six months i.e., up to 24.12.2009. However, the period in question that is from 19.10.2007 to 21.08.2008 was not paid and remains unpaid to this day. It is also the case of the applicant that till date he has been denied benefits from 19.10.2007 to 21.08.2008 although he had given several representations to that effect. Hence, he had approached the ESI Court seeking for benefit. ESI Court issued the notice to the respondent and the respondent appeared and filed the statement of objections.
5. The main contention of the respondent before the ESI Court that the very application is not maintainable since the same is barbed by limitation. The details of the period during which the applicant availed the sickness benefit are also stated and denied all the allegation made in the application and also contend that the applicant has utterly failed to submit any ESB certificate for the period stated above and in the absence of any medical certificate, the applicant is not entitled to any -6- NC: 2025:KHC:727 MFA No. 5253 of 2016 claim muchless the benefit of payment of money during the period which the applicant has claimed the benefit. The respondent also denied all other allegations with regard to the averment of non-taking of any decision and there is no prove to show that the applicant availed the medical treatment and claimed any monitory benefit.
6. The ESI Court having considered the pleadings of the parties, formulated the following points:
1. Whether the application is barred by limitation?
2. Whether the applicant proves that he is entitled for sickness benefit from 19.10.2007 to 21.08.2008 along with accruing interest?
3. Whether the applicant proves that the sickness is a certified sickness to get the medical benefits of ESI Corporation for the disputed period?
4. What order the parties are entitled?
7. The ESI Court after considering both oral and documentary evidence placed on record comes to the conclusion that the same is not barred by limitation and partly allowed the application and directed to pay sickness benefit -7- NC: 2025:KHC:727 MFA No. 5253 of 2016 from 19.10.2007 to 21.08.2008. The said order has been challenged by filing a review petition and the same was also rejected.
8. The main contention of the appellant before this Court that the ESI Court has failed to take note of the very proviso that if any claim beyond three years, the same cannot be entertained and limitation prescribed under Section 77(1-A) of the ESI Act, 1948. The reasons adduced by the respondent for condonation of delay, speak of the events upto 2008 only and not cogent reason or tenable reason is forthcoming in the affidavit for delay after the year 2008 to 2013. Therefore, the ESI Court committed an error in passing such an order. The counsel for the appellant during the course of the arguments did not argue the matter on merits and only argued on the limitation issue. The counsel would vehemently contend that when the petition is filed under Section 75(1)(e)&(g) of the said Act of 1948 and also when the application is filed beyond the period of limitation and when the limitation is only three years, no condonation can be done.
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9. In support of his arguments, learned counsel for the appellant relied upon the judgment of this Court reported in ILR 2001 KAR 5674 in the case of M/S DHARAK LIMITED VS. THE REGIONAL DIRECTOR, ESI, CORPORATION AND ANOTHER wherein this Court discussed with regard to Section 75 and 77 of the Employees State Insurance Act, 1948 and held that application under Section 75 of the Act shall have to be filed within 3 years from the date of cause of action. The counsel also brought to notice of this Court the very proviso of Section 77 wherein a period of three years is mentioned after commencement of cause of action.
10. The counsel also brought to notice of this Court Section 29 of Limitation Act. The counsel would vehemently contend that when the specific provision is made in the Special Enactment, the question of invoking Section 5 of the Limitation Act does not arise. The counsel also brought to notice of this Court the application is filed before the Trial Court under Rule 20(b) of the ESI Rules read with Section 78 of the ESI Act and also brought to notice of this Court Section 75 of the ESI Act and contend that Section 5 of the Limitation Act cannot be invoked.
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11. Learned counsel for the appellant also relied upon the judgment in THE EMPLOYEES STATE INSURANCE CORPORATION VS. M/S. ANANTHPADMANABHA MILLS reported in ILR 2009 KAR 1194, wherein discussion was made as regards application filed under Section 75(1)(g) and Section 77(1-A) of the Employee's State Insurance Act, 1948 and brought to notice of this Court paragraph No.8, wherein points for consideration is formulated and also brought to notice of this Court paragraph No.11, wherein discussion was made that ESI Act is a special Act. Therefore, the period of limitation provided under Section 77(1-A) of the ESI Act will have to be treated as the period of limitation provided under the Limitation Act and Section 3 of the Limitation Act is applicable. In other words, if an application under Section 75(1)(g) of the ESI Act is filed beyond the period of three years from the date on which the cause of action arose, such application will have to be rejected as barred by limitation.
12. The counsel also brought to notice of this Court judgment of Kerala High Court in TRIPENTA HOTELS (P) LTD. VS. EMPLOYEES STATE INSURANCE CORPORATION reported in LAWS (KER)-2016-4-100 and brought to notice
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NC: 2025:KHC:727 MFA No. 5253 of 2016 of this Court factual aspects stated in paragraph No.1 and so also paragraph Nos.9, 10, 18, 19 and 21, wherein discussion was made with regard to Section 29(2) of the Limitation Act and also discussed with regard to Sections 77 and 82. The counsel also brought to notice of this Court paragraph No.23 and contend that Section 5 of the Limitation Act cannot be pressed into service, when specific provision is made in the Act itself.
