Gujarat High Court
Regional Director vs Xavier Noyal Augustain Fernan-Des on 4 December, 2025
NEUTRAL CITATION
C/FA/2806/2006 JUDGMENT DATED: 04/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2806 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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REGIONAL DIRECTOR
Versus
XAVIER NOYAL AUGUSTAIN FERNAN-DES
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Appearance:
MR HEMANT S SHAH(756) for the Appellant(s) No. 1
MR SUBRAMANIAM IYER(2104) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 04/12/2025
ORAL JUDGMENT
1. The present Appeal is filed under Section 82(2) of the Employee's State Insurance Act, 1948 (hereinafter, referred to as 'the ESI Act'), by the appellant - original opponent, challenging the judgment and order dated 20.10.2005 passed by Employee's State Insurance Court, Vadodara, in ESI Second Appeal No.2 of 2002.
2. Heard learned advocate Mr. Hemant Shah for the appellant and learned advocate Mr. Subramaniam Iyer for the respondent. Page 1 of 12 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue Dec 16 2025 Downloaded on : Sat Dec 20 00:21:45 IST 2025
NEUTRAL CITATION C/FA/2806/2006 JUDGMENT DATED: 04/12/2025 undefined
3. The brief facts of the case are as under:
3.1 The employee, Noyal Augastain Fernandes was working at Alembic Glass Industries Ltd., Vadodara since last 20 years. In the spice department, where the employee was working, Soda Ash, Silica Sand, Quartz Sand, Feldspar, Lime Stone, Dolomite, etc. were being filtered. Its particles fly in large quantities in the air. This particles entered the lungs of the employee. Due to which the employee developed a disease called silicosis. The Medical Board of the appellant assessed disability at 10%. Being aggrieved and dissatisfied by the decision of the Medical Board, the employee filed the Second Appeal under Section 54(a) and Section 55 of the Act and asserted that the disability be assessed at 100%, as there is no medicine for silicosis disease and he has been suffering from such disease. The appeal was filed with an application for condonation of delay, being Misc. Application (ESI) No.5 of 2000. Pending Application for condonation of delay, Noyal Augustain Fernandes expired and therefore, the learned ESI Court directed the heirs of deceased employee to be impleaded as appellants within thirty days. Delay was Page 2 of 12 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue Dec 16 2025 Downloaded on : Sat Dec 20 00:21:45 IST 2025 NEUTRAL CITATION C/FA/2806/2006 JUDGMENT DATED: 04/12/2025 undefined condoned by the learned ESI Court on 05.09.2002. The present respondent, Xavier Noyal Augustain Fernandes, was impleaded in the appeal as appellant - as dependant of original appellant. The Corporation contested the appeal by filing reply and denied the liability. The denial of liability was mainly based upon a ground, that, the deceased - employee has died on 04.11.2000, and the appeal is preferred by Xavier Noyal Augustain Fernandes on 09.12.2002. The appeal is filed by a person who is not falling within the definition of dependant as defined under the ESI Act. After hearing the parties, the learned ESI Court allowed the appeal and assessed disability of deceased, Noyal Augustain Fernandes, at 100%.
3.2 Being aggrieved and dissatisfied with the judgment and order, the Corporation has filed the present appeal.
4. Learned advocate for the appellant contended that the injury sustained to the deceased - employee is in the year 1988, and assessment of disability by Medical Appellate Tribunal was completed on 03.11.1989. Deceased - employee ought to have filed an application in accordance with Rule 20-B of the Page 3 of 12 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue Dec 16 2025 Downloaded on : Sat Dec 20 00:21:45 IST 2025 NEUTRAL CITATION C/FA/2806/2006 JUDGMENT DATED: 04/12/2025 undefined Employee's State Insurance (Central) Rules, 1950 (hereinafter, referred to as 'the ESI Rules'). The period of limitation to appeal to the ESI Court is three months from the date of communication of the decision of the Medical Board or the Medical Appeal Tribunal. The employee preferred an appeal before the learned ESI Court in the year 2002, and therefore, it is time-barred. It is contended that Section 77 of the ESI Act, prescribes period of limitation of three years from the date on which the cause of action arose. It is contended that when the appeal was filed, the deceased - employee had already expired and the present respondent, so- called, adopted son, does not fall within the definition of dependant as contemplated under Section 2(6A) of the ESI Act which is reproduced hereunder:
[(6A) "dependant" means any of the following relatives of a deceased insured person, namely:--
[(i) a widow, a legitimate or adopted son who has not attained the age of twenty-five years, an unmarried legitimate or adopted daughter,] [(ia) a widowed, mother;]
(ii) if wholly dependent on the earnings of the insured person at the time of his death, a legitimate or adopted son or daughter who has attained the age of [twenty-five years] and is infirm;
(iii) if wholly or in part dependent on the earnings of the insured person at the time of his death,--
(a) a parent other than a widowed mother,
(b) a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or adopted or illegitimate if married and a minor or if widowed and a minor,
(c) a minor brother or an unmarried sister or a widowed sister if a minor, Page 4 of 12 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue Dec 16 2025 Downloaded on : Sat Dec 20 00:21:45 IST 2025 NEUTRAL CITATION C/FA/2806/2006 JUDGMENT DATED: 04/12/2025 undefined
(d) a widowed daughter-in-law,
(e) a minor child of a pre-deceased son,
(f) a minor child of a pre-deceased daughter where no parent of the child is alive, or
(g) a paternal grand-parent if no parent of the insured person is alive;"
The definition of dependant, as contemplated under the aforesaid provision means, adopted son who has not attained the age of 25 years. In the present case, the so-called, adopted son, was aged about 40 years on the date of deposition. The following substantial questions of law have been proposed by learned advocate for the appellant for consideration:
(A) Whether the heirs of the deceased injured person can file an application for enhancement of disability assessed by Medical Appellate Tribunal in view of Section 54 A(2) of ESI Act?
