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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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
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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,
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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
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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
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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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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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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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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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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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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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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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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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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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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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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.
Sd/-
(H.P.SANDESH)
JUDGE
SN/ST