13. The counsel also relied upon the judgment of Orissa High Court in UPENDRA JENA VS. REGIONAL DIRECTOR, ESI CORPORATION, JANAPATH, BHUBANESWAR reported in LAWS (ORI)- 2009-10-20 and brought to notice of this Court paragraph No.5, wherein it is observed that whether the E.I. Court is justified to reject the application of the appellant on the ground of limitation and also brought to notice of this Court paragraph No.6, wherein Section 77 of the E.S.I. Act is extracted and also paragraph No.7, wherein discussion was made with regard to applicability of Limitation Act. It is also observed that the provision to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the
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NC: 2025:KHC:727 MFA No. 5253 of 2016 period of 30 days and also there is complete exclusion of Section 5 of the Limitation Act.
14. The counsel also brought to notice of this Court judgment of the Calcutta High Court in KOHINOOR TAILORING WORKS VS. EMPLOYEES STATE INSURANCE CORPORATION reported in LAWS (CAL)-2003-4-50 and brought to notice of this Court paragraph No.1, wherein discussion was with regard to application filed under Section 5 of the Limitation Act and also discussion was made in paragraph Nos.13 and 14 regarding applicability of Section 5 of the Limitation Act. The counsel also brought to notice of this Court paragraph Nos.31, 43, 44, 45, 46, 47 and 50, wherein discussed that Employees Insurance Court cannot be regarded as a Court in the strict sense, therefore, provisions of Limitation Act, 1963, cannot apply in respect of the proceedings before the said Employees Insurance Court, wherein also the judgment of the Apex Court in NITYANAND VS. LIFE INSURANCE CORPORATION OF INDIA reported in AIR 1970 SC 209 is discussed, wherein it is specifically observed that Limitation Act only deals with applications to Courts, and that the Labour Court is not a Court within the Limitation Act,
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NC: 2025:KHC:727 MFA No. 5253 of 2016 1963. The counsel also brought to notice of this Court paragraph No.54, wherein it is observed that Section 77(1-A) of the ESI Act specifically provides that every application shall be made before the Employees Insurance Court within a period of 3 years from the date on which the cause of action arose.
15. The counsel referring these judgments would vehemently contend that respondents cannot invoke Section 5 of the Limitation Act, when the very statute prescribes period of three years as limitation. Admittedly, the claim is in respect of 2007-2008 and the application is filed in 2013 beyond five years of limitation. Hence, ESI Court ought not to have entertained the application and committed an error in coming to the conclusion that the application is not barred by limitation.
16. Per contra, learned counsel for the respondents in his argument would vehemently contend that the Trial Court taking note of the material on record, particularly, when the original respondent lost his vision, while considering the matter on merits, condoned the delay and reason assigned in the application is taken note of while condoning the delay.
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17. Learned counsel for the respondents also relied upon the judgment in EMPLOYEES' STATE INSURANCE CORPORATION, BANGALORE VS. NUTAN AYURVEDIC KARYALAYA (PRIVATE), LTD., BIJAPUR, AND ANOTHER reported in 2002 (1) L.L.N. 293, wherein discussion was made with regard to Section 77(1-A) and Sections 5 and 29(2) of Limitation Act, 1963 with regard to period of limitation to file application challenging the orders of the Employees' State Insurance Corporation and brought to notice of this Court paragraph No.5, wherein this Court held that no doubt, Section 77 prescribes the period of limitation upto 3 years, but in the decision cited, it is enunciated that Section 5 of the Limitation Act is applicable even to the Employees' State Insurance Act and also further under the saving clause of Section 29(2) of the Limitation Act. In view of the decision by the Bombay High Court, I am inclined to hold that Section 5 of the Limitation Act is made applicable and the Employees' State Insurance Court has condoned the delay. Hence, it can be held that the application is maintainable. The counsel referring this judgment would contend that this Court has come to the conclusion that
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NC: 2025:KHC:727 MFA No. 5253 of 2016 limitation can be considered and the very contention of the learned counsel for the appellant cannot be accepted.
18. Having heard learned counsel for the appellant and learned counsel for the respondents, the points that would arise for consideration of this Court are:
(1) Whether the ESI Court has committed an error in condoning the delay invoking Section 5 of the Limitation Act read with Rule 20(b) and Section 78 of the ESI Court?
(2) What order?
Point No.(1)
19. Having heard learned counsel for the appellant and learned counsel for the respondents, this Court has to take note of material available on record. The application is filed before the ESI Court under Section 71(e)(g) of the ESI Act, 1948. The provision of Section 75(1)(g) purports as to 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 an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or
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NC: 2025:KHC:727 MFA No. 5253 of 2016 recoverable under this Act, or any other matter required to be or which may be decided by the Employees' Insurance Court under this Act can make such application.