(B) Whether the applicant is entitled to file such application after a prescribed period of limitation contrary to Rules 20-B of ESI Rules?
(C) Whether the question of estoppel will be applied?
Except above, no other submissions were canvassed by learned advocate for the appellant.
5. Per contra, learned advocate for the respondent, original appellant, has supported the judgment and order. Learned advocate for the respondent has placed on record a certified copy Page 5 of 12 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue Dec 16 2025 Downloaded on : Sat Dec 20 00:21:45 IST 2025 NEUTRAL CITATION C/FA/2806/2006 JUDGMENT DATED: 04/12/2025 undefined of the order dated 05.09.2002, passed by the learned ESI Court in Misc. Application (ESI) No.5 of 2000, which is taken on record. Learned advocate for the respondent contended that the employee, Noyal Augustain Fernandes, had preferred the appeal with an application for condonation of delay. However, during the pendency of the application, the employee died on 04.11.2000. Pursuant to the order passed by the learned ESI Court on 05.09.2002, the present respondent was impleaded as appellant in the aforesaid application. It is further contended that the order dated 05.09.2002, condoning delay and, directing the present respondent to be impleaded as appellant was never assailed by the Corporation. It is further contended that the original application for condonation of delay with a memo of appeal was filed by the employee, Noyal Augustain Fernandes himself, and, pending the proceedings, employee expired. Being a dependant of deceased, Xavier Noyal Augustain Fernandes was impleaded as appellant. Therefore, it is not the case that the adopted son, Xavier Noyal Augustain Fernandes, initiated the proceedings at the first instance. The respondent here, is representing the estate of the deceased and therefore, the objection raised by the Corporation that the appeal is preferred by the respondent herein, is not Page 6 of 12 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue Dec 16 2025 Downloaded on : Sat Dec 20 00:21:45 IST 2025 NEUTRAL CITATION C/FA/2806/2006 JUDGMENT DATED: 04/12/2025 undefined sustainable. Except above, no other submissions were canvassed by learned advocate for the respondent.
6. Having considered the submissions canvassed by learned advocates for the parties, and on perusal of the record and proceedings, the questions which are required to be addressed are on the issues of limitation and dependency of the deceased - employee, Noyal Augustain Fernandes. So far as other aspects of the matter are concerned, none of the learned advocates for the parties have submitted their submissions. So far as the question of limitation is concerned, Section 77(1A) of the ESI Act prescribes a period of limitation of three years and the period would start running from the date on which the cause of action arose. Section 77(1A) of the ESI Act is reproduced hereunder:
"Section 77. Commencement of proceedings.
