[Cites 10, Cited by 0]

Gujarat High Court

Regional Director vs Xavier Noyal Augustain Fernan-Des on 4 December, 2025

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                           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

                      ==========================================================
                                             REGIONAL DIRECTOR
                                                     Versus
                                  XAVIER NOYAL AUGUSTAIN FERNAN-DES
                      ==========================================================
                      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
                      ==========================================================

                         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.

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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

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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

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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,

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(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

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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

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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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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

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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

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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,

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