20. It is important to note that Court has to take note of very provision of Section 77 of the ESI Act with regard to the proceedings before an Employees' Insurance Court which shall be commenced by application. In the case on hand, an application is filed is not in dispute and Section 77(1-A) of the ESI Act is very clear that every such application shall be made within a period of three years from the date on which the cause of action arose. Learned counsel also not disputes with regard to the fact that application is filed before the ESI Act for the sickness benefit. But, the contention of the learned counsel for the appellant is that it ought to have been filed within three years from the date on which cause of action arose. It is also important to note that claim is made for sickness benefit from 19.10.2007 to 21.08.2008. Having perused the application filed before the ESI Court, the same is filed in 2013 i.e., on 27.09.2013. Though application was prepared on 27.09.2013, it was filed on 22.10.2013. But, the contention of the learned counsel for the respondents is that ESI Court not committed
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NC: 2025:KHC:727 MFA No. 5253 of 2016 any error in entertaining the application and Section 5 of the Limitation Act is pressed into service.
21. Having perused the judgment of this Court, particularly while dealing with the application filed under Sections 75 and 77 of the ESI Act, this Court categorically held in the judgment reported in ILR 2001 KAR 5674, the application have to be filed within three years from the date on which the cause of action arose and this Court also in the very same judgment dealt with regard to limitation is concerned and dismissed the same which does not suffer from any infirmities as to the reasoning given.
22. It is also important to note that in the year 2009, this Court in the judgment reported in ILR 2009 KAR 1194 discussed with regard to Section 77(1-A) wherein, it is observed that the period of limitation provided under Section 77(1-A) of the ESI Act will have to be treated as the period of limitation provided under the Limitation Act and Section 3 of the Limitation Act is applicable and detailed discussion was made. Having considered the factual aspects, in paragraph No.11, elaborately discussed the provision under Section 77(1-
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NC: 2025:KHC:727 MFA No. 5253 of 2016 A) of the ESI Act and also discussed sub-Section (2) of Section 29 of the Limitation Act where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law. It is also observed that ESI Act is a special Act. Therefore the period of limitation provided under Section 77(1-A) of the ESI Act will have to be treated as the period of limitation provided under the Limitation Act and Section 3 of the Limitation Act is applicable. In other words, if an application under Section 75(1)(g) of the ESI Act is filed beyond the period of three years from the date on which the cause of action arose, such application will have to be rejected as barred by limitation. The principles laid down in this judgment is aptly applicable to the present case.
23. Learned counsel for the respondents also relied upon the judgment reported in 2002 (1) L.L.N. 293, wherein discussion was made in paragraph No.5 as regards Section 77
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NC: 2025:KHC:727 MFA No. 5253 of 2016 of the ESI Act which is applicable to the facts of the case. However, the Court has to take note of recent judgment of this Court since, both the judgments are delivered by the learned Single Judge. Apart from that, other judgments which have been relied upon by the learned counsel for the appellant i.e., judgments of the Kerala High Court, Orissa High Court, Culcutta High Court are all of the year 2016, 2009 and 2003 respectively and elaborate discussion is made with regard to applicability of Section 5 of the Limitation Act. The concurrent finding of this Court as well as other High Courts are persuasive in nature and this Court has taken note of elaborate discussion made, particularly in the judgment of Calcutta High Court as well as Kerala High Court which is delivered in 2016 and also in the judgment by Orissa High Court, issue has been considered with regard to the applicability of Limitation Act and all the Courts have come to the conclusion that Section 5 of the Limitation Act cannot be applied to the proceedings under the Employees State Insurance Act.
24. When such principles are laid down in the judgments, particularly taking note of the fact that ESI Act is a special Enactment and when the limitation is prescribed under
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NC: 2025:KHC:727 MFA No. 5253 of 2016 Section 77(1-A) of the ESI Act as regards period of limitation and admittedly, application is filed beyond the period of five years and also claim is in respect of 2007-2008 and petition is filed in 2012. When such being the material on record, ESI Court committed an error in entertaining the application. No doubt, learned counsel for the respondents brought to notice of this Court that original respondent has lost his vision and is also suffering from paralysis, reasons are assigned and when statute prescribes the period that application has to be filed within three years, particularly Section 77(1-A), the original respondent ought to have filed the application within the statutory period of limitation. Hence, there is a force in the contention of the learned counsel for the appellant that ESI Act has committed an error in entertaining the application beyond the period of limitation. Therefore, I do not find any force in the contention of the learned counsel for the respondents that judgments of this Court referred supra of the year 2002 is applicable to the facts of the case on hand. Accordingly, the order passed by the ESI Court has to be set aside on the ground of limitation without considering the matter on merits and I answer point No.(1) in 'affirmative'.
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NC: 2025:KHC:727 MFA No. 5253 of 2016 Point No.(2)
25. In view of the discussion made above, I pass the following:
ORDER
(i) The miscellaneous first appeal is allowed.
(ii) The impugned order dated 13.08.2015 passed by the ESI Court in E.S.I. Application No.45/2013 is set aside.
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(H.P.SANDESH) JUDGE SN/ST List No.: 1 Sl No.: 38