(1) The proceedings before an 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) the cause of action in respect of a claim for benefit shall not be deemed to arise unless the insured person or in the case of dependants' benefit, the dependants of the insured person claims or claim that benefit in accordance with the regulations made in that behalf within a period of twelve months after the claim became due or within such further period as the Employees Insurance Court may allow on grounds which appear to it to be reasonable]"
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NEUTRAL CITATION C/FA/2806/2006 JUDGMENT DATED: 04/12/2025 undefined On a meaningful reading of the aforesaid provision, though prescribed period limitation is mentioned as three years, explanation - (a), gives a power to allow the claim for benefits on grounds which may appear to be reasonable to the Employees Insurance Court. The word "shall" which has been inserted in Sub- Section 1(A) of Section 77, therefore, is not mandatory and in cases where the Court finds the grounds reasonable, the period of three years may be condoned. Coming back to the question paused before this Court, on the question of limitation and dependency, it appears from the record that the employee, Noyal Augustain Fernandes had assailed the order of the assessment of 10% disability arrived at by the Medical Board of the Corporation by way of an appeal under Section 54A and 55 of the Act, along with an application for condonation of delay, being Misc. Application (ESI) No.5 of 2000. During the pendency of the application for condonation of delay, the employee expired on 04.11.2000. The rojkaam of the proceedings indicate that vide Exhibit - 5, Xavier Augustine Fernandez, present respondent, filed an application to be impleaded as dependant - appellant in place of original appellant. On 05.09.2002, the application of present respondent came to be allowed and the present respondent was Page 8 of 12 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue Dec 16 2025 Downloaded on : Sat Dec 20 00:21:45 IST 2025 NEUTRAL CITATION C/FA/2806/2006 JUDGMENT DATED: 04/12/2025 undefined impleaded as dependant of deceased employee. The application for condonation of delay was allowed by the learned ESI Court on 05.09.2002 with a direction to implead the heirs of deceased - employee on record in the appeal proceedings. On scrutinizing the record, it appears that the present respondent has not assailed the order dated 29.07.2004 of the Medical Board of Corporation. The present respondent being an adopted son of appellant was impleaded as a dependant due to the pendency of the proceedings. The present respondent was representing the estate of deceased employee. Had the case been, the respondent, after the death of employee, himself has initiated the appeal proceedings with an application for condonation of delay assailing the order of the Medical Board of the Corporation, the question of dependency and the maintainability of the application would be relevant and important. As noticed, the employee himself assailed the order of Medical Board and during pendency of proceedings, employee died.
7. Since the present appeal is assailing the question of limitation and dependency, in my view, the learned ESI Court has not committed any error of law in interpreting the provisions of Page 9 of 12 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue Dec 16 2025 Downloaded on : Sat Dec 20 00:21:45 IST 2025 NEUTRAL CITATION C/FA/2806/2006 JUDGMENT DATED: 04/12/2025 undefined Section 2(6A) of the ESI Act, as well as, Section 77(1A) of the ESI Act read with Rule 20-B of the ESI Rules. At this stage, it would be apposite to refer Rule 20-B of the ESI Rules, which is reproduced hereunder:
"20-B. Appeals to Employees' Insurance Court. --
(1) The insured person or the Corporation may appeal to the Employees' Insurance Court by presenting an application within three months of the date of communication of the decision of the medical board or of the medical appeal tribunal to the insured person or the Corporation as the case may be : Provided that the Employees' Insurance Court may entertain an application after the period of three months, if it is satisfied that the appellant had sufficient reasons for not presenting the application within the said period.
(2) The rules made by the State Government in respect of the form and manner to be followed in presenting applications to the Employees' Insurance Court, shall be applicable to the applications presented under this rule."
The Rule prescribes a period of limitation of three months for filing an appeal to Employee's Insurance Court against a decision of Medical Board or of Medical Appeal Tribunal. Again, the proviso to the said Rule, prescribes that the learned ESI Court may entertain an application after the period of three months if it is satisfied that the applicant had sufficient reason for not presenting the application within the said period. The learned ESI Court, while exercising its power to condone the delay, found the reasons assigned by the applicant to be sufficient. The Corporation accepted the order condoning the delay and is, therefore, Page 10 of 12 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue Dec 16 2025 Downloaded on : Sat Dec 20 00:21:45 IST 2025 NEUTRAL CITATION C/FA/2806/2006 JUDGMENT DATED: 04/12/2025 undefined estopped from contending that the appeal is time-barred under Section 77 of the Act. Once Corporation has accepted the order of learned ESI Court condoning delay, and respondent being impleaded as party appellant, as dependant - adopted son of deceased employee, the order dated 05.09.2002 has attained its finality. And under the principle of estoppel appellant - Corporation cannot raise a contention that application is not maintainable on the ground of limitation and dependency. Therefore, the questions which are proposed as substantial questions of law under Section 82(2) of the ESI Act, are not questions of law, much less, substantial questions of law. Therefore, in my opinion, the appeal lacks merit and the same is dismissed.
8. Record and Proceedings, if any, be sent back to the concerned Court / Tribunal, forthwith.
9. At this stage, learned advocate for the appellant prays for stay of the order for two months. Learned advocate for the respondent objects.
10. Considering the submissions of learned advocates for the parties, the request of learned advocate for the appellant, as Page 11 of 12 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue Dec 16 2025 Downloaded on : Sat Dec 20 00:21:45 IST 2025 NEUTRAL CITATION C/FA/2806/2006 JUDGMENT DATED: 04/12/2025 undefined prayed for, is granted. Rule is discharged. No order as to costs.
(D. M. DESAI,J) MUSKAN Page 12 of 12 Uploaded by MUSKAN AJAY MENON(HC02359) on Tue Dec 16 2025 Downloaded on : Sat Dec 20 00:21:45 IST 2025